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TMI Blog2015 (5) TMI 1250X X X X Extracts X X X X X X X X Extracts X X X X ..... mprisonment for six months and fine of Rs. 2,000/- , in default of payment of fine, imprisonment for six months. 2. The facts necessary for indictment were that on 7.8.1992 at 4.15 p.m. the rationing Inspector, Kozhikode inspected the house of the appellant and detected 1010 litres of kerosene kept in 5 big barrels in his courtyard and one small barrel in the bath room, in the house No.RP II/214 of Velipram Amsom Desom, Ramanattukara. Immediately he reported the matter to his higher authorities and as per their direction reported the matter to the Feroke Police, where they registered a crime and after completing investigation, laid final report in the trial Court. 3. During trial, prosecution examined PWs 1 to 8 and marked Exts. P1 to P12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one and no other mode. At the same time, when the provision of an act imposes a particular test for finding out any offence, such provision must be strictly construed and do not create any implied presumption. For this, I have verified the allegation in this case and examined what is the meaning of the word kerosene, in the Kerosene Control Order, 1968 and Kerosene (Restriction on use and fixation of Ceiling Price) Order 1993. The Kerosene Control Order 1968 was issued by the Government for maintaining the kerosene and for securing its equitable distribution and availability at fair price. The definition of 'Kerosene' in Clause 2 (f) of the Kerosene Control Order 1968 defined that "Kerosene" shall have the meaning assigned to it in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was considered by this Court in Kunhimoideenkutty v. State of Kerala [1988 (2) KLT 128]. It was therein explained the importance of scientific test to ascertain the flame height in a prosecution under the Kerosene Control Order 1968 to identify the liquid as kerosene. His Lordship Justice K.T. Thomas explained the law as follows: "Clause 2(a) of the order defines kerosene thus: "Kerosene shall have the meaning assigned to it in item No.7 of the first schedule to the Central Excise and Salt Act, 1944 (Central Act 1 of 1944) and shall not include Aviation Turbine Fuel: "Item No.7 in the First Schedule to be Central Excise and Salt Act, 1944 defines kerosene as "any mineral oil (excluding mineral colza oil and turpentine substitute) which h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the later enactment. As per item 2710.19 of the schedule to the Central Excise Tariff Act, to be kerosene, it must have a "smoke point of eighteen millimeters or more". But, minimum height was not tested for finding out the flame/smoke point in this case, in Indian standards, specification of 'kerosene' also requiring minimum smoke point of 18 millimetres is prescribed. It is well settled law that when a word is defined in the statute, Court is bound by the definition. Only if the definition is not clear or capable of two interpretations, Courts need to find out whether a restricted or extensive meaning has to be adopted depending upon the context and object of the legislature." A perusal of the above decision shows that when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clear that the smoke test was not conducted in the chemical examination. Therefore, the prosecution has to prove that the seized article has characteristic of flash point at a minimum of 35° C and smoke point at a minimum of 18 mm in this case. In the absence of any smoke test as provided 'IS' standard, it is difficult to accept Ext.P2 the chemical examiner's report for a conviction. It is clear that chemical examiner has not conducted any flame height test and Ext.P2 do not create any implied presumption about smoke test. 10. Appellant disputed the possession of the house from where the seizure was made. The expression possessed is used in certain statutory offences, in which conscious possession is necessary for proving t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rink. Therefore, penal statute must be construed strictly. An accused cannot be convicted on the basis of conjectures or suspicions. 12. Before concluding I may observe that the samples covered by item No.1 & 2 were not identified as kerosene, since no smoke test was conducted, therefore Ext.P12 chemical examiner's report is not admissible in law for a conviction. Normally statutory offence like this, the requirement of smoke test is mandatory. The noncompliance of the smoke test indicates a nullification of the procedure. It is true that there is no ready test or formula to determine a provision mandatory or not, but weighing the consequence of the non-compliance, the appellant is entitled to get the benefit of doubt. Accordingly, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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