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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 ..... he Village Officer, Ramanattukara reported that appellant is in possession of the property comprised in Sy. No.500/2 of Ramanattukara Village from where the article seized. Analysing the evidence of PW1, PW5 and PW6 it is found that the City Rationing Inspector on 7.8.92 searched appellant's house and seized certain article. It is the fundamental principle of criminal jurisprudence that an accused is presumed to be innocent unless the prosecution proves the guilt of the accused beyond reasonable doubt. Generally speaking, they can rely both oral and documentary evidences to prove that the accused had committed the offence with requisite mens rea. The domain of criminal cases can be ascertained by examining, what act or omissions are declared by the State to be crimes - penal statute must be construed strictly. An accused cannot be convicted on the basis of conjectures or suspicions. The samples 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 indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sene which was stated in the chemical examination report and no question was asked in the trial Court about the smoke test. The offence was detected before repealing the 1st schedule to the Central Excise and Salt Act 1944 and mineral oil seized from the possession of the accused is kerosene and no interference is necessary. 6. Now the first question to be considered in this case is whether the prosecution has proved that the seized articles are kerosene? Secondly, if so the appellant had violated the Kerosene Control Order and he was in possession of huge quantity of kerosene as alleged? When an offence is created by a special Statute and the mode in which the penalty should be imposed is provided in that Statute, it can proceed in that manner and impose that penalty in the mode provided therein alone 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 has a flame height of eighteen millimetres or more and is ordinarily used as an illuminant in oil burning lamps . In explanation II (of the said item) it is mentioned that Flame height shall be determined in the apparatus known as the smoke point lamp in the manner prescribed in this behalf by the Central Government by notification in the Official Gazettee. . Explanation 1 of the said item defines mineral oil as an oil consisting of a single liquid hidro carbon or a liquid mixture of hidro carbons derived from petroleum coal-shale, peat or any other bituminous substance and includes any similar oil produced by synthesis or otherwise. 8. The relevancy of smoke test for identifying kerosene had been explained by his Lordship in Kunhimoideenkutty v. State of Kerala [1988 (2) KLT 128], which was doubted by a single judge of this court and that was answered by the Division Bench, in Manoharan Pillai v. State and another [ILR 2005(2) Kerala 269]. It was observed: Rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s smell of kerosene. Specific gravity was 0.80 each. Flash point was 36 o C each. Percentage collected below 200 C is 43ml each. Final boiling point was 280 C each. Thin layer chromatography test for kerosence oil (1 2) is positive. The samples covered by item Nos.1 2 were identified to be genuine kerosene oil. From the above chemical analysis report, it is 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 the offence. Thus possession for the purpose of the Act means physical possession with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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