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TMI Blog2023 (11) TMI 878X X X X Extracts X X X X X X X X Extracts X X X X ..... ailable to the officers of the public undertaking because being a juridical person and distinct legal entity such instrumentality stands on a different footing than the government departments. Here, in the case on hand, the aspect of sanction by the authority concerned would bear not of much importance. The issue is whether C.B.I. had any case to even lodge a prosecution. Admittedly CVC too had not found any case against the accused to grant sanction. The compilation and circulation by OCC on 08.07.1991, of the Guidelines for Release of Petroleum Products and Lubricants to Direct Consumers have not been denied, which suggests that the same was in force and all oil companies were following the guidelines since 1991. The chargesheet has been filed for period between 1997-2000. The guidelines of OCC dated 08.07.1991 had not found any change. The letter of the OCC dated 04.12.1996 to the under Secretary MoP NG, New Delhi, for the requirement of HSD/ HF HSD/LSHF and NGL/Naphtha for M/s. Shaynoa Petrochem Ltd. for manufacture of speciality solvent and lubricants, reflects that the TEC was required to evaluate the requirement, and submit the recommendation to MoP NG and based on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PPLICATION NO. 5284 of 2021 With R/SPECIAL CRIMINAL APPLICATION NO. 5285 of 2021 With R/SPECIAL CRIMINAL APPLICATION NO. 5286 of 2021 With R/SPECIAL CRIMINAL APPLICATION NO. 5287 of 2021 With R/SPECIAL CRIMINAL APPLICATION NO. 5288 of 2021 With R/SPECIAL CRIMINAL APPLICATION NO. 5289 of 2021 With R/SPECIAL CRIMINAL APPLICATION NO. 5290 of 2021 With R/SPECIAL CRIMINAL APPLICATION NO. 5292 of 2021 With R/SPECIAL CRIMINAL APPLICATION NO. 5293 of 2021 With R/SPECIAL CRIMINAL APPLICATION NO. 5294 of 2021 With R/SPECIAL CRIMINAL APPLICATION NO. 5295 of 2021 With R/SPECIAL CRIMINAL APPLICATION NO. 5296 of 2021 With R/SPECIAL CRIMINAL APPLICATION NO. 5297 of 2021 With R/SPECIAL CRIMINAL APPLICATION NO. 5298 of 2021 With R/SPECIAL CRIMINAL APPLICATION NO. 5299 of 2021 With R/SPECIAL CRIMINAL APPLICATION NO. 5301 of 2021 With R/SPECIAL CRIMINAL APPLICATION NO. 5303 of 2021 With R/SPECIAL CRIMINAL APPLICATION NO. 5305 of 2021 With R/SPECIAL CRIMINAL APPLICATION NO. 5306 of 2021 With R/SPECIAL CRIMINAL APPLICATION NO. 5307 of 2021 With R/SPECIAL CRIMINAL APPLICATION NO. 5308 of 2021 With R/SPECIAL CRIMINAL APPLICATION NO. 5309 of 2021 With R/SPECIAL CRIMINAL APPLICATION NO. 5310 of 2021 With R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e before the Judicial Magistrate First Class, Ahmedabad, which was rejected by the JMFC, Ahmedabad on 27.05.2019. The Respondent Accused had filed a Revision application u/s 397 of CrPC, before the Sessions and Special Judge (CBI) Court No. 2 at Ahmedabad. By order dated 06.10.2020, the said Revision application has been allowed by the Court and the Respondent Accused has been discharged, which order is impugned in this Special Criminal Application. 3. Mr. R.C. Kodekar, learned standing counsel for the C.B.I. submitted that the impugned order passed by the learned Special Judge is incorrect, illegal and not as per the provisions of law. Mr. Kodekar submitted that at the stage of framing of charge the court was not required to appreciate the evidence to conclude, whether the materials produced are sufficient or not, for convicting the accused, and only adequacy of material for framing of charge is expected, and, thus stated that the order is based on whim and fancies, as the learned trial Court Judge was making a roving inquiry, as if, Court was conducting a trial, and the Court has appraised the evidence, as if, the Court was passing order of acquittal. 3.1 Mr. Kodekar, learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of specialty oil, and HSD is only supplied to the processing firms, subject to actual user conditions. Mr. Kodekar stated that at any cost, firms could not sell HSD in the open market, and as per the existing government policy, the HSD has to be supplied to the processing firms only on the recommendation of the Technical Evaluation Committee (TEC) constituted by MoP NG, and final allocation is by the Ministry. 3.5 Mr. Kodekar referring to the procedure established for supply of HSD to the private entities by the public sector oil companies, submitted that the processing firm is required to make an application along with requisite documents for allocation of HSD quota to the MoP NG for actual consumption. The Ministry thereafter on processing the application, is required to allot quota of the HSD to the processing firm; thus, the Ministry would sent a mandatory approval to the oil companies for allotment of HSD quota to the processing unit, and such supply of HSD could not be beyond the quantum mentioned in the allotment letter by the Ministry. Mr. Kodekar, thus, stated that the processing firm is supposed to first approach the officials of the oil companies for supply o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of supplies; and consequently, the Divisional/Regional/territorial Office has to issue delivery orders/allocation letters of the HSD to the firms for further lifting from the supply location. Mr. Kodekar submitted that various senior officers of oil companies viz. The Director (Marketing), OICL, CGM, HPCL, GM, BPCL and EDs of IBP Co. have been examined, who all have reiterated and affirmed the said procedure; and, those have been cited as a relevant witnesses, along with chargesheet. 3.8 Mr. Kodekar further submitted that as per policy of MoP NG, the processing units are entitled to avail sales tax concession prescribed by the State and Central Government. The processing units can purchase the HSD on inter-state basis on payment of Central Sales Tax (CST) at the rate of 4%, against the applicable rate of sales tax in the concerned State; thereby, the processing units are exempted to pay the differential local sales tax and Central Sales Tax at the rate of 4%, after getting allotted quota by the Ministry for supply of HSD to the processing units on actual user conditions. Mr. Kodekar stated that for the purchase of HSD on intrastate basis, the processing units have to submit C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s wrongly interpreted the circulars, which speaks about the mandatory requirements of following the policy guidelines. Mr. Kodekar, thus, stated that because of acts of officials of oil companies there has been huge revenue loss to the Government exchequer, and there has been wrongful gain to the private parties. Mr. Kodekar stated that the conspiracy and the complicity of every accused in the cases are prima facie considered by way of statement of the witnesses, and further stated that, the officials of oil companies have made false representations by wrongly certifying the existence of various firms, which were only on paper, where no activities were undertaken during the relevant period, and evidence on record shows that the officials of oil companies have created bogus documents in the form of delivery orders for HSD in the name of such non-existing firms. 3.12 Mr. Kodekar further submitted that in spite of ample evidence in the initial cases sent to the four oil companies for granting sanction for prosecution, the same was denied by all the four companies and a conscious decision was taken to launch the prosecution, as the denial of sanction would not dilute the commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which was in partial modification of Para-2 of the Circular dated 23.05.1995, and it was decided that the applications for grant of raw material as crude sludge, High Flash-HSD and LDO to produce solvents in small and medium scale industries will be received by the oil companies and referred to TEC for inspection of the applicant s plant to assess technical capability and statutory compliance etc. He has stated that this Circular too, did not include HSD, and with further clarification, it was noted that TEC would send their inspection reports to the concerned oil companies with a copy to Adviser (R) to the Ministry for recommendations, if any, and the concerned oil company would await the recommendations of Adviser (R) to the Ministry upto two weeks from the receipt of the recommendation of the TEC, and the oil companies may implement the recommendations of the TEC in case objection, if any, by Adviser (R) is not received by TEC/oil companies within two weeks. He has, thus, contended that this circular had made very clear that the inspection of TEC could not be in connection to HSD. He has stated that C.B.I. has not recorded the statement of Adviser (R) of the Ministry to get the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sors, and the very letter dated 02.01.1981 was confined only to HSD from Koyali Refinery, where, as per Circular dated 02.01.1981, initial quantity of 500 tones of HSD was given to the processors for providing the know-how and facilities developed by them and the TEC set-up for the purpose, and the said circular further stipulates about confirmation to be obtained by the IOCL before release of HSD to the processors. He has submitted that the circular dated 02.12.2000 clarifies that during the period of 1981 to 1988, Low Sulphur High Flash-HSD produced at Koyali Refinery from Ankleshwar crude was being supplied to processors, manufacturing high value specialities for Defence (Navy), and it was found that during that period, as per information available, normal HSD was not being supplied to processors from Koyali Refinery. He has thus submitted that the Circular dated 02.01.1981 was restricted only to Koyali Refinery. Further pursuing the said Circular, He has submitted that Mr. A.K. Dubey, Director to the Government of India, had referred to all the Circulars and had concluded that the circulars indicated, were applicable to the TEC for LSHF-HSD, HF-HSD, LDO and Crude Sludge; and, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otor Spirit License to the private firms, the officer has clarified that there is no concession facility in the sales tax under the Act, and no liability to pay to the Government of Maharashtra and so private firms are not issued license. 4.8 Referring to the case, Sr. Advocate Mr. Lakhani stated that no sanction has been granted for prosecution, and Central Vigilance Commission (for short C.V.C. ) too has confirmed the non-issuance of sanction against the officers of the oil company, and, thus submitted that no charge can be framed against the accused, and the learned trial Court Judge has rightly discharged all of them. 5. Ld. Sr. Advocate Mr. Yogesh Lakhani has stated that the submission of the charge-sheet is baseless. It has been filed without even looking to the papers, overlooking the circulars, letters and documents of the Central Government, and the charge is totally under misconception and non-applicability of the mind by the C.B.I. He has submitted that filing of charge-sheet had very large repercussion in the business of company, as well as in the lives of the officers of the Company, who suffered social stigma and arrest, and few of them were suspended and some ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the duty, which would be in accordance to the circulars of the Ministry, and when HPCL and BPCL are not made accused, , Ld. Sr. Advocate Mr. Yogesh Lakhani raised an issue as to how employees could be prosecuted under the Essential Commodities Act. 7. Ld. Sr. Advocate Mr. Yogesh Lakhani appearing with Advocate Mr. Nandish Chudgar relied on the following judgments in support of their arguments: (i) T.P. Gopallakrishnan Vs. State of Kerala, reported in 2022 SCC Online SC 1768; (ii) Masud Khan Vs. State of Uttar Pradesh, reported in (1974) 3 SCC 469; (iii) Captain Shankarrao Mohite Vs. Burjor D. Engineer, reported in (AIR) 1962 Bom. 198; (iv) Sheila Sebestian Vs. R.Jawaharaj And Anr., reported in (2018) 7 SCC 581; (v) Mohammed Ibrahim And Others Vs. State of Bihar And Anr., reported in (2009) 8 SCC 751; (vi) Maksud Saiyed Vs. State of Gujarat And ors., reported in (2008) 5 SCC 668; (vii) Suryalakshmi Cotton Mills Ltd. Vs. Rajvir Industries Ltd. And Ors., reported in (2008) 13 SCC 678; (viii) Chittaranjan Das Vs. Stateof Orissa, reported in (2011) 7 SCC 167; (ix) Aneeta Hada Vs. Godfather Travels And Tours Pvt. Ltd., r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (HSD) to various private industries of Gujarat as well as of Gujarat, which were either non-existent or non- functional. The HSD was sold to these units at a concessional rate of sales tax as per provisions of State and Central Sales Tax Act. 9.1 The allegation is that during the period of 1997 to 2000, the eligible private industries could lift HSD from oil companies for their industrial use as raw material and for captive power generation. The private companies were required to justify their requirements of HSD to the oil companies as well as sales Tax Department to avail the concession in rate of sales tax. As per the case of C.B.I., the HSD so sold could only be used as raw material in the manufacture of taxable goods under the Gujarat Sales Tax Act and could not be used for any other purpose like processing material, consumable stores etc. While it was alleged that the HSD sold in the name of private companies were diverted in open market instead of using it for their declared use. It was alleged that HSD was sold in the market above the higher rate and because of the diversion, there has been huge revenue loss in the form of evasion of sale tax. 9.2 The C.B.I. has place ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the quota could be issued and if the same was issued for captive power generation, recommendation of the TEC of oil companies and State Electricity Board was required. 10. From record it appears that C.B.I. had registered the case in the year 2000 for the offences allegedly committed from 1997 to 2000, and after 10 years, the Charge-sheet was filed in different cases based upon only one F.I.R. The learned Judge while observing the prosecution case has noted that it is against some unknown officers of the oil companies, sales tax department and owners of private units, alleged to have hatched conspiracy, abusing official positions and having caused wrongful loss to the government exchequer by selling HSD to various private industries of various states, which were either non-existent or non-functional. The learned Judge referring to the charge- sheet has noted that TEC had issued various circulars for supply of HSD and the circular dated 2/6-1-1981 applies only to Koyali Refinery, Vadodara, and at that time, this refinery was manufacturing LSHF-HSD (Low Sulphur High Flash Diesel), which was meant for Navy. The learned Judge observed that the statement given to C.B.I. by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... corresponding production and sales figures. It was also specified that they would not ask for further quantity of HSD till such time the evaluation and reporting of the TEC is completed and thereafter to the satisfaction of IOCL as to the genuine utilization of HSD released earlier. Further condition laid in the said circular was that, six months return of HSD released and products produced therefrom should be obtained from the processor and submitted to the Ministry. 12. It has been argued by Ld. Sr. Advocate Mr. Yogesh Lakhani that TEC was entrusted with the task of reviewing the supply of feed-stock to the existing and new manufacturers of petroleum specialty and the committee was required to draw method and procedure with the assistance of oil companies and other agencies to ensure that the petroleum specialities are used in bonafide manner and the TEC was required to look into the supply of LSHF-HSD, LDO and crude sludge for the manufacture of petroleum specialties. Ld. Sr. Advocate Mr. Yogesh Lakhani submitted that vide Circular dated 17.03.1988, which has a reference of the letter dated 02.01.1981, which was in context of Koyali Refinery, the circular very clearly noted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nitially look into the supply of LSHF-HSD, LDO and crude sludge for the manufacture of petroleum specialities. Additional items would be assigned to the Technical Evaluation Committee as necessary from time to time. 12.4 Again by Circular dated 23.05.1995, addressed to all the oil companies, the Technical Evaluation Committee was reconstituted. The said circular reads as under: To All the Oil Companies Subject:- Re-constitution of Technical Evaluation Committee on supply of feed stock for the production of petroleum specialities. Sir, In supersession of this Ministry s letter of even number dated 9.2.94 on the subject noted above, I am directed to convey the approval of the Government to the re-constitution of the said Committee till further orders, comprising of the following:- i) A representative from Indian Oil Corporation Convenor. ii) A representative from CHT, New Delhi. iii) A representative from Bureau of Indian Standards (BIS), New Delhi. iv) A representative from OCC, New Delhi. 2. The scope of Technical Evaluation Committee would be: (a) To examine the technological capability of the undertaking to pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Evaluation Committee has lost its purpose and relevance, and the Technical Evaluation Committee therefore stood dissolved w.e.f. 01.04.2002. The said circular, thereafter further in the said communication gave liberty to all the oil companies to make their own judgments about allocation of crude sludge, high flash-HSD and LDO from the said date and to put conditions, to the best of their commercial prudence and business requirements. 13. The charge-sheet had been filed for the period between 1997 to 2000, alleging that private industries would lift HSD from oil companies for the industrial use as raw material and for captive power generation, and no necessary permission of the MoP NG was obtained nor any recommendation of TEC, oil companies and State Electricity Board was taken. 14. The guidelines for release of petroleum product and lubricants to direct customers was issued on 08.07.1991 by Oil Coordination Committee. The Manual was complied by the members of the oil industries as an aid to the field staff in advising new as well as existing customers about the modalities for obtaining supplies to petroleum products and lubricants directly from the oil companies. The guide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de effect from 01.04.1998, the price of the deregulated product was fixed by the oil industries, while the price of the regulated product was fixed by MoP NG. HSD being regulated product was noted, as under: HSD:- HSD is primarily a transport fuel used by Defence, Railway, State Transport Undertakings, goods carrying vehicles, earth moving equipment, DG sets, start-up fuel for boilers, etc. HSD is also processed by distillation for producing different boiling ranges which are used for manufacturing speciality products such as spray oil, white oil, industrial solvents, etc. The customer approaches the Oil Industry for release by placing an indent for supplies. The Oil Industry verifies the approval of Explosive Deptt. for storage of product. Also if the supplies are required on Inter State basis, the Oil Industry checks the Central Sales Tax Registration Certificate for assessing the customers eligibility to receive supplies on Concessional Sales Tax. 14.4 In regard to the delivery of the product, the said letter contained as under: Subject to satisfying the above needs and based on Commercial understanding, a customer code number is allotted in respect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delivering the product brings back the receipted copy of the challan duly acknowledged by the customer for having duly received the supply, while in case of ex-storage supplies, the customer places an indent and takes supplies in his own / hired tank lorry. In case of inter state supplies, the concessional Sales Tax form is collected at the time of supply. After verification of the documents and the Commercial terms, the Supply Point releases the supply, and the signature is obtained of the Authorised representative for having received the quantity indicated in the Delivery Challan. This whole process, as noted in the Manual does not insist for any report of the TEC. The Manual itself clarifies the process of self supply in bulk and in small percentage. In case of inter state supplies, the process of concessional sales tax form is to be followed and, the oil companies checks the central sales tax certificate for assessing the customer s eligibility to receive supplies on concessional sales tax. 15. Here, the F.I.R. was registered on 23.05.2000, thereafter the letter dated 06.11.2000, signed by directors of four oil companies viz. IOC, BPC, HPC and IBP addressed to Additional Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id C forms were forged or fake, even then no staff members from the sales tax department has been arraigned as accused in the case. It has not come on record that any persons from the sales tax department has alleged that the C forms used for HSD were forged or fake. There is no evidence regarding forged document. It is true that blank C forms were submitted. But there is no allegations that the said C forms were bogus. Supposed that C forms were bogus, but then it is not the case of the prosecution that those C forms were forged and produced by the applicants accused. Generally the C form were produced by the purchaser. There is no evidence that the applicants were aware that the C forms were bogus. There is no allegation that the accused committed forgery or produced forged documents. The applicants accused have not used any C form but the private party has produced it at the time of delivery. Looking to the C form, no officer of oil companies can say that C forms were bogus. There is no allegation against the accused that HSD was sold at lower price. There is no evidence to show that oil company has suffered any financial loss because of such transaction. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cy of state was quite distinct. The interest of the State in such instrumentality or agency was well known. Even then, the legislature, in its wisdom, did not think it necessary to expressly include the officers of such instrumentality or the government company for affording protection by way of sanction under Section 197 Cr. P.C. 25. It will be appropriate to notice that whenever there was felt need to include other functionaries within the definition of 'public servant', they have been declared to be 'public servants' under several special and local acts. If the legislature had intended to include officers of instrumentality or agency for bringing such officers under the protective umbrella of Section 197 Cr. P. C. It would have done so expressly. 26. Therefore, it will not be just and proper to bring such persons within the ambit of Section 197 liberally construing the provisions of Section 197. Such exercise of liberal construction will not be confined to the permissible limit of interpretation of a statute by a court of law but will amount to legislation by Court. 27. Therefore, in our considered opinion, the protection by way of sanction Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ections 467, 468 and 471 IPC may be of such nature that obtaining of sanction under Section 197 CrPC is not necessary but when the said offences are interlinked with an offence under Section 409 IPC sanction under Section 197 for launching the prosecution for the offence under Section 409 is a condition precedent. The approach and the analysis are absolutely fallacious. We are afraid, though the High Court has referred to all the relevant decisions in the field, yet, it has erroneously applied the principle in an absolute fallacious manner. No official can put forth a claim that breach of trust is connected with his official duty. Be it noted the three-Judge Bench in B. Saha (supra) has distinguished in Shreekantiah Ramayya Munipalli (supra) keeping in view the facts of the case. It had also treated the ratio in Amrik Singh (supra) to be confined to its own peculiar facts. The test to be applied, as has been stated by Chandrasekhara Aiyar, J. in the Constitution Bench in Matajog Dube (supra) which we have reproduced hereinbefore. The three-Judge Bench in B. Saha (supra) applied the test laid down in Gill s case wherein Lord Simonds has reiterated that the test may well be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the guidelines include in the form of circulars, wherein Circular No.P-24013/5/80-SUP dated 2 nd January, 1981 of the MoP NG and guidelines dated 8th July, 1991 of OCC, too are referred by him. 18.2 Mr. Shastri has referred to the Circular dated 02.01.1981 addressed to IOCL with respect to the utilization of HSD from Koyali Refinery for the production of High Value Specialities items and the guidelines dated 08.07.1991 of OCC. He had also been asked regarding his clarification dated 23.08.1999 in respect to release of HSD to processors, and he had referred to a letter No.TEC/Circ. dated 04.08.1999 of Shri P.Sudarsnam, ED (Plng., P S and BD), IOC, Ho. Mumbai to the Executive Director, OCC, regarding the release of HSD to processors. The said letter reads as under: Executive Director, Oil Co-ordination Committee, Scope Complex, 2nd floor, Core-8, Lodhi Road, NEW DELHI 110 003. Dear Sir, SUB: RELEASE OF HSD TO PROCESSORS This has reference to MOP NG s letter no. P21017/14/93-Dist dated 11.05.94, P-17011/16/93-Sup dated 23.5.95 and P17011/15/93-Sup dated 18.9.96 on the above subject. So far IOC has been releasing the supplies of HSD t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnished. 18.5 The compilation and circulation by OCC on 08.07.1991, of the Guidelines for Release of Petroleum Products and Lubricants to Direct Consumers have not been denied, which suggests that the same was in force and all oil companies were following the guidelines since 1991. The chargesheet has been filed for period between 1997-2000. The guidelines of OCC dated 08.07.1991 had not found any change. Mr. Shastri had referred in his Fax message of no change in the guidelines for allocation of HSD to processors. According to him, HSD allocation to the processors is approved by the MoP NG based on the certification and recommendation of the TEC of the Oil Companies. The guidelines referred and relied upon does not reflect any certification and recommendation of the TEC to the oil companies, and, when a clarification was sought by P. Sudarsnam by a letter dated 23.08.1999, Mr. Shastri states before the C.B.I. that there was no change in the allocation policy and requested P.Sudarsnam of IOC not to make HSD supplies to the processors without the Ministry s allocation / Linkage, and, since clarification was sought by the E.D., IOC from OCC, reply was sent by OCC, which stated b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r consideration. Thus, the same is also in connection to IOCL and not for other oil companies. Almost all the communications for the various Private Ltd. Companies produced on the record of the case were by the Indian Oil Corporation Ltd. (IOCL) to the Ministry. 18.10 The letter of the OCC dated 04.12.1996 to the under Secretary MoP NG, New Delhi, for the requirement of HSD/ HF HSD/LSHF and NGL/Naphtha for M/s. Shaynoa Petrochem Ltd. for manufacture of speciality solvent and lubricants, reflects that the TEC was required to evaluate the requirement, and submit the recommendation to MoP NG and based on the recommendation of the TEC, it was noted that, MoP NG, may consider to release of HSD/HF-HSD/LSHF for processing use ex-Koyali refinery, while the supply of NGL ex-Hazira was ruled out, as the only possibility was of supplying Naphtha ex-Koyali refinery of IOC. It was further noted that since December, 1992, Naphtha import had been deccanalised and the same could be imported after obtaining special licence/approval from DGFT. The communication, on record, by the Ministry of MoP NG shows of private companies lifting of HSD from M/s. Indian Oil Corporation Ltd. only. 18.11 The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elevance, and were informed that the TEC stood dissolved with effect from 01.04.2002. The Oil Companies were made free to take their own judgment about the allocation of crude sludge, high flash-HSD and LDO from the said date and to put conditions, to the best of their commercial prudence and business requirements. 18.13 In view of this circular itself, there was no reason for the C.B.I. to file charge-sheet against any of the accused. None of the communications of the Ministry, except of 02.01.1981, for the utilization of HSD from Koyali Refinery, required any TEC recommendation for lifting of HSD from any other companies. The C.B.I. failed to take into account that the Ministry had never called for any clarification from any other company during the period between 1997 2000 in connection with the alleged facts noted in the F.I.R., the officers, who were working in the company, would go by the understanding of the Circulars. It would have been the functioning of the Ministry to specify the requirement of TEC recommendation for supply of HSD from other oil companies to the processors. The oil companies all throughout had been following the directions contained in the MoP NG ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sers outside Maharashtra purchased HSD from oil companies in Maharashtra against form-C on payment of CST at 4%, to be deposited with the sales tax authorities of Maharashtra. 19.2 According to Mr. Dixit at the time of processing of the application and scrutiny of the documents, it was ascertained that the firm exist at the place shown in the application, and, the aspect of manufacturing of goods and engagement in business activities etc. were verified later on, but initially the firm can get registered and start its business, and the firms on their request for the declared purpose were issued blank C-forms by the Sales Tax Officer of their jurisdiction. Mr. Dixit stated that the competent authority for registration certificate is the Sales Tax Officer of the registered branch, and the issuance of C forms is by the assessing officer of their jurisdiction, and the officer incharge of assessment of that particular case; the procedure for issuance of C form would be that a new registered purchaser is issued 5 C-forms at the initial application subject to a bank guarantee for 37 months, and at the time of issuance of C-forms every next time, utilisation reports of the C-forms is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own by using illegal means; as per the prosecution case, there were large number of persons from different parts of country, unrelated to each other, unknown to each other therefore the learned trial Court concluded that there cannot be presumption that they would have entered into any criminal conspiracy. The learned Special Judge observed that as per the record, four oil companies are of Gujarat, Maharashtra and Madhya Pradesh and there is no evidence to show that the officers of the oil companies had gathered, or met sales tax officers or staff or purchasers with an intention to commit the alleged offence. 20.2 For the offence under the P.C. Act, the learned Special Judge found that there is no prima facie evidence to show that the applicants had accepted any gratification from any person as a motive or reward, and the applicants accused had followed all the instructions issued by the MoP NG and acted in discharge of the duties; no sanction has been brought on record by the C.B.I., while sanction has been refused against the officers of the oil companies and against refusal C.B.I. had written to Central Vigilance Committee, but the said committee to confirm the order of non ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eum, classifying it into A, B and C giving the meaning according to the flashpoint as noted in the definition. The Petroleum and Natural Gas Regulatory Board Act, 2006 makes establishment and incorporation of the Board by section 3, and the complaints and disputes are to be resolved by the Board. 21.2 The communication by the oil companies dated 06.11.2000 regarding the circulars of the MoP NG reflects their understanding about those circulars of the Ministry. The officers of the Oil Companies were required to follow the circulars and as has been noted by the learned Special Judge, they have been consistently followed by all the oil companies and the circulars do not refer to, regular HSD. 21.3 The Petroleum and Natural Gas Regulatory Board Act, 2006 defines HSD under section 2(r) and section 2(zd) defines oil company, which read as under: 2(r):- high speed diesel means any hydrocarbon oil (excluding mineral colza oil and turpentine substitute), which conforms to such specifications for use as fuel in compression ignition engines, as the Central Government may, in consultation with the Bureau of Indian Standards, notify from time to time. 2(zd):- oil company mea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conducting a trial; while considering the question of framing charges under this section, he has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The Hon ble Apex Court further observed that the test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application, and, where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial. Further observed that, by and large however, if two views are equally possible and the judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. 22. This Court finds that the Special Judge, CBI Court No. 2 Ahmedabad has not committed any error in discharging the accused by allowing their Criminal Revision Applications preferred against the orders of rejection of their discha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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