IMPORTANT POINT
Black-marketing of Gas Cylinders – Where a power is given to do a certain thing in a certain way, thing must be done in that way or not at all.

JUDGMENT :

Rajesh Bindal, J.

1. The judgment of the High Court of Punjab & Haryana in Criminal Appeal No. 562SB of 1997 dated January 15, 2010 is under challenge in this Appeal.

2. The appellants are aggrieved of their conviction under Section 7 of the Essential Commodities Act, 1955 (hereinafter referred to as ‘the Act’).

3. The Trial Court vide judgment and order dated July 8, 1997 had convicted the appellants and directed them to undergo imprisonment for a period of six months alongwith fine of Rs. 500/ each.

4. The facts, as are available on record, are that on 26.02.1995, Sub-Inspector of Police alongwith other police officials was present at bus stop, Phagwara. They received a secret information that the appellants were indulging in selling gas cylinders in black. They were charging Rs. 250/(Rs. two hundred and fifty only) instead of the prescribed rate of Rs.102/(Rs. one hundred and two only). Their truck bearing No. HR05A4918 was parked in front of Chawla Auto Workshop. Finding the information to be reliable, FIR was registered and police officials went at the spot and apprehended the accused. They were taken into custody.

5. In the evidence led before the trial court, none of the independent witnesses or the alleged buyers of the cylinders in black supported the case of the prosecution. It was only two official witnesses who deposed in favour of the prosecution.

6. The only charge which could be proved was unauthorized possession of gas cylinders on the basis of which the trial court convicted the appellants and ordered imprisonment.

7. The order passed by the trial court was upheld in appeal by the High Court.

8. The sole argument raised by the learned counsel for the appellants is that in terms of Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order, 1988 dated 08.03.1988 (hereinafter referred to as ‘the Order’), entry and seizure should be in exercise of the powers under clause 7 of the Order. Clause 7 of the Order authorises certain persons to stop and search any vessel or vehicle which the officer has reason to believe has been or is being or is about to be used in contravention of the order.

9. Clause 3 of the Order restricts unauthorised possession of gas cylinders. The submission is that as per clause 7, an officer or the Department of Food and Civil Supplies of the Government, not below the rank of an Inspector authorised by such Government and notified by Central Government or any officer not below the rank of a Sales Officer of an Oil Company, or a person authorized by the Central Government or a State Government and notified by the Central Government may, with a view to ensure compliance with the provisions of the Order, for the purpose of satisfying himself that this order or any order made thereunder has been complied with, is authorised to carry out such exercise/seizure.

10. In the case in hand, the action has been taken by sub-Inspector of the Police who, as per the Government Order, is not authorised. Hence, the entire case of the prosecution falls. The aforesaid argument has not been considered either by the trial Court or by the High Court.

11. On the other hand, learned counsel for the State submitted that the appellants have been found in unauthorized possession of the gas cylinders. They have rightly been convicted. Merely for some technical default, they should not be allowed to go scot-free. At that time, there was a huge shortage of gas cylinders and Order was issued to check its black marketing and unauthorised possession.

12. Heard learned counsel for the parties and perused the relevant referred record.

13. The facts in the case as noticed above as such, are not in dispute. The only argument raised is about the power of the person who had seized cylinder on the basis of which the appellants were prosecuted. Clause 7 of the Order, which is reproduced hereunder, prescribes officers who have the power.

“7. Power of entry, search and seizure:

(1) an officer or the Department of Food and Civ