The accused's possession of domestic LPG cylinders for commercial use constituted an economic offense under the Essential Commodities Act; the burden of proof shifted to the accused upon establishment of initial facts by the prosecution.

JUDGMENT :

KAUSHIK GOSWAMI, J.

Heard Mr. T. Gogoi, learned counsel appearing for the petitioner. Also heard Mr. M. P. Goswami, learned Additional Public Prosecutor appearing for the State respondent.

2] The present criminal revision petition is filed under Section 3 97 read with Section 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the “Cr.P.C.”), assailing the judgment & order dated 04.03.2013 passed by the learned Chief Judicial Magistrate, Jorhat, (hereinafter referred to as the “trial court”) in C.R. Case No. 348/2009, whereby the accused/petitioner was convicted under Section 7 of the Essential Commodities Act, 1955 (hereinafter referred to as the “EC Act, 1955”), and sentenced to undergo rigorous imprisonment for 1 year and to pay fine for Rs. 20,000/- only, in default of payment of fine to undergo simple imprisonment for 3 months, and further assailing the judgment & order dated 29.09.2014 passed in Criminal Appeal No. 11/2013, passed by the learned Sessions Judge, Jorhat (hereinafter referred to as the “appellate court”), whereby the appellate court partly allowed the appeal by upholding the conviction; however, it modified the sentence to imprisonment till rising of the court and to pay a fine of Rs. 20,000/- only, in default of payment of the fine to suffer simple imprisonment for 3 months.

3] The present case in brief is that upon an inspection it was found that the accused/petitioner was using domestic LPG cylinders for commercial purposes in violation of the Control Order, attracting the offence under Section 7 of the EC Act, 1955. Based on the said inspection, the complainant/PW-1 lodged a complaint, which led to the prosecution of the accused/petitioner. Both the trial court and the appellate court, on appraisal of the evidence on record, held the charge to have been duly proved. Situated thus, the present criminal revision petition has been filed.

4] Mr. T. Gogoi, learned counsel appearing for the petitioner, submits that the prosecution has failed to establish beyond reasonable doubt the facts giving rise to a presumption under Section 14 of the EC Act, 1955. He accordingly submits that until and unless the prosecution proves the facts in order to give rise to a presumption under Section 15 of the EC Act, 1955, the onus does not shift to the accused to prove the contrary. In support of the aforesaid submission, he relies upon the decision of the co-ordinate bench of this court in the case of Manik Lodh -vs- State of Assam and Another , reported in 2007 (3) GLT 207. He further submits that the trial court as well as the appellate court committed a grave error of law as well as in facts in convicting the accused/petitioner under Section 7 of the EC Act, 1955. He further submits that there are several contradictions among the prosecution witnesses regarding the alleged recovery of LPG cylinders, which were not at all considered by both the courts while passing the impugned judgments. He further submits that both the courts failed to appreciate the fact that the accused/petitioner is not a proprietor of the Prakash Hotel from which the LPG cylinders were alleged to have been recovered. He further emphasizes that it is clear from the evidence of the PW-2 and PW-3 that the accused/petitioner is the proprietor of Sagar Hotel and not of Prakash Hotel. He further submits that both the courts did not take into consideration the vital aspects of the matter that the complainant/PW-1 had carried out search operations in various hotels and restaurants of that locality and seized some LPG cylinders but did not keep any record or diary for the same. He further emphasizes that none of the seizure witnesses have ever stated in their testimonies that LPG cylinders were recovered from the possession of the accused/petitioner, i.e., from Sagar Hotel. He further submits that the accused/petitioner has successfully discharged its burden of proof by demolishing the case of the prosecution with effective cros