Avtar Singh & Anr. v. State of Punjab
RAJESH BINDAL, J.
1. The judgment of the High Court of Punjab & Haryana in Criminal
Appeal No. 562-SB 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 ref erred 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 ` 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 c harging
` 250/- (Rs. two hundred and fifty only) instead of the prescribed rate of
` 102/-(Rs. one hundred and two only). Their truck be aring No.
HR-05A-4918 was parked in front of Chawla Auto Workshop. Finding
the information to be reliable, FIR was registered and poli ce officials
went at the spot and apprehended the accused. They were take n 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 su pported 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
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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 o fficer 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 Gover nment 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 t hat
time, there was a huge shortage of gas cylinders and Order was issue d
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 Civil Suppli es
of the Government, not below the rank of an Inspect or
authorised by such Government and notified by Centr al
Government or any officer not below the rank of a S ales
AVTAR SINGH & ANR. v. STATE OF PUNJAB
[RAJESH BINDAL, J.]
Officer of an Oil Company, or a person authorized b y the
Central Government or a State Government and notifie d by
the Central Government may, with a view to ensuring
compliance with the provisions of this Order, for the purpo se
of satisfying herself that this order or any order made
thereunder has been complied with:
(a) 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 the contravention of this Order;
(b) Enter or search any place with such aid or assistance
as may be necessary;
(c) Seize and remove with such aid or assistance as may
be necessary , the entire quantity of any stock of liquef ied
petroleum gas in cylinders, cylinder valves and pre ssure
regulators, alongwith the vehicles, vessels or any other
conveyances used in carrying such stock if he has reason
to suspect that any provision of this Order has been or is
being or is about to be, contravened in respect of such
stock and thereafter take or authorise the taking o f all
measures necessary for securing the production of the stoc k
of liquefied petroleum gas in cylinder, cylinders, gas
cylinder valves, pressure regulators, vehicles, ves sels or
other conveyances so seized before the Collector havi ng
jurisdiction under the provisions of section of the Essent ial
Commodities Act, 1955 (10 of 1955) and for their sa fe
custody pending such production……”
14. It nowhere prescribes that a Sub-Inspector of the Polic e can
take action. No doubt, the aforesaid Clause provides that in addition to
the specified officers, the persons authorised by the Cent ral or State
Government may take action under the Order. However, nothi ng has
been placed on record to support the argument that the Sub-Inspector of
the Police was authorised to take action under the aforesaid Orde r.
15. It is a settled law that where a power is given to do a certain
thing in a certain way, the thing must be done in that way or not at all.
Other methods are necessarily forbidden. Reference can be made to
Dharani Sugars and Chemicals Ltd. Vs. Union of India and Ors .
reported in (2019) 5 SCC 480 .
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16. In the absence of the authority and power with the Sub-
Inspector to take action as per the Order, the proceedi ngs initiated by
him will be totally unauthorised and have to be struck down.
17. For the reasons mentioned above, the appeal is allowed. The
judgment by the High Court of Punjab & Haryana in Criminal A ppeal
No. 562-SB of 1997 dated January 15, 2010 and the o rder dated
08.07.1997 passed by the Trial Court are set aside. As a conseque nce,
the conviction and sentence of the appellants under Section 7 of the Act
is set aside. The bail bond stands discharged.
Nidhi Jain Appeal allowed.
AVTAR SINGH & ANR. v. STATE OF PUNJAB
[RAJESH BINDAL, J.]