Sri Nirmal Pal vs The State Of Tripura
2021 Latest Caselaw 187 Tri

                      HIGH COURT OF TRIPURA
                            AGARTALA
                          Crl. Rev. P. 21 of 2017

Sri Nirmal Pal
Son of Late Haridas Pal
resident of Chaigaria Maharani,
PS: Radha Kishore Pur,
District-Gomati Tripura
                                                ---- Petitioner(s)

                                  Versus


The State of Tripura

                                                ---- Respondent(s)

For Petitioner(s) : Mr. P.K. Biswas, Sr. Adv.

Mr. P. Majumder, Adv.

For Respondent(s) : Mr. S. Debnath, Addl. P.P.

Date of hearing               :    04.12.2020

Date of pronouncement :            17.02.2021

                                   Yes   No
Whether fit for reporting :
                                         √


                             BEFORE

HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY

Judgment & Order

[1] Having been convicted and sentenced to RI for 2

(two) years and fine of Rs.10,000/- with default stipulation for

commission of offence punishable under Section 7(1)(a)(ii) of

the Essential Commodities Act, 1955 (the EC Act hereunder) by

the trial court vide judgment dated 09.03.2016 in case No.

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PRC(EC) 04 of 2015, the petitioner challenged his conviction

and sentence in appeal. The appellate court having affirmed the

judgment of the trial court by upholding his conviction and

sentence by judgment dated 30.03.2017 delivered by the

Additional Sessions Judge, Gomati Judicial district, Udaipur in

Criminal Appeal No. 16(01) of 2016, the aggrieved petitioner

has challenged the impugned judgment of the appellate court in

this revision petition.

[2] Brief facts of the case are as under:

Sri Biswanath Roy [PW-1], Inspector of Food & Civil

Supplies & Consumer Affairs Department, Government of

Tripura conducted raid on 20.08.2014 at 01.10 pm in the house

of the petitioner at a place called Chaigaria in Udaipur Sub-

Division pursuant to an information received from his source

and recovered 21 empty domestic LPG cylinders and 9 filled

cylinders from his possession and the petitioner having failed to

offer any explanation with regard to his possession of the said

LPG cylinders, the informant [PW-1] formally seized those

cylinders in presence of the petitioner and other witnesses vide

seizure list dated 20.08.2014 [Exbt.1]. The petitioner

acknowledged the seizure by putting his signature on the

seizure list itself. A copy of which was also given to him. The

cylinders were then released in favour of M/S. Maharani Indane

Gramin Bitarak, a local gas agency, on execution of a

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Jimmanama (bond) by its proprietor named Sanjib Ch.

Debnath. Alleging these facts, said Biswanath Roy being the

informant lodged a written complaint with the Officer-in-Charge

of RK Pur police station at Udaipur on the same day at about

04.40 pm and based on his FIR, RK Pur PS case No. 206 of

2014 under Section 7(1)(a)(i) & (ii) of the EC Act was

registered against the petitioner and the investigation was

taken up.

[3] Part of the investigation was conducted by Sri

Khelendra Debbarma [PW-10] and rest part was conducted by

Sri Parimal Roy [PW-14], Sub Inspector of Police. During

investigation, the investigation officers had visited the crime

scene and drew up hand sketch map with separate index

indicating the material locations at the crime scene and

examined the persons acquainted with the facts of the case and

also recorded their statement under Section 161 Cr.P.C. The

investigation revealed that the accused petitioner hoarded the

LPG cylinders in his house for the purpose of selling those

cylinders at higher rate. Having concluded his investigation,

PW-14 submitted charge sheet No. 194 of 2014 dated

05.12.2014 under Section 7(1)(a)(i)(ii), EC Act against the

petitioner.

[4] The learned Chief Judicial Magistrate received the

charge sheet and after taking cognizance of offence proceeded

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to try the case. At the commencement of trial, following charge

was framed against the accused:

"That on 20.08.2014 at about 1310 hours at Chaigharia, Maharani in your house under R.K. Pur PS you were found to be illegally stored 21 Nos. of empty LPG Gas Cylinders and 9 Nos. of filled up LPG Gas Cylinders in your house at any time without having any valid document or license with malafide intention of selling those Gas Cylinders at the high rate in black market and thus thereby you have violated the Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order 2000 and thus you have committed offence punishable under section 7(1)(a)(II) and 7(1)(b) of the Essential Commodities Act, 1955 and within the cognizance of this court.

AND I do hereby direct that you be tried on the said charge."

The accused petitioner pleaded not guilty to the

charge and claimed trial of the case. His plea was recorded by

the learned trial court and prosecution witnesses were called.

[5] In the course of trial as many as 14 (fourteen)

witnesses including the informant [PW-1] and the investigating

officers [PW-10 & PW-14], seizure witnesses and Officials of the

Food Department were examined. Apart from the testimony of

the prosecution witnesses, 13 (thirteen) documents [Exbt.1 to

Exbt.13] which include the FIR, the seizure list etc were

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adduced and relied upon by the prosecution. After the

prosecution evidence was over, accused was examined under

Section 313, Cr. P.C who pleaded innocence and declined to

adduce any evidence on his defence.

[6] On appreciation of evidence, the learned trial court

vide judgment dated 09.03.2016 held the accused petitioner

guilty and convicted him for commission of offence punishable

under Section 7(1)(a)(ii), EC Act and after hearing the convict

on the question of sentence, the learned trial court sentenced

him to RI for 2 years and fine of Rs.10,000/- with default

stipulation for the said offence. Appeal against the judgment of

the trial court was dismissed by the learned Additional Sessions

Judge, Udaipur vide impugned judgment dated 30.03.2017.

Hence, the aggrieved petitioner has approached this court

challenging the impugned judgment of the Additional Sessions

Judge.

[7] Heard Mr. P.K. Biswas, learned Senior Advocate

appearing for the petitioner assisted by Mr. P. Majumder,

learned counsel. Heard Mr. S. Debnath, learned Addl. P.P

representing the State respondent.

[8] The petitioner has challenged his conviction and

sentence mainly on the following grounds:

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i. The allegations against the petitioner did not

constitute the offence punishable under Section 7(1)(a)(ii) of

the EC Act.

ii. The basic ingredients of the offence

prescribed under Section 7(1)(a)(ii) of the EC Act have not

been proved in this case.

iii. Most of the witnesses have turned hostile to

the prosecution and thus falsified the prosecution case.

iv. The evidence available on record has clearly

established the fact that the accused petitioner used to collect

domestic LPG cylinders on behalf of the consumers from various

gas agencies and deliver the same to those customers with a

view to help them which constitutes no offence under the EC

Act.

v. The prosecution has attributed the offence of

unauthorized possession of gas cylinders against the petitioner

without iota of evidence.

vi. The learned courts below did not appreciate

the evidence properly which have rendered their judgments

erroneous and unsustainable.

[9] Appearing for the petitioner, Mr. P.K. Biswas,

learned Senior Advocate has placed reliance on the following

decisions in support of his contention:

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1. Manipur Administration Vs. Nila Chandra

Singh reported in AIR 1964 SC 1533

2. Harchand Singh & Anr. Vs. State of Haryana

reported in AIR 1974 SC 344

3. Mukhtiar Ahmed Ansari Vs. State (NCT of

Delhi) reported in (2005) 5 SCC 258

4. Javed Masood & Anr. Vs. State of Rajasthan

reported in 2010 AIR SCW 1656.

Discussion with regard to the application of these

decisions in the case in hand shall be made at a later stage.

[10] Opposing the contention of the petitioner, Mr. S.

Debnath, learned Addl. P.P has argued that the charge against

the petitioner that he unauthorizedly stored huge number of

domestic LPG cylinders in his house for the purpose of black

marketing has been proved beyond reasonable shadow of

doubt. According to Mr. Debnath, learned P.P, by such conduct,

the petitioner violated various provisions of the Liquefied

Petroleum Gas (Regulation of Supply and Distribution) Order

2000 and committed offence punishable under Section

7(1)(a)(ii), EC Act. It is, therefore, argued by Mr. Debnath,

learned Addl. P.P that the concurrent findings of the courts

below are based on proper appreciation of evidence which do

not call for any interference in this criminal revision petition.

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Mr. Debnath, learned Addl. P.P, therefore, urges the court for

dismissal of the petition.

[11] In so far as the allegation of seizure of 21 empty

domestic LPG cylinders and 9 filled cylinders from the

possession of the petitioner is concerned, the informant as PW-

1 has given a very categorical statement at the trial court. In

the course of trial, informant Biswanath Roy, a Food Inspector

asserted in the trial court as follows:

"On 20.08.14 I was posted as Inspector of Food in the office of the SDM, Udaipur, Food Section. On that day, we got a secret information that in the house of Nirmal Pal of Chaigariya, Maharani there was domestic cylinder illegally kept. And accordingly, I along with Asstt. Director of Food, Swapan Debbarma, Chief Inspector, Partha Sarathi Bhattacherjee went to the house of the Nirmal Pal and conducted raid and during raid we found 21 nos. of domestic empty LPG cylinder and 09 nos. filled LPG cylinder. Accordingly the said cylinder were seized by preparing a seizure list as he failed to produce any valid document or licence for keeping those cylinder in his house. Thereafter the said cylinders were handed over to M/S.

Maharani Indane Gramin Bitarak on execution of Jimmanama (bond). This is the said seizure list prepared by me on identification the seizure list is marked as Exbt.1/1. We have taken the signature of Nirmal Pal in the seizure list and this is his signature on the said seizure list which is marked as Exbt.1/2. This is the said jimmanama(bond) which was prepared by me which is marked as

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Exbt.2 as a whole. This is my signature on the said jimmanama (bond) which is marked as Exbt.2/1. I know the signature of Sanjib Ch. Debnath. These are his signatures which are marked as Exbt.2/2 & 2/3 respectively. Stating the above mentioned fact, I have file FIR before the O.C R.K. Pur P.S. This is the said FIR which is marked as Exbt.3 as a whole and this is my signature on the said FIR which is marked as Exbt.3/1. I know the accused Nirmal Pal. Today he is present before the Court. (Witness identified him in the dock)."

Sri Kartik Debnath [PW-2] and Sri Rakesh Debnath

[PW-3] are both seizure witnesses. They also supported the

seizure of the said gas cylinders and its release on jimmanama

by acknowledging their signatures on the seizure list.

[12] Sri Uttam Kr. Shil [PW-4] is a businessman by

occupation. Sri Niranjan Debnath [PW-5] and Sri Kalipada

Bhowmik [PW-6], both of whom were also businessmen who

resiled from their police statement and turned hostile to the

prosecution. The Public Prosecutor cross examined them at the

trial. Nothing could be extracted from these witnesses by the

prosecution in its favour. Similarly, Sri Muslem Miah [PW-7], a

reporter and Sri Parameswar Das [PW-8], a cultivator disowned

their police statements recorded under Section 161 Cr.P.C and

turned hostile to the prosecution. Their cross examination by

the Public Prosecutor is of no use to the prosecution.

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[13] Sri Partha Sarathi Bhattacharjee [PW-9], Chief

Inspector of Food supported the prosecution case. He clarified

in his examination in chief that along with Sri Swapan

Debbarma [PW-13], Assistant Director of his department and

Sri Biswanath Roy [PW-1] he conducted raid in the house of the

accused petitioner from where 21 empty domestic LPG cylinders

and 9 filled cylinders were recovered and the accused failed to

account for such unauthorized possession of domestic LPG

cylinders.

In his cross examination, he denied the suggestion

of the accused that no cylinder was seized from his possession.

[14] Evidence of Sri Khelendra Debbarma [PW-10] is

very significant. The PW received the FIR at the police station

on 20.08.2014 from Sri Biswanath Roy [PW-1] and registered

the case against the accused. As a duty officer of the police

station, he himself took up the investigation of the case and re-

seized the said LPG cylinders which were produced before him

by PW-1 under seizure. The PW also seized 30 blue books of

different consumers and prepared a list containing the names

and addresses of those consumers. Later he released those

blue books in favour of the respective consumers. According to

the PW, Sri Uttam Kr. Shil [PW-4] told him that the accused

was his neighbour who used to collect empty cylinders from the

local neighbours for collection of filled cylinders on their behalf

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from the respective gas agency and deliver the same to the

customers for which he charged some fees. Some other

consumers gave similar statement to the PW that the petitioner

used to collect gas cylinders on their behalf from respective gas

agencies and charged fees for the job.

[15] Sri Sajal Pal [PW-11] and Sri Krishna Ch. Das [PW-

12] both of whom are businessmen told the trial court in their

examination in chief that though their signatures were procured

on a piece of paper by the food officials, they were not made

aware as to why their signatures were obtained. Both of these

PWs disowned their police statements and turned hostile to the

prosecution. The Public Prosecutor cross examined them but

the witnesses made no statement supporting the prosecution

case.

[16] Sri Swapan Debbarma [PW-13], an Assistant

Director of Food also supported the prosecution case. He stated

that 30 domestic LPG cylinders were recovered from the

possession of the accused in his presence and after seizure, the

said cylinders were kept in the custody of a gas agency at

Maharani.

[17] Sri Parimal Roy [PW-14], Sub Inspector of Police

investigated the case. He told the court that on the basis of the

statement of the witnesses and the seizure report he submitted

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charge sheet against the accused for unauthorized possession

of domestic LPG cylinders.

[18] The learned trial court while appreciating the

evidence of the witnesses who turned hostile viewed that since

the accused petitioner was their neighbours they were reluctant

in giving evidence against him. Learned trial court vide

paragraph 21 of the judgment came to the conclusion that their

evidence cannot be discarded merely on the ground that they

turned hostile to the prosecution. Paragraph 21 of the judgment

of the trial court is reproduced here under:

"21. In this case, police statement of P.W.4, P.W.5, P.W.6, P.W.7, P.W.8 & P.W.12 are brought on record and proved by I.O. and police statements are also in conformity with the prosecution case and defence failed bring any material where-from it can be said that police statements of P.W.4, P.W.5, P.W.6, P.W.7, P.W.8 & P.W.12 are false or the same are falsely recorded by I.O. In my view, merely on the ground that the witnesses are declared hostile their evidence cannot be discarded on that count. The court can relied on their evidence either in favour of the accused or prosecution. Hence, in this case, the evidences of P.W.4, P.W.5, P.W.6, P.W.7, P.W.8 & P.W.12 as brought on record and proved by I.O. can be relined on."

[19] Finally, the learned trial court on appreciation of the

whole evidence found the accused guilty and convicted and

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sentenced him, as above, for offence punishable under Section

7(1)(a)(ii), EC Act. Relevant extract of the judgment is as

follows:

"Thus, therefore, considering all the evidence as described above, I find, the prosecution is able to prove the fact that the accused Sri Nirmal Pal was found to be illegally stored 21 nos of empty LPG gas cylinder and 09 numbers of filled up LPG gas cylinder in his house without having any valid document or license and, thus, it can be presumed said that the accused stored the said cylinders with a malafide intention to sell those gas cylinder at high rate in the open market and, therefore, the accused violated the Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order 2000 and committed an offence punishable U/S. 7(1)(a)(i)(ii) E.C Act, 1955."

The learned trial court declined to release the

convict under the Probation of Offenders Act, 1958 since it was

an economic offence and sentenced him to RI for 2 years with

fine of Rs.10,000/- with default stipulation.

[20] It may be recalled that the appellate court accepted

the findings of the trial court and upheld the conviction and

sentence of the petitioner without modification.

[21] In the given case, the petitioner has been charged

with the violation of Liquefied Petroleum Gas (Regulation of

Supply and Distribution) Order 2000 which is punishable under

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Section 7 of the Essential Commodities Act, 1955. Said

Liquefied Petroleum Gas (Regulation of Supply and Distribution)

Order 2000 has been made by the Central Government in

exercise of powers conferred under Section 3 of the EC Act. The

said order under Order 3 provides restriction on unauthorized

possession, supply and consumption of liquefied petroleum gas

(LPG) and under Order 6 imposes prohibition on carrying

unauthorized business of selling LPG and under Order 7

imposes restrictions on possession, supply or sell of liquefied

petroleum gas equipments. For reference, Orders 3, 6 & 7 of

the Liquefied Petroleum Gas (Regulation of Supply and

Distribution) Order 2000 are reproduced hereunder:

3. Restriction on unauthorized possession, supply and consumption of liquefied petroleum gas. - (1) A person having a connection for liquefied petroleum gas under the public distribution system, shall not-

(a) possess more than one connection of liquefied petroleum gas granted under the public distribution system:

Provided that the Central Government or the Chief Executive Officer of a Government Oil Company, may sanction more than one connection of liquefied petroleum gas under the Public Distribution System in favour of any person, keeping in view the difficulty and hardship experienced by such person in obtaining supplied of the LPG;

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(b) possess or use liquefied petroleum gas filled in cylinder or in bulk, unless he has received the supply from a Government Oil Company or a distributor authorized by such Company;

(c) use liquefied petroleum gas for any purpose other than for which the consumer is registered with the distributor of a Government Oil Company:

Provided that the Central Government may by a general or special order permit the use of liquefied petroleum gas for such other purposes as, it may, by order, specify.

(2) The supply of liquefied petroleum gas to domestic category consumers shall be made in 14.2 Kg capacity cylinder and to those falling under non-domestic category shall be made in 19 Kg/47.5 capacity cylinder, or in such capacity cylinders as may be notified, by the Central Government from time to time.

(3) No Distributor of A Government Oil company shall supply liquefied petroleum gas filled in cylinder to any person unless he- (a) has been registered and granted a connection for liquefied petroleum gas under the Public Distribution System, or (b) holds a valid authorization from the Government Oil company.

(4) No distributor of a Government Oil Company or a parallel marketer, as the case may be, shall commit or cause to commit any of the activities prohibited herein including those specified in Schedule-1.

6. Prohibition on carrying unauthorized business of selling LPG -

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No person other than a Government Oil Company, a parallel marketeer or a distributor shall be engaged in the business of selling liquefied petroleum gas to the consumer.

7. Possession, supply or sale of liquefied petroleum gas equipments. -

(1) No person shall -

(a) supply or sell filled or empty cylinder, gas cylinder valve and pressure regulator to any person other than a Government Oil Company or a parallel marketeer;

(b) unless authorized by a Government Oil company or a parallel marketeer, supply or sell filled or empty cylinder, gas cylinder valve and pressure regulator to any person other than a consumer;

(c) possess filled or empty cylinder, gas cylinder valve or pressure regulator, unless he is a distributor or a consumer.

(2) Every manufacturer of cylinder, gas cylinder valve and pressure regulator shall destroy by crushing those cylinders, cylinder valves and pressure regulators which do not conform to the Indian Standards.

[22] Any violation of the said provisions of the Liquefied

Petroleum Gas (Regulation of Supply and Distribution) Order

2000 is punishable under Section 7 of the EC Act which reads

as under:

7. Penalties. - [(1) If any person contravenes any order made under section 3,-

(a) he shall be punishable,-

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(i) in the case of an order made with reference to clause (h) or clause (i) of sub-section (2) of that section, with imprisonment for a term which may extend to one year and shall also be liable to fine, and

(ii) in the case of any other order, with imprisonment for a term which shall not be less than three months but which may extend to seven years and shall also be liable to fine:

[Provided that the Court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than three months;]

(b) any property in respect of which the order has been contravened shall be forfeited to the Government;

(c) any package, covering or receptacle in which the property is found and any animal, vehicle, vessel or other conveyance used in carrying the commodity shall, if the court so orders, be forfeited to the Government].

(2) If any person to whom a direction is given under clause (b) of sub-section (4) of section 3 fails to comply with the direction, he shall be punishable with imprisonment for a term which shall not be less than three months but which may extend to seven years and shall also be liable to fine:

[Provided that the Court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than three months.]

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(2A) If any person convicted of an offence under sub-clause (ii) of clause (a) of sub-section (1) or under sub-section (2) is again convicted of an offence under the same provision, he shall be punishable with imprisonment for the second and for every subsequent offence for a term which shall not be less than six months but which may extend to seven years and shall also be liable to fine:

[Provided that the Court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months.]

[(2B) For the purposes of sub-sections (1), (2) and (2A), the fact that an offence under sub- clause (ii) of clause (a) of sub-section (1) or under sub-section (2) has caused no substantial harm to the general public or to any individual, shall be adequate and special reason for awarding a sentence of imprisonment for a term of less than three months, or six months, as the case may be.]] [(3) Where a person having been convicted of an offence under sub-section (1) is again convicted of an offence under that sub-section for contravention of an order in respect of an essential commodity, the court by which such person is convicted shall, in addition to any penalty which may be imposed on him under that sub-section, by order, direct that that person shall not carry on any business in that essential commodity for such period, not being less than six months, as may be specified by the court in the order.]

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[23] The legal provisions quoted above make it clear

that unauthorized possession of LPG cylinders by a person other

than a distributor or consumer is a violation of order 7(1)(c) of

the Liquefied Petroleum Gas (Regulation of Supply and

Distribution) Order 2000 which is punishable under Section

7(1)(a)(ii) of the EC Act with imprisonment for a term which

shall not be less than 3 months but which may extend to 7

years and shall also be liable to fine. Under the proviso to

clause (ii) of Section 7(1)(a), court may however impose

sentence of imprisonment for less than 3 months for special

reasons to be recorded in writing.

[24] The question therefore is whether the petitioner

stored the said filled and empty domestic LPG cylinders in his

house in violation of Liquefied Petroleum Gas (Regulation of

Supply and Distribution) Order 2000 and thereby committed an

offence punishable under Section 7(1)(a)(ii), EC Act.

[25] The object of the enactment of EC Act as envisaged

in the statement of objects and reasons of its Bill is to regulate

the production, supply and distribution of trade and commerce

in the essential commodities. Various orders have been made

by the Central Government in exercise of power under Section

3 of the Act for the purpose of exercising such regulation to

control production, supply and distribution etc of essential

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commodities and secure their equitable distribution and

availability at fair prices and the said Liquefied Petroleum Gas

(Regulation of Supply and Distribution) Order 2000 is one of

such orders which has imposed restrictions on unauthorized

possession, supply and consumption of LPG and also prohibited

carrying unauthorized business and selling LPG. Order 7 of the

said order also provides under Section 7(1)(c) that no person

shall possess filled or empty cylinder, gas cylinder valve or

pressure regulator unless he is a distributor or a consumer.

Violation of such order has been made punishable under

Section 7 of the EC Act.

[26] In the given case, the accused petitioner is alleged

to have violated the order by unauthorizedly possessing filled

and empty domestic LPG cylinders. Admittedly, he is neither a

distributor nor a consumer. For the purpose of the said

Liquefied Petroleum Gas (Regulation of Supply and Distribution)

Order 2000, the expression "consumer" has been defined under

order 2(b) of the said order and similarly the expression

"distributor" has been defined under order 2(e) of the said

order which are reproduced hereunder:

2(b) "Consumer" means a registered person, firm, company, institution, association of persons, co-

operative society or organization, who has been granted liquefied petroleum gas connection or supply, either in bulk or in cylinder, by a

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distributor or a Government oil company or a parallel marketeer.

2(e) "distributor" means a person, firm, association of persons, company, institution, organization or a co-operative society approved by a Government Oil Company or parallel marketeer and engaged in the business of purchase, sale, or storage for sale of liquefied petroleum gas in cylinders to consumers on the basis of an agreement with a Government Oil Company or a parallel marketeer, as the case may be;

[27] The accused petitioner neither claims to be a

distributor nor a consumer in respect of the cylinders which has

been seized from his possession.

[28] It may be recalled that Mr. P.K. Biswas, learned

senior advocate has placed reliance on the decision of the Apex

Court in Manipur Administration Vs. Nila Chandra Singh

(Supra) and contended that the element of business which is

essential to attract the penal provisions of the EC Act has not

been proved against the accused and no presumption that the

accused stored the essential commodities for business could be

drawn against him in absence of evidence, led by the

prosecution. In the case of Manipur Administration (Supra),

the respondent before the Apex Court was charged with the

violation of clause 3 of the Manipur Foodgrains Dealers

Licencing Order (1958) for storing 178 Mds. of paddy who was

acquitted by the Judicial Commissioner in appeal and the

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matter was then brought to the Apex Court by the State Govt.

Respondent of the said case explained that he stored the paddy

for the consumption of his family consisting of 15 members and

out of 178 Mds., 40 Mds. belonged to one of his relatives.

Allegation against the respondent was that he stored the said

paddy unauthorizedly for the purpose of sell. The Apex Court

found that clause 3(2) of the Manipur Foodgrains Dealers

Licencing Order (1958) could not be attracted to penalize the

respondent under Section 7 of the EC Act in the given context

and upheld the order of his acquittal passed by the Judicial

Commissioner. It is, therefore, found that the Apex Court

decided the matter in the case of Manipur Administration

(Supra) in a completely distinguishable factual context which

does not cover the case in hand. In this case, the accused has

completely denied his possession of domestic LPG cylinders

which were seized from his possession in presence of

witnesses.

[29] In Harchand Singh & Anr. Vs. State of Haryana

(Supra) which has also been relied upon by Mr. P.K. Biswas,

learned Senior Advocate appearing for the petitioner, accused

Harchand Singh along with others were tried on the charge of

murder in which Harchand Singh and another were convicted

under part II of Section 304 read with Section 34 IPC which

was challenged by Harchand Singh in the High Court. The State

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government also filed cross appeal. The High Court reversed

the findings of the trial court and convicted Harchand Singh and

another under Section 302 read with Section 34 IPC. When the

matter came up before the Apex Court, the Apex Court found

that prosecution led two sets of evidence in the case, each one

of which contradicts and strikes at the other and shows it to be

unreliable. The Apex Court, therefore, held that there was no

reliable and trustworthy evidence upon which conviction of the

accused might be based and ultimately acquitted the accused

appellants. Referring to this judgment of the Apex Court, Mr.

P.K. Biswas, learned Senior counsel has contended that in the

given case also prosecution has led two sets of evidence.

According to him, the complainant PW-1 and other official

witnesses have stated that the domestic LPG cylinders were

illegally stored by the accused in his dwelling house for selling

of LPG at higher price, whereas PW-10, Sub Inspector of police

who received the FIR at the police station and carried out a

considerable part of the investigation told in his examination in

chief that along with the LPG cylinders he also seized 30 blue

books from the possession of the accused and thereafter he

compiled the names and addresses of those consumers in a list

[Exbt.8] containing the consumer ID numbers of each of the

consumers and subsequently released 21 empty domestic LPG

cylinders and 9 filled cylinders along with blue books in favour

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of the respective consumers. The PW further stated that during

investigation those consumers stated to him that the accused

used to collect LPG on their behalf from gas agency for which

he charged some fees. Relying on the decision of the Apex

Court in the case of Harchand Singh (Supra), Mr. Biswas,

learned Senior Advocate submits that in view of the said two

inconsistent and contradictory version of the prosecution

witnesses, the accused petitioner of the present case deserves

acquittal.

[30] Mr. P.K. Biswas, learned Senior Advocate also relied

on the decision of the Apex Court in Mukhtiar Ahmed Ansari

Vs. State (NCT of Delhi) (Supra) to support his contention that

when a witness who does not support the prosecution is not

declared hostile, the accused can rely on his evidence.

[31] On this issue, Mr. P.K. Biswas, learned Senior

Advocate has also relied on the decision of the Apex Court in

Javed Masood & Anr. Vs. State of Rajasthan (Supra) wherein

the Apex Court has declared that there is nothing in law that

precludes the defence to rely on the evidence of prosecution

witnesses who are not declared hostile despite supporting the

defence case.

[32] Interestingly, PW-10, who did not support the

prosecution case and on whose evidence the accused petitioner

is now relying for his defence was also incisively cross

Crl. Rev. P. 21 of 2017

examined on behalf of the accused at the trial. It was even

suggested to the PW on behalf of the accused that the PW did

not seize the blue books of the consumers and the PW did not

identify those consumers. The PW however denied those

suggestions.

[33] Whatever may be the stand of the accused

prosecution, cannot derive any benefit from it. The burden rests

on the prosecution to prove the case against the accused

beyond reasonable shadow of doubt. In the given case, it has

surfaced on record from the evidence of PW-10 that during his

part of investigation of the case, he came to know that the LPG

cylinders which were seized from the possession of the accused

were actually collected by the accused from some consumers,

who were his neighbours, for collection of LPG on their behalf

from the gas agency for which he was given fees. During

investigation, the PW also found those consumers from whom

those cylinders were collected by the accused.

[34] Though such possession of LPG cylinders by a

person other than a distributor or a consumer is a violation of

order 7(1)(c) of Liquefied Petroleum Gas (Regulation of Supply

and Distribution) Order 2000 and punishable under section

7(1)(a)(ii), EC Act, the prosecution has not presented a

consistent case against the accused in support of the charge.

Some of the prosecution witnesses who are official witnesses

Crl. Rev. P. 21 of 2017

have stated that the accused unauthorizedly possessed those

LPG cylinders for the purpose of selling LPG at a higher price.

No evidence could be collected that the petitioner was ever

engaged in such business. The investigating officer [PW-10] on

the other hand has stated at the trial that the accused actually

used to collect LPG cylinders on behalf of his neighbours from

various gas agencies and PW-10 also collected evidence in this

regard. In view of such inconsistent and different prosecution

versions against the accused, the prosecution case against the

accused petitioner appears to be quite doubtful and he should

be given the benefit of doubt.

[35] In view of what is discussed above, the revision

petition succeeds and the accused stands acquitted. His bail

bond stands discharged.

The case is disposed of.

Send back the LC record.

JUDGE

Rudradeep

Crl. Rev. P. 21 of 2017