JUDGMENT :- The petitioners have challenged the order dated 13-7-1999 passed by the learned Special Judge (EC) Aurangabad (the Special Judge) on an application Exh.4 in Special Case No.20 of 1998 and thereby, rejected their application under sections 227 and 239 of the Code of Criminal Procedure for a discharge. 2. As per the prosecution, on 3-10-1997, on information, the police authorities effected a raid at Plot No.6, Friends Colony, Aurangabad and seized 20 filled commercial gas cylinders and 25 empty commercial gas cylinders. Based on that, Police Head Constable, Karbhari Bandu Sonwane lodged a complaint at Police Station Kranti Chowk Aurangabad on 4-10-1997 and invoked the provisions of Section 3 and Section 7 of the Essential Commodities Act, 1955 (the Act). Apart from seizure panchanama, the statements were also recorded. Ultimately Special Case No.20 of 1998 has been registered before the Special Judge against the petitioners. 3. The main allegations against the petitioners are that they have stored gas cylinders with an intention to sell it in the black market. There was no price restriction on the commodity and/or was any restriction in respect of quantity at the relevant time. The commercial gas cylinders are available in the open market. After filing of the charge-sheet, the petitioner appeared and moved an application for discharge and thereby, contending that on the basis of the allegations made in the charge-sheet and the evidence collected by the prosecution, no charge could have been framed against the petitioners. Therefore, the continuation of such criminal proceedings amounts to abuse of process of law. The Special Judge, however, rejected the same basically by observing that the accused could not explain the possession of the gas cylinders. 4. Undisputedly, the petitioners have their refilling plant of Liquified Petroleum Gas Cylinders at Shivur, Taluka Vaijapur, named and styled as "Sancheti Gas Bottling Company". They are marketing the sale of gas cylinders named as "Sun Gas". There is no dispute that the commercial gas cylinders have been found in the compound wall of Plot No.8 at Friends Colony as alleged. Undisputedly, the petitioners have their refilling plant of Liquified Petroleum Gas Cylinders at Shivur, Taluka Vaijapur, named and styled as "Sancheti Gas Bottling Company". They are marketing the sale of gas cylinders named as "Sun Gas". There is no dispute that the commercial gas cylinders have been found in the compound wall of Plot No.8 at Friends Colony as alleged. There are no specific charges raised or framed in reference to the specific provisions of any Order, except offences under sections 3 and 7 of the Act, on the allegations that the petitioners have kept the gas cylinders with an intention to sell it in the black market, though the Government of India has announced open market policy for the commercial gas cylinder. As there is no case made out the petitioners prayed for the discharge. 5. The learned Advocate appearing for the petitioners, basically contended that apart from the merit, prima facie, the Police Head Constable has no jurisdiction and authority to lodge the complaint in view of Clause 11 of the Liquified Petroleum Gas (Regulation of Supply and Distribution) Order, 1993. The relevant extract of Clause 11 (a) reads thus: "11. Power of entry, search and seizure :- (a) An Officer of the Department of Food and Civil Supplies of the Government not below the rank of an Inspector authorised by such Government and notified by the Central Government or any Officer authorised and notified by the Central Government or any Officer not below the rank of a Sales Officer of a Government Oil Company authorized by the Government and notified by the Central Government may, with a view to ensuring compliance with the provisions of this Order, for the purpose of satisfying himself that this Order or any Order made thereunder has been complied with, (a) …….. "(ii) enter or search any place with such aid or assistance, as may be necessary; and (iii) seize and remove with such aid or assistance, as may be necessary books, registers and other records pertaining to liquified petroleum gas business, filled and empty cylinders, cylinder valves and pressure regulators along with the vehicle, vessel or any other conveyance used for carrying such stock ..... " The basic requirement, therefore, is that an officer of the Department of Food and Civil supplies of the Government not below the rank of an Inspector authorized and notified by the Government and/or any officer not below the rank of the Sales Officer of Government Oil Company as authorised, only has a power of entry, search and seizure and to do other necessary things, if required. In the present case, admittedly, there is nothing on record to suggest and/or even bourne out from the record that the Police Head Constable, in question, who has lodged the complaint, has any authorisation by the Government as contemplated in clause 11. All the documents specifically named and sealed by the Police Head Constable who is admittedly not an officer "not below the rank of an Inspector". An Assistant Inspector of Police, Dabhada, who has seized these cylinders, is not an authorised Officer as contemplated under clause 11. If this Order provides a specific officer who can enter, search and seize the goods, in such cases no other officer has jurisdiction or authorisation to do the act as has been done in the present case. Neither the Head Constable, who has lodged the complaint, nor the Officer, who has seized the gas cylinders, had any written authorisation. 6. The learned A.P.P. contended that in view of Clause 4 of the Petroleum Products (Supply and Distribution) Order, 1972 as corrected upto 31st March 1995, any police officer not below the rank of Sub-Inspector or any other officer of Government of or above and equivalent rank, authorized in this behalf by Central Government or State Government may enter, search and seize such goods and or to do all necessary things. Admittedly, there is nothing brought on record to show their authorization in reference to the action in dispute which arose out of the Liquified Petroleum Gas (Regulation of Supply and Distribution) Order, 1993, though the petroleum products, according to Petroleum Products (Supply and Distribution) Order 1972, and as contended, also means "liquified petroleum gas". Based on this, the learned A.P.P. contended that the action, as initiated, was within the framework of the law and cannot be said to be without the authorization. 7. The Gas Cylinders Rules 1981 framed under Section 18 of the Indian Explosives Act 1884 have also been relied upon by the learned A.P.P. to justify their action. Based on this, the learned A.P.P. contended that the action, as initiated, was within the framework of the law and cannot be said to be without the authorization. 7. The Gas Cylinders Rules 1981 framed under Section 18 of the Indian Explosives Act 1884 have also been relied upon by the learned A.P.P. to justify their action. The complaint, as lodged, nowhere provided any breach of Gas Cylinder Rules 1981 and or of the Petroleum Products (Supply and Distribution) Order 1972. Reference is only of sections 3 and 7 of the Act. Above this, the only allegations are that the petitioners have kept these cylinders for black marketing. In view of the specific complaint made and raised about black marketing, the impugned action and order, therefore, cannot be sustained. On the contrary, in view of the averments made in the complaint itself and in view of the submissions made and as there is no notified authorization placed on record, as per clause 11 of the Liquified Petroleum Gas (Regulation of Supply and Distribution) Order 1993, I am of the view that no case has been made out by the prosecution to proceed with the matter further. The Special Judge therefore is wrong in rejecting the application filed by the petitioners. 8. The learned Advocate appearing for the petitioners has relied on a judgment in Suresh Kumar V s. State of Haryana, 1996 Cr.LJ. 4216, wherein, based on the provisions of Section 3 of the Act and clause 7 of the Liquified Petroleum Gas (Regulation of Supply and Distribution) Order, 1993 the Punjab and Haryana High Court held that the search and seizure by Sub-Inspector of Police, who was not notified and authorised officer of the Department of Food and Civil Supplies, was without jurisdiction in the following words and discharged the accused in that case. "5. Learned counsel for the petitioner has relied upon the judgments of this Court in case of Harpal Singh Vs. State of Punjab reported as 1991(2) CLR 71, Raj KumarVs. State of Punjab reported as 1994(2) CLR 24, Ashok Kumar Vs. State of Haryana reported as 1991(2) RCR 140 and on a very recent judgment of this Court in the case of Kala Devi alias Kala Vs. State of Haryana reported as 1995(2) RCR 427. State of Punjab reported as 1991(2) CLR 71, Raj KumarVs. State of Punjab reported as 1994(2) CLR 24, Ashok Kumar Vs. State of Haryana reported as 1991(2) RCR 140 and on a very recent judgment of this Court in the case of Kala Devi alias Kala Vs. State of Haryana reported as 1995(2) RCR 427. Thus, settled position of law is that a police officer of the rank Sub-Inspector is not authorised and notified person under the Order and consequently could not have exercised the power of entry, search and seizure and certainly under Cl.7 of the Order the powers of entry, seizure, search and investigation of the case do not vest in Sub-Inspector of Police who was not authorised by the State Government and notified by the Central Government. No fruitful purpose would be served in directing he petitioner to stand the complete trial. This is the matter which goes to the root of the prosecution and as a fact it has not been disputed in the reply and even during the course of arguments by the learned counsel for the State. I find it a fit case where the charge should be quashed. Learned counsel for the State has not pressed his submission that the police officer could conduct investigation of this case under the provisions of Code of Criminal Procedure which is· general law governing the investigation into criminal offences. He has fairly not pressed this contention in view of the judgment of the Supreme Court in the case of Nilratan Sircar Vs. Lakshmi Narayan Ram Niwas reported as 1965(1) Cri.L.J.100: ( AIR 1965 SC 1 )" 9. He further relied on Smt. Sushila Chaudhary Vs. State of U.P., 1987 EFR 336 wherein the Allahabad High Court, on the facts of irregularities committed concerning the LPG cylinders and while dealing with the provisions of Sections 3 and 7 of the Act, observed as under: "11. It is noteworthy that the applicants, are as per recitals of the first information report, said to have committed an offence under section 3/7 of the Essential Commodities Act. The crux of the matter is whether accepting the allegations made in the first information report any such offence is committed or not. It is noteworthy that the applicants, are as per recitals of the first information report, said to have committed an offence under section 3/7 of the Essential Commodities Act. The crux of the matter is whether accepting the allegations made in the first information report any such offence is committed or not. It is a settled law that if the first information report, taking the entire averments made therein is correct, does not prima facie make out an offence, the Court will exercise its inherent powers to prevent undue harassment of any individual unnecessarily, when even on the proof of the entire allegations the individual or individuals cannot be convicted for any offence. These are exceptional cases in which inherent power are excised, though exercisable in rarest of rare cases." 10. In Manish Kumar Yadav Vs. State of M.P., 2001 Cri.L.J. 2385, as the Agent in that case was selling gas cylinders at higher price than what was fixed by the Government, it was observed that the petitioner therein statutorily liable for the violation of Control Orders. In the present case, admittedly there was no such case made out except apprehension, only because they found commercial gas cylinders. There was no case or material to justify even the allegations of black marketing. Admittedly, those are commercial gas cylinders available in the open market. The petitioners have a gas refilling plant and they have also a licence to do all the necessary things which include the storage of the same. The learned A.P.P. however submitted that the storage of such gas cylinders in such an area itself is an offence. But the FIR nowhere deals with that aspect except the averments of black marketing. There was no reference about any breach of the LPG Order or such other Orders. 11. In Prakash Babu Raghuwanshi Vs. State of M.P., 2004 Cri.L.J. 4612: [2004 ALL MR (Cri) 3473 (S.C.)], the Apex Court has observed, while dealing with Section 3 of the Act and contravention of the Order that, it is essential to place on record the provisions of the Order which were violated. In the present case, the specific averments are made only of black marketing without referring to any provisions of any Order. In the present case, the specific averments are made only of black marketing without referring to any provisions of any Order. On facts itself, in absence of any other contraventions or breaches of any Orders, there is nothing to justify even at this stage that the petitioners should face criminal trial and/or such proceedings. The learned Advocate appearing for the petitioners has pointed out that even the facts as recorded in the statements of two witnesses that because of getting down of the vehicle those cylinders required to be stored at the place in question also material and cannot be overlooked. The reasoning given by the learned Special Judge while rejecting the application that the accused could not explain the possession of the cylinders is also wrong. The fact of having cylinder refilling plant at Shivur, Taluka Vaijapur available on record, the learned Special Judge has overlooked the same. 12. Taking all this into account I am of the view that, the petitioners have made out a case as prayed in their application for discharge. 13. The impugned order dated 13-7-1999 passed below Exh.4 in Special Case No.20 of 1998 is, therefore, quashed and set aside. The application (Exh.4) for discharge filed by the petitioners before the Special Judge Aurangabad is allowed in terms of prayer clause (B). 14. Consequently, the Criminal Revision Application is allowed in term of prayer clause (B). Rule is made absolute in the above terms. Revision application allowed.