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2006 DIGILAW 265 (GAU)

Tapan Biswas v. State of Assam

2006-03-21

I.A.ANSARI

body2006
JUDGMENT I.A. Ansari, J. 1. By the impugned judgment and order, dated 31.10.1998, passed, in Special Case No. 12/1995, by the learned Sessions Judge, Kamrup, Guwahati, the accused-Appellant stands convicted under Section 7 of the Essential Commodities Act, 1955 (in short, 'the E.C. Act'), for violation of Clause 6(1)(c) of the Liquefied Petroleum Gas (Regulation, Supply and Distribution) Order, 1993 hereinafter referred to as 'the LPG (RSD) Order, 1993), and sentenced to suffer simple imprisonment for 3 (three) months and pay a fine of Rs. 1,000/- and in default of payment of fine, to undergo simple imprisonment for further period of one month. 2. The case of the prosecution, as unfolded at the trial, may, in brief, be stated thus: On receiving information, on 25.02.1995, that some of the hotels, at Paltanbazar, Guwahati, had been using Domestic cylinders, instead of LPG Commercial cylinders, for commercial purpose, one Inspector of CBI (P.W. 1), accompanied by another Inspector of CBI, ACB (P.W. 5), an Area Manager of IOC, Guwahati, (P.W. 2) and a constable of CBI, (P.W. 4) made a surprise visit to hotel Gitanjali, at Paltanbazar, Guwahati, and found a domestic cylinder in used condition lying in the kitchen of the said hotel and another empty cylinder lying there alongwith the regulator. On demand made by P.W. 1, the accused, who was proprietor of the said hotel and who was present there, could not produce any documents to show that he could have used a Domestic cylinder for commercial purpose. The CBI Officer aforementioned, then, seized the cylinders and prepared a seizure memo in this regard. In course of time, an offence report seeking prosecution of the accused under Section 7 of EC Act, for violation of Clause 6(1)(c) of the LPG (RSD) Order, 1993. 3. During trial, the accused pleaded not guilty to charge framed against him under Section 7 of the E.C. Act. At the trial, the defence did not dispute that the domestic cylinders were found at the place as mentioned hereinbefore. In fact, while the accused was examined under Section 313 Code of Criminal Procedure, he admitted that two domestic cylinders had been found in his possession. What the accused contended was that the said two domestic cylinders were meant for his personal use. The fact that the accused was a consumer of domestic cylinder was not, however, disputed by the prosecution. What the accused contended was that the said two domestic cylinders were meant for his personal use. The fact that the accused was a consumer of domestic cylinder was not, however, disputed by the prosecution. In these premises, the learned trial Court held the accused guilty of the charge framed against him and convicted him accordingly. This conviction followed the sentence passed against the accused as indicated hereinbefore. Feeling aggrieved by his conviction and the sentence passed against him, the accused has preferred this appeal. 4. I have heard Mr. J.M. Choudhury, learned Senior Counsel, appearing on behalf of the accused-Appellant and Mr. K. Munir, learned Additional Public Prosecutor, Assam, appearing on behalf of the State-Respondent. 5. Because of the nature of unshaken evidence on record coupled with the admission made by the accused-Appellant, in his statement recorded under Section 313 Code of Criminal Procedure, showing that two domestic cylinders had been seized from the possession of the accused-Appellant, the fact that the accused-Appellant had been found in the possession of two domestic cylinders, at the place as mentioned hereinbefore, has not been disputed before me at the time of hearing of the appeal. What has, however, been contended, on behalf of the accused-Appellant, is that the mere possession of the domestic cylinders could not have been treated to be a violation of the provisions of Clause (c) of Sub-section (1) of Section 6 of the LPG (RSD) Order, 1993, particularly, when the accused is not alleged to be a non-consumer of domestic cylinders. 6. In view of the ground on which the conviction stands challenged, it is necessary to take note of Section 6(1)(c) of the LPG (RSD) Order 1993, Section 6(1)(c) of the LPG (RSD) Order 1993, is, therefore, reproduced hereinbelow: 6. Possession supply or sale of liquefied petroleum gas equipments: (1) (a).... (b).... (c) Possess filed nor empty cylinder, gas cylinder valve or pressure regulator, unless he is a consumer and the same has been supplied by a distribution, a government oil company or a parallel marketeer. 7. From a careful reading of what Section 6(1)(c) aforementioned embodies, it clearly transpires that no person shall possess filed or empty cylinder, gas cylinder valve or pressure regulator, unless he is a consumer and the same has been supplied by a distributor, a government oil company or a parallel marketeer. Section 6(1)(c) of the LPG (RSD) Order 1993. 7. From a careful reading of what Section 6(1)(c) aforementioned embodies, it clearly transpires that no person shall possess filed or empty cylinder, gas cylinder valve or pressure regulator, unless he is a consumer and the same has been supplied by a distributor, a government oil company or a parallel marketeer. Section 6(1)(c) of the LPG (RSD) Order 1993. This, in turn, shows that if a consumer of LPG domestic cylinder is found in possession of such a cylinder at a commercial place or is found to have used such a cylinder at a commercial place, he cannot be said to have violated the provisions of Section 6(1)(c) of the LPG (RSD) Order 1993. By no stretch of reasoning, Section 6(1)(c) of the LPG (RSD) Order, 1993, can be said to have made use of domestic LPG Cylinder, at a commercial place, an offence. 8. To a pointed query made by this Court, Mr. K. Munir, learned Additional Public Prosecutor, Assam, candidly concedes that Section 6(1)(c) of the LPG (RSD) Order, 1993, does not make use of domestic cylinder by its consumer at his commercial place an offence. Realizing, perhaps, this deficiency in the provisions of Clause (c) of Sub-section (1) of Section 6 of the LPG (RSD) Order, 1993, Section 3(c) of the Liquefied Petroleum Gas (Regulation, Supply and Distribution) Order, 2000 (in short, 'the LPG (RSD) Order, 2000') has made specific provisions, in this regard, for, Section 3(c)of the LPG (RSD) Order, 2000, reads as follows: 3. Restriction on unauthorized possession, supply and consumption of Liquefied Petroleum Gas: (a).... (b).... (c) Use liquefied petroleum gas for any purpose other than for which the consumer is registered with the distribution of a Government Oil Company; 9. From a careful reading of Section 3(c) of the LPG (RSD) Order, 2000, what transpires is that the use of a LPG cylinder for a purpose other than the purpose for which the consumer is registered would be an offence. Considered thus, it is clear that under Section 3(c) of the LPG (RSD) Order, 2000, the use of Domestic Cylinder for commercial purpose is a violation of Clause (c) of Section 3and is, therefore, an offence under Section 7 of the E.C. Act. No provision, such as the one, as is found in Clause (c) of Sub-section (1) of Section 3, existed in the LPG (RSD) Order, 1993. No provision, such as the one, as is found in Clause (c) of Sub-section (1) of Section 3, existed in the LPG (RSD) Order, 1993. The LPG (RSD) Order 2000, was, however, not in existence at the time, when the cylinders, in question, were seized from the possession of the accused-Appellant. 10. Because of what have been discussed and pointed out above, it is abundantly clear that merely on the ground that the accused-Appellant was found using or possessing domestic cylinder at a commercial place, the provisions of Section 6(1)(c) of the LPG (RSD) Order 1993 cannot be said to have violated. It, therefore, logically follows that the conviction of the accused-Appellant under Section 6(1)(c) of the LPG (RSD) Order, 1993, cannot be sustained. 11. In the result and for the foregoing reasons, this appeal succeeds. The impugned judgment and order, dated 31.10.1998, aforementioned, whereby the accused-Appellant stands convicted and sentenced, as indicated hereinbefore, are accordingly set aside. 12. Let the LCRs be sent down to the learned Court below forthwith. Appeal allowed