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2014 DIGILAW 373 (TRI)

Ashim Bal v. State of Tripura

2014-11-12

DEEPAK GUPTA

body2014
JUDGMENT Deepak Gupta, CJ. 1. This revision petition is directed against the judgment dated 14-05-2010 passed by the learned Additional Sessions Judge, Belonia, South Tripura in Criminal Appeal No. 09 of 2010 whereby he dismissed the appeal filed by the present petitioner and upheld the judgment dated 25-03-2010 passed by the learned Sub-Divisional Judicial Magistrate, Belonia, South Tripura in G.R. 397 of 2007 convicting the accused of having committed an offence punishable under section 7(a)(i) of the Essential Commodities Act, 1955 and sentenced him to suffer simple imprisonment for 1 (one) month and also to pay fine of Rs. 5,000/- (rupees five thousand) and in default of payment of fine to undergo further imprisonment for one month. 2. The undisputed facts are that on 30-09-2007 at about 1-30 p.m., PW-1 Ranjit Kr. Das accompanied by the Sub-Divisional Magistrate and Addl. Sub-Divisional Magistrate of Belonia stopped one jeep bearing No. TR-03-2785 which was proceeding towards Hrishyamukh from Belonia side. In this 19 filled Liquefied Petroleum Gas cylinders (LPG cylinders) were being carried by the accused Ashim Bal. The accused failed to produce any license or other document or authority of any authorised person permitting him to carry such gas. The accused was also found in possession of 19 consumer books issued in the name of 19 separate consumers from "Santi Gas Agency". However, there was no record or entry of those cylinders being issued in favour of the petitioner either in "Santi Gas Agency" or in the consumer books found in the custody of the accused. The accused was, therefore, charged to be in unauthorized possession of the LPG cylinders. He has been convicted as aforesaid and hence, this petition. 3. Sri B. Choudhury, learned counsel for the petitioner, has raised three submissions before me. His first submission is that the accused was only a carrier. He has explained "carrier" to mean that he was the representative of the 19 consumers whose consumer books he was carrying and according to learned counsel, these 19 consumers had authorised him to collect the cylinders from "Santi Gas Agency" and the accused had only collected the cylinders on behalf of the consumers. He has explained "carrier" to mean that he was the representative of the 19 consumers whose consumer books he was carrying and according to learned counsel, these 19 consumers had authorised him to collect the cylinders from "Santi Gas Agency" and the accused had only collected the cylinders on behalf of the consumers. His next submission is that in the consumer books/blue books, the entries were not made because on 30-09-2007 the owner of the "Pilak Gas Agency" had expired and, therefore, as per the statement of PW-3 the entries were not made in the blue books. His last submission is that no proper seizure has been made in terms of Section 102 of the Code of Criminal Procedure. 4. Before considering the submissions, it would be pertinent to mention that the Central Government has notified an order known as the Liquefied Petroleum Gas (Regulation of supply and Distribution) Order, 2000 (hereinafter referred to as the order). This order came into force in the State of Tripura on 12-07-2000. 5. Under clause 2(b), "consumer" has been defined as follows:- "2(b). "consumer" means a registered person, firm, company, institution, association of persons, co-operative society or organisation, who has been granted liquefied petroleum gas connection or supply, either in bulk or in cylinder, by a distributor or a Government oil company or a parallel marketeer;" Therefore, a consumer is only that person(s) who has been granted a liquefied petroleum gas connection whether in bulk or in cylinder. 6. Clause 2(d) defines "delivery person" as follows:- "2(d). "delivery person" means a person engaged by a distributor of a Government Oil Company or a parallel marketeer to deliver liquefied petroleum gas in cylinder to consumers;" Therefore, "delivery person" has to be person engaged by the Oil Company or parallel marketeer. There can be no delivery person of the consumer. 7. Clause 2(q) defines "transporter" as follows:- "2(q). "transporter" means a person authorised by a Government Oil Company, parallel marketeer or a distributor for transportation of LPG in bulk or in cylinders and also of empty or defective cylinders." Again, the definition is very clear that the "transporter" has to be appointed by the Oil Company. 8. The scheme of the order is that LPG cylinders must be carried only by authorised persons and none else. There are two reasons for this. 8. The scheme of the order is that LPG cylinders must be carried only by authorised persons and none else. There are two reasons for this. The first is that LPG is an essential commodity and this Court is not unaware of the fact that there is a lot of black marketing and hoarding of this essential commodity. Therefore, the order has been issued with a view to prevent black marketing and hoarding of this essential commodity. There is a second very important consideration that LPG cylinders should be carried only by an authorised person. This is a highly inflammable commodity and everybody cannot transport the same because its transportation requires expertise and expert handling. LPG cylinders must be handled in a proper manner. Even in those States where LPG cylinders are delivered by deliverymen, those deliverymen have to undergo training to ensure that the delivery is done in a proper manner. The whole scheme of the order is that the LPG cylinder should be either in the custody of the company or the parallel marketeer or in the custody of the distributor or the supplier or lastly the deliveryman and finally, the consumer. No other person is authorised to take delivery of the LPG cylinder. 9. Clause (3) of the order clearly lays down certain restrictions on the use of liquefied petroleum gas and also clearly mentions that no consumer should be in possession of more than the number of cylinders for which he holds a valid and legal connection. The Government Oil Company is prohibited from supplying LPG filled in cylinder to any person unless he has been registered and granted a connection as a consumer for purchase of LPG under the public distribution system. The accused has no such registration or authorization. 10. Regulation 7 of the order is very important and reads as follows:- "7. The Government Oil Company is prohibited from supplying LPG filled in cylinder to any person unless he has been registered and granted a connection as a consumer for purchase of LPG under the public distribution system. The accused has no such registration or authorization. 10. Regulation 7 of the order is very important and reads as follows:- "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 authorised 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." This regulation prohibits any person from even possessing any filled or empty cylinder, gas cylinder valve or pressure regulator unless he is a distributor or a consumer. Therefore, no person other than a distributor or a consumer can be in possession of an empty or filled LPG cylinder. Not only that, no person other than a distributor or consumer can even be in possession of a gas cylinder valve or pressure regulator. The accused is neither a consumer nor a distributor. Therefore, he had no authority or legal right to be in possession of those 19 cylinders. 11. The defence of the accused is that he was authorised by various consumers to collect the gas from the godown and in this regard, reference has been made to the statements of PW-4 and PW-5, two consumers, who have supported the accused. Even assuming that their statements are correct, then also these consumers had no right or authority to authorise the accused to carry the cylinders on their behalf. The whole scheme of the order is that either the cylinder should be carried from the gas agency to the home of the consumer by the deliveryman or the consumer may go to the gas agency or the godown and collect the cylinder himself. The whole scheme of the order is that either the cylinder should be carried from the gas agency to the home of the consumer by the deliveryman or the consumer may go to the gas agency or the godown and collect the cylinder himself. No other person can be authorised to collect the cylinder. Even assuming for the sake of deciding this case that some authorization could be there, that authorization must be in writing, keeping in view the provisions of the Act. It is also very difficult to believe that 19 consumers would authorise one person to carry their cylinders on one day. This clearly shows that the accused was in the business of transporting the cylinders in total violation of the LPG order. Therefore, on this short ground, the appeal has to be rejected. 12. As far as seizure of the cylinders is concerned, that is not shown to be illegal or invalid because as held by me above an offence has been committed. Furthermore, the co-accused who was acquitted and who was the driver of the vehicle has clearly admitted in his statement under section 313 Cr.P.C. that he was carrying the cylinders on the asking of the accused. The accused has not denied the fact that he was carrying the cylinders. He has also not denied the fact that the cylinders were recovered from him. Therefore, how does it lie in his mouth to challenge the seizure of the cylinders. 13. As far as the submission with regard to blue books is concerned, it appears that PW-3 is making a false statement to help the accused because neither the Manager of the gas agency nor the daughter of this PW-3 who was the partner of the gas agency has stepped into the witness box. It was only the authorised person in the gas agency who could have made a statement in this regard and it is clear why they did not make such a statement because if they had made such a statement, their distributorship or gas agency could have been cancelled. 14. In view of the above discussion, I find no merit in the petition which is accordingly dismissed. Bail bonds are cancelled. The petitioner is directed to surrender within 2 (two) weeks to undergo the sentence imposed. 15. Send down the lower court records forthwith.