JUDGMENT : Heard Mr. S. Sarkar, learned counsel appearing for the petitioner as well as Mr. R.C. Debnath, learned Addl. Public Prosecutor appearing for the state. 2. By means of this petition filed under Section 397 read with Section 401 of the Cr.P.C., the judgment and order dated 24.03.2014 passed by the Sessions Judge, West Tripura, Agartala in Criminal Appeal No.36(3)/2013, confirming the judgment and order of conviction and sentence dated 22.06.2013 passed by the Judicial Magistrate 1st Class, Agartala, West Tripura in PRC No.615/2012 has been called in question. By the said judgment, the petitioner has been convicted for commission of offence punishable under Section 7(1)(a)(ii) of the Essential Commodities Act, which provides that, if any person contravenes any order made under Section 3 of the said Act, 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, for any adequate and special reasons to be mentioned in the judgment, a sentence of imprisonment for a term of less than three months can be imposed. 3. In consequence of that conviction, the petitioner has been sentenced to suffer rigorous imprisonment for three months and fine of `1,000 with default imprisonment. 4. The genesis of the prosecution case is rooted in a ejahar filed on 05.07.2012 by one Debasish Das, Inspector (Food), posted in the office of the Sub-Divisional Magistrate, Sadar, Agartala, disclosing that on 04.07.2012 at about 6.45 pm, when a joint raid was conducted by the field officials of the Food Section, Sadar Sub-Division with the help of the police personnel of the West Agartala police station in one restaurant, called ‘Amber Restaurant’ situated at Shakuntala Raod, Agartala it was found that 2(two) numbers of domestic LPG cylinders were being used in their commercial occupation, which is in complete violation of sub-clause (a) and (c) of clause (1) and (2) of para 3 of the Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order, 2000. The informant has also asserted in the ejahar that those two cylinders were marked by different numbers separately, as (1) 055457 S (fully filled) and (2) 511409 (partially used). On being queried, the accused could not give any satisfactory answer or produce any record how he was using the said domestic cylinders in commercial occupation. 5. The informant has also asserted in the ejahar that those two cylinders were marked by different numbers separately, as (1) 055457 S (fully filled) and (2) 511409 (partially used). On being queried, the accused could not give any satisfactory answer or produce any record how he was using the said domestic cylinders in commercial occupation. 5. Based on the said ejahar, West Agartala P.S. Case No.170/2012 under Section 7(1)(c)(ii) of the Essential Commodities Act, 1955 was registered and taken up for investigation. After investigation, the final police report chargesheeting the petitioner was filed and cognizance was taken under Section 190 of the Cr.P.C. In the course, the charge was framed against the petitioner for committing the offence punishable under Section 7(1)(c)(ii) of the Essential Commodities Act, 1955. However, the petitioner pleaded innocence and claimed to be tried. 6. To substantiate the charge, the prosecution adduced as many as 4(four) witnesses, however the Investigating Officer was not examined. Moreover, the witnesses adduced and examined by the prosecution are all official witnesses. 7. PW.1, Manik Lal Das is the Sub-Divisional Magistrate, under whose guidance the said raid was carried out. Sri Debasish Das (PW.2), Sri Basab Bhattacharjee (PW.3) and Sri Jatan Das (PW.4) were the Inspectors of Food at the relevant point of time. All of them have narrated the same story as reflected in the written ejahar. However, in cross-examination they were compelled to disclose the further details, such as, PW.2 has stated in the cross-examination that, “We did not get the said domestic LPG cylinders weighed. We did not get the said domestic LPG cylinder examined by any expert in order to ascertain that the said LPG Cylinders were domestic or commercial”. PW.3 has also stated in the cross-examination that, for safe custody the said seized articles were handed over to the Manager of the Tripura Apex Marketing Cooperative Society, MARKFED, Bhuturia with a jimmanama. PW.4 has replicated what PW.3 has stated in the trial. 8. To rebut the evidence, for the petitioner, one witness, namely Smt. Renu Bala Ghosh was examined as DW.1, who has stated that, she kept the cylinders in the custody of the petitioner out of apprehension of theft as her house would be under lock and key. 9. PW.4 has replicated what PW.3 has stated in the trial. 8. To rebut the evidence, for the petitioner, one witness, namely Smt. Renu Bala Ghosh was examined as DW.1, who has stated that, she kept the cylinders in the custody of the petitioner out of apprehension of theft as her house would be under lock and key. 9. The interesting feature that has been noticed by this court is that the seizure of the LPG cylinders had taken place on 04.07.2012 at Amber Restaurant, Agartala by one Debashis Das (PW.2) with the markings as stated in the ejahar and those were deposited with the Manager of the Tripura Apex Marketing Cooperative Society, MARKFED, Bhuturia after obtaining a jimmanama (Exbt.3). But when the police seized those cylinders, they seized it from the West Agartala police station without any marking on the cylinders, but in presence of the petitioner and one Deba Deb. It is really strange, when the jimmanama was taken of the seized cylinders from the Tripura Apex Marketing Cooperative Society, MARKFED, how the said cylinders were brought to the West Agartala police station without seizure from the custody of the Manager of the Tripura Apex Marketing Cooperative Society, MARKFED, Bhuturia and those were reseized in presence of the petitioner on the subsequent date i.e. 19.07.2012, even those cylinders did not carry the markings as given by PW.2, namely Debasish Das, which he has disclosed in the ejahar. Moreover, what this court has found that in terms of Section 102 of the Cr.P.C., no independent witness has been shown as the seizure witness. 10. In this regard, Mr. R.C. Debnath, learned Addl. Public Prosecutor, has referred to the deposition of PW.3, who in the cross-examination, has stated that the raid was conducted at about 6.45 pm and some people were present in the said restaurant at that time and one person who was present in the said restaurant was cited as the seizure witness but that witness was not produced in the trial. 11. However, the petitioner denied that he contravened the provisions of the said regulation and committed any offence under Section 7(1)(c)(ii) of the Essential Commodities Act, 1955. Though the petitioner adduced one witness to rebut, but unless the prosecution discharged their burden in proving that the petitioner committed that offence, the petitioner under no circumstances can be saddled with duty of rebuttal. 12. Though the petitioner adduced one witness to rebut, but unless the prosecution discharged their burden in proving that the petitioner committed that offence, the petitioner under no circumstances can be saddled with duty of rebuttal. 12. The trial court, on purported appreciation, by its judgment and order dated 22.06.2013 delivered in PRC No.615/2012, convicted the petitioner under Section 7(1)(c)(ii) of the Essential Commodities Act, 1955 and sentenced him to suffer rigorous imprisonment for three months and fine of `1,000 with default imprisonment. Being aggrieved by that judgment of conviction, the petitioner preferred an appeal under Section 374(3) of the Cr.P.C. in the court of the Sessions Judge, West Tripura, Agartala, being Criminal Appeal No.36(3)/2013. The said appeal was dismissed by the Sessions Judge, West Tripura, Agartala by the impugned judgment dated 24.03.2014, confirming the conviction and sentence of the trial without any modification. 13. Mr. Sarkar, learned counsel appearing for the petitioner has strenuously contended that the seizure cannot be believed by this court in the circumstances and apart that there is no proof that the cylinders those were seized were the cylinders marked for only domestic use or there is no witness to show that those cylinders were being used in the commercial operation. The official witnesses, as stated, who have disconnected those cylinders, cannot be believed inasmuch as there was no identification marks when the cylinders were marked for the domestic use only and their act by that way is illegal in nature. So to shield their act they have not spoken the truth in the trial. Mr. Sarkar, learned counsel has further submitted that without ascertaining whether those cylinders as purportedly seized from the premises of the petitioner was marked for the domestic use or not, the prosecution cannot expect conviction of the petitioner. 14. From the other side, Mr. R.C. Debnath, learned Addl. Public Prosecutor has submitted that for some infirmity in observance of the best procedure, the finding of conviction may not be disturbed by this court. 15. 14. From the other side, Mr. R.C. Debnath, learned Addl. Public Prosecutor has submitted that for some infirmity in observance of the best procedure, the finding of conviction may not be disturbed by this court. 15. Having regard to the submissions advanced by the learned counsel for the parties, this court is of the opinion that the prosecution could not prove that the cylinders as seized from the premises of the petitioner was marked for the domestic use and moreover the seizure by the police is shrouded by serious infirmity, as PW.2 has categorically stated that after seizure by him in presence of the witnesses he deposited those cylinders with the Manager of the Tripura Apex Marketing Cooperative Society, MARKFED after taking the jimmanama, but how the police seized those cylinders without any ‘mark’ in the police station, has not been explained by the Investigating Officer. Even the Investigating Officer has not been examined in this case. 16. Having regard to all those infirmities, this court is of the view that the petitioner is entitled to the benefit of such infirmities and accordingly the charge falls through on benefit of doubt. Accordingly, the impugned judgment and order of conviction and sentence is set aside. In consequence thereof, the petitioner is entitled to get the acquittal on benefit of doubt and it is ordered. 17. In the result, this petition stands allowed. Send down the LCRs forthwith.