JUDGMENT : Heard, Mr. BK Mahajan, learned counsel for petitioner and Mr BJ Dutta, learned Addl. Public Prosecutor for the State. 2. This revision is directed against the order of the learned Addl. district and Sessions Judge (FTC) I, Kamrup (M) CJM, Kamrup (M) by the order dated 11.11.2018 in criminal appeal No. 20/2008 whereby learned Court has affirmed the order of learned CJM(K) dated. 31.08.2018 in CR case 5422/2006 whereby the petitioner is convicted u/s 7(1)(a)(ii) of the Essential Commodities Act and sentenced to r/i for one year with fine of Rs 5,000/- and in default to s/i for two months 3. Sri Ghanasyam Das, Inspector of Food & Civil Supplies in Guwahati on 24.4.2006 lodged a complaint with the CJM, Kamrup(M) stating that after receiving a secret information of illegal storing and selling refilled LPG in the Kumarpa area, he and some officials of the department on 7.2.2006 searched Jai Hind Tent House and recovered 14 filled-in LPG cylinders weighing 14.2 kg each and 24 numbers of empty cylinders stored in the shop. 4. The learned trial court based on the complaint took cognizance of the offence and issued summon to the accused persons. The accused person faced trial and denied the charge framed against him u/s 7(1)(a) (ii) of the Essential Commodities Act, 1955 and demanded a trial. 5. The prosecution examined six witnesses and the defence one. On the conclusion of trial, on the basis of evidence on record, learned court convicted the petitioner as aforesaid. 6. The appeal filed by the petitioner against the said order was dismissed by the learned appellate court. Hence the present revision has been preferred challenging the legality and validity of the impugned order. 7. Ld. On the conclusion of trial, on the basis of evidence on record, learned court convicted the petitioner as aforesaid. 6. The appeal filed by the petitioner against the said order was dismissed by the learned appellate court. Hence the present revision has been preferred challenging the legality and validity of the impugned order. 7. Ld. counsel for the petitioner submitted that the learned courts below have erred in law and fact in appreciating the evidence on record as the prosecution has failed to prove that the cylinders were actually seized from his conscious possession and the charge framed against him under Section 7(1)(a)(ii) of the Act is not in accordance with Section 7 of the Act, whereas no charge is framed for violating the Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order, 2000 (hereinafter LPG Order) and this has caused revision prejudice to the accused petitioner since the cardinal principle of the Criminal Jurisprudence demands that the prosecution must prove the guilt of an accused beyond all reasonable doubt but the standard of proof on the part of the accused is by way of preponderance of probability, the inference of which can be drawn not only from the material brought on record but also from the circumstances in which the accused relies. But in this case learned trial court did not take into consideration the entire aspect in convicting him. 8. It is further submitted that the Inspector of Food & Civil Supplies, examined as PW1, stated that the cylinders were seized from the premises of Joy Hind Tent House but failed to adduce any evidence to show that accused is the owner or incharge of the tent house and in absence of any specific evidence to this effect he cannot be implicated under said Sections of law. The PW3 in his cross-examination has categorically stated that he has not verified any documents/ papers indicating that the petitioner is the proprietor of the tent house. Petitioner stated in his cross-examination that members of Joy Hind Club on receiving information of seizing their gas cylinders by the departmental officials submitted an application to the Deputy Commissioner on 7.2.2006 and this shows the cylinders were kept in the club and so the learned trial court has failed to give equal weightage to the evidence adduced by him. 9. 9. Learned counsel for petitioner Mr Mahajan led this court through evidence on record to submit that the trial court has miserably failed to appreciate the matter in proper perspective of law and fact and contend that it is a clear case of violation of clauses 6, 7 and 13 of the LPG Order 2000 so as to make an offence u/s 7 of the Essential Commodities Act and the learned trial court has totally ignored the said provision in deciding the case. The another limb of argument is that the evidence on record itself reveals that the cylinders were not kept for sale as it was duly returned to customers with due permission of the Deputy Commissioner. That apart it is also submitted that there is absolutely no evidence to show that the said tent house was owned and run by the accused when the accused by adducing evidence has substantially proved that it was not a tent house but a club and the club members used to keep filled-in and empty cylinders as per their own evidence and the petitioner cannot be held liable for violation of Section 7 of the EC Act. 10. Learned APP Mr Dutta has fairly acceded to the violation of the 2000 Order in conducting search and seizure in the premises and that there is no document supporting the ownership of the said business by the petitioner. 11. The submissions made before this court are considered and bearing in mind the provision referred to above let us examine the legal provision and evidence on record to appreciate the submissions made. 12. So far official witnesses PW-1 to PW-4 examined by the prosecution all of them have stated about the search and seizure in the premises of the accused. The defence, however, challenged the authority of the officials to make search and seizure and they are not empowered by the clause 13 of the 2000 Order, but the learned courts below were of the view that there was nothing on record to show that PW1 was unauthorized to conduct search and seizure and accordingly it was held that PW1 was fully authorized to carry out such search, even though the other witnesses need not be authorized to do the same. 13. 13. Now it is the prosecution case that 14 filled-in cylinders and 24 emptied cylinders were found in the premises of the accused and he could not show any authority or document to store such cylinders. All the official witnesses have given some sort of evidence on the point of the recovery of cylinders. 14. PW1 who conducted the search and seizure in his cross examination has admitted that he did not obtain any written order from the Court or the State authority to conduct such search and he carried out such operation on verbal direction of the DC. PW1 stated that they returned the seized cylinders to customers. It is also in their evidence that they have not received any sort of complaint that the accused illegally sold cylinders to customers or kept them illegally and they have also not obtained any document to show that accused runs the Jai Hind Tent House to prove the ownership. 15. PW3 in his cross-examination referred to Jai Hind Club instead of Jai Hind Tent House. They have not received any complaint from neighbours or customers regarding illegal dealing in cylinders by accused. 16. The evidence given by PW4 is on different line. He stated in cross-examination that there was a Jai Hind Club near the Jai Hind Tent House and there was signboard of the club and there was a godown nearby. 17. Now we may refer to the evidence of PW5 and PW6 who are the independent witnesses to the seizure list and both of them have stated that the complainant witnesses called them to the club of the accused and took signature on exhibit 1 but they have no idea why signature was taken on a blank paper. 18. Thus, from the evidence on record it emerges that firstly there was no document to show that the accused ran the said tent house to deal in LPG cylinders. Secondly, the witnesses have also stated to different stories regarding the premises, where from the article seized – Jai Hind Tent House or Jai Hind Club? Thirdly, the complainant was not authorized by any authority to conduct search and seizure except some verbal direction of the DC concerned. Fourthly, the independent witness has totally belied such search and seizure made by the official witnesses. Thirdly, the complainant was not authorized by any authority to conduct search and seizure except some verbal direction of the DC concerned. Fourthly, the independent witness has totally belied such search and seizure made by the official witnesses. Fifthly, no witness/customer has been examined to substantiate the allegation made in the complaint that the accused illegally dealt in LPG cylinders. 19. Of course, the case can be established on the basis of official witnesses irrespective of independent witness but the same is to be found consistent with the fact and law. Insofar as the fact is concerned the official witnesses themselves have failed to prove that it was the accused who ran the premises where they made the seizure. No document is produced nor is made any inquiry into the subject. There was also no complaint from any customer about the illegal dealing in LPG cylinders by the accused. As soon as the articles were returned to the registered owners without any complaint it would belie the allegation of illegal storing of LPG cylinders. 20. Another vital aspect emerges is whether the premises where the search was made was a tent house or a club? Some of the official witnesses as discussed above have stated that it was “Jai Hind Club” and some of them stated that it was “Jai Hind Tent House” and there was no signboard of Jai Hind Tent House, but there is signboard in the name of Jai Hind Club. The evidence of PW5 and PW6 reveals that the premises owned by the accused is Jai Hind Club and therefore it can be safely inferred that the search was made in the club. This is also the plea of the accused that club members used to keep LPG cylinders, either filled-in or empty, for their connivance. 21. To substantiate the plea the defence has also adduced evidence of DW1 Altaf Hussain who is stated to be the general secretary of the “Jai Hind” club which is a registered club. He stated that the club was established in the year 1967 taking on rent of Rs 1,500 from the accused and there is no tent house. 21. To substantiate the plea the defence has also adduced evidence of DW1 Altaf Hussain who is stated to be the general secretary of the “Jai Hind” club which is a registered club. He stated that the club was established in the year 1967 taking on rent of Rs 1,500 from the accused and there is no tent house. He also stated that in the club there are some chairs and utesils for the members and sometimes for the sake of the club members gas cylinders are also kept there so that they can take the same to their house according to their convenience as Sikha Gas Agency is nearby. He has denied the allegation of the complaint that the accused never illegally dealt in such cylinders from the club premises and accused is the treasurer of the club. Thus, it can be held that there is no conclusive evidence to prove that the accused illegally dealt in cylinders from the premises as owner of the tent house. No evidence of customers or any documentary evidence to prove his ownership. The evidence of the complainant in itself is not at all consistent or convicting to prove the offence charged. The learned court below did not give due weightage to the evidence of the independent witness and the defence evidence that is discussed above. 22. Insofar as legal provision is concerned let us reproduce clauses 6, 7 and 13 of the 2000 Order: 6. Prohibition on carrying unauthorised business of selling LPG – 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 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. 13. 13. Power of entry, search and seizure : (1) Any Officer of the Central or the State Government not below the rank of Inpector duly authorised by a general or a special order, by the Central Government or the State Government, as the case may be or any officer of a Government Oil Company not below the rank of Sales Officer, authorised by the Central Government, may, with a view to securing due compliance of this order or any other order made thereunder; (a) Stop and search any vessel or vehicle used or capable of being used for the transport or storage of any petroleum product, (b) enter and search any place, (c) seize stocks of liquefied petroleum gas along with container and /or equipments, such as cylinders, gas cylinder valves, pressure regulators and seals in respect of which he has reason to believe that a contravention of this Order has been, or is being, or is about to be made. 23. In terms of the said provisions, of course, no person can deal in LPG gas cylinder or possess unless he is a distributor. What is more relevant is the clause 13 which provides that an officer not below the rank of Inspector can make search and seizure. The officer has to be duly authorised by a general of special order by the Government concerned. The provision in itself indicates that there should be special or general order to be issued authorising such search and seizure to the officer concerned. It nowhere did indicate about verbal order. Admittedly, in the present case there being no such authority or letter by the Government concerned the entire search and seizure is vitiated. When the legislature intended to perform certain duty in a manner under the law the same has to be preferred strictly in accordance with the statute, the violation of which will lead to illegality. The learned Court below discussed about the violation of clause 6 & 7, 1(C) of LPG Order 2000 but has not discussed about Clause 13 of LPG Order 2000 and also failed to appreciate all other facts and circumstances as discussed above, as regards the possession of LPG cylinders by accused petitioner. 24. Thus, in the instant case the entire search and seizure is vitiated for want of legal sanctity as discussed above and there is lack of supporting evidence on every material aspect. 24. Thus, in the instant case the entire search and seizure is vitiated for want of legal sanctity as discussed above and there is lack of supporting evidence on every material aspect. Due to non appreciation of the matter in proper perspective by the learned court below the impugned order is liable to be interfered with. Resultantly the impugned order is quashed and set aside and the accused is set at liberty forthwith. Send down the LCR.