Thursday, 31 October 2019

Bombay HC: Accused can not be convicted under Essential commodities Act if he is not valid license holder

The accused – appellant was not a license holder. Since the
appellant is not a holder of valid licence under section 3 of the Essential
Commodities Act, there could not be any conviction recorded under
section 7 of the Essential Commodities Act.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 782 OF 1997

Shri Jayendra Sadarmal Talereja  Vs. The State of Maharashtra
CORAM: SMT. SADHANA S. JADHAV, J.
DATE : 16th OCTOBER 2019.


1 The appellant herein is convicted vide judgment passed by
the Special Judge, Kolhapur by judgment dated 4th November 1997 for the
offence punishable under section 7 read with 3 of the Essential
Commodities Act for violating sub-clause (3) of clause 6 of the Liquefied
Petroleum Gas (Regulation of Supply and Distribution) Order, 1988, and
he is sentenced to suffer R.I. for 3 months, and to pay a fine of Rs.500/- in
default to suffer further R.I. for one 1 month. Hence, this appeal.

2 Such of the facts necessary for the decision of this appeal are
as follows :-
On 19th April 1996 a secret information was received by
Laxmipuri Police Station, Kolhapur that some shopkeepers in that area are
selling bogus /duplicate gas regulators. On receipt of the said information,
the Police had visited Heera General Stores and had searched the said
shop. They had found certain regulators in Heera General Stores. They
had then visited Geeta General Stores. The appellant was present in the
shop. Upon intimation, the shop was searched in the presence of panchas
and the police had seized 6 bogus gas regulators. Seizure panchanama
was drawn and thereafter PW4 - Bhikaji Gokhale who was attached to
Laxmipuri Police Station as head constable had lodged a report at Laxmi
Puri Police Station on the basis of Crime No.60 of 1996 was registered
against the appellant for the offence punishable under section 3 read with
section 7 the Essential Commodities Act.
3 The case was registered as a special case. PW1 – Enayat
Shaikh who has acted as a panch for search of Geeta General Stores has
turned hostile at the time of trial. Similarly, PW2 – Mansing Patil has

turned hostile and has also denied the presence of the appellant in the
shop at the relevant time. PW3 – Appasaheb Bhogam who had signed the
panchanama at Exh.16 has also resiled from his earlier statement and has
denied seizure of 6 regulators in the said shop.
4 The prosecution has relied upon the evidence of PW4 who is
first informant i.e. Bhikaji Gokhale. He has deposed in consonance with
the FIR lodged by him which is marked as Exh.19. He has admitted in the
cross-examination that he had not obtained signature of PW1 – Enayat
Shaikh on the panchanama at Exh.16.
5 PW5 – Rajesh Oonawane was attached to Laxmipuri Police
Station as PSI. He has deposed before the Court the steps taken by him in
the course of investigation. It is admitted that the raiding party had not
taken assistance of any decoy witnesses. He has specifically admitted that
he had not seized the license of Geeta General shops or the documents
showing ownership of the accused over the shop. He had referred the
regulators for examination to the office of Bharat Petroleum Corporation.
The report was subsequently received by him indicating therein that they
were genuine regulators.

6 The case of the prosecution is that even if the regulators were
genuine the accused was selling them without holding a license for
possession, distribution or sale. The learned counsel for the appellant
submits that the prosecution has not proved the ownership of the shop
and neither they have seized the license and therefore, the conviction of
the accused has resulted into grave injustice.
7 The learned APP has drawn attention of this Court to
Question No.6 under section 313 of the Cr.P.C. It is surprising that the
accused has not only denied his presence but also his identity as Jayendra
Sadarmal Talereja. Section 6(3) of the Essential Commodities Act, 1988
reads as follows :-
“6. Possession, supply or sale of liquefied petroleum gas
equipments. -
(1) …………..
(2) …………..
(3) No person shall posses cylinders, gas cylinder valves or
pressure regulators, unless he is a consumer and the same
has been supplied to him by a distributor.”
8 Under section 7 of the Liquefied Petroleum Gas (Regulation
of Supply and Distribution) Order, 1988 (for short “the said Order of

1988”) power of entry, search and seizure is entrusted with an officer of
the Department of Food and Civil Supplies of the Government, not below
the rank of Inspector authorised by such Government and notified by the
Central Government or any Officer not below the rank of a Sales Officer of
an Oil Company, or a person authorised by the Central Government or a
State 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 that this Order or any order made thereunder has
been complied with.
9 It also contemplates that the provisions of section 100 of Cr.
P.C. 1973 relating to search and seizure shall apply to search and seizure
under this order. Section 7 is to be read with section 3 of the Essential
Commodities Act and the said charge could be applicable only in the
eventuality that the accused was a holder of valid license under the
provisions of the Essential Commodities Act. Section 7 reads as under :
“7. Power of entry, search and seizure.
(1) An Officer of the Department of Food and Civil Supplies of the
Government, not below the rank of Inspector authorised by
such Government and notified by the Central Government or
any Officer not below the rank of a Sales Officer of an Oil
Company, or a person authorised by the Central Government

or a State 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
herself that this Order or any order made thereunder has been
complied with :
(a) Stop and search any vessel or vehicle which the Officer
has reason to believe has been, or is being or is about to
be used in the contravention of this Order ;
(b) Enter or search any place with such aid or assistance as
may be necessary ;
(c) Seize and remove, with such aid or assistance as may be
necessary, the entire quantity of any stock of liquefied
petroleum gas in cylinders, cylinder valves and pressure
regulators, along with the vehicles, vessels or any other
conveyances used in carrying such stock if he has
reason to suspect that any provision of this Order has
been or is being or is about to be, contravened in
respect of such stock and thereafter take or authorise
the taking of all measures necessary for securing the
production of the stock of liquefied petroleum gas in
cylinder, cylinders, gas cylinder valves, pressure
regulators, vehicles, vessels or other conveyances so
seized before the Collector having jurisdiction under the
provisions of section of the Essential Commodities Act,
1955 (10 of 1955) and for their safe custody pending
such production.”
10 The accused – appellant was not a license holder. Since the
appellant is not a holder of valid licence under section 3 of the Essential
Commodities Act, there could not be any conviction recorded under
section 7 of the Essential Commodities Act. Moreover, the said Order of
1988 contemplates search and seizure by a person not below the rank of

Inspector authorised by such Government and notified by the Central
Government or any Officer not below the rank of a Sales Officer of an Oil
Company, or a person authorised by the Central Government or a State
Government and notified by the Central Government with a view to
ensure compliance with the provisions of this Order, for the purpose of
satisfying itself that this Order or any order made thereunder has been
complied with. This issue was overlooked by the learned Special Judge
while framing of charge.
11 In fact, no charge should have been framed against the
accused appellant for an offence punishable under section 3 of the
Essential Commodities Act and therefore, no penalty could be imposed
upon the appellant under section 7 of the Essential Commodities Act.
12 In view of the above, the appellant deserves to be acquitted of
all the charges levelled against him. Hence, the following order :
ORDER
(i) Appeal is allowed;
(ii) The conviction and sentence of the appellant vide judgment
dated 4th November 1997 passed by the Special Judge,

Kolhapur for the offence punishable under section 7 read
with 3 of the Essential Commodities Act for violating subclause
(3) of clause 6 of the Liquefied Petroleum Gas
(Regulation of Supply and Distribution) Order, 1988 is
hereby quashed and set aside;
(ii) Bail bond stands cancelled;
(iii) Fees, if paid, be refunded;
(iv) Writ be issued expeditiously;
(v) Appeal is disposed of accordingly.
(SMT. SADHANA S. JADHAV, J)

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