Avtar Singh vs The State Of Punjab

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1711 OF 2011

AVTAR SINGH & ANR. .…Appellant(s) Versus

STATE OF PUNJAB …Respondent(s)

JUDGMENT

Rajesh Bindal, J.

1. The judgment of the High Court of Punjab &

Haryana in Criminal Appeal No. 562­SB of 1997 dated

January 15, 2010 is under challenge in this Appeal.

2. The appellants are aggrieved of their conviction

under Section 7 of the Essential Commodities Act, 1955

(hereinafter referred to as ‘the Act’). Signature Not Verified Digitally signed by Anita Malhotra Date: 2023.03.23 17:29:39 IST Reason: 2

3. The Trial Court vide judgment and order dated

July 8, 1997 had convicted the appellants and directed them

to undergo imprisonment for a period of six months

alongwith fine of ₹ 500/­ each.

4. The facts, as are available on record, are that on

26.02.1995, Sub­Inspector of Police alongwith other police

officials was present at bus stop, Phagwara. They received a

secret information that the appellants were indulging in

selling gas cylinders in black. They were charging ₹ 250/­

(Rs. two hundred and fifty only) instead of the prescribed

rate of ₹102/­(Rs. one hundred and two only). Their truck

bearing No. HR­05A­4918 was parked in front of Chawla

Auto Workshop. Finding the information to be reliable, FIR

was registered and police officials went at the spot and

apprehended the accused. They were taken into custody.

5. In the evidence led before the trial court, none of

the independent witnesses or the alleged buyers of the

cylinders in black supported the case of the prosecution. It

was only two official witnesses who deposed in favour of the

prosecution.

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6. The only charge which could be proved was

unauthorized possession of gas cylinders on the basis of

which the trial court convicted the appellants and ordered

imprisonment.

7. The order passed by the trial court was upheld in

appeal by the High Court.

8. The sole argument raised by the learned counsel

for the appellants is that in terms of Liquefied Petroleum

Gas (Regulation of Supply and Distribution) Order, 1988

dated 08.03.1988 (hereinafter referred to as ‘ the Order’),

entry and seizure should be in exercise of the powers under

clause 7 of the Order. Clause 7 of the Order authorises

certain persons to 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 contravention of the order.

9. Clause 3 of the Order restricts unauthorised

possession of gas cylinders. The submission is that as per

clause 7, an officer or the Department of Food and Civil

Supplies of the Government, not below the rank of an

Inspector authorised by such Government and notified by

Central Government or any officer not below the rank of a 4

Sales Officer of an Oil Company, or a person authorized by

the Central Government or a State Government and notified

by the Central Government may, with a view to ensure

compliance with the provisions of the Order, for the purpose

of satisfying himself that this order or any order made

thereunder has been complied with, is authorised to carry

out such exercise/seizure.

10. In the case in hand, the action has been taken by

sub­Inspector of the Police who, as per the Government

Order, is not authorised. Hence, the entire case of the

prosecution falls. The aforesaid argument has not been

considered either by the trial Court or by the High Court.

11. On the other hand, learned counsel for the State

submitted that the appellants have been found in

unauthorized possession of the gas cylinders. They have

rightly been convicted. Merely for some technical default,

they should not be allowed to go scot­free. At that time,

there was a huge shortage of gas cylinders and Order was

issued to check its black marketing and unauthorised

possession.

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12. Heard learned counsel for the parties and perused

the relevant referred record.

13. The facts in the case as noticed above as such,

are not in dispute. The only argument raised is about the

power of the person who had seized cylinder on the basis of

which the appellants were prosecuted. Clause 7 of the

Order, which is reproduced hereunder, prescribes officers

who have the power.

“ 7. Power of entry, search and seizure:­

(1) an officer or the Department of Food and Civil

Supplies of the Government, not below the rank of an Inspector authorised by such Government and notified by Central Government or any officer not below the rank of a Sales Officer of an Oil Company, or a person authorized 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 6

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, alongwith 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……” 7

14. It nowhere prescribes that a Sub­Inspector of the

Police can take action. No doubt, the aforesaid Clause

provides that in addition to the specified officers, the

persons authorised by the Central or State Government may

take action under the Order. However, nothing has been

placed on record to support the argument that the Sub­

Inspector of the Police was authorised to take action under

the aforesaid Order.

15. It is a settled law that where a power is given to do

a certain thing in a certain way, the thing must be done in that

way or not at all. Other methods are necessarily forbidden.

Reference can be made to Dharani Sugars and Chemicals

Ltd. Vs. Union of India and Ors. reported in (2019) 5 SCC

480.

16. In the absence of the authority and power with the

Sub­Inspector to take action as per the Order, the proceedings

initiated by him will be totally unauthorised and have to be

struck down.

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17. For the reasons mentioned above, the appeal is

allowed. The judgment by the High Court of Punjab &

Haryana in Criminal Appeal No. 562­SB of 1997 dated

January 15, 2010 and the order dated 08.07.1997 passed by

the Trial Court are set aside. As a consequence, the conviction

and sentence of the appellants under Section 7 of the Act is set

aside. The bail bond stands discharged.

…………………J. [Abhay S. Oka]

…….……………J. [Rajesh Bindal] New Delhi 23.03.2023.