Gauhati High Court
Crl.Rev.P./447/2014 on 18 November, 2025
GAHC010016942014
2025:GAU-AS:15682
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
CRL.REV.P NO. 447 OF 2014
Sri Satya Narayan Sarmah
S/o- Late Chiranjilal Sarmah
R/o- Digambar Chuk
P/o- Jorhat, P.S- Jorhat,
District- Jorhat, Assam.
.......Petitioner
-Versus-
1. The State of Assam,
Represented by the Public Prosecutor.
2. Sri Nakibur Rahman Borbora,
S/o- Late Fazlur Rahman Borbora,
Resident of Old Balibat, Jorhat Town,
Police Station- Jorhat,
District- Jorhat, Assam.
....... Respondents
-BEFORE-
HON'BLE MR. JUSTICE KAUSHIK GOSWAMI
For the Appellant(s) : Mr. T. Gogoi, Advocate.
For the Respondent(s) : Mr. M.P. Goswami, Additional Public
Prosecutor.
Date on which judgment
is reserved : N/A
Page 1 of 14
Date of pronouncement
of judgment : 18.11.2025
Whether the pronouncement
is of the operative part
of the judgment ? : No.
Whether the full judgment
has been pronounced : Yes.
JUDGMENT & ORDER (ORAL)
Heard Mr. T. Gogoi, learned counsel appearing for the petitioner. Also heard Mr. M. P. Goswami, learned Additional Public Prosecutor appearing for the State respondent.
2] The present criminal revision petition is filed under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the "Cr.P.C."), assailing the judgment & order dated 04.03.2013 passed by the learned Chief Judicial Magistrate, Jorhat, (hereinafter referred to as the "trial court") in C.R. Case No. 348/2009, whereby the accused/petitioner was convicted under Section 7 of the Essential Commodities Act, 1955 (hereinafter referred to as the "EC Act, 1955"), and sentenced to undergo rigorous imprisonment for 1 year and to pay fine for Rs. 20,000/- only, in default of payment of fine to undergo simple imprisonment for 3 months, and further assailing the judgment & order dated 29.09.2014 passed in Criminal Appeal No. 11/2013, passed by the learned Sessions Judge, Jorhat (hereinafter referred to as the "appellate court"), whereby the appellate court partly allowed the appeal by upholding the conviction;
Page 2 of 14however, it modified the sentence to imprisonment till rising of the court and to pay a fine of Rs. 20,000/- only, in default of payment of the fine to suffer simple imprisonment for 3 months.
3] The present case in brief is that upon an inspection it was found that the accused/petitioner was using domestic LPG cylinders for commercial purposes in violation of the Control Order, attracting the offence under Section 7 of the EC Act, 1955. Based on the said inspection, the complainant/PW-1 lodged a complaint, which led to the prosecution of the accused/petitioner. Both the trial court and the appellate court, on appraisal of the evidence on record, held the charge to have been duly proved. Situated thus, the present criminal revision petition has been filed.
4] Mr. T. Gogoi, learned counsel appearing for the petitioner, submits that the prosecution has failed to establish beyond reasonable doubt the facts giving rise to a presumption under Section 14 of the EC Act, 1955. He accordingly submits that until and unless the prosecution proves the facts in order to give rise to a presumption under Section 15 of the EC Act, 1955, the onus does not shift to the accused to prove the contrary. In support of the aforesaid submission, he relies upon the decision of the co-ordinate bench of this court in the case of Manik Lodh -vs- State of Assam and Another, reported in 2007 (3) GLT 207. He further submits that the trial court as well as the appellate court committed a grave error of law as well as in facts in convicting the accused/petitioner under Section 7 of the EC Page 3 of 14 Act, 1955. He further submits that there are several contradictions among the prosecution witnesses regarding the alleged recovery of LPG cylinders, which were not at all considered by both the courts while passing the impugned judgments. He further submits that both the courts failed to appreciate the fact that the accused/petitioner is not a proprietor of the Prakash Hotel from which the LPG cylinders were alleged to have been recovered. He further emphasizes that it is clear from the evidence of the PW-2 and PW-3 that the accused/petitioner is the proprietor of Sagar Hotel and not of Prakash Hotel. He further submits that both the courts did not take into consideration the vital aspects of the matter that the complainant/PW-1 had carried out search operations in various hotels and restaurants of that locality and seized some LPG cylinders but did not keep any record or diary for the same. He further emphasizes that none of the seizure witnesses have ever stated in their testimonies that LPG cylinders were recovered from the possession of the accused/petitioner, i.e., from Sagar Hotel. He further submits that the accused/petitioner has successfully discharged its burden of proof by demolishing the case of the prosecution with effective cross-examination; however, both the courts did not appreciate the same. He further submits that the benefit under Section 360 of the Cr.P.C. was not given to the accused/petitioner by both the courts while passing the impugned judgments. He further submits that the appellate court, though it reduced the sentence, did not extend the benefit of Section 360 of the Cr.P.C., or The Probation of Offenders Act, 1958 (hereinafter referred to as the "Probation Page 4 of 14 Act, 1958"), to the accused/petitioner. He further relies upon the decision of the Apex Court in the case of Harivallabha and Another -vs- State of M.P., reported in (2005) 10 SCC 330, and Tarak Nath Keshari -vs- State of West Bengal, reported in 2023(8) Scale 109.
5] Per contra, Mr. M. P. Goswami, learned Additional Public Prosecutor for the State respondent, submits that the prosecution has clearly proved the seizure of the domestic LPG cylinder from the hotel of the accused/petitioner in his presence by examining the complainant himself as PW-1. He further submits that since the prosecution has proved the facts necessary for giving rise to the presumption under Section 14 of the EC Act, 1955, the onus therefore is on the accused/petitioner to prove the contrary. He further submits that the accused/petitioner, apart from giving suggestions during the cross-examination of the prosecution witnesses, neither offered any explanation whatsoever as regards the alleged seizure of the domestic LPG cylinders from the hotel premises in his presence nor adduced any evidence whatsoever in support of his defence so as to rebut the presumption in law having been raised against him. He further submits that since the appellate court has already reduced the sentence imposed by the trial court, no further interference as regards the sentence awarded is warranted considering the serious nature and circumstances of the offence.
6] I have given my prudent consideration to the arguments advanced by learned counsels for both the parties Page 5 of 14 and have also perused the material available on record. I have also duly considered the case laws cited at the bar.
7] In the present case, the offence involves misuse of domestic LPG cylinders meant for household consumption, which is an act the legislature treats as a matter of economic offence impacting public distribution. It appears that PW-1 /complainant deposed that since the year 2007 he had been working as an Inspector in the Food & Civil Supplies and Consumer Affairs Department at Jorhat. He further deposed that on 08.09.2009 as per the direction of the Joint Director of his office, he along with Inspector Lal Chand Bori, Jiten Gogoi, Arun Sharma, and Sub-Inspectors Jagyeswar Sharma and Swapan Mahanta went to the hotel of the accused/appellant under the name and style „Prakash Hotel‟, situated at Rajamaidam Road, Jorhat to inspect whether the hotel was using commercial LPG cylinder or not. He further deposed that upon inspection they found that the hotel was using an LPG cylinder meant for domestic purposes. He further deposed that they found one empty LPG cylinder meant for domestic use. He further deposed that upon asking the accused/petitioner to show valid documents for using the same, the accused/petitioner failed to show any document to that effect. He further deposed that thereafter they seized 2 cylinders; one regulator, and one LPG pipe vide Exhibit-1 and further exhibited his signature therein. He further deposed that after seizure the cylinders were given in the custody of the seizure witness PW-3, i.e., Rajendra Prasad Seal. He further deposed that they also took the regulator and LPG Page 6 of 14 pipe along with them. He further deposed that thereafter he filed an FIR on 08.09.2009, and the same is exhibited as Exhibit-3 along with the signature as Exhibit- 3 (1). Thereafter he also submitted an offence report to the Deputy Commissioner, Jorhat, who forwarded the same to the court. He further exhibited all the other official documents.
8] During cross-examination he clarified that he, along with the offence report, has not annexed the order directing them to inspect the alleged hotel of the accused. Though the defence had put the following suggestions to him; however, he denied all the suggestions clarifying that: (a) the accused/petitioner is the owner of M/s Prakash Hotel; (b) that the regulator and the LPG pipe were seized from the possession of the accused/petitioner; (c) that he had seized the cylinder from Prakash Hotel; (d) that the seized cylinder was used in Prakash Hotel; (e) that he had entered inside the Prakash Hotel; (f) that he had searched inside the Prakash Hotel; (g) that the accused/petitioner did not show him any blue book of LPG connection; (h) that the accused/petitioner was not lawfully possessing the seized cylinder and that he did not file a false case against the accused/petitioner.
9] PW-2, PW-3, and PW-4 are the seizure witnesses who have deposed that in the year 2009 the officials from the Supplies Office seized one empty cylinder, one half-used LPG cylinder, one commercial regulator, and one rubber pipe from the possession of the accused.
Page 7 of 1410] Section 3 of the EC Act, 1955, empowers the Central Government to control production, supply, distribution thereof, and trade and commerce therein, by order, if they are of the opinion that it is necessary or expedient to do so for maintaining or increasing the supply of any essential commodities or for securing their equitable distribution and availability at a fair price etc. 11] Clause 7 of the Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order, 2000, (hereinafter referred to as "LPG Order, 2000"), which is made under Section 3 of the EC Act, 1955, provides prohibitions in respect of possession, supply, or sale of liquefied petroleum gas equipment. Sub-clause 1 (c) of Clause 7 of the LPG Order, 2000 provides that-
"7. Possession, supply or sale of liquefied petroleum gas equipments. - (1) No person shall -
(c) possess filled or empty cylinder, gas cylinder valve or pressure regulator, unless he is a distributor or a consumer."
12] Apt also to refer to Section 7 of the EC Act, 1995, which penalizes the act of contravention of any order made under Section 3 of the EC Act, 1955, reads as hereunder: -
"7. Penalties.―[(1) If any person contravenes any order made under Section 3,―
(a) he shall be punishable,―
(i) in the case of an order made with reference to clause (h) or clause (i) of sub-
section (2) of that section, with imprisonment for a term which may extend to one year and shall also be liable to fine, and Page 8 of 14
(ii) in the case of any other order, 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 the court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than three months;
(b) any property in respect of which the order has been contravened shall be forfeited to the Government;
(c) any package, covering or receptacle in which the property is found and any animal, vehicle, vessel or other conveyance used in carrying the property shall, if the court so orders, be forfeited to the Government.
(2) If any person to whom a direction is given under clause (b) of sub-section (4) of section 3 fails to comply with the direction, 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 the court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than three months.
(2A) If any person convicted of an offence under sub-clause (ii) of clause (a) of sub-section (1) or under sub-section (2) is again convicted of an offence under the same provision, he shall be punishable with imprisonment for the second and for every subsequent offence for a term which shall not be less than six months but which may extend to seven years and shall also be liable to fine:
Provided that the court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months.
(2B) For the purposes of sub-sections (1), (2) and (2A), the fact that an offence under sub-clause (ii) of clause (a) of sub-section (1) or under sub-section (2) has caused no substantial harm to the general public or to any individual shall be an adequate and special reason for awarding a sentence of imprisonment for a term of less than three months or six months, as the case may be.Page 9 of 14
[(3) Where a person having been convicted of an offence under sub-section (1) is again convicted convicted of an offence under that sub-section for contravention of an order in respect of an essential commodity, the court by which such person is convicted shall, in addition to any penalty which may be imposed on him under that sub-section, by order, direct that that person shall not carry on any business in that essential commodity for such period, not being less than six months, as may be specified by the Court in the Order.]"
13] Section 14 of the EC Act, 1955, which shifts the burden on the contravener to prove amongst others that he is not possessing anything without lawful authority or without a permit, license or other document whatsoever, reads as under: -
"14. Burden of proof in certain cases.―Where a person is prosecuted for contravening any order made under section 3 which prohibits him from doing any act or being in possession of a thing without lawful authority or without a permit, licence or other document, the burden of proving that he has such authority, permit, licence or other document shall be on him."
14] Reading of the aforesaid provisions, it appears that in the event any person is found to have contravened any order made under Section 3 of the EC Act, 1955, he is liable to be punished under Section 7 of the EC Act, 1955. Clause 7 of the LPG Order, 2000, made under Section 3 of the EC Act, 1955, prohibits illegal possession of an LPG cylinder or pressure regulator. Section 7 of the EC Act, 1955, provides punishment, including a jail term, in the event any person is held guilty for unauthorized illegal possession of an LPG cylinder. Mr. T. Gogoi, learned counsel appearing for the appellant, is correct that the initial burden of the prosecution to establish the facts giving rise to the aforesaid presumption Page 10 of 14 under Section 14 of the EC Act, 1955, beyond reasonable doubt shall be upon the prosecution; however, once the prosecution establishes the facts in order to give rise to the presumption under Section 14 of the EC Act, 1955, the onus shifts to the accused/appellant.
15] In the present case the prosecution has clearly proved the unauthorized and illegal possession of domestic gas cylinders and a regulator intended to be used for commercial purposes by the accused/petitioner. The same is in violation of the provision of Clause 7 (1)(c) of the LPG Order, 2000, which is punishable under Section 7 of the EC Act, 1955. Once the prosecution has proved the factum of possession of the aforesaid unauthorized gas cylinders by the accused/petitioner, the onus heavily lies upon the accused/petitioner to prove the contrary. It is further apparent from the records that upon the accused/petitioner being asked as regards the documents, permit, and license, he could not produce any. That apart, in his 313 Cr.P.C. examination, he has not offered any explanation whatsoever as to what he was doing with the domestic gas cylinders, which were seized from his hotel. Though by relying upon a clarification given by one of the prosecution witnesses during cross-examination to the effect that the accused/petitioner is the owner of one Sagar Hotel, the learned counsel appearing for the accused/petitioner urges that the prosecution has failed to prove beyond reasonable doubt that the accused/petitioner is the owner of the hotel, i.e., Prakash Hotel from which the LPG cylinder and regulator were seized;
Page 11 of 14the same has no relevance inasmuch as there is nowhere on record to show that the accused/petitioner is not the owner of the Prakash Hotel from which the gas cylinders have been seized. That apart, it is clearly established that the LPG cylinders in question were seized from the Prakash Hotel in his presence; however, the accused/petitioner has given neither any explanation nor any documentary proof or any other evidence whatsoever before the trial court to the contrary.
16] That being so, it is clearly established that the accused/petitioner has contravened the provisions of the LPG Order, 2000, and hence a case under Section 3 of the EC Act, 1955, is clearly being made out. The conviction of the trial court does not appear to be perverse or erroneous in law. It appears that the appellate court has also analyzed the evidence in proper perspective and, after recording reasons, was pleased to modify the sentence to imprisonment till the rising of the court. This court is mindful of the limited scope of revisional jurisdiction under Sections 397 and 401 of the Cr.P.C. Interference is warranted only when the findings suffer from jurisdictional error, patent illegality, material irregularities, or perversity.
17] Upon examining the records, this court finds no illegality, infirmity, or perversity in the concurrent finding of guilt recorded by the two courts. The essential ingredients of the offence stand duly proved.
Page 12 of 1418] As regards the contention of the learned counsel for the accused/petitioner that the accused, being a person without previous conviction, deserves the benefit of probation instead of a sentence of imprisonment till the rising of the court, a perusal of the appellate judgment reveals that the appellate court has specifically considered the plea of probation, including the decision of the Apex Court in the case of Harivallabha and Another (supra). The appellate court noted that except for the assertion that he is a first-time offender, the accused/petitioner has not placed any special or compelling circumstances to justify invocation of section 360 of the Cr.P.C. and/or the Probation Act, 1958. It is well settled that the benefit of probation is not automatic merely because the offender is a first-time offender. The court must be satisfied that the circumstances of the offence, the character of the offender, and the nature of the breach justify such leniency. The decisions cited by the accused/petitioner are contextual and have no relevance in the context of the case in hand. In the present case, the offence established is an economic offence impacting public distribution. The appellate court therefore found no adequate justification to extend the benefit of probation.
19] Further, the appellate court has already substantially modified the sentence to imprisonment till rising of the court, which according to this court is proportionate having regard to the nature and circumstances of the case. Hence, no ground is made out for further interference in revisional Page 13 of 14 jurisdiction. For the reasons aforesaid, this court finds no merit in the criminal revision petition.
20] Resultantly, the judgment & order dated 29.09.2014 passed in Criminal Appeal No. 11/2013, by the learned Sessions Judge, Jorhat, affirming the conviction and modifying the sentence passed by the learned Chief Judicial Magistrate, Jorhat, in the judgment & order dated 04.03.2013, in C.R. Case No. 348/2009, is hereby affirmed.
21] The criminal revision petition accordingly stands dismissed.
22] Interim order, if any, passed earlier stands vacated.
23] The bail-bond stands cancelled. The accused is directed to surrender before the trial court to serve the sentence as imposed by the appellate court.
24] Return the trial court record (TCR).
JUDGE
Comparing Assistant
Pranab Digitally
by Pranab
signed
Chand Chandra
Date:
Das
2025.11.19
ra Das 18:22:51 +05'30'
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