Public Gas Service and anr. vs Chandigarh Administration

A.P. Chowdhri, J.

Facts necessary for the disposal of this petition under Section 482 of the Code of Criminal Procedure seeking to quash F.I.R. No. 235 of 1988 Section 7 of the Essential Commodities Act are that S. I. Ishwar Singh Mann was patrolling Industrial Area, Phase II along with some other police officials. He received secret information that the owner of Public Gas Service, Industrial Area Phase II named Surjit Singh was giving LPG Cylinders of Indane Gas @ Rs. 85/cylinder against the fixed price of Rs. 63.30/ p. to one Sham Lal. Cloth Merchant, Barnala and that Tirath Singh Manager of the said Gas Agency was conniving with the proprietor and was sharing the premium/black money. According to the information, Sham Lal had a truck No PAS8870 containing empty cylinders in large number and he was replacing the empty cylinders with cylinders full of LPG with Tirath Singh, Manager, and the truck was being loaded for being taken to Barnala via Zirakpur. The S.I. found the information to be reliable and got registered the present F.I.R by sending a ruqa from the place where he got the information. He formed a raiding party and proceeded towards Zirakpur to intercept the truck. The aforesaid truck was intercepted between Chandigarh and Zirakpur with 114 gas cylinders filled with LPG. The truck was seized and the driver and the cleaner were arrested. The owner and Manager of the Gas Agency were subsequently arrested.

The petitioners filed a Writ Petition No. 8904 of 1988 for quashing the said F.I.R. The same was dismissed with the observation that he may approach for quashing the F.I.R. under the provisions of the Code of Criminal Procedure

Learned counsel for the petitioners contended that cooking gas cylinder is not an essential commodity within the meaning of the Essential Commodities Act, 1955. He relied on an unreported judgment of a learned Single Judge of the High Court of Rajasthan in Criminal Revision No. 148 of 1986, decided on March 17, 1988. It was held that cooking gas stored in a gas cylinder is compressed gas not liquified petroleum gas & therefore a gas cylinder does not fall within the definition of petroleum or petroleum products. The authority is clearly distinguishable on the ground that it related to alleged irregular storage of gas cylinders in contravention of the provisions of the Rajasthan Petroleum Products (Licensing & Control) JUDGMENT 1979, while the present case does not relate to alleged violation of any rules regarding storage. With respect I, find myself unable to accept the said reasoning. Section 2(viii) of the Essential Commodities Act defines Essential Commodity to include petroleum products. It will hardly make any difference for purposes of the definition whether the cooking gas contained in the cylinder is compressed] gas or liquified petroleum gas. This is apart from the fact that compressed gas is not different from liquified petroleum gas. The matter requires no detailed discussion. The Central Government issued the Liquified Petroleum Gas (Regulation of Supply and Distribution) JUDGMENT 1988 dated 8.3.1988, published in, the Gazette of India: Extraordinary (Part IISection 3(1). According to the order issued under Section 3 of the Essential Commodities Act, 1955. `consumer'' has been defined in clause 2(a) to mean a person, firm, company, institution, association of persons, cooperative society or organisation, whose name is registered with a distributor or an Oil Company for supply of liquified petroleum gas in cylinders. Clause 3, subclause (4) of the said JUDGMENT lays down that no distributor shall supply luquified petroleum gas filed in cylinder to any person other than a consumer possessing a valid authorisation from an Oil Company. Clause 6 subclause (2) of the order Lays down that no distributor shall, unless authorised to do so by an Oil Company, supply or sell empty cylinders, gas cylinder valves or pressure regulators to any person except a consumer. Sub clause (3) further lays down that no person shall possess cylinders. gas cylinder valves or pressure regulators, unless he is a consumer and the same has been supplied to him by a distributor. Subclause (4) further lays down that no person shalt possess a cylinder which has not been supplied by an Oil Company or by a distributor. The aforesaid JUDGMENT therefore, prohibits the distributor from supplying a petroleum gas, cylinder to any person other than a consumer or a person possessing a valid authorisation from an Oil Company as defined in the

From what has been stated above, it follows that cooking gas contained in the cylinder is covered by the aforesaid order of the Central Government and is also covered under the Essential Commodities Act, 1955.

The next contention of the learned counsel is that in the F.I.R. the particular provision of which the violation was complained of was not mentioned. Further contention is that where the precise order or provision of Law of which violation is complained of is not mentioned in the F.I.R. or complaint as the case may be no offence could be spelt out and the F.I.R. should be quashed. He relied on Dr. Sharda Prasad Sinha v. State of Bihar, AIR 1977 Supreme Court 1754 and State of West Bengal and ors. v. Swapan Kumar Guha and others, AIR 1982 Supreme Court 949. These authorities do not support the contention of the learned counsel. Dr. Sharda Prasad''s case (supra) related to a complaint as distinguished from a charge sheet filed by the police. ln para 2 of the report, it was observed by their lordships in the said case as follows.

"It is now settled law that where the allegations set out in the complaint or the chargesheet do not constitute any offence, it is competent to the High Court exercising its inherent jurisdiction under Section 482 of the Code of Criminal Procedure to quash the order passed by the Magistrate taking cognizance of the offence . ... ... .....

(Emphasis added).

Apart from the fact that in the F.I.R., it was stated that the facts disclosed constituted an offence punishable under Section 7 of the Essential Commodities Act, is not the requirement of law that the particular order issued under Section 3 of the Essential Commodities Act, should have been mentioned and its nonmention in the F.I.R. does not warrant quashing the F.I.R. In Swapan Kumar Guha''s case (supra) it was laid down by their lordships that it is on a consideration of the materials placed before the Court that the Court can come to a conclusion that no offence was disclosed. It is only in such cases that no investigation should normally be permitted. It, therefore, follows that mere nonmention of the specific order of which contravention is complained, does not justify quashing the F.I. R. Before exercising its inherent jurisdiction under Section 482 of the Code of Criminal Procedure, the High Court is required to consider not only the F.I.R but the materials placed before it in order to come to a conclusion whether any offence is disclosed on not. Reference to the Central Government JUDGMENT above shows that prima facie there is contravention of the JUDGMENT which is punishable under Section 7 of the Essential Commodities Act. The F.1 R, cannot, therefore, be quashed on this score.

The next contention of the learned counsel for the petitioner is that the truck was intercepted within the territorial limits, in which the petitioner is authorised to distribute gas cylinders to the consumers. The case of the prosecution, however, is that the truck carrying the gas cylinders was intercepted beyond the intersection leading to the Chandigarh Airport towards Zirakpur. I have seen the rough site plan prepared by the Investigating Officer which supports the contention .)f the prosecution. It was therefore not prima facie a case where the truck may have been seized in the area of Sector 21 or Sector 22, which is earmarked to the petitioners by the Oil Company for distribution of gas cylinders.

Learned counsel next argued that there was no price control order issued under the Essential Commodities Act fixing the price of a gas cylinder with the result that by allegedly charging a price of Rs. 85/ against statedly fixed price of Rs. 63.20 p. the petitioners committed no offence. It was pointed out that prices had been fixed by the Oil Company under the agreement giving agency to the petitioner and violation of that undertaking could result in warning on the first two occasions and cancellations of agency on the third.

No price control order which might have been issued under the Essential Commodities Act has been produced. This by itself is no reason to quash the F. I R. which as stated above prima facie contravenes the provisions of the Central Government JUDGMENT referred to above.

The last contention of the learned counsel is that assuming the facts alleged in the F.I.R. to be true, it was only an attempt to commit an offence and the accused might have changed their mind and brought back the truck. Reference was made to Malkiat Singh and another v. The State of Punjab, A.I.R. 1970 Supreme Court 713. The aforesaid case related to alleged contravention of Punjab Paddy (Export Control) JUDGMENT (1959). The question for consideration before their lordships was whether the facts found in the case amounted to mere preparation or an attempt. It was held that the fact found amounted to only preparation which was not made punishable. This authority is of no assistance to the petitioners because the offence alleged was complete with the sale of the gas cylinders to a person other than the one authorised by the Oil Company or a registered consumer.

For the reasons mentioned above, there is no case made out for quashing the F I.R. The petition under Section 482, Code of Criminal Procedure, is accordingly dismissed.

Revision dismissed.