2. The appellants are aggrieved of their conviction under Section 7 of the Essential Commodities Act, 1955 (hereinafter referred to as ‘the Act’).
4. The facts, as are available on record, are that on 26.02.1995, Sub-Inspector of Police along with 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.
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.
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 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 sub-Inspector 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.
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.
14. It nowhere prescribes that a Sub-Inspector 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 Sub-Inspector to take action as per the Order, the proceedings initiated by him will be totally unauthorised and have to be struck down.
Appeal allowed.
PARTY: AVTAR SINGH & ANR vs. STATE OF PUNJAB – CRIMINAL APPEAL NO. 1711 OF 2011 – 23.03.2023.
URL : https://main.sci.gov.in/supremecourt/2010/23492/23492_2010_16_1502_42976_Judgement_23-Mar-2023.pdf
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