Isabella Mariam

The High Court of Himachal Pradesh Single Bench of Justice Rakesh Kainthla held that mere possession of kerosene without a permit does not amount to an offence under Section 7 of the Essential Commodities Act, 1955, which penalises only violations of duly applicable control orders. The Court found that the Kerosene (Restriction of Use and Fixation of Prices) Order, 1993 governs licensed dealers and distributors within the Public Distribution System and does not extend to individuals who are simply found carrying kerosene. Noting that the search was conducted by an officer not authorised under the Order and that the prosecution failed to show any regulated activity by the accused, the Court set aside the conviction and directed his acquittal.

The case arose from a Police naka set up at Masyana Nalti Chowk on 28.12.2008, during which a vehicle approaching from Nalti was stopped and searched. The driver identified himself as the accused. Police officers inspected the vehicle and recovered eleven containers holding a total of 170 litres of blue-coloured kerosene. When asked, the accused was unable to produce any permit for transporting the kerosene. The containers, samples and vehicle were seized, and the samples were later sent to the State Forensic Laboratory, which reported the presence of kerosene.

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During investigation, the accused’s driving licence and vehicle registration certificate were taken into possession. A salesman from a Public Distribution System depot stated that the accused had not purchased kerosene from the depot. The case property was deposited in the malkhana, and the investigating officer prepared the rukka, site plan and other documents. The prosecution examined ten witnesses, including police personnel involved in the search and seizure, officers who handled the case property and the FIR, and the official who carried the samples to the laboratory. One defence witness was examined, and the accused denied all allegations in his statement under Section 313 CrPC.

The prosecution invoked Sections 3 and 7 of the Essential Commodities Act, relying on the provisions of the Kerosene (Restriction of Use and Fixation of Prices) Order, 1993, asserting that the accused transported kerosene without authority.

The Court recorded that the revision had to be examined within the narrow scope of revisional jurisdiction. It quoted the Supreme Court stating that the High Court “is not supposed to exercise the jurisdiction like the appellate court, and the scope of interference in revision is extremely narrow” and that the object of Section 397 CrPC “is to set right a patent defect or an error of jurisdiction or law.”

The Court further cited that the revisional jurisdiction can be invoked where findings “are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored, or judicial discretion is exercised arbitrarily or perversely.” It reiterated that revisional powers “cannot be equated with that of an appeal.”

Turning to the prosecution’s reliance on the Kerosene Order, 1993, the Court observed that it was not the prosecution’s case that the accused was a dealer or that he used kerosene for any purpose other than cooking or illumination. It stated that the accused “was simply found in possession of 170 litres of kerosene without any permit.” It relied on precedent holding that kerosene control orders “do not apply to a consumer” and that a person may only be covered if “really found to be doing business in kerosene.”

The Court recorded that the Courts below “have not mentioned the provision of the Kerosene Order which was violated” and that the Appellate Court “did not consider whether the kerosene order applied to a consumer or not,” resulting in “jurisdictional error.”

Regarding the officer’s authority, the Court noted that Clause 9 of the Kerosene Order empowers only officers notified by the Central Government. It recorded that “no notification authorising SI Guler Chand (PW6) to follow the provisions of the Act was placed on record.” It referred to the Supreme Court’s finding that where a power is given to be exercised in a particular way, “the thing must be done in that way or not at all,” and that action by an unauthorised officer must be “totally unauthorised and have to be struck down.” The Court therefore held that “the whole proceedings conducted by SI Guler Chand (PW6) cannot be sustained.”

On the FSL report, the Court observed that it did not mention whether the substance met the BIS specifications required under the Kerosene Order. It stated that “this was essential,” noting Supreme Court authority that expert evidence must provide underlying data so that the Judge may form an independent opinion. It concluded that “the report of the analysis is not sufficient to prove that the samples analysed fell within the purview of the Kerosene Control Order.”

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The Court stated that “the present revision is allowed. The judgments and the order passed by the learned Courts below are set aside. The accused is acquitted of the commission of an offence punishable under Section 7 of the EC Act, 1955. The fine, if deposited, be refunded to the petitioner/accused after the expiry of the period of limitation, in case no appeal is preferred,” and that “in case of appeal, the same be dealt with as per the orders of the Hon’ble Supreme Court of India.”

The Court further directed that, in view of Section 437-A of the Code of Criminal Procedure, “the petitioner/accused is directed to furnish personal bonds in the sum of ₹25,000/- with one surety in the like amount to the satisfaction of the learned Registrar (Judicial) of this Court/learned Trial Court, within four weeks.” The bond “shall be effective for six months In the event of Special Leave Petition being filed against this judgment, or on grant of the leave, the petitioner/accused, on receipt of notice thereof, shall appear before the Hon’ble Supreme Court.”

Advocates Representing the Parties

For the Petitioner: Mr. Adarsh Sharma, Advocate

For the Respondent: Mr. Tarun Pathak, Deputy Advocate General

Case Title: Rakesh Kumar v. State of Himachal Pradesh
Neutral Citation: 2025: HHC:37077
Case Number: Cr. Revision No. 387 of 2014
Bench: Justice Rakesh Kainthla