Smt. Poonam Srivastava And Another v. State Of U.P. Thru. Prin. Secy. Deptt. Of Home Lko. And
Case Details
Acts & Sections
Heard Sri Mukul Rakesh, learned Senior Advocate assisted by Sri Harish Chandra, learned counsel for the applicant, learned A.G.A. for the State and perused the material on record. Instant application has been filed with the prayer to quash the impugned Charge Sheet No 1, dated 13.08.2022 filed in Criminal Case No. 66337/2023, "State of U.P. Vs Smt. Poonam Srivastava and another", under section 3/7 of Essential Commodities Act of Police Station- Jankipuram, Lucknow, arising out Case Crime No. 0227/2021, "State of U.P. Vs Smt. Poonam Srivastava and another", pending in the court of learned Additional Chief Judicial Magistrate, Ist, Lucknow, impugned cognizance and summoning order dated 14.06.2023 passed by learned Additional Chief Judicial Magistrate, Lucknow in Criminal Case No. 66327/2023, "State of U.P. Vs Smt. Poonam Srivastava and another", under section 3/7 Essential Commodities Act of Police Station Jankipuram, Lucknow as well as First Information Report of Case Crime No. 0227/2021, under section 3/7 Essential Commodities Act of Police Station- Jankipuram, District-Lucknow dated 10.08.2021. It is further prayed to quash the prosecution sanction order dated 17.06.2022 passed by the District Magistrate, Lucknow through which the District Magistrate, Lucknow has given conditional sanction order to file Charge Sheet against the petitioners after obtaining 'legal opinion from the prosecution officer, but the prosecution submitted charge sheet without 2 A482 No. 7046 of 2025 obtaining legal opinion. The contention put forth by learned counsel for the applicants is that the applicants are running M/s Ample Import and Export, registered address 14/684, Indira Nagar, Lucknow and there was a business agreement with M/s Confidence Petroleum India Ltd. having its Corporate Office at 404, Satyam 8, Wardha Road, Nagpur, which was a parallel marketeer of L.P.G. gas in the name and style 'Go Gas' for distribution of commercial gas cylinder; in the year 2018. He submits that the business was stopped because of the Covid-19 in March 2020 and the company namely, M/s Confidence Petroleum India Ltd., sent an email to the applicants that they are going to appoint another distributor in place of applicants as they have failed to achieve target of the business whereafter the applicants' firm requested the company to take empty gas cylinders and refund security money; whereafter the company asked the applicants to collect the empty gas cylinders from the consumers. On 6.8.2021, the empty cylinders were collected but the same were not taken away by the company and it was informed that truck/container would lift the aforesaid empty cylinders within 2 or 3 days and in between, on 7.8.2021, the Supply Inspector raided the house of the applicants and allegedly recovered 92 empty cylinders of 'Go Gas' company. He further submits that on 26.9.2023, Indian Oil Company, vide letter has informed that the commercial gas cylinders are not supplied under the public distributor system and same does not come under the purview of the provision of Essential Commodities Act. He argued that the Supply Inspector in most illegal manner lodged the F.I.R. bearing Case Crime No.0227 of 2021 under Section 3/7 of the Essential Commodities Act at Police Station Jankipuram, District Lucknow wherein the applicants have been roped in, without there being any intention to commit the offence. He submitted that Investigating Officer filed the charge sheet and the trial court has taken cognizance and issued process on 14.6.2025 against the applicants without application of judicial mind. He added that in fact, it is an admitted fact that since the gas distributor 3 A482 No. 7046 of 2025 company, namely, M/s Confidence Petroleum India Ltd. does not distribute the cylinders under the Essential Commodity Distribution System/Public Distribution System and, therefore, the control order could not be applicable in any manner in case of the applicants. He submitted that once the commodities do not come under the purview of the Public Distribution System as essential commondities, there would be no offence under Section 3/7 of the Essential Commodities Act. He also contended that sub Rule (7) of Rule 21 of the Gas Cylinder Rules, 2016 (hereinafter referred to as the Rules 2016) provides mechanism regarding the empty cylinders which finds mention as the empty cylinders shall be segregated from the field and care shall be taken that all valves are rightly shut but in the case in hand, there is no violation of sub Rule (7) of Rule 21 of Rules 2016 . In support of his contention, he has placed reliance on the Judgement rendered in the case of Prakash Babu Raghuvanshi Vs. State of M.P., reported in 2004 (7) Supreme Court Cases 904 and has referred paragraphs 2 to 5. Paragraphs 2 to 5 are quoted as under:- " 2. An interesting point has been raised in the appeal, which unfortunately does not appear to have been canvassed before the courts below. The appellant was convicted for allegedly committing offence in terms of Section 3 read with Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 (in short "the Act"). He was found guilty by the learned Sessions Judge, Vidisha in Sessions Case No. 11 of 1996. The conviction and the sentence of one year's rigorous imprisonment and a fine of Rs 2000 as had been imposed, came to be confirmed by a learned Single Judge of the High Court of Madhya Pradesh, Gwalior Bench by the impugned judgment.
3. Mr S.B. Upadhyay, learned counsel appearing for the appellant submitted that for attracting Section 7 of the Act, the primary requirement is that there must be violation of an order. What the prosecution seems to have relied upon is the Madhya Pradesh Sarvajanik Purti Vitaran Scheme, 1991 (in short "the Scheme"). According to him, the Scheme cannot be equated with an order, as required under the Act. Learned counsel for the respondent State, on the other hand, submitted that such a plea which essentially would need factual adjudication, was not canvassed before either the trial court or the High Court. 4 A482 No. 7046 of 2025
4. Though there is substance in the plea raised by learned counsel for the State, yet, for bringing an application under Section 7 of the Act, the essential requirement is an order, the violation of which is alleged. Unfortunately, neither before the trial court nor the High Court, any effort was made to place on record the order the violation of which was alleged. In M.P. Ration Vikreta Sangh Society v. State of M.P.1 it was observed that a scheme like the one at hand is framed under Article 162 of the Constitution of India (in short "the Constitution"). That being so, it was necessary for the prosecution to place on record the "order" which, according to it, was the foundation for taking action against the accused-appellant.
5. Section 7 refers to contravention of any order made under Section 3. It is essential for bringing in application of Section 7 to show that some order has been made under Section 3 and the order has been contravened. Section 3 deals with powers to control production, supply, distribution etc. of essential commodities. Exercise of such powers, can be done by "order". According to Section 2(c), "notified order" means an order notified in the Official Gazette, and Section 2(cc) provides that "order" includes a direction issued thereunder." Referring to the aforesaid, he submits that Section 7 of the Essential Commodities Act refers to contravention of any order made under Section 3 and it is essential for bringing in application of Section 7 to show that same order has been made under Section 3. In the present case, there is no order under Section 3 and therefore Section 7 would not attract in the present matter. Concluding his arguments, he submits that whole criminal proceedings initiated against the applicants assails illegality and the applicants have been thrown to suffer for their no fault and as a result, it is sheer abuse of process of law. Therefore, submission is that the criminal proceedings against the applicants may be quashed. Learned A.G.A. for the State has opposed the contention aforesaid but he has failed to substantiate his arguments that in what manner the provision of Section 7 of the Essential Commodities Act would be applicable in the case of the applicants. 5 A482 No. 7046 of 2025 Prima facie, there seems to be force in the contention of the learned counsel for the applicants, thus, this matter requires to be considered. Let notice be issued to opposite party no.3 returnable at an early date. Steps be taken within one week. List in week commencing 6.10.2025. In the meantime, the opposite parties may file their counter affidavits. Till the next date of listing, criminal proceedings of Criminal Case No. 66337/2023, "State of U.P. Vs Smt. Poonam Srivastava and another" arising out of Case Crime No. 0227/2021, under section 3/7 of Essential Commodities Act of Police Station- Jankipuram, Lucknow shall remain stayed so far as it relates to the present applicants. August 28, 2025 Ram Murti (Shree Prakash Singh,J.)
Heard Sri Mukul Rakesh, learned Senior Advocate assisted by Sri Harish Chandra, learned counsel for the applicant, learned A.G.A. for the State and perused the material on record. Instant application has been filed with the prayer to quash the impugned Charge Sheet No 1, dated 13.08.2022 filed in Criminal Case No. 66337/2023, "State of U.P. Vs Smt. Poonam Srivastava and another", under section 3/7 of Essential Commodities Act of Police Station- Jankipuram, Lucknow, arising out Case Crime No. 0227/2021, "State of U.P. Vs Smt. Poonam Srivastava and another", pending in the court of learned Additional Chief Judicial Magistrate, Ist, Lucknow, impugned cognizance and summoning order dated 14.06.2023 passed by learned Additional Chief Judicial Magistrate, Lucknow in Criminal Case No. 66327/2023, "State of U.P. Vs Smt. Poonam Srivastava and another", under section 3/7 Essential Commodities Act of Police Station Jankipuram, Lucknow as well as First Information Report of Case Crime No. 0227/2021, under section 3/7 Essential Commodities Act of Police Station- Jankipuram, District-Lucknow dated 10.08.2021. It is further prayed to quash the prosecution sanction order dated 17.06.2022 passed by the District Magistrate, Lucknow through which the District Magistrate, Lucknow has given conditional sanction order to file Charge Sheet against the petitioners after obtaining 'legal opinion from the prosecution officer, but the prosecution submitted charge sheet without 2 A482 No. 7046 of 2025 obtaining legal opinion. The contention put forth by learned counsel for the applicants is that the applicants are running M/s Ample Import and Export, registered address 14/684, Indira Nagar, Lucknow and there was a business agreement with M/s Confidence Petroleum India Ltd. having its Corporate Office at 404, Satyam 8, Wardha Road, Nagpur, which was a parallel marketeer of L.P.G. gas in the name and style 'Go Gas' for distribution of commercial gas cylinder; in the year 2018. He submits that the business was stopped because of the Covid-19 in March 2020 and the company namely, M/s Confidence Petroleum India Ltd., sent an email to the applicants that they are going to appoint another distributor in place of applicants as they have failed to achieve target of the business whereafter the applicants' firm requested the company to take empty gas cylinders and refund security money; whereafter the company asked the applicants to collect the empty gas cylinders from the consumers. On 6.8.2021, the empty cylinders were collected but the same were not taken away by the company and it was informed that truck/container would lift the aforesaid empty cylinders within 2 or 3 days and in between, on 7.8.2021, the Supply Inspector raided the house of the applicants and allegedly recovered 92 empty cylinders of 'Go Gas' company. He further submits that on 26.9.2023, Indian Oil Company, vide letter has informed that the commercial gas cylinders are not supplied under the public distributor system and same does not come under the purview of the provision of Essential Commodities Act. He argued that the Supply Inspector in most illegal manner lodged the F.I.R. bearing Case Crime No.0227 of 2021 under Section 3/7 of the Essential Commodities Act at Police Station Jankipuram, District Lucknow wherein the applicants have been roped in, without there being any intention to commit the offence. He submitted that Investigating Officer filed the charge sheet and the trial court has taken cognizance and issued process on 14.6.2025 against the applicants without application of judicial mind. He added that in fact, it is an admitted fact that since the gas distributor 3 A482 No. 7046 of 2025 company, namely, M/s Confidence Petroleum India Ltd. does not distribute the cylinders under the Essential Commodity Distribution System/Public Distribution System and, therefore, the control order could not be applicable in any manner in case of the applicants. He submitted that once the commodities do not come under the purview of the Public Distribution System as essential commondities, there would be no offence under Section 3/7 of the Essential Commodities Act. He also contended that sub Rule (7) of Rule 21 of the Gas Cylinder Rules, 2016 (hereinafter referred to as the Rules 2016) provides mechanism regarding the empty cylinders which finds mention as the empty cylinders shall be segregated from the field and care shall be taken that all valves are rightly shut but in the case in hand, there is no violation of sub Rule (7) of Rule 21 of Rules 2016 . In support of his contention, he has placed reliance on the Judgement rendered in the case of Prakash Babu Raghuvanshi Vs. State of M.P., reported in 2004 (7) Supreme Court Cases 904 and has referred paragraphs 2 to 5. Paragraphs 2 to 5 are quoted as under:- " 2. An interesting point has been raised in the appeal, which unfortunately does not appear to have been canvassed before the courts below. The appellant was convicted for allegedly committing offence in terms of Section 3 read with Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 (in short "the Act"). He was found guilty by the learned Sessions Judge, Vidisha in Sessions Case No. 11 of 1996. The conviction and the sentence of one year's rigorous imprisonment and a fine of Rs 2000 as had been imposed, came to be confirmed by a learned Single Judge of the High Court of Madhya Pradesh, Gwalior Bench by the impugned judgment.
3. Mr S.B. Upadhyay, learned counsel appearing for the appellant submitted that for attracting Section 7 of the Act, the primary requirement is that there must be violation of an order. What the prosecution seems to have relied upon is the Madhya Pradesh Sarvajanik Purti Vitaran Scheme, 1991 (in short "the Scheme"). According to him, the Scheme cannot be equated with an order, as required under the Act. Learned counsel for the respondent State, on the other hand, submitted that such a plea which essentially would need factual adjudication, was not canvassed before either the trial court or the High Court. 4 A482 No. 7046 of 2025
4. Though there is substance in the plea raised by learned counsel for the State, yet, for bringing an application under Section 7 of the Act, the essential requirement is an order, the violation of which is alleged. Unfortunately, neither before the trial court nor the High Court, any effort was made to place on record the order the violation of which was alleged. In M.P. Ration Vikreta Sangh Society v. State of M.P.1 it was observed that a scheme like the one at hand is framed under Article 162 of the Constitution of India (in short "the Constitution"). That being so, it was necessary for the prosecution to place on record the "order" which, according to it, was the foundation for taking action against the accused-appellant.
5. Section 7 refers to contravention of any order made under Section 3. It is essential for bringing in application of Section 7 to show that some order has been made under Section 3 and the order has been contravened. Section 3 deals with powers to control production, supply, distribution etc. of essential commodities. Exercise of such powers, can be done by "order". According to Section 2(c), "notified order" means an order notified in the Official Gazette, and Section 2(cc) provides that "order" includes a direction issued thereunder." Referring to the aforesaid, he submits that Section 7 of the Essential Commodities Act refers to contravention of any order made under Section 3 and it is essential for bringing in application of Section 7 to show that same order has been made under Section 3. In the present case, there is no order under Section 3 and therefore Section 7 would not attract in the present matter. Concluding his arguments, he submits that whole criminal proceedings initiated against the applicants assails illegality and the applicants have been thrown to suffer for their no fault and as a result, it is sheer abuse of process of law. Therefore, submission is that the criminal proceedings against the applicants may be quashed. Learned A.G.A. for the State has opposed the contention aforesaid but he has failed to substantiate his arguments that in what manner the provision of Section 7 of the Essential Commodities Act would be applicable in the case of the applicants. 5 A482 No. 7046 of 2025 Prima facie, there seems to be force in the contention of the learned counsel for the applicants, thus, this matter requires to be considered. Let notice be issued to opposite party no.3 returnable at an early date. Steps be taken within one week. List in week commencing 6.10.2025. In the meantime, the opposite parties may file their counter affidavits. Till the next date of listing, criminal proceedings of Criminal Case No. 66337/2023, "State of U.P. Vs Smt. Poonam Srivastava and another" arising out of Case Crime No. 0227/2021, under section 3/7 of Essential Commodities Act of Police Station- Jankipuram, Lucknow shall remain stayed so far as it relates to the present applicants. August 28, 2025 Ram Murti (Shree Prakash Singh,J.)