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CR.RA/463/2008 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
REVISION APPLICATION No. 463 of 2008
=========================================================
BAKULBHAI
B PATEL - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance :
MR
KEYUR A VYAS for Applicant(s) : 1,
MR PD BHATE, ADDL. PUBLIC
PROSECUTOR for
Respondents.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 15/10/2008
ORAL
ORDER
Rule. Mr. P.D.
Bhate, learned Additional Public Prosecutor waives service of rule on
behalf of respondents. In view of the facts and circumstances of the
case and by consent of learned advocates for both the sides, this
matter is taken up for final hearing today.
This Revision
Application under section 397 read with section 401 of the Code of
Criminal Procedure, 1973 is failed against the judgment and order
dated 4th July 2008 passed by the Sessions Judge,
Gandhinagar in Criminal Appeal No. 27 of 2008.
Short facts of
the case are as under:
The applicant
herein is the sole proprietor of Jagat Gas Agency which was engaged
in the business of distributing Gas. The applicant is duly licensed
to run the said gas agency and has been running the agency since
several years. On 09.05.08, District Supply Officer visited the
gas agency when he found that the applicant had made certain
irregularities and stock of 124 bottles of gas cylinders worth
Rs.38,375/- were seized under the provisions of Essential Commodities
Act. It is the say of the applicant that the said seizure was
without giving any notice or opportunity of hearing. However, on
16.05.08, a show cause notice was issued by the District Supply
Officer to the applicant to remain present on 26.05.08. The
applicant remained present, and after hearing the applicant, the
District Supply Officer passed an order dated 12.06.08 confiscating
124 gas cylinders worth Rs.38,375/- and also ordered to deposit
Rs.6000/- towards 100% amount of the deposit of licence. Being
aggrieved by the said order dated 12.06.08 passed by the District
Supply Officer, the applicant preferred Criminal Appeal No.27 of 2008
was preferred before the Sessions Court, Gandhinagar and by judgment
and order dated 4th July 2008, the learned Sessions Judge
dismissed the appeal and confirmed the order passed by the District
Supply Officer. Hence the present Revision.
On behalf of the
applicant, learned advocate Mr. Vyas vehemently submitted that the
seizure order 09.05.08 was passed by the District Supply Officer
without issuing notice. Learned advocate has placed reliance on
statement of various persons recorded by the learned Judge, viz.
Jagdishbhai Kishanlal Bhatt. Vishnubhai Babulal Nayak, Maheshbhai
Manilal, Kadarmiya Umarmiya, Malek Haidarbhai, Bhupatsingh Popatlal
Darbar in support of the submissions canvassed by him at the bar.
Learned advocate submitted that the order passed by the learned
Sessions Judge is contrary to law and evidence on record of the case
and, therefore, the same deserves to be quashed and set aside.
Learned advocate placed reliance on the provisions of section 6A and
6B of the Essential Commodities Act and submitted that there is gross
violation of the provisions of the said sections, and, therefore, the
order of confiscation is liable to quashed and set aside. Learned
advocate for the petitioner also relied on the judgment in the case
of K IRAN OIL INDUSTRIES vs. DISTRICT COLLECTOR, JAMNAGAR reported
in 1996 (1) GLH 614. Learned advocate for the petitioner further
submitted that there is a clear breach of the provisions of section
6A(1) of the Act, and, therefore also, the impugned confiscation
order requires to be quashed and set aside. In the alternative,
learned advocate for the petitioner submitted that the matter may be
remanded to the learned Sessions Judge and the learned Sessions Judge
may be directed to hear the matter afresh and pass a fresh order
taking into consideration the various contentions raised by him in
this Revision. He further submitted that the learned Sessions Judge
may also be directed to release the goods which are confiscated upon
his furnishing Bank Guarantee for an amount equivalent to the value
of goods or any lesser amount to the satisfaction of the learned
Judge.
On the other
hand, Mr. Bhate, learned Additional Public Prosecutor submitted that
before passing the order of confiscation, notice was given. As
regards non-compliance of section 6A(1), the learned Judge has dealt
with the same in paragraph 7 of the judgment, and, therefore, there
is no merit in this submission. Learned APP submitted that since
adequate opportunity of hearing is afforded to the petitioner before
passing the order of confiscation, no interference is called for and
this Revision Application requires to be rejected.
I have heard
learned advocate Mr. Vyas for the petitioner and Mr. Bhate, learned
APP appearing for the respondent State. I have also perused the
impugned judgment and order passed by the learned Sessions Judge and
the documents available on the records.
As regards the
submission canvassed by learned advocate for the petitioner that no
notice was given to the petitioner prior to passing the seizure
order, section 3 of the Act does not provide for giving any notice at
the time of seizure of the goods under section 3 of the Act. Hence
this submission has no merit.
However, the
other limb of submissions canvassed by the learned advocate for the
petitioner requires consideration. He has submitted that as per the
ratio laid down in the judgment in the case of KIRAN OIL
INDUSTRIES [supra], at the stage of issuing show cause notice
under section 6B, all material which the authority may rely upon is
to be again put to the person concerned to enable him to defend
himself in the matter. There is nothing on the record to show that
all such material were put to the petitioner. Therefore, this matter
requires re-consideration by the learned Sessions Judge.
Moreover, section
6A(1) of the Act clearly provides that a report of the seizure shall
be made to the Collector of the District in which such essential
commodity is seized. Even in paragraph 7 [page 8] the learned
Sessions Judge has clearly held that no seizure report was forwarded
to the Collector and that the respondent No.2 has never complied with
section 6A of the Act. However, the said lacuna is sought to be
brushed aside on the ground of a delegation order passed by the
District Collector considering arrears of work of the Collector.
Ultimately, the Sessions Judge has recorded that since the post of
District Supply Officer is upgraded and converted to Class-I post,
the District Supply Officer is authorized to exercise the power of
6A&B of the Act also. The provisions of the Act, which is
statutory in nature, cannot be made nugatory by administrative
orders. When the Act provides that a junior officer report about his
actions to a senior officer, there is a purpose behind it, and the
same cannot be done away by an administrative order. From a plain
reading of the statute, it prima facie appears that the purpose of
such a provision for reporting is a safeguard and deterrent against
any error, commission, omission or abuse of powers vested under
section 3 of the Act by the officers of the lower cadre. Even
otherwise, it neither stands to the test of reasoning nor does the
Act provide so, for vesting powers of seizure and reporting in one
and the same officer. That apart, there is nothing on record, atleast
before this Court, to show under what provisions of the Act the
Collector has passed the delegation order.
Be that as it
may, without expressing any opinion about the legality or otherwise
on the aforesaid questions, this Court is of the opinion that this
matter is required to be remanded to the learned Sessions Judge. The
impugned order passed by the learned Judge is quashed and set aside.
The matter is accordingly remanded to the learned Sessions Judge who
shall hear the matter afresh on all the points and pass an order on
merit, without being influenced by the observations made in this
order. This exercise shall be done within a period of two months from
the date of receipt of the writ of this order. In the meanwhile, it
will be open to the petitioner to file an application before the
learned Sessions Judge to release the bottles which are confiscated
upon his furnishing Bank Guarantee for an amount equivalent to the
value of goods or any lesser amount to the satisfaction of the
learned Judge and the learned Sessions Judge shall pass an
appropriate order in that regard.
This Revision
Application is partly allowed. Rule made absolute accordingly.
mathew [H.B.ANTANI,
J.]
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