{"id":78242,"date":"2010-08-09T00:00:00","date_gmt":"2010-08-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/amrutlal-vs-state-on-9-august-2010"},"modified":"2017-12-10T09:04:34","modified_gmt":"2017-12-10T03:34:34","slug":"amrutlal-vs-state-on-9-august-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/amrutlal-vs-state-on-9-august-2010","title":{"rendered":"Amrutlal vs State on 9 August, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Amrutlal vs State on 9 August, 2010<\/div>\n
Author: H.K.Rathod,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/9032\/2010\t 16\/ 23\tORDER \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 9032 of 2010\n \n\n \n \n=========================================================\n\n \n\nAMRUTLAL\nMULJIBHAI THAKKAR - Petitioner(s)\n \n\nVersus\n \n\nSTATE\nOF GUJARAT & 2 - Respondent(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nABHAYKUMAR P SHAH for\nPetitioner(s) : 1,MR BHASKAR R DAVE for Petitioner(s) : 1, \nMs.\nJirga Jhaveri, AGP  for Respondent(s) : 1, \nNone for Respondent(s)\n: 2 - 3. \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE H.K.RATHOD\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 09\/08\/2010 \n\n \n\n \n \nORAL\nORDER<\/pre>\n
Heard
\n\tlearned Advocate Mr. Abhaykumar P. Shah with learned Advocate Mr.
\n\tBhaskar R. Dave for petitioner and Ms. Jirga Jhaveri, learned AGP
\n\tfor respondent State Authority.\n<\/p>\n
Brief
\n\tfacts of present petition are as under:\n<\/p>\n
\tPetitioner
\n\twas holding retail sales license of kerosene bearing NO. 178\/82 and
\n\tit was renewed till year 2006. Inspection team had inquired and the
\n\tSupply Inspector had found following so called irregularities:\n<\/p>\n
(i)\t\tSign
\n\tBoard has not been maintained.\n<\/p>\n
(ii)\t\tBill
\n\tbook is not having printed bill number.\n<\/p>\n
(iii)\tIn
\n\tthe office copy of bill book, signatures of consumers are not being
\n\tobtained for having received the stock.\n<\/p>\n
(iv)\t\tIt
\n\thas been found at the time of inspection that 55 liter kerosene has
\n\tbeen misappropriated by not supplying to card holders and without
\n\tmaking entry in the ration card of    consumer.\n<\/p>\n
(v)\t\tAt
\n\tthe time of checking, it was found exceeding stock of 95 liters
\n\tkerosene than the allotted stock and the bills of this exceeding
\n\tstock were also prepared.\n<\/p>\n
(vi)\t\tAt
\n\tthe time of checking, it was found that petitioner has shown in
\n\tcard register that  card holder is availing services of gas and then
\n\talso, stock of 180 liters kerosene was distributed to these persons
\n\tand prepared bills on those names which is against the Rules of
\n\tGujarat Essential Articles (Licensing, Control and Stock
\n\tDeclaration) Order, 1981.\n<\/p>\n
(vii)\tThough
\n\tpetitioner had obtained the amount of deposit back after depositing
\n\tretail license, however, got restored license of kerosene again
\n\tcontrary to instructions of the Government which act is found tobe
\n\tabsolutely contrary to law.\n<\/p>\n
On
\n\tthe basis of aforesaid allegations, notice dated 21.10.2009 was
\n\tserved to petitioner to show cause why license should not be
\n\tcancelled\/suspended and why amount of deposit towards license should
\n\tnot be forfeited fully or partially which was replied by petitioner
\n\ton 30.11.2009 by filing statement of defence in writing wherein it
\n\twas submitted by petitioner that sign board has been maintained by
\n\thim. In respect to bill book, it was submitted that  bill books have
\n\tbeen printed in bulk and after completion thereof, new bill book
\n\twill be printed. It was also submitted by petitioner that now
\n\tpractice has been started to obtain signatures of consumers on the
\n\toffice copy of bill. It was also submitted that because of  rush of
\n\tconsumers, through mistake, entry of the quantity supplied might not
\n\thave been made in the card. It was submitted that henceforth, such
\n\tmistake will not be committed and because of such mistake, at the
\n\ttime of inspection, quantity of 55 liters of kerosene is found not
\n\tentered in  ration card. It was further submitted that through
\n\tmistake, consumers appear to have been supplied quantity second
\n\ttime. No quantity has been misappropriated. Quantity as per bill has
\n\tbeen distributed to  respective card holders. It was also submitted
\n\tby petitioner that  gas holders have not been distributed any
\n\tkerosene but in view of wrong stamp made though not holding gas,
\n\tcard holders demanded kerosene and, therefore, after making bills
\n\tand making entry in the card, quantity has been supplied. No
\n\tquantity has been misappropriated. Further, it was also submitted
\n\tthat in view of the earthquake in the year 2001,  his shop and house
\n\tat his native place Varahi had fallen down and there was much damage
\n\tand because of that reason, he was required to go to his native
\n\tplace frequently and therefore, defect was remaining in the
\n\tdistribution system of Government and, therefore, kerosene license
\n\twas deposited by him and he had been in his native place Varahi for
\n\tgetting repaired the house and after completing all work, again had
\n\tmade demand for continuing license and when the license was
\n\tdeposited,at that time, it was having renewal upto 31.12.2006 and
\n\tbecause of that reason, his license was again restored and towards
\n\tthat renewal, license fee of Rs.200.00 and deposit amount of
\n\tRs.2500.00 and Rs.150.00 for duplicate and Rs.1600.00 were paid
\n\ttowards fine and thereafter, license was renewed again by Mamlatdar
\n\tDeesa.\n<\/p>\n
After
\n\tconsidering submissions of petitioner as aforesaid as well as report
\n\tof inspection team, the District Supply Officer was of view that the
\n\tclarifications made by petitioner are not appearing to be
\n\tsatisfactory and acceptable. District Supply Officer held that by
\n\tcommitting serious irregularities in the supply of essential
\n\tcommodity like kerosene, petitioner has committed an illegality of
\n\tdisturbing public distribution system and after cancellation of
\n\tlicense in the year 2002 after it was deposited, permission for
\n\tkerosene license granted by Mamlatdar, Deesa in the year 2005 also
\n\tbeing unauthorized, as Mamlatdar, Deesa has no power to renew such
\n\tlicense. District Supply Officer  has ordered to recover the amount
\n\tof price of Rs.6600.00  difference of 330 liters quantity of
\n\tkerosene  found to have been misappropriated at the time of
\n\tinspection and also cancelled retail license of kerosene bearing No.
\n\t178\/82 by order dated 31.12.2009. Against that order, appeal was
\n\tpreferred by petitioner before District Collector Banaskantha at
\n\tPalanpur where again written explanation was submitted on 24.2.2010
\n\tby petitioner and thereafter, District Collector has also considered
\n\tappeal memo and relevant original record and then, considering
\n\tirregularities and defects found on the basis of report submitted by
\n\tSupply Inspector Team and explanation which has been tendered by
\n\tpetitioner which is not found to be satisfactory because in
\n\texplanation almost all the allegations made against petitioner are
\n\tindirectly admitted by petitioner and no genuine reasons or bona
\n\tfide has been shown by petitioner before appellate authority.
\n\tDistrict Collector held that if such type of activity is continued,
\n\tthen, purpose of public distribution system cannot be maintained and
\n\tpetitioner has, by misappropriating essential commodity available to
\n\tcard holders, deprived card holders from the essential commodities
\n\tavailable under public distribution system. It was also held by
\n\tappellate authority that the appellant has, after depositing his
\n\tretail kerosene license and getting refund of the amount of deposit,
\n\tagain got started kerosene license contrary to instructions of the
\n\tGovernment. Such an act of  petitioner is contrary to law and,
\n\ttherefore, based upon such conclusions, dismissed appeal of
\n\tpetitioner and confirmed  order of District Supply Officer, Palanpur
\n\tat Banaskantha dated 31.12.2009 by order dated 10.3.2010.
\n\tThereafter, revision was preferred by petitioner and he was
\n\tpersonally heard by revisional authority on 22nd April,
\n\t2010 in revision application No. 26 of 2010. Same explanation was
\n\tgiven by petitioner before revisional authority and considering his
\n\tsame explanation, revisional authority has come to the conclusion
\n\tthat because of earthquake in the year 2001 in Gujarat, petitioner
\n\thad deposited retail license of kerosene and thereafter got started
\n\tlicense contrary to policy of the Government. Revisional authority
\n\talso came to the conclusion that the petitioner has not been able to
\n\tgive any satisfactory explanation or any evidence in his favour in
\n\trespect of irregularities found at the time of inspection and if
\n\tsuch activity of petitioner is continued, then, Public Distribution
\n\tSystem of PDS Kerosene cannot be maintained. Revisional authority
\n\talso came to conclusion that petitioner has deprived card holders
\n\tfrom quantity of kerosene in public distribution by committing
\n\tirregularities and, therefore, there is no any reason to interfere
\n\twith order of  District Collector, Banaskantha dated 10.3.2010 and,
\n\ttherefore, revisional authority rejected revision application no. 26
\n\tof 2010 and confirmed order of Collector Banaskantha dated 10.3.2010
\n\tby order dated 25.5.2010. Therefore, petitioner has filed this
\n\tpetition before this Court.\n<\/p>\n
Learned
\n\tAdvocate Mr. Shah and Dave for petitioner has submitted that all the
\n\tthree authorities have committed gross error in not considering
\n\treply submitted by petitioner and also not properly appreciating
\n\texplanation given by petitioner. According to them, proper
\n\texplanation was given by  petitioner in respect of irregularities
\n\twhich have been alleged against petitioner and, therefore, orders
\n\tpassed by all three authorities are required to be set aside by
\n\tallowing this petition.\n<\/p>\n
As
\n\tagainst that, learned AGP Ms. Jirga Jhaveri appearing for respondent
\n\tState Authority has submitted that this being serious irregularities
\n\twhich has disturbed entire arrangement made for PDS Kerosene Public
\n\tDistribution, it amounts to loss caused to card holders  and Public
\n\tDistribution System and card holders have remained without
\n\tGovernment quota of kerosene. She submitted that if such activities
\n\tare permitted to continue, then, it amounts to giving encouragement
\n\tto such illegal activities carried out by petitioner and, therefore,
\n\tin such circumstances, serious view has been rightly taken by all
\n\tthree authorities and there are concurrent findings of fact based on
\n\trecord and no sufficient or cogent evidence has been produced on
\n\trecord by petitioner in support of his explanation and, therefore,
\n\taccording to her submission, three authorities have rightly examined
\n\tthe matter and not committed any error which would require
\n\tinterference of this court.\n<\/p>\n
I
\n\thave considered submissions made by both learned advocates. I have
\n\talso perused orders passed by three subordinate authorities.
\n\tConsidering irregularities committed by petitioner as per report
\n\tsubmitted by Supply Inspector Team and reasoning given by District
\n\tSupply Officer, Collector and revisional authority, according to my
\n\topinion, indirectly, whatever allegations made against the
\n\tpetitioner have been admitted by him because in explanation, report
\n\tsubmitted by Supply Inspector has not been disputed by petitioner.
\n\tAccording to my opinion,considering explanation given by petitioner,
\n\tall three authorities have rightly held that petitioner has not
\n\tgiven any satisfactory explanation in respect to allegations made
\n\tagainst him, therefore, this being finding of fact decided by each
\n\tauthority which cannot be considered to be baseless or perverse
\n\tfinding, it would not require interference of this court in exercise
\n\tof powers under Article 226\/227 of the Constitution of India.\n<\/p>\n
\tThis
\n\tCourt in case of Jaipalsinh Pratapsinh Solanki versus State of
\n\tGujarat and others, reported in 2008 (2) GLH (UJ) observed as under
\n\tin para 4 and 5:\n<\/p>\n
\t 4.\tIt appears that on
\n\t30.6.1994 and also on 1\/2.7.1994,  there was a surprise checking of
\n\tthe fair price shop of the present petitioner and the Checking Squad
\n\t had found number of irregularities, i.e. about  21  irregularities.
\n\t The petitioner was  asked to tender his explanation and to appear
\n\tfor hearing on 16.8.1994. The written explanation given by the
\n\tpresent petitioner to the District Supply Officer is also on record
\n\tvide  Annexure-‘D’.  On careful reading of the reply, it is clear
\n\tthat the same is substantively vague and unconvincing. Initially,
\n\tthe District Civil Supply Officer had suspended the license of the
\n\tpresent petitioner for 90 days and after hearing the present
\n\tpetitioner, his license was cancelled and deposit of Rs.750\/- was
\n\tordered to be confiscated. The  Collector, thereafter, held that the
\n\tfindings of the District Civil Supply Officer are absolutely legal
\n\tand irregularities noticed are serious in nature and the Collector
\n\tultimately held that the petitioner has disposed of the stock of
\n\tkerosene in large scale  without issuing bills to the consumers-
\n\tcard holders. The account of stock received and sold to the
\n\tconsumers  was  also not found to be maintained properly.  On
\n\tcareful reading of the order passed by the  State Government as
\n\tRevisional Authority, it is clear that the findings arrived at by
\n\tthe Deputy Secretary of the Department of Food and Civil Supply are
\n\tabsolutely  logical and legal. There are  three  findings of
\n\tdifferent authorities. Merely because the petitioner was holding the
\n\tlicense since 12 to 13 years by itself would not pose him to be
\n\tinnocent and honest trader\/ fair  price shop license holder. For
\n\texample,  at one place, the petitioner has accepted that  against
\n\tthe receipt of 7000 Ltrs. of kerosene, he has shown sale of 7200
\n\tLtrs. of Kerosene and this,  according to the petitioner, was
\n\tnothing but slip of pen. This layman excuse  normally should not be
\n\taccepted by any authority so far as the public distribution system
\n\tis concerned. In the same way, at one place, he has shown 200 Ltrs.
\n\tof kerosene  more than the actual,  meaning thereby,  the dealing of
\n\tthe present petitioner was not found to be transparent. Mistakes
\n\twere not bonafide and, therefore, the authorities have reached to
\n\tthe findings.\n<\/p>\n
\t5.\tThe law,  at present,
\n\tis settled that  party who feels  that he has not been given  an
\n\topportunity of being heard,  can be heard at any stage.  The
\n\tpetitioner could have convinced this Court from the strength of
\n\tpapers, including the written explanation given by him, that
\n\tnon-supply of papers has resulted into serious prejudice and
\n\tinjustice to him.\n<\/p>\n
\t9.
\n\tIn case of Gujarat Ship Breakers’ Association v. State of Gujarat<\/a>
\n\treported in 2007(3) GLR page 2150, this Court observed as under in
\n\tpara 15:\n<\/p>\n
\t 15.\tI
\n\tam at a loss to understand that why in case like present, the State
\n\tGovernment has not taken resort to Section 3 read with Section 7 of
\n\tthe Essential Commodities Act. Once the Collector or the appellate
\n\tauthority holds that particular person being a dealer had committed
\n\tbreach of the Control Orders, then, such person is liable to be
\n\tprosecuted under Section 7 of the Essential Commodities Act. For the
\n\tbenefit of the State, I will refer to Section 3 of the Essential
\n\tCommodities Act,1955 which provides that if the Central Government
\n\tis of opinion that it is necessary or expedient so to do for
\n\tmaintaining or increasing supplies of any essential commodity or for
\n\tsecuring their equitable distribution and availability at fair
\n\tprices, or for securing any essential commodity for the defence of
\n\tIndia or the efficient conduct of military operations, it may, by
\n\torder, provide for regulating or prohibiting the production, supply
\n\tand distribution thereof and trade and commerce therein. Section 4
\n\tof the Essential Commodities Act provides that  an order made under
\n\tsection 3 may confer powers and impose duties upon the Central
\n\tGovernment or the State Government or officers and authorities of
\n\tthe
\n\tCentral Government or the State Government, and may  contain
\n\tdirections to any State Government or to officers and authorities
\n\tthereof as to the exercise of any such powers or the discharge of
\n\tany such duties. Section-7 of the Act provides that if any person
\n\tcontravenes any order made under Section 3, he shall be  punishable
\n\tand would be liable to be sentenced to different periods if he
\n\tcommits  offenses under  particular provisions of Section 3. In the
\n\tpresent case, the moment Collector held that the petitioners have
\n\tcommitted breach of 1981 Control Order, then, at least, the
\n\tauthorities should have opened their eyes and could take appropriate
\n\tsteps for prosecution of the office bearers of the petitioner
\n\tAssociation. The State Government, it appears,  is afraid of big
\n\tfishes, its net cannot catch those who are  beyond the size of their
\n\tnet.  I will simply  put  a question to myself, [not  to find an
\n\tanswer] that in case of an ordinary person who had been dealing in
\n\tessential commodities without license,  would the State Government
\n\tleave him after the confiscation of the goods. If the State
\n\tGovernment wants to act honest and show to the public that it does
\n\tnot  care for faces or is not afraid of big guns, then, it has to
\n\tact in accordance with law and take appropriate action against all
\n\twho commit wrong punishable  under the law.\n<\/p>\n
\t10.\tIn
\n\tcase of Shambhu Dayal Agarwala versus State of West Bengal and
\n\tanother, (1990) 3 Supreme Court Cases 549, apex court observed in
\n\tpara 4 and 7:\n<\/p>\n
\t 4.\tIn order to
\n\tappreciate the rival view points, we may at the outset examine the
\n\tscheme of the Act. The Act, as the long title reveals was enacted to
\n\tprovide, in the interest of the general public, for the control of
\n\tproduction, supply and distribution of, and trade and commerce in
\n\tcertain commodities. It extends to the whole of India. The
\n\tdictionary of the Act is contained in Section 2. Section 2(i-a)
\n\tdefines  Code  to mean the Code of Criminal Procedure, 1973.
\n\tSection 2(f) says that words and expressions used but not defined in
\n\tthe Act and the defined in the Code shall have the meanings assigned
\n\tto them in the Code. Section 3 empowers the Central Government to
\n\tprovide for regulating or prohibiting the production, supply and
\n\tdistribution of essential commodity and trade and commerce therein
\n\tif the same is considered necessary or expedient inter alia for
\n\tmaintaining or increasing supplies of any essential commodity or for
\n\tsecuring their equitable distribution and availability at fair
\n\tprices. Sub section (2) of section 3 outlines wheat an order made
\n\tunder sub section (1) thereof may provide. Besides regulating by
\n\tlicenses, permits or the storage, transport, distribution, disposal,
\n\tacquisition, use, consumption, etc., thereof, the order may, inter
\n\talia, provide for controlling the prices at which the essential
\n\tcommodity may be bought or sold and may also require any person
\n\tholding in stock any essential commodity to sell the whole or a
\n\tspecified part of the quantity held in stock or produced or received
\n\tby him or likely to be produced or received by him to the Central
\n\tGovernment or a State Government or to an officer or agent of such
\n\tgovernment, etc. Sub section (3) of section 3 provides for
\n\tdetermination of the price to be paid to the person from whom the
\n\tessential commodity is so purchased. Section 6 lays down that an
\n\torder inconsistent therewith contained in any other enactment or
\n\tinstrument. Then comes section 6-A which provides for the
\n\tconfiscation of essential commodity. Sub-section (1) of this section
\n\tmay be reproduced for ready reference;\n<\/p>\n
\t‘6-A. Where any essential
\n\tcommodity is seized in pursuance of an order made under section 3 in
\n\trelation thereto it shall be reported without any unreasonable delay
\n\tto the Collector of the district in which such essential commodity
\n\tis seized and the Collector may, if he thinks it expedient so to do,
\n\tinspect or caused to be inspected such essential commodity, whether
\n\tor not the prosecution is instituted for the contravention of such
\n\torder and the Collector, if satisfied that there has been a
\n\tcontravention of the order, may order confiscation of –\n<\/p>\n
\t(a) the essential
\n\tcommodities so seized’<\/p>\n
\t(b)\tany package, covering
\n\tor receptacle in which such essential commodity is found; and <\/p>\n
\t(c)\tany animal, vehicle,
\n\tvessel or other conveyance used in carrying such essential
\n\tcommodity;’<\/p>\n
\t Sub section (2) of the
\n\tsaid section empowers the Collector to sell any essential commodity,
\n\tif the same is subject to speedy and natural decay or it is
\n\totherwise expedient to do so in public interest at the controlled
\n\tprice, if any, fixed therefor or by public auction if no such price
\n\tis fixed. If the Central or the State Government has fixed the
\n\tretail sale price of such commodity under the Act or under any other
\n\tlaw, the Collector is empowered to order its sale through fair price
\n\tshops at the price so fixed. Section 6B posits that no order of
\n\tconfiscation of any essential commodity or conveyance, etc., shall
\n\tbe made unless the owner or the person from whom it is seized has
\n\tbeen served with a notice informing him of the grounds on which it
\n\tis proposed to confiscate the same and he has been given reasonable
\n\ttime to make a representation in writing against the grounds set out
\n\tin the notice and has been given a reasonable opportunity of being
\n\theard. This section incorporates the principles of natural justice
\n\tto ensure that the owner or person from whom the essential commodity
\n\tis seized has the fullest opportunity to satisfy the Collector
\n\tagainst passing a confiscation order under section 6A. An appeal is
\n\tprovided by section 6C against the order of confiscation passed
\n\tunder section 6A. Section 6D clarifies that an award of confiscation
\n\tunder the Act by the Collector shall not prevent the infliction of
\n\tany punishment to which the concerned person is liable under the
\n\tAct. We then come to section 6A which was inserted in the Act in
\n\tplace of the existing provision by Act 42 of 1986 with effect from
\n\tSeptember 9 1986. Since the incident in question relates to a date
\n\tsubsequent to September 9, 1986, it is unnecessary to notice the
\n\tearlier provision. Section 6-E which confers exclusive jurisdiction
\n\ton the Collector and in the State Government concerned under Section
\n\t6-E to pass certain orders pending confiscation reads as under:\n<\/p>\n
\t‘6-E. \tWhenever any
\n\tessential commodity is seized in pursuance of an  order made under
\n\tSection 3 in relation thereto, or any package, covering, or
\n\treceptacle in which such essential commodity is found, or any
\n\tanimal, vehicle, vessel or other conveyance used in carrying such
\n\tessential commodity is seized pending confiscation under section
\n\t6-A, the Collector, or as the case may be, the State Government
\n\tconcerned under section 6-C shall have, and notwithstanding anything
\n\tto the contrary contained in any other law for the time being in
\n\tforce, any court, tribunal or other authority shall not have
\n\tjurisdiction to make orders with regard to the possession, delivery,
\n\tdisposal release or distribution of such essential commodity,
\n\tpackage covering receptacle, animal, vehicle, vessel or other
\n\tconveyance.’<\/p>\n
\tIt is obvious on a plain
\n\treading of this provision that the same was brought on the statute
\n\tbook with a view to debarring the courts from making any order with
\n\tregard to the possession, delivery, disposal or distribution of any
\n\tessential commodity seized under an order made under section 3 of
\n\tthe Act. Section 7 prescribes the penalties for the contravention of
\n\tany order made under section 3 and provides for the forfeiture of
\n\tthe essential commodity to the Government and for the forfeiture of
\n\tany animal, vehicle or other conveyance used in carrying the said
\n\tessential commodity, if the court so orders. Section 10-A makes
\n\tevery offence under the Act cognizable and non bailable,
\n\tnotwithstanding anything contained in the Code. Section 11 provides
\n\tthat no court shall take cognizance of any offence punishable under
\n\tthe Act except on a report made by a public servant as defined by
\n\tsection 21, IPC, or any person aggrieved or any recognized consumer
\n\tassociation. Section 12-A empowers the State Government to
\n\tconstitute by notification as many special courts as may be
\n\tnecessary and section 12-AA, which begins with non-obstante clause
\n\tnotwithstanding anything contained in the code   provides that all
\n\toffences under the Act shall be triable only by the special court
\n\tconstituted for the area in which the offence was committed. Section
\n\t12-AC makes the provisions of the Code (including the provisions as
\n\tto bail and bonds) applicable to the proceedings before special
\n\tcourts as if it is a Court of Sessions unless the Act provides
\n\totherwise.\n<\/p>\n
\t5.xxx<\/p>\n
\t6.xxx<\/p>\n
\t7.\tThe Act was enacted to
\n\tsafeguard public interest. It was thought necessary in the interest
\n\tof the general public to control the production supply and
\n\tdistribution of, and trade and commerce in certain commodities
\n\tthrough legislation. With that in view, powers to control
\n\tproduction, supply, distribution, etc., came to be conferred on the
\n\tCentral Government by Section 3 of the Act. As pointed out earlier,
\n\tin order to deter persons dealing in such essential commodities from
\n\tcontravening any order made under section 3, the law envisages two
\n\tindependent proceedings, namely (I) confiscation under section -6A
\n\tand (ii) prosecution leading to punishment provided by Section 7 of
\n\tthe Act. In order to ensure that the steady supplies of essential
\n\tcommodities to the members of the general public is not disrupted,
\n\tprovision is made in sub section (2) of section 6-A that the
\n\tCollector may, if it is expedient and in public interest so to do,
\n\tsell the seized commodity at the controlled price or by public
\n\tauction if no such price is fixed or through the public distribution
\n\tsystem if the retail sale price is fixed for the said commodity.
\n\tSimilar powers can be exercised if the commodity is subject to
\n\tspeedy and natural decay. The obvious purpose of conferring this
\n\tpower on the Collector without waiting for the completion of the
\n\tconfiscation proceedings is to maintain the smooth supplies of
\n\tessential commodities to the consumer public, avoid artificial
\n\tshortages, maintain the price line and secure equitable distribution
\n\tthereof through fair price shops. If such a power was not conferred
\n\tand if the seized commodity could not be dealt with till the
\n\tcompletion of confiscation proceedings, it would defeat the very
\n\tobject and purpose for which the Act was enacted. By the conferment
\n\tof this power, a duty is cast on the Collector to see that essential
\n\tcommodities are not locked up in proceedings under the Act;
\n\tartificial scarcity is not created to hike up prices; a close watch
\n\tis kept on the supplies to the general public; when necessary in
\n\tpublic interest the stock of seized commodities is released to
\n\tcombat short supply and in general to ensure the availability of
\n\tessential commodities at fair prices to the general public. To
\n\tensure that this object of maintaining supplies and the legislature
\n\thas entrusted the task to the Collector in its entirety and has
\n\truled out interference by Courts, tribunals and other authorities by
\n\tplacing  an embargo on their jurisdiction in this behalf by section
\n\t6-E of the Act. While conferring wide powers as above on the
\n\tCollector, the legislature has also protected the dealers interest
\n\tby providing that in the event it is ultimately found that he was
\n\tnot guilty of contravention on any order made under section 3, he
\n\tshall be paid the price realized with reasonable interest. But if
\n\tthe prosecution ends in a conviction, section 7 (1)(b) enjoins that
\n\tthe property in respect of which the order was contravened  shall
\n\tbe forfeited  to the Government. The language of this clause is
\n\tclearly mandatory and leaves no option to the court but to order
\n\tforfeiture. This becomes clear if we read this clause in
\n\tjuxtaposition with any packing, covering or receptacle in which the
\n\tessential commodity was found or any animal, vehicle, vessel or any
\n\tother conveyance which was used to carry to same If the property is
\n\treturned to the owner or the person from whom it was seized, in
\n\texercise of power under section 6-E, it is difficult to understand
\n\thow the Court would implement the mandate of clause (b) of sub
\n\tsection (1) of section 7 of the Act. But the learned counsel for the
\n\tappellant argued that even in cases where the Collector sells the
\n\tessential commodity under sub section (2) of section 6-A and retain
\n\tthe price thereof, the essential commodities ceases to be available
\n\tfor forfeiture under clause (b) of section 7(1) of the Act. He,
\n\ttherefore, submitted that the Act itself contemplates situation
\n\twhich renders clause (b) of section 7(1) otiose where the essential
\n\tcommodity is disposed of by the Collector under sub sub section (2)
\n\tof section 6A of the Act. He, therefore, saw no harm in releasing
\n\tthe commodity to the owner or the person from whose possession it
\n\twas seized on condition that such person deposits the market price
\n\tof the commodity on the date of seizure or gives a bank guarantee
\n\tfor the said sum. In this connection a reference was also made to
\n\tthe provision in sub section (5) of section 452 of the Code which
\n\tinter alia provides that the ‘property’ shall include, in the case
\n\tof property regarding which an offence appears to have been
\n\tcommitted, not only such property as has been originally in the
\n\tpossession or under the control of any party but also any property
\n\tinto or for which the same may have been converted or exchanged, and
\n\tanything acquired by such conversion or exchange whether immediately
\n\tor otherwise’. This definition can be invoked in view of section
\n\t2(f) of the Act which is not inconsistent with any provision of the
\n\tAct. But this submission overlooks the fact that the power conferred
\n\tby sub section (2) of section 6-A to sell the essential commodity
\n\thas to be exercised in public interest for maintaining the supplies
\n\tand for securing the equitable distribution  of the essential
\n\tcommodity. If the essential commodity is returned to the person from
\n\twhom it was seized or to the owner thereof, the very objective of
\n\tthe Act would be defeated and the purpose of seizure would be
\n\tfrustrated. The seizure has to be effected not for the sake of
\n\tearning revenue, i. e. the market price of the commodity at the date
\n\tof seizure, which may be ultimately forfeited, but to prevent
\n\thoarding of essential commodities, avoid artificial shortages,
\n\tmaintain a steady supply to the community and ensure equitable
\n\tdistribution at fair and reasonable prices. If the seized commodity
\n\tis returned by merely securing its value, this objective of the Act
\n\twill be wholly defeated. That is why section 6-A does not empower
\n\tthe Collector to give an option to give an option to pay, in lieu of
\n\tconfiscation of essential commodity, a fine not exceeding the market
\n\tvalue of the commodity on the date of seizure, as in the case of any
\n\tanimal, vehicle, vessel or other conveyance seized along with the
\n\tessential commodity. Only a limited power of sale of the commodity
\n\tin the manner prescribed by sub section (2) of section 6-A is
\n\tgranted. This shows that the legislature did not intend to confer a
\n\tpower on the Collector to return the essential commodity to the
\n\towner or the person from whose possession it was seized. That is for
\n\tthe obvious reason that it would run counter to the very object and
\n\tpurpose of the enactment.\n<\/p>\n
\t11.\tIn
\n\tview of aforesaid decisions referred to by this court where object
\n\tof Gujarat Essential Articles (Licensing, Control and Stock
\n\tDeclaration) Order, 1981 as well as the Essential Commodities Act
\n\tSection 6A have been considered by apex court and also looking to
\n\tconcurrent finding of fact, this court is also having considerable
\n\topinion that no interference of this court is required in exercise
\n\tof powers under Article 226\/227 of Constitution of India. Therefore,
\n\tcontentions raised by learned Advocate Mr. Shah and Mr. Dave for
\n\tpetitioner cannot be accepted. According to my opinion, no error is
\n\tcommitted by either of subordinate authority in passing such order
\n\tand, therefore, would not require interference of this court in
\n\texercise of powers under Article 226\/227 of Constitution of India.
\n\tHence, there is no substance in this petition and same is,
\n\ttherefore, dismissed with no order as to costs.\n<\/p>\n
(H.K.\n<\/p>\n
Rathod,J.)<\/p>\n
Vyas<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Amrutlal vs State on 9 August, 2010 Author: H.K.Rathod,&Nbsp; Gujarat High Court Case Information System Print SCA\/9032\/2010 16\/ 23 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9032 of 2010 ========================================================= AMRUTLAL MULJIBHAI THAKKAR – Petitioner(s) Versus STATE OF GUJARAT & 2 – Respondent(s) ========================================================= Appearance : […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-78242","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nAmrutlal vs State on 9 August, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/amrutlal-vs-state-on-9-august-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Amrutlal vs State on 9 August, 2010 - 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