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Madhya Pradesh High Court · body

2009 DIGILAW 120 (MP)

Ajanta Auto Center v. State Of M. P.

2009-01-23

N.K.MODY

body2009
ORDER : Being aggrieved by the judgment dated 30th July, 2003 passed by Sessions Judge, Vidisha in Criminal Appeal No. 99/01 whereby the order dated 3-9-2001 passed by Collector Vidisha in Case No. 95/B-121/00-01 whereby 10% of seized Diesel and Petrol was seized for violation of provisions of Essential Commodities (Price Exhibition and Price Control Order), 1977 and Clauses 6(1), (2), (3) and 10 of M. P. Spirit and High Speed Diesel Oil Control Order, 1980 and also in violation of condition No. 3(2), 4, 5, 6(III), 7, 8 and 10 of license issued under the said order, the present petition has been filed. 2. In short the case of prosecution was that on 20-4-2001 food inspector inspected the business of M/s Ajanta Auto Center, Sironj who was dealer of Bharat Petroleum. Upon inspection it was found that petitioner has not exhibited the price and the stock. It was found that petitioner has not issued the bills of 620 litres diesel and 1266 litres of petrol. It was also found that upon measuring the diesel it was found that there was lesser quantity of 40 ml., 35 ml. and 70 ml. Upon this it was found that petitioner has violated the provisions of Clauses 6(1), (2), (3) of M. P. Essential Commodities (Price Exhibition and Price Control Order) 1977 and Clause 3(4)(5) and 10 of M. P. Spirit and High Speed Diesel Oil Control Order, 1980 and condition No. 3 (Two), 4, 5, 6 (Three), 7, 8 and 10 of the License issued under the said order. Upon this 41966 litres and 3480 litres petrol which was found in stock was seized. After issuance of show cause notice and after hearing the parties District Magistrate directed for confiscation of 10% of diesel and petrol which was seized, against which an appeal was filed which was allowed in part and the order relating to confiscation of petrol was set aside while the order relating to confiscation of diesel was maintained, against which the present petition has been filed. 3. Mr. T. C. Bansal and Sanjay Bahirani learned counsel for petitioner argued at length and submits that the impugned order passed by the learned Court below is illegal and deserves to be set aside. It is submitted that the food inspector was having no jurisdiction to measure the diesel and to hold the petitioner liable that there was defect in measurement. T. C. Bansal and Sanjay Bahirani learned counsel for petitioner argued at length and submits that the impugned order passed by the learned Court below is illegal and deserves to be set aside. It is submitted that the food inspector was having no jurisdiction to measure the diesel and to hold the petitioner liable that there was defect in measurement. It is submitted that Food and Civil Supply Department has issued a Circular dated 15-10-2006 wherein it was mentioned that under the provisions of Standards of Weights and Measures Act, 1976, it is only the weights and measurements authorities who are competent to inspect the measurement and the food inspector is having no authority under the law to inspect the measurement. It is submitted that in view of the aforesaid circular the whole action taken by the respondent is illegal and deserves to be set aside. So far as confiscation of diesel is concerned, learned counsel submits that the Essential Commodities (Price Exhibition and Price Control Order), 1977 has been rescinded vide notification dated 2-9-2002, therefore, no action can be taken against the petitioner as the rescinded order was passed when the matter was pending before the Appellate Court. Learned counsel placed reliance on a decision of Hon'ble Apex Court in the matter of Kolhapur Canesugar Works Ltd. vs. Union of India, reported in AIR 2000 SC 811 wherein Hon'ble Apex Court has observed that in a case where a particular provision in a statute is omitted and in its place another provision dealing with the same contingency is introduced without a saving clause in favour of pending proceedings then it can be reasonably inferred that the intention of the legislature is that the pending proceedings shall not continue but a fresh proceedings for the same purpose may be initiated under the new provision. Further reliance is placed on a decision in the matter of General Finance Co. vs. Assistant Commissioner of Income Tax, reported in (2002)7 SCC 1 wherein prosecution was under section 276-DD of the Income Tax Act for an offence although initiated prior to omission of that section w.e.f. 1-4-1989, the Hon'ble Apex Court held that the prosecution could not continued after omission of the enabling provision. It was further observed that section 6 General Clauses Act could not save such a prosecution as section 6 applies only to repeal and not to omission of a provision. It was further observed that section 6 General Clauses Act could not save such a prosecution as section 6 applies only to repeal and not to omission of a provision. Further reliance is placed on a decision in the matter of Manoj Anna Bhandar (M/s.) vs. Collector and Licencing Authority, reported in 2003(1) EFR 632 wherein the petitioner was prosecuted for an offence punishable under sections 3 and 7 of Essential Commodities Act and violation of Licence Condition of the Order 1991 it was held that on the relevant date when inspection was carried on at the premises of the petitioner he was found guilty of committing technical breaches of conditions of licence but there is no allegation that petitioner was indulging in black marketing or selling of adulterated goods, thus order of confiscation passed by Court below was not proper and liable to be set aside. Further reliance is placed on a decision in the matter of S. S. Enterprises (M/s) vs. State of M. P., reported in 2004(2) EFR 394 wherein this Court has observed that since vide notification dated 27-8-1998 the Control Order, 1991 was amended and there was no saving clause and vide notification dated 2-9-2002 the Control Order, 1991 was amended and there was no saving clause and vide notification dated 2-9-2002 the Control Order, 1991 was rescinded w.e.f. 13-9-2002 if the Control Order, 1991 is rescinded without saving cause, the petitioner is entitled to get the benefit of the same at revisional stage also in the High Court and the petitioner can get the benefit of the rescindment of the Control Order, 1991 and the order of confiscation is set aside. 4. In the matter of Lards Automobiles (M/s) vs. State of M. P., reported in 2008(2) EFR 447 wherein the action was taken under Clause 6(2) of Price Control Order, 1977 and the said Control Order was rescinded vide notification dated 2-9-2002, this Court has held that no action can be taken now on the said Control Order, 1977 against the petitioner as the petitioner will get the benefit of the order of rescindment and entire proceedings including confiscation of security amount is abated. 5. 5. Learned counsel for respondent submits that since the Price Control Order was in force at the relevant time, therefore, no illegality has been committed by the learned Court below in passing the order of confiscation and keeping in view the fact that at the relevant time the said order was in force only because of the fact that by the subsequent notification the said order was rescinded no benefit can be given to the petitioner. It is submitted that no illegality has been committed by the learned Court below in passing the impugned order which can be corrected while exercising revisional jurisdiction. 6. Keeping in view the aforesaid position of law as laid down in various cases since the said order was rescinded vide notification dated 2-9-2002 the petition filed by the petitioner is allowed and the impugned order passed by the learned Court below whereby 10% of the diesel which was seized from the petitioner was confiscated is set aside. 7. With the aforesaid observations, petition stands disposed of.