Research › Search › Judgment

Madhya Pradesh High Court · body

2009 DIGILAW 352 (MP)

Rajmohan Kapoor v. State of M. P.

2009-03-19

B.M.GUPTA

body2009
ORDER 1. As common point of dispute is involved, both these revisions are heard together and being disposed of by this common order. 2. Admitted facts of both the cases are as under: Criminal Revision No. 422/03 : On 28th December 2002, during vast checking, truck No. MP09-D0553 was inspected and found that it's Driver Mohd. Shabbir was driving the same while using kerosene as fuel. Observing that it is breach of section 3 (1) (2) of the Order - Kerosene (Upyog Par Niyantran Evam Adhiktam Keemat Niyantran) Aadesh, 1993 (The Order of 1993) and punishable under section 3/7 of Essential Commodities Act 1995 (The Act), a notice dated 31st December 2002 was given to its owner Rajmohan Kapoor, the petitioner herein, as to why the truck be not confiscated. It was replied by him vide reply Dated 31st December 2002 and admitted that during inspection, it was found that it was driven by the driver while using kerosene but in the last he has mentioned that the driver used kerosene without his knowledge and hence being first fault it may be pardoned. Considering the aforesaid reply as admission of the petitioner, vide order dated 31st December 2003, passed in Criminal Case No. 32/B-121-2002-2003, the Collector Vidisha has confiscated an amount of Rs. 25,000/- in lieu of the aforesaid truck and released the truck. Feeling aggrieved with this order, petitioner filed CLA. No. 19/ 03, which has been dismissed by the Sessions Judge Vidisha vide impugned order dated 31st July 2003. Feeling aggrieved from this order, this revision has been preferred. Criminal Revision No. 427/03 : On 28th December 2002, during vast checking, truck No. MKO9144 was inspected and found that it's driver Harpal Singh was driving the same while using kerosene as fuel. Observing that it is breach of section 3 (1) (2) of the Order of 1993, a notice dated 31st December 2002 was given to its owner Roshan Kapoor, the petitioner herein, as to why the truck be not confiscated. It was replied by him vide reply (date not mentioned) and admitted that during inspection, it was found that it was driven by the driver while using kerosene but in the last he has mentioned that the driver used kerosene without his knowledge and hence being first fault he may be pardoned. It was replied by him vide reply (date not mentioned) and admitted that during inspection, it was found that it was driven by the driver while using kerosene but in the last he has mentioned that the driver used kerosene without his knowledge and hence being first fault he may be pardoned. Considering the aforesaid reply as admission of the petitioner, vide order dated 31st December 2003, passed in Criminal Case No. 33/B-121-2002-2003, the Collector Vidisha has confiscated an amount of Rs. 25,000/- in lieu of the aforesaid truck and released the truck. Feeling aggrieved with this order, petitioner filed CLA. No. 18/03, which has been dismissed by the Sessions Judge Vidisha vide impugned order dated 31st July 2003. Feeling aggrieved from this order, this revision has been preferred. 3. Shri Bahirani learned counsel appearing for the petitioners has assailed the impugned orders on two counts: (A) That, the Collector has confiscated an amount of Rs. 25,000/from each of the petitioners in lieu of truck and not in lieu of the price of the essential commodity concerned, while as provided by section 6-A (1) of the Essential Commodities Act, at the time of confiscation, Collector shall give an option to the owner to pay a fine not exceeding the market price at the date of seizure of essential commodity, by such vehicle, then the vehicle will not be confiscated. In these cases no such option has been given but directly in lieu of the amount of truck aforementioned amount has been confiscated. He has placed reliance on a Division Bench decision of High Court of Andhra Pradesh in G. Subbarama Naidu v. Joint Collector, Chittoor, AIR 1986 A.P. 82 and orders passed by other Single Benches of this Court in Ashraf Khan v. State of M.P In Criminal Revision No. 184/02 & Rayees Khan v. State of M.P, 2007 (III) MPWN 20 = 2007 (1) MPLJ 260. (B) That, the petitioner's cannot be held responsible for such confiscation, unless it is established that they themselves committed the breach or if the same has been committed by their agent, it was committed with their connivance or knowledge. In present cases, no such facts have been established. 4. (B) That, the petitioner's cannot be held responsible for such confiscation, unless it is established that they themselves committed the breach or if the same has been committed by their agent, it was committed with their connivance or knowledge. In present cases, no such facts have been established. 4. Shri D.R. Sihare, for the State has countered the contentions of Shri Bahirani and has submitted that drivers were the agents of the petitioners and their act has been admitted by the petitioners by their reply of notice dated 31st December 2002. Petitioners gave reply after seeking information from their drivers. With regard to another contention, Shri Sihare has submitted that vehicle is required to be confiscated and not commodity as per the provisions of section 6 of the Essential Commodities Act. 5. For disposal of the controversy existing between the rival parties, perusal of the reply of notice dated 31.12.2002 admittedly given by the petitioners to the Collector and also the relevant provisions of section 6A and 6-B of the Essential Commodities Act will be required. 5. For disposal of the controversy existing between the rival parties, perusal of the reply of notice dated 31.12.2002 admittedly given by the petitioners to the Collector and also the relevant provisions of section 6A and 6-B of the Essential Commodities Act will be required. It is admitted by both the parties that reply of notice in both the cases is word by word same, hence main part of reply given in one case is reproduced hereinbelow: ^^fuosnu gS fd izkFkhZ Vªd dzekad ,e-ds-vks- 9144 dk ekfyd gS] izkFkhZ us Vªd dks fnukad 28-12-2002 dks [kk| foHkkx fofn'kk }kjk bZa/ku tkap dj tIr fd;k x;k tks eq>s Lohdkj gSA okgu pkyd }kjk okgu esa bZa/ku esa dsjkflu Mky fn;k x;k gksxk tks [kk| foHkkx }kjk tkap esa dsjksflu ik;k x;kA tkap esa dsjksflu dh iqf"V gqbZ gS tks eq>s Lohdkj gSA** fuosnu gS fd izkFkhZ ds tkudkjh cxSj dsjkslsu dk bLrseky fd;k x;k gS izFke xyrh gkus ls {kek ;ksX; gSA d`Ik;k =qfV dks {kek dj okgu tIrh ls eqDr djus dk d"V djsaA The relevant provisions of section 6A and 6B are as under: "6-A. Confiscation of essential commodity n (1) Where any essential commodity is seized in pursuance of an order made under section 3 in relation thereof, a report of such seizure shall, without unreasonable delay, be made to the Collector of the district or the Presidency town in which such essential commodity is seized and whether or not a prosecution is instituted for the contravention of such order, the Collector may, if he thinks it expedient so to do, direct the essential commodity so seized to be produced for inspection before him, and if he is satisfied that there has been a contravention of the order may order confiscation of-- (a) the essential commodity so seized; (b) any package, covering or receptacle in which such essential commodity is found; and (c) any animal, vehicle, vessel or other conveyance used in carrying such essential commodity; Provided that without prejudice to any action which may be taken under any other provision of this Act, no food grains or edible oilseeds seized in pursuance of an order made under section 3 in relation thereto from a producer shall, be confiscated under this section: Provided further that in case of any animal, vehicle, vessel or other conveyance used for carriage of goods or passengers for hire, the owner of such animal, vehicle, vessel or other conveyance shall be given an option to pay, in lieu of its confiscation; a fine not exceeding the market price at the date of seizure of the essential commodity sought to be carried by such animal, vehicle, vessel or other conveyance. (2) & (3) .............." 6B. Issue of show-cause notice before confiscation of essential commodity, etc. (1) .......... (2) Without prejudice to the provisions of sub-section (1) no order confiscating any animal, vehicles, vessel or other conveyance shall be made under section 6-A if the owner of the animal, vehicle, vessel or other conveyance proves to the satisfaction of the Collector that it was used in carrying the essential commodity without the knowledge or connivance of the owner himself, his agent, if any, and the person in charge of the animal, vehicle, vessel or other conveyance and that each of them had taken all reasonable and necessary precautions against such use. (3) ............." 6. On perusal of the reply, it is specifically mentioned in para 2 that the driver used the kerosene as fuel in the truck without the knowledge of the petitioner/so In the first paragraph, factual aspect has been admitted, that, during inspection use of kerosene as fuel in the truck was detected by the inspecting team. The effect of cumulative reading of both the paragraphs of the reply, does indicate that petitioner/s have admitted their know ledge or connivance in regard to use of kerosene as fuel in the trucks J by their drivers, but at the same time, the petitioners are specifically denying their knowledge. It is true that this fact is required to be proved by the owner as mentioned in sub-section (2) of section 6B of the Act. In the factual circumstances admittedly the trucks were checked and seized from the possession of the drivers and not in possession of the owners and vide their reply the owners are specifically denying their knowledge, nothing more is required from the owners for this purpose. Hence attributing the admission of the guilt at the part of the petitioners cannot be accepted. In their statements dated 28.12.2002 both the drivers; Mohd Shabbir and Harpal Singh stated that on credit card they obtained diesel to be filled in the tank of the truck from the petrol pump, but at the time of checking the kerosene was found to be used as fuel in the truck. They also did not attribute any knowledge to the petitioners with regard to the alleged act. They also did not attribute any knowledge to the petitioners with regard to the alleged act. It is true that driver Harpal Singh (relating to petitioner Roshan Kapoor) has stated that usually the fuel is being taken by the owner, but at the same time he has stated that when the truck was in his possession, he obtained the diesel from the petrol pump on 26.12.2002. Thus, it appears that whatever the fuel was taken forthat truck by driver Harpal Singh, was found at the time of checking. Hence for this act of Harpal Singh, the connivance of his owner cannot be accepted. As observed by the another Single Bench in the case of Rayees Khan (supra), and also as it appears from sub-section (2) of section 6B of the Act, unless the act alleged is done by the owner himself or by his agent, or with his connivance or knowledge, he cannot be held responsible. It is true that driver is the agent of the owner, but if without the knowledge permission or connivance and behind his back, he misuses the authority given to him, even then the owner cannot be held responsible, unless it is established that the agent was authorized by the owner for that purpose. 7. On perusal of the second proviso appended to sub-section (1) of section 6-A of the Act, it is abundantly clear, that the owner of such vehicle shall be given an option to pay, in lieu of its confiscation; a fine not exceeding the market price at the date of seizure of the essential commodity sought to be carried by said vehicle and if the option is accepted by the owner, then of course the seizure of the vehicle will not be required. Similar view has been taken in the case of G. Subbarama Naidu and Ashraf Khan (supra). On perusal of the impugned orders passed by the Collector, it appears that he has not given such option to the petitioners, instead he has given an order to confiscate Rs. 25,000/- from the amount of price of the seized vehicle, i.e. the trucks in these cases, which is erroneous. The relevant words of the orders are reproduced hereinbelow: ^^vr% tIr okgu dh jkf'k ls 25]000@& 1/4:Ik;s iPphl gtkj1/2 'kklufgr esa jktlkr dj vukosnd dk okgu tIrh ls eqDr fd;k tkrk gSA** 8. 25,000/- from the amount of price of the seized vehicle, i.e. the trucks in these cases, which is erroneous. The relevant words of the orders are reproduced hereinbelow: ^^vr% tIr okgu dh jkf'k ls 25]000@& 1/4:Ik;s iPphl gtkj1/2 'kklufgr esa jktlkr dj vukosnd dk okgu tIrh ls eqDr fd;k tkrk gSA** 8. In view of both the counts, the revisions deserve to be allowed, while setting aside the impugned orders. Consequently, both the revisions are allowed and impugned orders are set aside. If the amount is deposited, the same shall be returned back to the petitioners.