Research › Search › Judgment

Gujarat High Court · body

2013 DIGILAW 523 (GUJ)

Parmar Pursottambhai Somabhai v. State of Gujarat

2013-08-27

MOHINDER PAL, RAVI R.TRIPATHI

body2013
JUDGMENT : Ravi R. Tripathi, J. Shri Parmar Purshottambhai Somabhai, a Fair Price Shop Holder, is before this Court being aggrieved by judgment and order dated 27.10.2009 passed by the learned Single Judge in Special Civil Application No.13597 of 2004; whereby, the petition was dismissed. Rule was discharged. Interim relief was vacated. 2. Heard learned advocate, Ms. Contractor, for Mr. B.S. Khatana for the appellant. The learned advocate for the appellant made available the statement of the appellant, statement of Yunusbhai Dadabhai Solanki, and statement of driver, duly translated for perusal. The Authorities, District Supply Officer, passed an order dated 1.2.2002 cancelling the retail license and authorisation of the petitioner forfeiting the amount of deposit against which, the appeal was filed; wherein, order dated 1.2.2002 was upheld by order dated 15.6.2002 against which, the petitioner filed revision application which too came to be dismissed by order dated 26.2.2004. The petitioner challenged all these orders in the petition and prayed for quashing them. Learned Single Judge dismissed the petition and hence, this appeal. 3. The case of the authority is set out in the order impugned i.e. 1.2.2002 which is to the effect that, the petitioner acquired 2200 liters of Kerosene on 16.7.2001 at 11.00 a.m. from M/s.Patel Desai & Sons (Opposite Vishnu Cinema, sub-dealer of Kerosene, Kalol) vide bill No.2103. This kerosene was meant for public distribution at Village: Balva where the petitioner is holding fair price shop. The petitioner deviated from the route from Kalol to Balva and was found at Karan Nagar, where he was apprehended by the authorities and a statement of the petitioner was recorded; wherein, after initial recording of the statement, which is duly signed by not only the petitioner but also the Mamlatdar, supplementary statement is recorded to the effect that, further, on being asked, the appellant stated that this stock was procured by me from sub-dealer at Kalol to be sold by me to Shital Oil Depot, Kadi. I was to sell this stock to Yunusbhai who is the owner of Shital Oil Depot but before that this stock is seized by you. Prior to this, I have never sold or supplied any stock to Yunusbhai. Yunusbhai had asked me to sell and deliver this stock to him at Kadi. No price was fixed with respect to this stock.... 4. Prior to this, I have never sold or supplied any stock to Yunusbhai. Yunusbhai had asked me to sell and deliver this stock to him at Kadi. No price was fixed with respect to this stock.... 4. Learned AGP, Mr.Shukla, appearing for the authorities is not able to justify recording of supplementary statement below the statement of the petitioner. Therefore, there is no justification for recording the supplementary statement once the statement of the person is already recorded. If at all, any such supplementary statement was required to be recorded, the authority ought to have recorded the reasons for the same. This Court is not able to accept the plea of the authority that the petitioner admitted the guilt of having deviated from the route from Kalol to Balva for the purpose of selling the same to the owner of Shital Oil Depot that is Yunusbhai. 5. At this juncture, it will be appropriate to refer to the statement of Yunushbai Solanki. The authority has recorded it under the signature of Deputy Mamlatdar, Supplies Kadi on the same day. The deponent has denied of having any acquaintance with the petitioner and also denied the averment, if any, made by the petitioner with regard to sale of kerosene to deponent. The relevant part of the statement reads as under: ......The said amount of kerosene has been sold to the needy. Since the business is closed down, the daily basis stock register has not been maintained also the sales bills/ books have not been maintained. Thereafter, till date kerosene has not been bought by me. At present, also as investigated by panch kerosene has not been found in my shop. I do not know of any person named Parmar Purshottam Somabhai residing at Balva in Kalol district, nor have I bought kerosene from him ever. I haven't transacted with this person ever since I don't know him. Any sort of mention about me by this person in relation to any type of inquiry is untrue. I am not carrying out any business at any other place except Kadi district... 6. In continuation, it will be appropriate to refer to the statement of the driver. I haven't transacted with this person ever since I don't know him. Any sort of mention about me by this person in relation to any type of inquiry is untrue. I am not carrying out any business at any other place except Kadi district... 6. In continuation, it will be appropriate to refer to the statement of the driver. The same was also recorded on the same day i.e. 16.7.2001; wherein, the driver has specifically stated on being asked that as per the instructions received from Parmar Purshottambhai Somabhai, who is running a Fair Price Shop at our Balva village, I was bringing 11 barrels of kerosene from the Depot of M/s.Patel & Desai & Sons, situated at Kalol, from Kalol to Kadi and an empty barrel from Kadi. Since the new barrels were to be brought from the factory, at his instance, I have come with my matador containing barrels filled with kerosene towards Kadi side. I had stopped my Matador, for taking a halt near one Hotel at Karan Nagar Village. At that point of time, some officers of your Department had inspected my vehicle and found 11 barrels of kerosene in my Matador, which stock is owned by the shop of Parmar Purshottam Somnath, Balva. I do not know as to whether the barrels filled with kerosene were brought to Kadi for sale or for any other purpose....... 7. At this juncture, learned advocate for the appellant invited the attention of the Court to statement recorded in Gujarati and submitted that inadvertently, some error has crept in translation. In Gujarati, it is specifically stated that it is at the instance of the proprietor (Parmar Purshottambhai Solanki). I have come to Kadi as from Kadi, he wanted to collect empty barrel.... 8. Learned advocate for the appellant invited attention of the Court to para 4 of the judgment and order of the learned Single Judge, wherein the learned Single Judge has appreciated the statement of the driver. For ready perusal para 4 of the judgment and order of the learned Single Judge is reproduced hereunder: From the record it borne out that from the deposition of the Driver, it was revealed that he was instructed to unload the stock of kerosene lifted from sub-dealer at the shop of the petitioner at village Balva. For ready perusal para 4 of the judgment and order of the learned Single Judge is reproduced hereunder: From the record it borne out that from the deposition of the Driver, it was revealed that he was instructed to unload the stock of kerosene lifted from sub-dealer at the shop of the petitioner at village Balva. Thus it was clear that the petitioner has attempted to dispose of the stock of kerosene unauthorizedly. Which is a serious matter. The petitioner could not point out anything from the record that there was no such mal practice. I am therefore in complete agreement with the reasoning adopted by both the authorities. No case is made out to interference. Hence this petition is dismissed. Rule is discharged with no order as to costs. Interim relief if any stands vacated. Rule is discharged. 9. Learned advocate for the appellant submitted that statement of the driver in Gujarati is produced at pages 91 and 92, whereas its translation is produced at paged 92A and 92B. Learned advocate for the appellant submitted that the driver has not stated that he was instructed to unload the stock of kerosene lifted from sub-dealer at the shop of the petitioner at village Balva. The learned advocate for the appellant submitted that it is not clear as to which part of the statement is construed by the learned Single Judge to mean that, Thus it was clear that the petitioner has attempted to dispose of the stock of kerosene unauthorizedly. 10. Learned advocate for the appellant submitted that in this regard statement of Yunusbhai Dadabhai Solanki to whom it is alleged that the stock was to be sold has stated in categorical terms that, .. .. At present also as investigated by Panch, kerosene has not been found in my shop. I do not know of any person named, Parmar Purshottam Somabhai residing at Balva in Kalol District nor have I bought kerosene from him ever. I have not transacted with this person ever since I do not know him. Any sort of mention about me by this person in relation to any type of inquiry is untrue. I am not carrying out any business at any other place except Kadi district. Also, I have not ever purchased blue kerosene from any of the shop keeper. I have not transacted with this person ever since I do not know him. Any sort of mention about me by this person in relation to any type of inquiry is untrue. I am not carrying out any business at any other place except Kadi district. Also, I have not ever purchased blue kerosene from any of the shop keeper. I do not have any relatives or know any persons residing in Balva or Kalol. I am native of Chanasma Taluka, Village Takodi. At present there is no stock of kerosene in Kadi. 11. The learned advocate for the appellant also submitted that the learned Single Judge erred in shifting burden of proof on the petitioner by observing that,.. The petitioner could not point out anything from the record that there was no such mal practice. .. 12. The learned advocate for the appellant submitted that it was for the Department to prove that the defence put forward by the appellant- petitioner was not correct. It is the specific case of the petitioner that, .. I had purchased this stock from M/s Patel Desai & Sons, Opp.Vishnu Cinema, sub-dealer of kerosene, Kalol vide bill no.2103 dated 16.7.2001 at 11.00 am. This stock was given to me for distribution at Balva village. This stock has been seized by you from Kadi Taluka. This stock has been found from Karan Nagar village road. On being enquired about it I say that at Karan Nagar my sister, named, Savitaben is residing. At her house there are empty barrels of kerosene to get which I had taken this vehicle. At that point of time, near a hotel you have seized the kerosene stock from Tata 407. (emphasis supplied) 13. The learned advocate for the appellant submitted that in that view of the matter it was for the Department to prove that mere deviation from route of Kalol to Village Balva was only with an intention to sell kerosene unauthorisedly. The learned advocate for the appellant submitted that the appellant petitioner was falsely implicated which fact can be appreciated on the basis of the grounds set out in order dated 01.02.2002. 14. From the aforesaid facts, it is clear that the Department was not able to establish that the deviation from the route from Kalol to Balva towards Kadi was with an intention to sell Kerosene unauthorizedly to a person named Yunusbhai. 15. 14. From the aforesaid facts, it is clear that the Department was not able to establish that the deviation from the route from Kalol to Balva towards Kadi was with an intention to sell Kerosene unauthorizedly to a person named Yunusbhai. 15. At this juncture, learned AGP submitted that in order dated 1.2.2002, there are other grounds set out for passing the order. 16. Learned AGP invited the attention of the Court to the grounds stated in the order: (i) In stock board of the fair price shop, license number, working hours of the shop and details of the holders are shown; (ii) In the Board showing route and stock at the time of inspection, no details were shown; (iii) In the bill books for Kerosene, serial number are not printed but the space is kept blank for writing bill number but no details of writing bill number displayed but the card number and the details of the persons is mentioned; (iv) On verification of physical stock, it was found that sugar was found less by 1.5 k.g. wheat was found less by 7.5 k.g. and rice (BPL) was found less by 3.00 k.g. (v) The stock which was procured from Patel Desai & Sons on 16.7.2001 at 11.30 a.m., 2200 Ltr. of kerosene was not reached the fair price shop till 7.30 p.m. 17. The perusal of the grounds set out in the order is suggestive of one fact that the authorities were out to cancel the license for extraneous consideration. It is the case of the petitioner and as set out in the statement itself, he is running the fair price shop for last 10 years and the authorities are not able to point out one single incident of his irregularities. The order under challenge is silent on this aspect. 18. The quantity which is found to be 'less' is stated to be within permissible limits and that fact is not denied by the learned AGP. The order under challenge is silent on this aspect. 18. The quantity which is found to be 'less' is stated to be within permissible limits and that fact is not denied by the learned AGP. The approach of the authorities is clear from the contents of ground No.5; wherein, it is stated that the stock of kerosene which was procured at 11.00 a.m. on 16.7.2001 had not reached the shop till 7.30 p.m. The stock was seized by the officers of the same department at Karan Nagar (Kadi) on the same day at 12.00 p.m. Instead of mentioning that, what is mentioned is that, the stock has not reached till 7.30 p.m. is suggestive of fact that objection is not acceptable or tenable in law. 19. In the result, Letters Patent Appeal is allowed. Judgment and order of the learned Single Judge is quashed and set aside. Consequently, all the orders i.e. order dated 1.2.2002, 15.6.2002 and 26.2.2004 which stood merged become non est. The authorities are directed to restore the license/authorisation to the petitioner as early as possible but not later than 10 weeks from the date of receipt of order of this Court. Direct service is permitted. Appeal allowed.