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Madhya Pradesh High Court · body

2013 DIGILAW 71 (MP)

Col. Gas Service A. F. R. v. Collector, Jabalpur

2013-01-10

N.K.GUPTA

body2013
ORDER (Passed on 10th day of January, 2013) The petitioner has challenged the judgment dated 23/11/2010 passed by the XVth Additional Sessions Judge, Jabalpur in Criminal Appeal No.357/2008 by which the order passed by the Collector, Jabalpur in Revenue Case No.88-B/121/07-08 was maintained by which it was directed that 70 gas cylinders be confiscated and their cost be deposited by the petitioner. Hence the petitioner has challenged both the orders passed by the Courts below. 2. The prosecution's case in short is that the petitioner is a dealer of cooking gas Indane authorized by the Indian Oil Corporation. The office of business is at Madan Mahal, Jabalpur whereas the godown was at Village Tewar. On 10.1.2008 Shri P. L. Barkade, District Supply Controller, Shri V. K. Choubey, Assistant Supply Officer and Shri Sanjay Khare and Smt. Anita Sorte, Junior Supply Officers approached the Gas Agency of the petitioner and verified the entire stock and registers. It was found that 70 Gas Cylinders of domestic category (14.2 kilogram capacity) were found short. According to the stock register 70 gas cylinders were found missing on the physical verification. It was also found that he kept some cylinders in various vehicles instead of keeping them in the godown. Similarly 11 commercial gas cylinders were found in lying position whereas those were required to be kept straight and therefore, Shri Choubey, Assistant Supply Officer, Jabalpur seized 70 gas cylinders and a report was submitted to the Collector Jabalpur. 3. The learned Collector, Jabalpur issued a notice under Section 6-B of the Essential Commodities Act to the petitioner. The petitioner has submitted in reply that the physical verification done by Supply Officers was not correct. The Supply Officers were informed that 70 cylinders were sent in a vehicle Tata 407 for supply to the consumers and therefore, they were not short. The supply officers seized 388 cylinders which were kept in a truck and those cylinders were sent by the filling authority to the petitioner and they were yet to be unloaded. Those cylinders could not be seized. Some other objections were also raised by the petitioner. The supply officers seized 388 cylinders which were kept in a truck and those cylinders were sent by the filling authority to the petitioner and they were yet to be unloaded. Those cylinders could not be seized. Some other objections were also raised by the petitioner. The learned Collector after giving an opportunity of hearing to the petitioner and producing the evidence, passed the impugned order dated 21.5.2008 with the direction that 70 gas cylinders (domestic) were confiscated and the petitioner was directed to deposit the cost of those 70 gas cylinders so that those cylinders may be returned to the petitioner. On filing of the appeal the learned XVth Additional Sessions Judge, Jabalpur vide judgment dated 23.11.2010 dismissed the appeal. 4. I have heard the learned counsel for the parties at length. 5. The learned counsel for the petitioner has submitted that the Supply Officers had an erroneous approach. They seized 388 gas cylinders which were not connected to the crime and therefore, those could not be confiscated. The order passed by the learned Collector as well as the learned XVth Additional Sessions Judge, Jabalpur is not maintainable. 6. On the other hand the learned Panel Lawyer has submitted that a violation of various provision of Control Order “Dravikrat Petroleum Gas (Pradaya Aur Vitran Viniyam) Aadesh 2000 (hereinafter it would be referred as to the “Control Order 2000”) and therefore, the property seized under Section 6-A of the Essential Commodities Act (for short the “Act”) can be confiscated by the Collector if any violation of that Control Order is found and therefore, order and judgment passed by the Collector as well as the appellate Court were correct. 7. Under the Essential Commodities Act there are two modes of action provided to the Supply Officer against a dealer who contravenes the provisions of any Control Order. The first mode is to prosecute the dealer for offence punishable under Section 3/7 of the Act. Secondly the seized property which was seized under the provisions of Section 6-A of the Act can be confiscated. In the present case, the Supply Officers found two to three violations done by the petitioner/dealer. It was found that 11 cylinders were kept in lying position which was a violation of the Control Order 2000. Secondly the seized property which was seized under the provisions of Section 6-A of the Act can be confiscated. In the present case, the Supply Officers found two to three violations done by the petitioner/dealer. It was found that 11 cylinders were kept in lying position which was a violation of the Control Order 2000. Similarly some cylinders were kept on the vehicles for storage whereas, they should be kept in the godown and thirdly 70 cylinders were found short according to the stock shown in the stock register. In the present case the learned Collector has confiscated 70 cylinders (domestic) and therefore, it appears that the Collector took notice of that violation which was only related to the shortage of the cylinders in the stock and therefore, it would not be necessary to discuss the violations relating to the cylinders found lying or cylinders which were found loaded in the various vehicles. 8. It was apparent from the various documents that the consignment of 388 cylinders was received by the dealer from a refilling station but, it was yet to be unloaded because it was necessary for the dealer to unload those 388 filled up cylinders and to return 388 empty cylinders by the same vehicle and 388 empty cylinders were not available therefore, the consignment could not be unloaded. It is nowhere alleged by the Supply Officers that a consignment of 388 cylinders was shown by the dealer in the stock and therefore, those 388 cylinders were not in the stock of the dealer and those were not connected with any violation of the Control Order 2000. 9. Under such circumstances, whether the Supply Officers could seize those 388 cylinders and out of those 388 cylinders whether the Collector could confiscate 70 cylinders ? In this connection the provisions of Section 6-A of the Act may be perused which is as under :- “6-A. CONFISCATION OF ESSENTIAL COMMODITY. 9. Under such circumstances, whether the Supply Officers could seize those 388 cylinders and out of those 388 cylinders whether the Collector could confiscate 70 cylinders ? In this connection the provisions of Section 6-A of the Act may be perused which is as under :- “6-A. CONFISCATION OF ESSENTIAL COMMODITY. (1) Where any (essential commodity is seized) in pursuance of an order made under Section 3 in relation thereto, (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 things 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)....................” 10. According to the provisions of Section 6-A of the Act any essential commodity may be seized if it was found in the violation of any Control Order passed under section 3 of the Act then it may be liable for confiscation if any violation of the provisions of that Control Order is found. In the present case, it is apparent from the record that those 388 cylinders were no where connected with any violation of the Control Order 2000. A consignment of 388 gas cylinders was received by the dealer but it was not taken into the stock of the dealer because it was not unloaded and therefore, such consignment was not at all connected with the violation of the Control Order 2000. The Supply Officers took a physical verification of the stock of the dealer but, those 388 cylinders were not in the stock of the dealer and therefore, those could not be seized and therefore, seizure of 388 cylinders was no where in pursuance of the provisions of the Control Order 2000 and therefore, the seizure of those 388 gas cylinders was not under the provision of Section 6-A of the Act. 11. When 70 gas cylinders were found short in the stock then it was a violation of Control Order 2000 in the eye of Supply Officers. They could not seize those cylinders because they were missing. 11. When 70 gas cylinders were found short in the stock then it was a violation of Control Order 2000 in the eye of Supply Officers. They could not seize those cylinders because they were missing. There was a shortage of 70 cylinders in the stock and therefore, nothing could be seized by the supply officers by way of seizure. The supply officers could prosecute the dealer for offence punishable under Section 3/7 of that Act if they so desired, but nothing could be seized for that violation. For the violation of the Control Order 2000 that 70 gas cylinders were found short in the stock then no confiscation order could be passed because there was nothing in the stock to be seized by the Supply Officers. It appears that the learned Collector and the Supply officers tried to punish the dealer otherwise. It was for them to prove the guilt of the dealer for offence punishable under section 3/7 of the Essential Commodities Act so that he could be punished. Instead of adopting that procedure the Supply Officers had seized 388 gas cylinders from a truck which were not in the stock of the dealer at the time of checking. 12. On the basis of the aforesaid discussion, it is apparent that no seizure could be done from the dealer relating to the shortage of 70 gas cylinders and therefore, the seizure done by the Supply Officers was not related in pursuance of the Control Order 2000 and therefore, the seizure done by the Supply Officers was not according to the provisions of Section 6-A of the Act and therefore, it was not a valid seizure in the eye of law. Seized property was no where connected with the violation done by the dealer under the Control Order 2000 and therefore, no confiscation order could be passed by the Collector. The learned Collector as well as the learned XVth Additional Sessions Judge, Jabalpur have committed an error of law in passing the order of confiscation and in maintaining that order. Neither the confiscation order nor the judgment passed by the appellate Court can be maintained. 13. Consequently, the revision filed by the petitioner is hereby allowed. Both the orders passed by the Courts below including the learned Collector and the learned XVth Additional Sessions Judge, Jabalpur are hereby set aside. Neither the confiscation order nor the judgment passed by the appellate Court can be maintained. 13. Consequently, the revision filed by the petitioner is hereby allowed. Both the orders passed by the Courts below including the learned Collector and the learned XVth Additional Sessions Judge, Jabalpur are hereby set aside. The petitioner is entitled to get back 70 gas cylinders if they are kept by the Supply Officers or if the petitioner had deposited the cost of the cylinders then the petitioner shall be entitled to get the deposited cost of cylinders back from the Collector, Jabalpur. 14. Copy of the order be sent to the appellate Court as well as to the Collector, Jabalpur along with their records for information and compliance.