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Madhya Pradesh High Court · body

2019 DIGILAW 404 (MP)

Neelam Sikarwar v. State of M. P.

2019-05-23

S.A.DHARMADHIKARI

body2019
JUDGMENT 1. Heard finally with the consent of both the parties. 2. The petitioner has filed this criminal revision under section 397/401 of CrPC being aggrieved by order dated 23.1.2019 passed in Cr.A. No. 109/2018 by Additional Sessions Judge/Special Judge Electricity Act, Gwalior, whereby, appeal filed by the petitioner under section 6 (c) of Essential Commodity Act has been dismissed and affirmed the order dated 19.2.2018 passed by the Collector, District Gwalior in Case No. 05/17-18 B 121, whereby, nine (9) gas cylinders and Bolero vehicle bearing registration No. MP 07 GA 5640 have been confiscated in favour of the State Government under section 6-A of Essential Commodities Act, 1955. 3. The petitioner is an owner of Gas Agency allotted by Indian Oil Corporation in the year 2015. On receiving information by the SDO, Ghatigaon and Civil Supply Officer, one Bolero Vehicle bearing registration No. M.P. 07 GA 5640 was caught by them which was going from Gwalior to Bhangarh, Shivpuri. It was found that inside the vehicle one empty domestic gas cylinder, two commercial gas cylinders and six filled gas cylinders were kept in the vehicle. These cylinders as well as vehicle were seized as the driver of the vehicle namely Sobran Singh could not produce documents at the time of inspection. Panchanama, seizure memo was prepared alleging therein illegal transportation and supply of LPG gas cylinders. Thereafter, the said vehicle was handed over to the petitioner on supardiginama. Show cause notice dated 27.2.2017 was issued to the petitioner as to why gas cylinders as well as Bolero vehicle may not be confiscated. The show cause notice was issued under section 6 (B) of Essential Commodities Act (for brevity, "Act"). 4. In response, reply was filed stating therein that driver of the vehicle namely Sobran Singh went to bring breakfast from Dhaba when the inspection took place. In-fact, said gas cylinders were not meant for distribution. The petitioner was not involved in any kind of black marketing. The Collector vide order impugned dated 19.2.2018 (Annexure P-4) confiscated the amount equivalent to the value of gas cylinders as well as Bolero vehicle in lieu of price of the essential commodities concerned as provided by section 6-A (1) of the Act. Being aggrieved, the petitioner has filed appeal before the appellate authority. The appeal came to be dismissed vide order impugned dated 23.1.2019 passed in Criminal Appeal No. 109/2018. 5. Being aggrieved, the petitioner has filed appeal before the appellate authority. The appeal came to be dismissed vide order impugned dated 23.1.2019 passed in Criminal Appeal No. 109/2018. 5. Learned counsel for the petitioner submits that the Collector failed to give option to the owner to pay the fine not exceeding the market price on the date of seizure of essential commodity, by such vehicle, then the vehicle will not be confiscated. No such option was given, but directly in lieu of amount of gas cylinders and Bolero vehicle, the amount has been directed to be confiscated. It is further contended that the petitioner cannot be held responsible for such confiscation, unless it is established that he himself committed the breach or the same has been committed by his agent, it was committed with his connivance or knowledge. In the present case, no such fact has been established. No statement of the independent witnesses have been recorded prior to proving the allegations. 6. Per contra, learned State counsel for the respondent has opposed the contentions raised by the petitioner and submitted that driver of the vehicle was agent of the petitioner. It is further submitted that vehicle is required to be confiscated and not the commodity as per the provisions of section 6 of the Act. On these grounds, it is prayed that the instant criminal revision filed by the petitioner deserves to be dismissed. 7. Heard learned counsel for the parties. 8. For ready reference and convenience relevant provisions of section 6-A and 6-B are reproduced herein below :- 6-A. Confiscation of essential commodity. On these grounds, it is prayed that the instant criminal revision filed by the petitioner deserves to be dismissed. 7. Heard learned counsel for the parties. 8. For ready reference and convenience relevant provisions of section 6-A and 6-B are reproduced herein below :- 6-A. Confiscation of essential commodity. - (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) and (3)....." 6-B. Issue of show-cause notice before confiscation of essential commodity, etc. (1) ..... (2) and (3)....." 6-B. 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) ....." 9. 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 (if 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 cases of G. Subbarama Naidu v. Joint Collector, Chittoor, AIR 1986 Andhra Pradesh 82, Ashraf Khan v. State of M.P. passed by Single Bench of this Court in Cr.R. No. 184/2002 and in Rayees Khan v. State of M.P., 2007 (1) MPLJ 260 . On perusal of the impugned orders, it appears that he has not given such option to the petitioner, instead he has given an order to confiscate the amount of price of the seized vehicle and the gas cylinders, which is erroneous. 10. In view of aforesaid, the revision deserves to be allowed, while setting aside the impugned orders. Consequently, the instant revision is allowed and impugned order dated 19.2.2018 (Annexure P-4) passed by the Collector, Gwalior as well as appellate order dated 23.1.2019 passed in Criminal Appeal No. 109/2018 are set aside. If the amount is deposited, the same shall be returned back to the petitioner.