1. Rule. Mr.H.L. Jani, learned Additional Public Prosecutor, waives service of notice of Rule on behalf of respondent No.1-State.
2. By way of present criminal revision application, filed under Section 397 read with Section 401 of the Code of Criminal Procedure, the applicant has prayed to quash and set aside the order dated 23rd August, 2011, passed by the learned Additional Sessions Judge, Bhavnagar, in Criminal Appeal No. 67 of 2009, to the extent of ordering confiscation of 50 per cent of petroleum products seized by the Authorities.
3. It is the case of the prosecution that the petitioner is the proprietor of the petrol pump, namely, Mahavir Auto Centre. It is the case of the petitioner that in the year 2004 to 2006, because of various reasons, there was intolerable deficit in the supply of petrol, diesel and other petroleum products by the Indian Oil Corporation Limited and, therefore, all the petrol and diesel dealers of Bhavnagar District as well as Saurashtra and Kutch region submitted two Memorandums to the State Government whereby it was represented that as there was intolerable deficit in the supply of petrol, diesel and other petroleum products, they are suffering losses and, therefore, necessary action is required to be taken. It is averred that on 26th December, 2008, the Mamlatdar, Sihor, conducted an inspection of the petitioner's petrol pump and found that there was difference of 1596 liters of petrol and 1436 liters of diesel and both of them found deficit in quantity than required and it was found that a Board mentioning rate of the said products and quantity available was not displayed. It was also found that in the accounting records there was eraser marks. It is averred that on the same day i.e. on 26th December, 2006, 1317 liters of petrol and 1237 liters of diesel, amounting to Rs.1,11,322/- were seized by the Authorities. Thereafter, after about 3 years i.e. 10th February, 2009, show cause notice was issued to the petitioner to show cause as to why such quantity of petroleum products should not be confiscated and the petitioner was asked to remain present before the Collector, Bhavnagar, on 2nd March, 2009. The petitioner, therefore, through his advocate, appeared before the Collector, Bhavnagar, on 9th March, 2009 and submitted his reply in writing explaining that the deficit found was within the permissible limit and requested to withdraw the show cause notice and to release the petroleum products seized by the Authority.
4. Thereafter, after considering the replies filed by the petitioner and the submissions made on behalf of the petitioner and the representative of the State Government, the Collector, Bhavnagar, vide order dated 4th September, 2009, confiscated the said petroleum products worth Rs.1,12,645/- being 1317 liters of petrol and Rs.46,795/- being 1273 liters of diesel.
5. Being aggrieved by and dissatisfied with the said order dated 4th September, 2009, the applicant preferred Appeal being Criminal Appeal No.67 of 2009 before the District and Sessions Court, Bhavnagar.
6. After hearing both the sides and evidence produced on record, the learned Additional Seessions Judge, Bhavnagar, vide his judgment and order dated 23rd August, 2011, partly allowed the said Appeal and quashed and set aside the order passed by the Collector. The learned Judge has ordered that 50 % of the goods to be confiscated.
7. Being aggrieved by and dissatisfied with the order dated 23rd August, 2011 passed by the learned Additional Sessions Judge, Bhavnagar, to the extent of ordering confiscation of 50% of petroleum products seized by the Authorities, the applicant preferred the present revision application.
8. Heard Mr.N.S. Desai, learned counsel for the applicant and Mr.H.L. Jani, learned Additional Public Prosecutor for the respondent No.1-State. Though served, respondent No.2 is not present before the Court either in person or through counsel.
9. Mr. Desai, learned counsel for the applicant, states that the orders passed by the respondent No.2 as well as the learned Additional Sessions Judge, Bhavnagar, to the extent of ordering confiscation of 50% of petroleum products, seized by the Authorities, are erroneous, bad in law, against the evidence produced on record and the same deserve to be quashed and set aside. He has also contended that without considering the facts of the case as well as written reply submitted by the applicant, the lower Appellate Court has partly confirmed the order passed by the respondent No.2. The orders passed by the respondent No.2 as well as the lower Appellate Court are very harsh in nature. He, therefore, prayed that some lenient view may be taken in the matter.
10. As against this, Mr.H.L. Jani, learned Additional Public Prosecutor, states that the orders passed by the respondent No.2 as well as the lower Appellate Court are just and proper and need not requires any interference. After following the proper procedure as well as evidence produced on record and written reply submitted by the applicant, absolutely just and proper order is passed by the respondent No.2, which came to be partly confirmed by the lower Appellate Court. He has also contended that, prima-facie case, is made out against the present applicant.
11. Heard learned counsel for the respective parties and perused papers produced before me. I have gone through the order dated 4th September, 2009 passed by the respondent No.2 – Collector, as well as order dated 23rd August, 2011, passed by the lower Appellate Court. Considering the facts and circumstances and also the written reply of the applicant, I am of the opinion that the order of confiscation of 50% seized goods is harsh and, therefore, some lenient view is required to be taken in the matter.
12. Hence, in view of above, present revision application is partly allowed. The judgment and order dated 23rd August, 2011 passed by the learned Additional Sessions Judge, Bhavnagar, partly confirming the order dated 4th September, 2009 passed by the respondent No.2 is hereby modified to the extent that Instead of confiscation of 50% of the seized goods, 25% goods is ordered to be confiscated. Rest of the judgment and order dated 23rd August, 2011 passed by the learned Additional Sessions Judge, Bhavnagar, partly confirming the order dated 4th September, 2009, passed by the respondent No.2 shall remain unaltered. Subject to the aforesaid direction, Rule is discharged. Record and Proceedings, if any, be sent back to the Court concerned forthwith.
(Z.K.SAIYED, J.) sas