Rule. Mr.L.R. Pujari, learned Additional Public Prosecutor, waives service of notice of Rule on behalf of respondent No.2-State. The Collector and District Supply Officer, Kutch passed order dated 16th June, 2010 in exercise of powers under Section 6 of the Essential Commodities Act, 1955, directing confiscation of stock of sugar of the value of Rs.01,50,000/- being 10% of the total value of the stock of Rs.15,00,000/-. The said stock belonged to the applicant and was being transported from Kandala to Ahmedabad. The confiscation was ordered for the alleged violation of provisions of Section 18(4)(i) of the Gujarat Essential Articles (Licensing, control and Stock Declaration) Order, 1981. Aggrieved by the said order of the Collector, the revisionist- applicant preferred Criminal Appeal No.20 of 2010 before the Sessions Court, which came to be dismissed by the learned 6th Additional Sessions Judge, Bhuj- Kutch, as per his judgment and order dated 30th August, 2012. 2. The present Revision Application under Section 397 of the Code of Criminal Procedure, 1973 is directed against the aforesaid judgment and orders.
3. The applicant is engaged in the business of wholesale and distribution of food stuffs. Upon purchase of imported sugar from an importer, the applicant transported the same from Kandla to Ahmedabad. The stock of sugar was loaded by one Rishi Shipping at Kandla-Gandhidham, and was to be unloaded at Ahmedabad. The two vehicles, namely the trucks bearing registration Nos.GJ-12W-9333 and GJ-12X-3154, were hired by the applicant for the purpose of transportation. On 13th April, 2010 while the said trucks were carrying the quantity of sugar, they were intercepted near Surajbari Bridge by the police as it was apprehended that the quantity of sugar was unauthorisedly transported. Each of the vehicles was found to be carrying 25 Tons of sugar. Necessary action under Section 102 of the Criminal Procedure Code was taken, the quantity of goods as well as the trucks were seized and the drivers were arrested.
3.1 Thereafter show cause notice dated 03rd May, 2010 came to be issued to the applicant for alleged violation of the Gujarat Essential Articles (Licensing, control and Stock Declaration) order, 1981 (hereinafter mentioned as order of 1981) on the ground that the sugar was an essential commodity under the said Order. Total quantity of sugar was 50 Tons having approximate value of Rs.15,00,000/- plus the value of two trucks being Rs.15,00,000/-, making total worth Rs.30,00,000/- was seized and confiscated. The applicant was called upon to explain as to why the total quantity of sugar should not be confiscated. On 10th May, 2010, the applicant filed a reply to the said show cause notice. The reply did not find favour with the authorities. The order dated 16th June, 2010 was passed by the Collector, which was confirmed by the Sessions Court as noted above.
4. Heard learned advocate Mr.Maulin Raval with learned advocate Ms.Shivya Desai for M/s. R.J. Raval Associates for the applicant and learned Additional Public Prosecutor Mr.L.R. Pujari for the respondents.
4.1 Learned advocate for the applicant assailed the order of the Collector and confirmation thereof by the learned Sessions Court, raising various contentions inter alia that the order of confiscation was totally misconceived and was passed on erroneous facts inasmuch as there was no violation of any of the provision of the Order of 1981. It was submitted that the stock of sugar was imported from abroad and therefore, the provisions of the 1981 Order did not apply. It was further submitted that while initiating action under Section 102 of the Criminal Procedure Code, the stock was already seized and there could not be a double confiscation. Learned advocate took the Court through various grounds raised in the Memorandum of Revision Application.
4.2 Learned advocate for the applicant submitted that the actual bills and invoices were produced subsequently along with reply to the show cause notice. He submitted that the applicant is a business concern operating since last 35 years having license to deal in sugar, and that it has been enjoying good credit in the business circle; etc. and used to maintain all price lists, registers to abide by the relevant Rules; that the quantity of sugar in question was legally purchased and the same quantity was loaded in the vehicles which was loaded by Rishi Shipping on its behalf, and that it was authorized by the relevant documents. Learned advocate submitted that Section 18(4)(i) of the 1981 Order was duly complied with as the delivery token-slips which were available with the drivers and produced at the time of stopping of the vehicles, were equivalent documents required under the said provision.
4.3 Learned advocate for the applicant highlighted that the principal ground for confiscation was that the drivers of the vehicles in question did not produce the necessary evidence to show that the quantity of sugar was being transported authorisedly and legally and that no invoices or bills were available with the drivers. In this regard, it was submitted by him that when the trucks were
4.4 learned Additional Public Prosecutor on the other hand supported the impugned judgment and orders. It was submitted by him that Rule 18(4)(i) was breached because requirement thereunder was to produce the invoice, which was not produced when the vehicles were intercepted, and that the said documents were not available with the vehicle drivers. He further submitted that the production of the invoices were necessary to establish that the goods transported were of authorized quantity were legally purchased and transported.
5. On consideration of the facts and the material on record, it emerges that the applicant had purchased total 125 MT of imported sugar from one Rika Global Private Limited, and price was paid for the said purchase on 25th March, 2010. For the purpose of transporting part of the said quantity, the applicant had engaged a carrier named Navin Freight Carrier as transporter, who took delivery of the sugar from Rishi Shipping and transported 25 MT quantity each in three trucks. Out of the three, one truck reached Ahmedabad and the delivery of the goods was taken at Ahmedabad. The other two trucks in question were intercepted while they were on way to Ahmedabad as per the above facts.
5.1 The main ground mentioned in the show cause notice for initiating action against the applicant was that in the trucks carrying the goods, namely sugar, the documents of bills/invoice showing the purchases, transporter’s receipts, etc., were not kept and were not produced when the vehicles were checked. It was alleged in the context of these facts that the quantity of sugar was not evidenced, nor was there any authorisation. What was recovered from the drivers were gate pass / delivery token slip given by the said Rishi Shipping, whereas the requirement under the invoice or gate pass. Therefore it was alleged that there was contravention of the provisions of Essential Commodities Act, 1955 read with the Gujarat Essential Articles (Licensing, control and Stock Declaration) Order, 1981,
5.2 Section 18(4)(i) of the Gujarat Essential Articles (Licensing, control and Stock Declaration) Order, 1981, may be usefully considered. The same reads as under.
“18. General condition for dealers.- A license holder under this order shall, apart from any special conditions that may be imposed by the licensing authority, observe the following general conditions :-
(1)……..
(2)……..
(3)……..
(4) (i) Every producer, or as the case may be, wholesaler shall issue to every transport operator transporting the stock of any essential article from his installation or depot or the place of storage, a correct invoice or a gate pass, as the case may be, showing the producer’s or wholesaler’s name, address, the name and address of the consignee, the date and time of the delivery and quantity delivered and shall keep a duplicate of the same to be made available for inspection on demand by any officer specified in Clause 26, or as the case may be, by any officer authorized in this behalf.
(ii) Every transport operator to whom an invoice or a gate pass, as the case may be, issued by a producer or a wholesaler under paragraph (1) shall, where the stock of the essential article is in transit, retain with him such invoice or gate pass and make it available for inspection on demand by any officer specified in Clause 26 or the authorized officer and shall deliver of such stocks.
(5)……..
To (9)… ”
5.3 The document which was carried in the intercepted vehicles were delivery token slip issued by the said Rishi Shipping. The applicant has produced a copy thereof on record of Revision Application. The said token slip bears its number, the date and the details as per the lorry receipt including the name of the supplier, lorry/vehicle number, delivery order number, number of bags and the kind of commodity transported. It also shows the quantity of the goods loaded and the same is signed by the supplier and counter-signed on behalf of the applicant with rubber stamp. The contention of learned advocate for the applicant is that the said document is equivalent to the invoice or gate pass, which is mentioned in Section 18(4)(i) as the required document.
5.4 As noted above, the delivery token slip which was being accompanied in the vehicles transporting the sugar did indicate the relevant details including name of the supplier of the goods and the quantity thereof. It is in this context it is submitted that those documents in terms of its details ought to have been accepted as equivalent document to invoice or gate pass, because the underlying purpose for imposing condition that every producer or whole- seller shall issue to every transporter the documents in the nature of invoice or gate pass, is that the authorized nature quantity of goods and legal transportation thereof can be verified. In light of facts and submission on above aspect, the court is persuaded that the said aspect deserves to be properly verified and examined by the first authority, namely the collector. The matter is required to be remitted back for the said purpose.
When the competent authority is to reconsider, it is appropriate that it re-examines from all angles and on all other points/aspects as both the parties may opt to canvass.
6. In the aforesaid facts and circumstances and the aspect mentioned above, it is deemed proper to remit the matter back to the Collector for examining again at his end as to whether there was a breach of Section 18(4)(i) of the Gujarat Essential Articles (Licensing, control and Stock Declaration) Order, 1981, necessitating and justifying the confiscation directed in his order dated 16th June, 2010, or the document, namely the delivery token slip, which was produced by the drivers at the time of interception, was sufficient to meet with the requirement for the purpose of Section 18(4)(i) of the 1981 Order. As clarified above the collector will along with the above aspect examine all other contentions which the parties may choose to raise.
7. Therefore, it is directed that the Collector, Kutch shall re-examine the entire issue in light of the facts and the material on record and take decision afresh after giving due opportunity of hearing to all the parties, wherein the parties will be at liberty to raise all available contentions on merits. The Collector shall complete such an exercise within a period of six weeks from date of receipt of this order and shall communicate his decision so taken to the applicant within 10 days from the date of the decision.
8. In order to enable the Collector, Kutch to undertake the aforesaid exercise, order dated 16th June, 2010 passed by him as well as the judgment and order dated 30th August, 2012 passed in Criminal Appeal No.20 of 2010 by the learned 6th Additional Sessions Judge, Bhuj-Kutch are hereby set aside.
9. It is observed and clarified that since the matter is remitted back to the Collector for his decision afresh, this Court has not gone into merits of the case. Any observation in this order shall not be construed to be an expression of opinion on merits and the matter shall be at large before the Collector for his decision afresh in accordance with law as directed above.
10. Rule is made absolute to the aforesaid extent.
(N.V.ANJARIA, J.) Anup