[1.0] As common question of law and facts arise in both these revision applications and as such they are cross revision applications arising out of common order passed by the learned Appellate Court, both these revision applications are heard, decided and disposed of together by this common judgment and order. [2.0] Criminal Revision Application No.259 of 2012 has been preferred by the applicant – original opponent to quash and set aside the impugned judgment and order dated 13.03.2012 passed by the learned Additional Sessions Judge, Bhavnagar in Criminal Appeal No.68 of 2008 by which the learned Appellate Court has partly allowed the said Appeal preferred by the applicant and modified the order passed by the Collector, Bhavnagar and directing to confiscate 20% of the goods seized and allowing the Appeal in toto and not quashing and setting aside the order dated 06.10.2008 passed by the Collector, Bhavnagar by which the Collector, Bhavnagar directed to confiscate 50% of the goods seized.
[2.1] Criminal Revision Application No.310 of 2012 has been preferred by the applicant State of Gujarat and another also to quash and set aside the impugned judgment and order dated 13.03.2012 passed by the learned Additional Sessions Judge, Bhavnagar in Criminal Appeal No.68 of 2008 by which the learned Appellate Court has partly allowed the said Appeal modifying the order passed by the Collector, Bhavnagar and directing to confiscate only 20% of the goods seized.
[3.0] That the proceedings were initiated by the District Supply Officer, Bhavnagar / Collector, Bhavnagar under the provisions of the Essential Commodities Act for irregularities / breach committed of Sections 3(3) and 3(4) of the Solvent Refrinate and Slop (Purchase, Sale Stock and Prohibition of use in Automobiles) Order, 2000 and Sections 3 and 9 of the Gujarat Essential Commodities (Business Regulations) Order, 1977 and the total stock of LDO of 15,550 liters valued at Rs.4,66,500/ was seized. That the following irregularities were found at the time of checking on 28.02.2007, for which the proceedings were initiated.
1. Stock was not shown in the display board as per the Stock Register.
2. Calibration of the tank was not done.
3. Particulars with regard to end use certificate of every month were not given to the competent Officer.
4. Stock 950 liters were found less than the actual stock.
5. Illegally filling of LDO in the diesel tank of the truck through dispatching pump.
6. Though the license bearing No.163 of 2005 of LDO was issued in firm but the business was carried out by one Shri Aliraja Habibbhai Viran through power of attorney issued from 14/12/2006.
[3.1] That the applicant was served with the show cause notice dated 02.04.2007. That in response to the showcause notice, written reply was submitted by the applicant wherein he denied the committing any irregularities as alleged. Thereafter, the District Magistrate, Bhavnagar heard the application and considering the documentary evidence on record passed an order dated 06.10.2008 directing to confiscate 50% of the stock valued at Rs.2,33,250/ out of the total stock of Rs.4,66,500/.
[3.2] Feeling aggrieved and dissatisfied with the aforesaid order of confiscating dated 06.10.2008 passed by the Collector/District Magistrate, Bhavnagar directing to confiscate 50% of the goods seized, the applicant of Criminal Revision Application No.259 of 2012 preferred Appeal before the learned Sessions Court, Bhavnagar being Criminal Appeal No.68 of 2008 and the learned Appellate Court – learned Additional Sessions Judge, Bhavnagar by impugned judgment and order dated 13.03.2012 has partly allowed the said Appeal and modified the order passed by the Collector / District Magistrate, Bhavnagar and directing to confiscating 20% of the goods seized (instead of 50% of the goods as ordered by the Collector).
[3.3] Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Additional Sessions Judge, Bhavnagar in Criminal Appeal No.68 of 2008, both the State of Gujarat – Collector, Bhavnagar as well as the original opponent have preferred the present Revision Applications.
[4.0] Shri H.R. Prajapati, learned advocate appearing on behalf of the applicant of Criminal Revision Application No.259 of 2012 has vehemently submitted that in the facts and circumstances of the case and for the irregularities and/or breach proved, confiscation of 50% of the goods seized is too excessive and harsh. He has stated at the Bar that in the facts and circumstances of the case, confiscation of 30% of the goods can be said to be reasonable and proportionate to the irregularities proved.
[4.1] On the other hand Shri Dabhi, learned Additional Public Prosecutor appearing on behalf of the State has stated that considering the irregularities / breach proved, the order passed by the Collector / District Magistrate, Bhavnagar directing to confiscating of 50% of the goods was not required to be interfered by the learned Appellate Court. Therefore, according to State, looking to the irregularities proved, 50% of the goods is required to be confiscated.
[4.2] However, after making elaborate submissions, learned advocates appearing on behalf of the respective parties have ultimately left it to the Court how much quantity of the goods to be confiscated.
[5.0] Having heard learned advocates appearing respective parties and considering the order passed by the Collector / District Magistrate, Bhavnagar as well as the impugned judgment and order passed by the learned Appellate Court – learned Additional Sessions Judge, Bhavnagar passed in Criminal Appeal No.68 of 2008 and considering the irregularities proved and when learned advocates appearing on behalf of respective parties have left it to the Court how much quantity of goods can be confiscated, it appears to the Court that if 50% of the goods seized is ordered to be confiscated, it will be on higher side and disproportionate to the irregularities proved and if 25% to 30% of the goods is ordered to be confiscated, it will be on lower side. Therefore, to strike the balance, it appears to the Court that if 35% of the goods seized is ordered to be confiscated, it will meet the ends of justice and it would be proportionate to the charges / irregularities proved against the applicant. Under the circumstances, it appears to the Court that the order passed by the Collector / District Magistrate, Bhavnagar as well as the impugned judgment and order passed by the learned Appellate Court deserves to be modified to the aforesaid extent and both the revision applications are required to be disposed of accordingly.
[6.0] In view of the above and for the reasons stated above, both the revision applications succeed in part and the impugned judgment and order dated 13.03.2012 passed by the learned Additional Sessions Judge, Bhavnagar in Criminal Appeal No.68 of 2008 as well as the order dated 06.10.2008 passed by the District Magistrate, Bhavnagar directing to confiscate 20% of the goods seized as well as the order dated 06.10.2008 passed by the District Magistrate, Bhavnagar directing to confiscate 50% of the goods seized are modified and it is directed to confiscate 35% of the goods seized. Rule is made absolute to the aforesaid extent in each of the Revision Applications accordingly.
(M.R. Shah, J.) menon