1. RULE. Shri Hasmukh Shah, learned advocates waives service of notice of rule on behalf of the respondent.
2. In the facts and circumstances of the case and with the consent of the learned advocates appearing on behalf of the respective parties, the present application is taken up for final hearing today.
3. The present Criminal Revision Application under Section 397 of the Code of Criminal Procedure has been preferred by the applicants to quash and set aside the impugned judgment and order passed by the learned 6th Additional Sessions Judge, Nadiad dated 19/03/2012 in Criminal Appeal No. 26/2011 by which the learned appellate Court has allowed the said appeal preferred by the respondent quashing and setting aside the order passed by the Collector, Kheda at Nadiad by which for breach of Order 3, 8 and 9 of the Gujarat Essential Commodities (Control and Regulation of Business) Order, 1977 (hereinafter referred to as Order, 1977) the Collector passed an order to confiscate only 12% of the goods seized, which comes to Rs. 47,560/-.
4. The proceedings were initiated against the respondent for breach of Order 3, 8 and 9 of the Order, 1977 on the basis of the inspection carried out by the Deputy Collector, Kapadvanj dated 28/03/2011 and it was found that the respondent has not displayed the opening stock price and the closing stock price; has not maintained the stock register and was not issuing the invoice or receipt, a show cause notice was served upon the respondent dated 11/04/2011 and as such the respondent replied to the same and virtually admitted the breaches. However, it was his case that he has recently started the business before few months and, therefore, he was not aware about the provisions of Order, 1977 and, therefore, it was requested to release the goods, which were confiscated. Considering the reply submitted by the respondent and after giving an opportunity to the respondent, Collector, Kheda- Nadiad passed an order dated 17/05/2011 to confiscate only 12% of the goods seized out of the goods worth Rs. 3,96,326.50 i.e. Rs. 47,560/-. Being aggrieved and dissatisfied with the order passed by the Collector, Kheda-Nadiad dated 17/05/2011 in PRV/TPS/6A/Case No. 48/2011 the respondent preferred Criminal Appeal No. 26/2011 before the learned Sessions Court, Kheda at Nadiad, which came to be heard by the learned Additional Sessions Judge, Nadiad and the learned appellate Court by impugned judgment and order and considering the decision of the Hon'ble Supreme Court in the case of N. Nagendra Rao & Co. Vs. State of Andhra Pradesh reported in AIR 1994 SC 2663 as well as the decision of this Court in the case of Lok Adhikar Sangh Vs. State of Gujarat & Ors. reported in 1998 (1) GLH 768 has observed that the supporting documents in support of the charge levelled against the respondent were not served upon the respondent and, therefore, he was not given adequate opportunity and has further observed that there is non application of mind by the Collector while passing the order and the learned Additional Sessions Judge has allowed the said appeal by quashing and setting aside the order passed by the Collector, Kheda at Nadiad confiscating 12% of the goods seized worth Rs. 47,560/-. Being aggrieved and dissatisfied with the impugned judgment and order passed by the learned appellate Court in allowing the said appeal preferred by the respondent and quashing and setting aside the order passed by the Collector, Kheda at Nadiad dated 17/05/2011 directing to confiscate 12% of the goods seized, the applicants-State of Gujarat and another has preferred the present Criminal Revision Application under Section 397 read with Section 401 of the Code of Criminal Procedure.
5. Shri L.B. Dabhi, learned APP appearing on behalf of the applicants has vehemently submitted that the learned appellate Court has materially erred in allowing the appeal and quashing and setting the order passed by the Collector, Kheda at Nadiad directing to confiscate only 12% of the goods seized. It is submitted that the learned appellate Court has materially erred in observing that there is non-application of mind by the Collector while passing the order dated 17/05/2011 directing to confiscate 12% of the goods seized. It is further submitted by Shri L.B. Dabhi, learned APP appearing on behalf of the applicants that as such fullest opportunity was given to the respondent and as such show-cause notice was issued and the respondent replied to the same and in fact he admitted committing the breaches alleged and considering his defense that he has recently started the business before few months, the learned Collector passed an order to confiscate only 12% of the goods and, therefore, it cannot be said that there was any non application of mind on the part of the Collector, Kheda at Nadiad. It is further submitted by Shri L.B. Dabhi, learned APP appearing on behalf of the applicants that as such the learned appellate Court has relied upon the judgments, which are not applicable to the facts of the case as well as with regard to the breaches alleged. It is submitted that both the aforesaid decisions are with respect to other defenses under another Order, which are not applicable to the facts of the present case. It is further submitted that in the present case breaches committed by the respondent were breaches under Order 3, 8 and 9 of Order, 1977 and, therefore, the Collector, Kheda at Nadiad rightly passed an order under Section 6(b) of the Essential Commodities Act and, therefore, it is requested to allow the present Criminal Revision Application and quash and set aside the impugned order passed by the learned appellate Court and to restore the order passed by the Collector, Kheda at Nadiad dated 17/05/2011.
6. Shri Shah, learned advocate has appeared on behalf of the respondent. He has tried to support the order passed by the learned appellate Court by submitting that in the facts and circumstances of the case, the learned appellate Court has not committed any error and/or illegality in allowing the appeal preferred by the respondent and quashing and setting aside the order passed by the Collector. However, he has fairly conceded that as such fullest opportunity was given to the respondent and it can also be said that there was breach of Order 3, 8 and 9 of Order, 1977 and, therefore, it is requested to consider the fact that the respondent is a small trader, who at the relevant time started the business before few months only and, therefore, he was not aware about Order, 1977 and, therefore, it is requested to reduce the percentage of the confiscation.
7. Heard the learned advocates appearing on behalf of the respective parties at length and perused the order passed by the learned Collector, Kheda as well as the impugned judgment and order passed by the learned appellate Court. Considering the entire evidence on record, it appears to the Court that the learned 6th Additional Sessions Judge, Nadiad has materially erred in observing that adequate opportunity was not given to the respondent. It appears that fullest opportunity was given to the respondent by the Collector, Kheda before passing the order dated 17/05/2011 confiscating 12% of the goods seized. It appears that the respondent admitted the breaches of Order 3, 8 and 9 of Order 1977, however, he requested not to impose any punishment and/or not to confiscate the goods as he has started the business before few months only. Even the finding given by the learned appellate Court that while passing the impugned order of confiscating 12% of the goods seized there is non application of mind by the Collector, Kheda at Nadiad also cannot be sustained. Considering the breaches committed by the respondent and considering the defense, the Collector had passed an order confiscating only 12% of the goods seized and, therefore, it cannot be said that while passing the order of confiscating 12% of the goods seized there was non application of mind by the Collector. The decisions, which have been relied upon by the learned appellate Court, would not be applicable to the facts of the present case and the learned appellate Court has materially erred in relying upon the decision of the Hon’ble Supreme Court in the case of N. Nagendra Rao (Supra) and the decision of this Court in the case of Lok Adhikar Sangh (Supra). Under the circumstances, the impugned judgment and order passed by the learned appellate Court quashing and setting aside the order passed by the Collector, Kheda at Nadiad cannot be sustained and the same deserves to be quashed and set aside .
8. In view of the above and for the reasons stated hereinabove the present Criminal Revision Application succeeds and the impugned judgment and order passed by the learned 6th Additional Sessions Judge, Nadiad dated 19/03/2012 in Criminal Appeal No. 26/2011 is hereby quashed and set aside and the order passed by the Collector, Kheda dated 17/05/2011 in PRV/TPS/6A/Case No. 48/2011 directing to confiscate 12% of the goods seized is hereby ordered to be restored. Rule is made absolute accordingly.
(M.R. SHAH, J.) siji