1. By way of present criminal revision application, filed under Section 397 read with Section 401 of the Code of Criminal Procedure, the applicants have prayed to quash and set aside the order dated 08th February, 2011 passed by the learned Additional Sessions Judge, Bhavnagar in Criminal Appeal No.13 of 2010 whereby the appeal of the respondent was allowed and the order of confiscation dated 12th April, 2010 is quashed and set aside with no order as to costs.
2. The brief facts of the case is that the respondent was engaged in the business of selling of peanut and during checking on 08th September, 2009, the respondent was found certain irregularities. Therefore, under Sections 3, 8 and 9 of the Gujarat Essential Commodities (Control and Regulation of Business) Order, 1977 peanut stock of 40,000 kilograms valued at Rs.14,74,000/- was confiscated. Thereafter a show cause notice dated 15th October, 2009 came to be issued, to which written reply was submitted by the respondent wherein it has been denied that any irregularities were committed by it.
3. Thereafter, after going through the facts of the case and written reply of the present respondent, the District Collector, Bhavnagar, vide his order dated 12th April, 2010 ordered to confiscate 30% of the total seized goods, which comes to Rs.04,42,200/-. It is further ordered that upon production of receipts of making payment of confiscation amount, the seized stock be released.
4. Being aggrieved by and dissatisfied with the said order dated 12th April, 2010, the respondent herein had preferred an Appeal before the learned District Judge, Bhavnagar, being Criminal Appeal No.13 of 2010.
5. After hearing bot the sides and evidence produced on record, the learned Additional Sessions Judge, Bhavnagar, vide his order dated 08th February, 2011 allowed the appeal of the respondent herein and quashed and set aside the order of confiscation dated 12th April, 2010 passed by the District Collector, Bhavnagar.
6. Being aggrieved by and dissatisfied with the order dated 08th February, 2011 passed by the learned Additional Sessions Judge, Bhavnagar, the applicants herein have preferred the present revision application.
7. Heard Mr.H.L. Jani, learned Additional Public Prosecutor for the applicants and Mr.Nirzar Desai, learned counsel for the respondent.
8. Mr.Jani, learned Additional Public Prosecutor, states that the learned Judge has not appreciated the facts of the case and has passed the order. He has contended that the respondent has committed breach of Sections 4 and 9 of the Essential Commodities Act, 1955. He has also contended that the District Collector has passed just and proper order after appreciating the facts of the case and evidence produced on record. He has also contended that the respondent has not submitted proper explanation with regard to irregularities found from the spot and therefore, the order of the District Collector, Bhavnagar ought not to have been interfered with. He has further contended that the learned Judge has passed the order without appreciating the material placed on record by the District Collector and without considering the papers of the search, seizure and panchnama, the order impugned is required to be quashed and set aside. He has further contended that the learned Judge has overlooked the evidence produced on record, which prima-facie goes against the respondent, and therefore, the learned Judge ought not to have modify the order passed by the District Collector. He, therefore, contended that looking to overall facts of the case and evidence produced on record, the order impugned is required to be quashed and set aside and appropriate order may be passed.
9. As against this, Mr.Desai, learned counsel for the respondent, states that the order passed by the learned Judge is absolutely just and proper. The learned Judge has passed the order after appreciating the facts of the case and evidence produced on record. He has contended that the respondent had already explained vide his written reply denying any irregularities committed by it. He has further contended that the District Collector, Bhavnagar has without appreciating the facts of the case in proper manner passed the order of confiscation. He has further contended that the Collector has not specified that as to how the respondent has breached Sections 3, 8 and 9 of the Gujarat Essential Commodities (Control and Regulation of Business) Order, 1977. He has further contended that the learned Judge has passed the order after appreciating the facts of the case and evidence produced on record and therefore, the said order may kindly be confirmed.
10. Heard learned counsel for the respective parties and perused papers produced before me. I have gone through the order dated 12th April, 2010 passed by the District Collector, Bhavnagar as well as order dated 08th February, 2011 passed by the learned Additional Sessions Judge, Bhavnagar. It appears from the papers that the learned Judge has not properly considered the order of confiscation District Collector. The Collector has passed the order of confiscation after appreciating the evidence produced on record. I am of the opinion that the order of confiscation passed by the Collector is appropriate, but at the same time, it appears that it is harsh. Looking to the facts of the case, I am of the opinion that the order of confiscation of 30% of the seized goods is harsh. Therefore, I am of the opinion that some lenient view is required to be taken in the matter.
11. Hence, in view of above, present revision application is partly allowed. The judgment and order dated 08th February, 2011 passed by the learned Additional Sessions Judge, Bhavnagar is hereby quashed and set aside. The order dated 12th April, 2010 passed by the District Collector, Bhavnagar is hereby modified to the extent that Instead of confiscation of 30% of the seized goods, 15% goods is ordered to be confiscated. Rest of the order dated 12th April, 2010 passed by the District Collector, Bhavnagar 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) Anup