Date : 08/02/2012 1. By way of this petition under Article 227 of the Constitution of India, the petitioner has prayed for appropriate writ, order and/or direction to quash and set aside the impugned judgement and order dtd.17/2/2006 passed by the learned Sessions Judge, Junagadh in Criminal Appeal No.31 of 2003 as well as the order dtd.11/8/2003 passed by the Collector, Junagadh confiscating 20% of the seized stock of peanuts.
2. That a show cause notice was issued by the Collector, Junagadh against the petitioner under section 6 of the Essential Commodities Act, 1955 for the alleged breach of Condition Nos.3 and 9 of Gujarat Essential Articles (License, Control and Stock Declaration) Order 1981 alleging inter-alia that at the place of the business, Board declaring price and stock was not kept and that at the time of inspection by the District Supply Officer on 27/6/2003, 17,819 Kgs. Peanuts was found to be in excess, unauthorised and uncounted and thereby true and correct accounts are not mentioned. It was also alleged that at the time of inspection stock had not tallied and 17,819 Kgs peanuts was found in excess to the stock declared, and same was unauthorised and uncounted. That therefore, a show cause notice dtd.22/7/2003 was issued by the Collector, Junagadh to the petitioner asking to show cause as to why the entire stock should not be confiscated. It appears that the petitioner replied to the same by reply dtd.22/7/2003 submitting that at the relevant time peanuts were purchased from the agriculturists of nearby villages and the same were brought through the Camel-carts and Inward Gate-Passes were to be prepared and therefore, the stock of peanuts was in excess than the declared stock. That after giving an opportunity to the petitioner and considering the reply submitted by the petitioner and having found that the petitioner has committed breach of Condition Nos.3 and 9 of the Gujarat Essential Articles (License, Control and Stock Declaration) Order 1981 and observing that even along with the reply to the show cause notice also, the petitioner has not produced any material in support of his defence that the peanuts were purchased from the agriculturists of the nearby villages and same were brought through Camel-carts and Inward Gate-Passes were to be prepared and therefore, the stock of peanuts was in excess than the declared stock. Having so held, the Collector Junagadh by order dtd.11/8/2003 ordered to confiscate only 20% of the peanuts seized worth Rs.81,972/-. That Being aggrieved by and dissatisfied with the order passed by the Collector, Junagadh dtd.11/8/2003, petitioner preferred Criminal Appeal No.31 of 2003 before the learned Sessions Court, Junagadh and the learned Sessions Judge, Junagadh, by the impugned judgement and order dtd.17/2/2006 has dismissed the said appeal confirming the order passed by the Collector, Junagadh confiscating 20% of the goods seized. Being aggrieved by and dissatisfied with the aforesaid two orders, the petitioner has preferred the present petition under Article 227 of the Constitution of India.
3. Mr.B.D. Karia, learned advocate appearing on behalf of the petitioner has reiterated what is stated in reply to the show cause notice dtd.22/7/2003. It is submitted that as such, at the relevant time when inspection was carried out, the goods/peanuts were purchased from the agriculturists of nearby villages and same were received through Camel-carts and Inward Gate-Passes were to be prepared and therefore, the stock of peanuts was found to be in excess than the declared stock, for which no malafide intention can be attributed to the petitioner. It is submitted that as such there was no intention on the part of the petitioner of black marketing and/or earn profit by selling the same illegally and/or unauthorisedly. Therefore, relying upon 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 S.C. 2663 (Para 5) it is requested to quash and set aside the impugned orders.
In the alternative, relying upon the decision of the Division Bench of this Court in the case of Patel Ambaram Kuberbhai Vs. State of Gujarat and Others, reported in 1998 (2) GLH 533, Mr.Karia, learned advocate appearing on behalf of the petitioner has requested to reduce the penalty to the extent of 10% of the peanuts seized instead of 20%. No other submissions have been made.
4. Present petition is opposed by Mr.Dabhi, learned Assistant Government Pleader appearing for the State and the Collector, Junagadh. It is submitted that there are concurrent finding of facts recorded by the Collector as well as Sessions Court with respect to breach committed by the petitioner and it has been specifically found that huge quantity of 17,819 kgs of peanuts was found in excess than the stock declared and the same was uncounted and unauthorised and therefore, considering the above, when only 20% of the goods seized, is ordered tobe confiscated, it cannot be said the same is illegal, erroneous and/or excessive which calls for interference of this Court in exercise of powers under Article 227 of the Constitution of India. Therefore, it is requested to dismiss the present petition.
5. Heard the learned advocates appearing on behalf of the respective parties at length.
6. At the outset it is required to be noted that there are concurrent finding of facts recorded by the Collector as well as learned Sessions Court holding that the petitioner has committed is breech of Condition Nos.3 and 9 of Gujarat Essential Articles (License, Control and Stock Declaration) Order 1981 and there are concurrent finding of facts that 17,819 Kgs peanuts was found to be in excess and uncounted. The defence raised on behalf of the petitioner has been considered by the Collector as well as the learned Sessions Court, however, the same has not been accepted in toto by observing that no particulars and/or material has been produced with respect to the so-called purchase of the peanuts by the petitioner from the agriculturists of nearby villages. Having so held, when it has been found that there is breach of Condition Nos.3 and 9 of Gujarat Essential Articles (License, Control and Stock Declaration) Order 1981 and huge quantity of 17,819 Kgs of peanuts was found in excess, uncounted and unauthorisedly, and when only 20% of the peanuts / goods seized is ordered to be confiscated worth Rs.81,972/-, it cannot be said that the same is in any way illegal, harsh and/or too excessive which calls for the interference of tis court in exercise of powers under Article 227 of the Constitution of India. It is to be noted that the findings recorded by the Collector and the Sessions Court are concurrent findings of facts, recorded on appreciation of evidence and therefore also the said concurrent finding of facts are not required to be re- appreciated and interfered with by this Court in exercise of powers under Article 227 of the Constitution of India, when there is no error apparent or when the same is not perverse.
7. This Court has considered the decision of the Hon'ble Supreme Court N.Nagendra Rao & Co. (supra) relied upon by the learned advocate appearing on behalf of the petitioner, however, in the said decision, as such there is no absolute proposition of law laid down by the Hon'ble Supreme Court that in all the cases whenever it is found that there is breach without any mens-rea, no order of confiscation can be passed. In the facts and circumstances of the case, the aforesaid decision of the Hon'ble Supreme Court would not be of any assistance to the petitioner.
8. Similarly, even decision of the the Division Bench in the case of Patel Ambaram Kuberbhai (supra) relied upon by the learned advocate appearing on behalf of the petitioner would not be of any assistance to the petitioner in the facts and circumstances of the case on hand. Even in the said decision, the Division Bench has reduced 25% of the confiscated goods from 50%. In the present case, the Collector, Junagahd has from the very beginning has directed to confiscate 20% of the seized goods only, which cannot be said to be too excessive in the facts and circumstances of the case.
9. In view of the above and for the reasons stated above, present petition fails and the same deserves to be dismissed and is accordingly dismissed. Rule is discharged. Interim relief granted earlier stands vacated forthwith. It will be open for the appropriate authority to encash the Bank Guarantee submitted by the petitioner herein.
rafik [M.R. SHAH, J.]