Madhya Pradesh High Court
Alakh Kumar Singh vs The State Of Madhya Pradesh on 12 January, 2016
HIGH COURT OF MADHYA PRADESH : AT
JABALPUR
Criminal Revision No.1641/2007
Alakh Kumar Singh
Vs.
State of Madhya Pradesh
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Present:- Hon'ble Shri Justice C.V. Sirpurkar
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Shri Amit Dubey, counsel for the applicant.
Shri Ramesh Kushwaha, Panel Lawyer for the
respondent/State.
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ORDER
(12-01-2016)
1. This criminal revision is directed against the order 18-07-2007 passed by the Court of Sessions Judge, Satna (Judicial Authority appointed under section 6-C of the Essential Commodities Act, 1955) passed in Criminal Appeal No.78/2007; whereby, the order dated 06-03-2007 passed by Collector, Satna in Case No.163- B-121/05-06, directing confiscation and sale by public auction of truck no. UP63-C/9270 belonging to the applicant, was affirmed.
2. The facts necessary for disposal of this criminal revision may briefly be stated thus: applicant Alakh Kumar Singh was owner and driver of truck no. UP63- C/9270. Assistant Civil Supplies Officer, Circle Nagaud, District Satna, checked the truck on Satna-Semriya road near Birla factory on 29-04-2006. The fuel tank of the truck was examined and since the fuel was smelling of kerosene, a sample was duly taken and vehicle was seized and given in the custody of P.S. Kolgawan. The sample of fuel so taken was sent for testing to Nishatpura Laboratory of Indian Oil Corporation Limited, Bhopal. As per test report dated 13-05-2006, the fuel appeared to be adulterated âsuperior keroseneâ. A show cause notice was issued under section 3/7 and section 6-B of the Essential Commodities Act, 1955 (hereinafter referred in this order as âthe Actâ), was issued for contravention of clause 3(1) of Kerosene (Restriction on Use and Fixation of Ceiling Price) Order, 1993 (hereinafter referred in this order as âthe orderâ) against the applicant as to why he be not prosecuted under section 3/7 of the Act and as to why the kerosene found in the fuel tank as well as the truck be not confiscated under section 6-A of the Act.
3. After due inquiry and giving applicant Alakh Kumar Singh an opportunity of being heard and adduce evidence, the Collector recording a finding that the applicant was guilty of contravention of clause 3(1) of the order, directed confiscation in favour of the State and sale of the truck by public auction, as aforesaid.
4. The order of confiscation and auction by public sale dated 06-03-2007, passed by Collector, Satna, was challenged before the Judicial Authority under section 6- C of the Act. The defence taken by the applicant before aforesaid two Fora was that he had filled 115 litres diesel from Laxmi Sales and Service Petrol-Pump near Prism Cement Mahurach Kadaiya, District Satna on 25-04-2006 and 60 litres of diesel from Ahuja Filling Station, Singrouli, District Sidhi, on 27-04-2006 in the fuel tank of the truck. If the diesel was adulterated with kerosene, the responsibility for the same lies with the owners of aforesaid two petrol pumps and action should be taken against them and not against the applicant because he was not aware that the fuel in the tank of the truck contained kerosene.
5. Learned Judicial Authority held that applicant was both owner as well as driver of the truck; therefore, the burden was squarely upon him to prove that he had not filled kerosene in the fuel tank of the truck. If fuel tank of the truck was filled with kerosene in aforesaid two petrol pumps, it would be immediately apparent to a professional driver from the smell and fumes as also from the performance of the engine that the truck was being run not on diesel but on kerosene. Learned Judicial Authority further held that the receipts of diesel produced by the applicant did not advance his cause because the driver of the truck may, at any time, fill or replace any kind of fuel in the tank. It was further observed that the applicant had admitted before the Assistant Civil Supplies Officer at the time of examination that he had filled 40 liters of kerosene purchased by him from Sidhi, in the tank. On aforesaid grounds, the appeal under section 6-C of the Act was dismissed and the order of confiscation of the truck was affirmed.
6. Learned counsel for the applicant has challenged the order passed by the Judicial Authority mainly on following three grounds:
(i) Learned Judicial Authority rejected the defence of the applicant on erroneous grounds.
(ii) The presumption that any experienced driver would be able to distinguish between the kind of fuel that is being used for running the vehicle, was unwarranted.
(iii) The Collector, Satna in his order of confiscation had failed to give option to the applicant to pay a fine not exceeding market price on the date of seizure of the truck, as per second proviso to section 6-A of the Act and therefore the order is not sustainable in the eyes of the law.
7. It has further been contended that no prosecution was launched against the applicant under section 3/7 of the Act; therefore, it has been prayed that the order of confiscation of the truck be set aside.
8. Learned Panel Lawyer for the respondent/State on the other hand has supported the order of confiscation.
9. On consideration of the record of the case, the provisions of the Act and the Order and on due consideration of rival contentions, the Court is of the view that this criminal revision must succeed.
10. It may be noted at the outset that the order of sale by public auction of the truck was stayed by this Court by order dated 07-09-2007. It is true that second proviso to section 6-A of the Act mandates that the owner of the vehicle proposed to be confiscated, shall be given an option to pay, in lieu of its confiscation, a fine not exceeding the market price at the date of seizure of essential commodity which was sought to be carried by such vehicle. No such option was admittedly given by the Collector to the applicant. Thus, there is no doubt that the order of confiscation suffers from this infirmity.
11. However, in the opinion of this Court, there is another question involved in the case, which is more fundamental in nature. The question is whether in the facts and circumstances of the case, the truck in question could be said to be a vehicle âused in carrying such essential commodityâ (kerosene), in respect of which offence under the Act was alleged to have been committed?
12. It may be noted here that the Kerosene (Restriction on Use and Fixation of Ceiling Price) Order, 1993, was issued by Central Government in exercise of powers conferred by section 3 of the Essential Commodities Act, 1955. Clause 3 of the Order reads as hereunder:-
3. Restriction on use of kerosene supplied under public distribution system.-(1) No person shall use kerosene supplied under the public distribution system for any purpose other than cooking and illumination:
Provided that the Central or State Government may by order permit any person to use kerosene for such other purposes as it may specify in that order. (2) No dealer appointed under the public distribution system or a transporter shall sell, distribute or supply kerosene under the public distribution system to any person other than the person to whom the supplies are meant for;
Section 6-A (1) of the Essential Commodities Act 1955, is reproduced hereinbelow:
Sec.6-A Confiscation of essential commodity.-(1) Where any essential commodity is seized in pursuance of an order made under Sec.3 in relation thereto, a report of such seizure shall, without unreasonable delay, be made to the Collector of the district or the Presidency town in which such essential commodity is seized and whether or not a prosecution is instituted for the contravention of such order, the Collector may, if he thinks it expedient so to do, direct the essential commodity so seized to be produced for inspection before him, and if he is satisfied that there has been a contravention of the order may order confiscation of-
(a) the essential commodity so seized;
(b) any package, covering or receptacle in which such essential commodity is found; and
(c) any animal, vehicle, vessel or other conveyance used in carrying such essential commodity:
Provided that without prejudice to any action which may be taken under any other provision of this Act, no foodgrains or edible oilseeds in pursuance of an order made under Sec.3 in relation thereto from a producer shall, if the seized foodgrains or edible oilseeds have been produced by him, be confiscated under this Section:
Provided further that in the case of any animal, vehicle, vessel or other conveyance used for the carriage of goods or passengers for hire, the owner of such animal, vehicle, vessel or other conveyance shall be given an option to pay, in lieu of its confiscation, a fine not exceeding the market price at the date of seizure of the essential commodity sought to be carried by such animal, vehicle, vessel or other conveyance. (Emphasis Supplied)
13. It may be noted that the allegation against the applicant is that he used kerosene supplied under the public distribution system for a purpose other than cooking and illumination, that is to say he used kerosene as fuel for running a truck. The quantity of kerosene filled said to have been filled in the fuel tank of the truck is said to have been only 40 liters. Most of which was actually consumed. Thus, it is not a case where the vehicle was being used in carrying the essential commodity in question (kerosene) but a case where the essential commodity was being used to power the engine of the vehicle. In the process the kerosene filled in the tank did not remain intact for being delivered as such, at the destination but was being continuously consumed. In Oxford Advanced Learners Dictionary, the meaning of word âcarryâ has been given as (i) to support the weight of somebody/something and take them/it from place to place; (ii) to take somebody/something from one place to another.
14. In the case at hand, the truck was not being used to carry a particular quantity of the essential commodity from one place to another but the essential commodity was filled in the tank for the purpose of supplying energy to the engine so that the truck may run. In these circumstances it cannot be said that the essential commodity was being âcarriedâ in the truck. As such, in the opinion of this Court, though, the applicant might have been liable to be prosecuted under other provisions of the Act but clause (c) of section 6-A of the Act would not apply to the truck in this case and it would not be liable to be confiscated thereunder. This aspect of the matter seems to have completely escaped the attention of the Fora below.
15. On the basis of foregoing discussion, this Court is of the view that the order of confiscation and sale by public auction of the truck dated 06-03-2007 is not sustainable in the eyes of law. Consequently, the impugned order of Judicial Authority dated 18-07-2007 affirming aforesaid order, is also liable to be set aside.
16. In the result, this criminal revision is allowed. Order dated 06-03-2007 passed by Collector, Satna in Case No.163-B-121/2005-2006 and order dated 18-07-2007 passed by Judicial Authority (Sessions Judge) Satna in Criminal Appeal No.78/2007, are set aside. Truck No.UP63-C/9270 is released from confiscation. (C V SIRPURKAR) JUDGE