Gujarat High Court
State Of Gujarat On Behalf Of Dist Supply ... vs Sunilsinh Ghanshyamsinh Rajput on 18 September, 2024
NEUTRAL CITATION
R/SCR.A/2467/2012 ORDER DATED: 18/09/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 2467 of 2012
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STATE OF GUJARAT ON BEHALF OF DIST SUPPLY OFFICER, JUNAGADH
Versus
SUNILSINH GHANSHYAMSINH RAJPUT
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Appearance:
MR HK PATEL, APP for the Applicant(s) No. 1
MR HB SINGH(2073) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 18/09/2024
ORAL ORDER
1. Present application is filed by the applicants under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "CrPC") seeking to quash and set aside the order passed below Exh.14 dated 13.04.2012 passed by the learned Additional Sessions Judge, Junagadh in Criminal Appeal No.7 of 2007 and further be pleased to confirm order passed by the Collector, Junagadh dated 27/12/2006 bearing No.FOOD/ENFO/ECA/Remand Case No.46/2006 directing the respondent to pay the amount of fine as ordered.
2. The brief facts of the case are the allegations against the petitioners are that the squad team of the District Supply Officer, Junagadh, conducted a check at Timbavadi, Motibaug Road, where a tanker bearing Registration No. GJ-19-T-2517 was examined in the presence of witnesses. It was found to contain 10,000 liters of a petroleum product, which upon inspection, was identified as a mixture of petroleum hydrocarbon solvent valued at Rs. 2,00,000/-. Upon verifying the documents obtained from the driver of the tanker, it was discovered that the solvent was being illegally transported for sale to unauthorized persons. Consequently, the entire stock of solvent and the tanker were ordered to be Page 1 of 8 Uploaded by ALI ISTAYAK(HC01093) on Fri Sep 20 2024 Downloaded on : Mon Sep 23 20:40:22 IST 2024 NEUTRAL CITATION R/SCR.A/2467/2012 ORDER DATED: 18/09/2024 undefined confiscated.
3. Heard learned APP appearing for the petitioner-State. Though ample opportunity was given to the respondent, respondent remained absent. Hence, the matter is taken up for disposal consider the affidavit-in-reply filed by the respondent as well as the ground raised before the authority by the respondent.
4. The respondent's case is that, being aggrieved by the order passed by the Collector on 25th November 2005 in FOOD/ENFO/ECA/CASE No.46 of 2005, which confiscated the muddamal mixture of hydrocarbon solvent, an appeal was filed before the Sessions Judge being Criminal Appeal No. 41 of 2005. This appeal was partly allowed on 25.07.2007, and the matter was remanded with the order of confiscation of the vehicle. The Sessions Judge directed that the respondent, original appellant, be given an opportunity to be heard and be given an option to pay a fine/penalty. Following this, the learned Collector, Junagadh, issued a notice to the respondent in Remand Case No. 46/2006 (Annexure-D). The respondent appeared before the Collector, admitted that he was innocent and had rented out the vehicle, and argued that confiscation of the vehicle would adversely affect his livelihood. He requested that a normal penalty be imposed and the vehicle be released. On 27.12.2006, the Collector imposed a fine/penalty of ₹3,25,000/- considering the value of the tanker.3,25,000/- considering the value of the tanker. Aggrieved by this order, the respondent filed Criminal Appeal No. 7 of 2007. The learned Additional Sessions Judge, Junagadh, after hearing the parties, allowed the appeal and set aside the Collector's order. Therefore, the present appeal.
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5. The learned APP appearing for the petitioner-State has submitted that order of the learned Additional Sessions Judge is contrary to the law, the evidence on record, and the settled principles of law. The defence of the accused is that he was not involved in the offence, either directly or indirectly, has not been proved, as the respondent has failed to produce any cogent and convincing evidence that he had rented the tanker in question to the driver. The Collector had given the option to pay a fine following the direction of the learned first appellate court while remanding the matter to the Collector. Thus, the respondent has failed to exercise due care as the owner of the vehicle, and the argument that there was no mens rea on the part of the respondent cannot be accepted. The order passed by the Collector, Junagadh, imposing a fine/penalty is just, legal, and proper, and should not have been interfered with. The learned Additional Sessions Judge has erroneously held that the Collector, in determining the amount of the fine/penalty, did not consider the depreciation of the vehicle, as it was purchased in 2004 and the fine was imposed in 2005. In this regard, it is respectfully submitted that the respondent purchased the tanker from Kamleshsing Sukhrajsing Rajput (opponent No. 4) for ₹3,25,000/- considering the value of the tanker.3,25,000 on 08/03/2005, and it was detained with unauthorized stock of solvent on 10/09/2005. Therefore, within six months, the value of the tanker should not have depreciated. Hence, the conclusion reached by the learned first appellate court in this regard is erroneous.
5.1 It is submitted that the learned Additional Sessions Judge should have considered that no cogent and convincing evidence, such as a rent agreement, was produced by the respondent to show that the tanker had been rented to the driver. Therefore, the Page 3 of 8 Uploaded by ALI ISTAYAK(HC01093) on Fri Sep 20 2024 Downloaded on : Mon Sep 23 20:40:22 IST 2024 NEUTRAL CITATION R/SCR.A/2467/2012 ORDER DATED: 18/09/2024 undefined argument that there was no mens rea on the part of the respondent cannot be sustained. The owner of any vehicle must exercise caution and vigilance over their vehicle; otherwise, any negligence in this regard would not exempt them from liability for any incident. The learned Sessions Judge should have considered that the ultimate beneficiary of the transportation business is the owner of the vehicle, whether the business is legal or illegal. Thus, any damages or losses caused by the driver, cleaner, or agent of the vehicle would be the responsibility of the owner. It is the legal responsibility of the owner to prevent their vehicle from being used to transport and sell solvent illegally to unauthorized persons. The learned Additional Sessions Judge should have considered that the vehicle's owner played a role in the illegal activity of transporting and selling solvent to unauthorized persons by issuing false bills and receipts. Upon investigation, the firms mentioned in the bills and receipts were found to be non-existent. Therefore, considering the statements of the detained individuals, the order passed by the Collector, Junagadh, should not have been interfered with.
5.2 The learned Judge should have considered the Panch Rojkam report, the further investigation, and the FSL report, which revealed that the stock was a petroleum hydrocarbon solvent mixture. Upon remand by the first appellate court, with the option of a fine, the court below should not have interfered. The Collector's reasoning highlighted that the vehicle owner overlooked the illegal use of his tanker for transporting and selling solvent without a pass or permit. The Sessions Judge failed to acknowledge the gravity of the offence, the Panchnama, and the evidence showing the owner's awareness of the illegal transportation. Witness statements confirmed the tanker's involvement in illegal activities using false Page 4 of 8 Uploaded by ALI ISTAYAK(HC01093) on Fri Sep 20 2024 Downloaded on : Mon Sep 23 20:40:22 IST 2024 NEUTRAL CITATION R/SCR.A/2467/2012 ORDER DATED: 18/09/2024 undefined bills and receipts. Since solvent is an essential commodity, such activities should be curtailed. The respondent's tanker, found to have violated the Essential Commodities Act by illegally transporting solvent with bogus receipts and bills, justifies the fine. The learned APP has submitted that the respondent has admitted readiness to pay a reasonable fine/penalty if the order is quashed and set aside. The learned Sessions Judge, while remanding the matter, had ordered an opportunity to modify the order, allowing for the payment of a fine and the release of the vehicle. This order was complied with by the authority, relying on the judgment in Madhav Keshav Mirashi v. The State of Maharashtra, reported in 1977 SCC Online 87. However, the learned Additional Sessions Judge set aside the Collector's order without providing reasons, incorrectly emphasizing the lack of mens rea on the part of the respondent and falsely assuming that there was no consent to use the vehicle for transporting illegal material. Therefore, the learned APP requests that the present petition be allowed.
6. Having heard the learned APP appearing for the petitioner- State and having gone through the documents on record, it appears that the allegations against the petitioners are that the squad team of the District Supply Officer, Junagadh, conducted a check at Timbavadi, Motibaug Road, where a tanker bearing Registration No. GJ-19-T-2517 was examined in the presence of witnesses. It was found to contain 10,000 liters of a petroleum product, which upon inspection, was identified as a mixture of petroleum hydrocarbon solvent valued at Rs. 2,00,000/-. Upon verifying the documents obtained from the driver of the tanker, it was discovered that the solvent was being illegally transported for sale to unauthorized persons. Consequently, the entire stock of solvent and the tanker Page 5 of 8 Uploaded by ALI ISTAYAK(HC01093) on Fri Sep 20 2024 Downloaded on : Mon Sep 23 20:40:22 IST 2024 NEUTRAL CITATION R/SCR.A/2467/2012 ORDER DATED: 18/09/2024 undefined were ordered to be confiscated.
7. Upon perusing the record, it appears that, pursuant to the order passed by the learned Sessions Judge in Criminal Appeal No. 41/2005 on 25.07.2006 in Remand Case No. 46 of 2006 under Section 6A of the Essential Commodities Act, a penalty of ₹3,25,000/- considering the value of the tanker.3.25 lakh was imposed. This amount was deposited by the respondent with the Government Treasury by challan dated 01.03.2007. After the amount was deposited, the Collector, Junagadh, released the confiscated vehicle No. GJ-19-T-2517 on 12.03.2007, thereby complying with the order in Remand Case No. 45 of 2006. Subsequently, Criminal Appeal No. 7 of 2007 was filed on 02.02.2012. During the pendency of this appeal, the order passed by the Collector was complied with. However, after the compliance, the learned Sessions Judge quashed and set aside the order on 13.04.2012, and this fact was not recorded in the order of appeal. Nonetheless, upon consider the facts and the reasons provided while deciding the appeal filed under Section 6(c) of the Essential Commodities Act, it appears that the learned Sessions Judge primarily relied on the fact that the vehicle was rented out and that the respondent was unaware of the illegal activities, including the unauthorized transportation or sale of the solvent. Hence, there is no mens rea on the part of the present petitioner. Relying on the judgment passed by the Bombay High Court in the case of Madhav Keshav Mirashi v. The State of Maharashtra, reported in 1977 SCC Online 87 (Bombay), the learned Sessions Judge overturned the findings.
7.1. This Court is of the considered view that the learned Page 6 of 8 Uploaded by ALI ISTAYAK(HC01093) on Fri Sep 20 2024 Downloaded on : Mon Sep 23 20:40:22 IST 2024 NEUTRAL CITATION R/SCR.A/2467/2012 ORDER DATED: 18/09/2024 undefined Additional Sessions Judge, before relying on the Bombay High Court authority, did not consider the fact of the case. The criminal case is required to be decided on its own merits rther than blindly relied on authority. In that case, ex-parte proceedings were initiated without giving an opportunity to be heard. Herein case on hand, there was no dispute regarding the breach of Section 3 of the Gujarat Essential Commodities Act (License Control and Stock Declaration) Order, nor about the confiscation of the solvent and the vehicle. The ownership of the vehicle is also not disputed; the respondent has also admitted that he rented the tanker to the driver. In the remand case, a specific order was passed confirming this fact and the only option left for the authority to release the vehicle and impose a suitable fine/penalty. Considering the said order of learned Sessions Judge and the respondent's own admission regarding the use of the vehicle and request to impose the normal fine/penalty and show leniency. Therefore, the learned Sessions Judge had no reasons or grounds to overturn the findings or reasons previously assigned or review the order passed in Criminal Appeal No. 41/2005 dated 25.07.2006, as the appeal was partly allowed and, following that order, a penalty/fine of ₹3,25,000/- considering the value of the tanker.3.25 lakh was imposed. Despite compliance with this order, subsequently the learned Sessions Judge, on 13th April 2012, overturned the entire findings, which is against the settled principles of law.
9. Considering the facts and circumstances of the case, the reasoning provided by the learned Sessions Judge is bad in eye of law, as the respondent's admission negates any conclusion of lack of intention or mens rea. The only matter left for authority and remaining was the decision on the amount of fine/penalty while Page 7 of 8 Uploaded by ALI ISTAYAK(HC01093) on Fri Sep 20 2024 Downloaded on : Mon Sep 23 20:40:22 IST 2024 NEUTRAL CITATION R/SCR.A/2467/2012 ORDER DATED: 18/09/2024 undefined releasing the vehicle, and the Collector's order, which was already complied with during the appeal on 01.03.2007 and released vehicle also. Thus, this Court is considered view that the learned Sessions Judge did not properly appreciate the facts and decision is taken on surmises and conjectures, ignoring established legal principles and peculiar fact of the case and the respondent's admission. Consequently, the order passed by the learned Sessions Judge is against the settled principle of law and the same is required to be quashed and set aside.
10. In the result, the application is allowed. The order passed below Exh.14 dated 13.04.2012 passed by the learned Additional Sessions Judge, Junagadh in Criminal Appeal No.7 of 2007 is hereby quashed and set aside. Rule is made absolute. Direct service is permitted.
(HASMUKH D. SUTHAR,J) ALI Page 8 of 8 Uploaded by ALI ISTAYAK(HC01093) on Fri Sep 20 2024 Downloaded on : Mon Sep 23 20:40:22 IST 2024