Gujarat High Court
Girishbhai Kantilal Saraiyya vs State Of Gujarat & on 28 November, 2014
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
R/SCR.A/1088/2010 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION NO. 1088 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
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1 Whether Reporters of Local Papers may be allowed to see the NO
judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the judgment ? NO
4 Whether this case involves a substantial question of law as to the NO
interpretation of the Constitution of India,1950 or any order made
thereunder?
5 Whether it is to be circulated to the civil judge ? NO
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GIRISHBHAI KANTILAL SARAIYYA....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR SATYEN B RAWAL, ADVOCATE for the Applicant(s) No. 1
MR KP RAVAL APP for the Respondent(s) No. 1
RULE SERVED BY DS for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 28/11/2014
ORAL JUDGMENT
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R/SCR.A/1088/2010 JUDGMENT The present petition is filed under Article 226 of the Constitution of India, in which the petitioner has prayed that the order dated 29 th August 2009 passed by the respondent No.2, i.e. Collector, Amreli, and the order dated 29th April 2010 passed by the learned Additional Sessions Judge and Presiding Officer, Fast Track Court, Amreli, in Criminal Appeal No.30 of 2009 may be quashed and set aside. By way of the impugned orders, respondent No.2 - Collector, Amreli directed to confiscate `Ginol' worth Rs.47,111/-, which has been confirmed by Sessions Court.
2. Brief facts of the present case are as under:
2.1 The petitioner is a retail trader, who is dealing in the product, namely Ginol, which is a bye-product of waste oil, and as per the case of the petitioner, licence is not required to be obtained under the Essential Commodities Act, 1955, (hereinafter referred to as `the Act') or any Rules or Orders published by the State Government or the Central Government from time to time. It is the case of the petitioner that he is not dealing with any other product, except Ginol. The respondent No.2 -
Collector issued the show cause notice in June 2009 in exercise of powers under Section 6B of the Act for the confiscation of 3569 liters of Ginol for the irregularities referred to in the said notice, and for the breach of conditions No. 3, 8 and 9 of the Essential Commodities Page 2 of 12 R/SCR.A/1088/2010 JUDGMENT (Regulations) Order 1977. In response to the said show cause notice, the petitioner filed reply dated 13th July 2009, in which, he had pointed out that Ginol is not a petroleum product, but it is a bye product of waste oil, and a chemical product. He further pointed that the flash point of Ginol is 137. He has further pointed out that he has purchased the said product from Aaradhana Petrochemicals, Bavla. It was pointed out in the said reply that as per the Rules framed by the Government, explosives licence is not required to be obtained upto 20,000 liters. Relying upon the documentary evidence, the petitioner pointed out that the stock of Ginol was seized from Aaradhana Petrochemicals. However, subsequently it was released when it was revealed that explosives licence is not required for the said product. Along with the said reply, the petitioner produced documentary evidence.
2.2 The respondent No.2 - Collector passed an order dated 29 th August 2009, and thereby held that the petitioner had failed to maintain the stock register. The petitioner has not made entries in the stock register with regard to purchase of Ginol, and at the time of inspection, 3569 liters of Ginol was found in excess, for which he has not given any explanation, and therefore, the said goods were seized in the presence of the panchas. After considering the documentary evidence produced by the petitioner, the respondent No.2 - Collector held that the petitioner has failed to Page 3 of 12 R/SCR.A/1088/2010 JUDGMENT maintain the records and stock register. Stock of Ginol in excess was found. Explanation given by the petitioner was not satisfactory, and therefore, out of the stock of 3569 liters of Ginol seized from the petitioner, 40% was confiscated. Thus, 1228 liters of Ginol for an amount of Rs.47,111/- was confiscated by the respondent No.2. 2.3 The petitioner filed Criminal Appeal No.30 of 2009 before the learned District and Sessions Court, Amreli, against the order passed by the respondent No.2. The learned Additional Sessions Judge and Presiding Officer, Fast Track Court, Amreli, by an order dated 29 th April 2010 dismissed the said appeal, and thereby, confirmed the order passed by the respondent No.2. The petitioner, therefore, preferred the present petition.
3. Heard learned advocate Mr. Satyen B. Rawal appearing for the petitioner and learned Additional Public Prosecutor Mr. K.P. Rawal appearing for the respondent-State, and perused the documentary evidence and papers produced along with the petition.
4. Learned advocate Mr. Satyen B. Raval appearing on behalf of the petitioner has submitted that respondent No.2 - Collector is not empowered to issue the show cause notice under the Essential Page 4 of 12 R/SCR.A/1088/2010 JUDGMENT Commodities Act, 1955 to the petitioner, and, when the petitioner has submitted the reply in detail with documentary evidence, the respondent No.2 ought to have withdrawn the said notice. Learned advocate Mr. Satyen B. Raval submitted that in the reply to the show cause notice, the petitioner has specifically pointed out from the documentary evidence that he has not committed any violation of rules and regulations as alleged in the show cause notice and in the impugned order. He has further pointed out that Ginol is not a petroleum product, but it is a bye- product of waste oil, for which licence is not required to be obtained. It is submitted by him that the flash point of the said product, namely, Ginol is 137. Thereafter, by relying upon the documentary evidence produced with the petition he further submitted that the Additional District magistrate, Ahmedabad, by his communication dated 26 th May 2009 informed the District Supply Officer, Collector Office, Ahmedabad, that 8000 litres of bio-diesel (Ginol) was seized from the premises of Aaradhana Petrochemicals, Bavla, as the explosives licence to deal in the said product was not obtained by the said dealer. However, by the said communication, the Additional District Collector, Ahmedabad, informed the District Supply Officer to release the goods, namely, the bio-diesel (Ginol) seized from the premises of Aaradhana Petrochemicals. Learned advocate further relied upon the letter dated 19th October 2007 of Controller of Food and Civil Supply, Ahmedabad, addressed to one Shri Page 5 of 12 R/SCR.A/1088/2010 JUDGMENT Rasik V. Bhatt. It was informed to said Rasik V. Bhatt that Ginol and bio-diesel are not prohibited under the Solvent Raffinate and Slop (Acquisition, Sale, Storage and Prevention of use in automobile) Order 2000, and the Gujarat Essential Articles (Licensing, Control and Stock Declaration) Order, 1981. Learned advocate further relied upon the specifications of Ginol, and pointed out that flash point of Ginol is 137°C. He further pointed out that the petitioner has purchased the said product Ginol from Aaradhana Chemicals, and when the concerned authority was given the information that Ginol is not a prohibited item, and licence is not required to deal in the said product, the said goods were released by the concerned officers of respondent No.2. Therefore, when the petitioner has purchased the said product from Aaradhana Petrochemicals, respondent No.2 ought to have released the said product (Ginol). However, the respondent No.2 has wrongly passed an order of confiscation. He further submitted that the learned Sessions Court has also failed to consider all the aforesaid aspects, and merely relying upon the observations made by the respondent No.2-Collector, Amreli, the Sessions Court wrongly rejected the appeal preferred by the petitioner.
5. Learned Additional Public Prosecutor Shri K.P. Rawal has mainly submitted that the petitioner has violated the rules and regulations and the orders framed under the Essential Commodities Act, 1955. The Page 6 of 12 R/SCR.A/1088/2010 JUDGMENT petitioner had not properly maintained the stock register. The product Ginol was found in excess from the premises of the petitioner. The petitioner has also failed to obtain the explosives licence, and therefore, he has violated conditions No.3, 8 and 9 of the Essential Commodities (Regulation) Order 1977. Learned Additional Public Prosecutor has further submitted that the respondent No.2-Collector has taken into consideration the reply submitted by the petitioner in pursuance to the show cause notice issued by the respondent No.2, and also considered the documentary evidence produced by the petitioner before him, and thereafter passed an order of confiscation of 40% of the seized goods, and the said order is rightly confirmed by the learned Sessions Court in appeal, and therefore, no illegality is committed by the respondent No.2- Collector as well as learned Sessions Court. He further argued that when there are two concurrent findings against the petitioner, this Court may not interfere with the same.
6. It is the case of the petitioner that the product Ginol is not a petroleum product, but it is a bye product of waste oil. At this stage, the question, which is required to be considered is whether the explosives licence is required for transport or storage of product Ginol or not. For deciding the aforesaid question, certain provisions of the Petroleum Act, 1934 are required to be considered. Clause (a) of Section 2 defines the Page 7 of 12 R/SCR.A/1088/2010 JUDGMENT word `petroleum'. Clause (a) of Section 2 reads thus:
"petroleum" means any liquid hydrocarbon or mixture of hydrocarbons, and any inflammable mixture (liquid, viscous or solid) containing any liquid hydrocarbon.
6.1. Clause (b) of Section 2 defines the word `petroleum Class A', which reads as under:
"`petroleum Class A' means petroleum having a flash-point below twenty-three degree centrigrade."
6.2. Clause (bb) of Section 2 defines `petroleum Class B' as under:
"`petroleum Class B' means petroleum having a flash-point of twenty-three degrees centigrade and above but below sixty- five degrees centigrade."
6.3. Clause (bbb) of Section 2 defines `petroleum Class C' as under:
"`petroleum Class C' means petroleum having a flash-point of sixty-five degrees centigrade and above but below ninety-three degree centigrade."
6.4. Similarly, Section 2(c) defines `flash-point' as under:
"[`flash-point'] of any petroleum means the lowest temperature at which it yields a vapour which will give a momentary flash when ignited, determined in accordance with the provisions of Chapter II and the rules made thereunder."
7. Chapter I of the Petroleum Act, 1934, provides for control over petroleum. Sub- section (1) of Section 3 of the said Chapter provides as Page 8 of 12 R/SCR.A/1088/2010 JUDGMENT under:
"3. Import, transport and storage of petroleum.- (1) No one shall import, transport or store any petroleum save in accordance with the rules made under section 4."
7.1. Sub-section (2) of Section 3 provides that:
"(2) Save in accordance with the conditions of any licence for the purpose which he may be required to obtain by rules made under section 4, no one shall import petroleum Class A and no one shall transport or store any petroleum."
8. Section 4 provides that the Central Government is empowered to frame the rules with regard to import, transport and storage of petroleum. Section 7 provides that no licence is required for transport or storage of limited quantities of petroleum class B or petroleum class C and Section 8 further provides that no licence is required for import, transport or storage of small quantities of petroleum class A. Further, Section 11 is relevant for the present matter. Section 11 of the Petroleum Act, 1934 provides that nothing in this Chapter shall apply to any petroleum, which has its flash-point not below 93°C. From the aforesaid provisions of the Petroleum Act, 1934, it is clear that for petroleum class A, licence is required for certain quantity. For dealing in small quantities, even licence is not required for petroleum Page 9 of 12 R/SCR.A/1088/2010 JUDGMENT class A. Similarly, for transport or storage of a limited quantity of petroleum class B and petroleum class C, person is not required to obtain a licence. However, in the present case, from the technical specifications produced by the petitioner, it is clear that flash-point of Ginol is 137, and therefore, it does not fall under petroleum class A or petroleum class B or petroleum class C, and therefore, as per Section 11 exemption is given to heavy oils from Chapter I, which has its flash point not below 93°C.
9. Thus, I am of the opinion that the petitioner is not required to obtain the licence for importing, storage or transportation of the product Ginol, which is having a flash-point of 137°C. Respondent No.2- Collector has not properly considered the documentary evidence produced by the petitioner with the reply of the petitioner. From the communications from the Department of respondent No.2 itself it is clear that Ginol, which was seized from Aaradhana Petrochemicals, was released by observing that licence is not required for the said product. Even the Food and Civil Supplies Department has also informed one Rasik V. Bhatt that for importing, transporting or storage of Ginol or bio- diesel, licence is not required, and therefore, his application was filed. Thus, in view of the fact that for import, storage or transportation of the aforesaid product, namely, Ginol licence is not required, there is no question of maintaining any stock register as alleged, because as per the Page 10 of 12 R/SCR.A/1088/2010 JUDGMENT case of the petitioner he is not dealing with any other product. He has specifically so averred in the petition in paragraph No.4 that he does not deal with any other product, except Ginol. This fact is not controverted by the learned Additional Public Prosecutor. Further, the petitioner has purchased this product from Aaradhana Petrochemicals, and when Ginol seized from said Aaradhana Petrochemicals was released, there was no reason for the respondent No.2 to pass an order of confiscating the product Ginol, which was seized from the premises of the petitioner.
10. Thus, in view of the aforesaid observations, the petition is allowed. The order dated 29th August 2009 passed by the respondent No.2, i.e. Collector, Amreli, being illegal and without authority of law, the same is quashed and set aside. Similarly, the Sessions Court has also committed an error by not appreciating the aspects pointed out before it by the petitioner, and therefore, the said order dated 29th April 2010 passed by the learned Additional Sessions Judge and Presiding Officer, Fast Track Court, Amreli, is also quashed and set aside. It is informed that the confiscated stock of Ginol was released when petitioner furnished the bank guarantee to the tune of Rs.47,111/-. The bank guarantee furnished by the petitioner shall be returned to the petitioner forthwith. Request made by the petitioner to award interest is rejected in the facts of the case. Rule is made absolute.
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R/SCR.A/1088/2010 JUDGMENT
(VIPUL M. PANCHOLI, J.)
sndevu
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