Madhya Pradesh High Court
M/S Man Automobile Bhiterwar vs State Of M.P. on 28 March, 2017
Author: N.K. Gupta
Bench: N.K. Gupta
1 Criminal Revision No.444/2012
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH:
HON'BLE SHRI JUSTICE N.K. GUPTA
CRIMINAL REVISION NO. 444 OF 2012
M/s Man Automobile Bhitarwar
Through Proprietor Vikram Singh
Vs.
State of Madhya Pradesh
For the applicant : Shri Sanjay Bahirani, Advocate
For respondent-State : Shri A.S. Yadav, Panel Lawyer
ORDER
(28/03/2017) The Additional Collector, District Gwalior (M.P.) vide order dated 01.06.2011 in Case No.D;w@[kk| fof/k@7&6@ 42@2009 cancelled the licence of the applicant for distribution of motor spirit and high speed diesel and confiscated the entire quantity of diesel and petrol found at the petrol pump. In Criminal Appeal 375/2011, the IV Additional Sessions Judge, Gwalior (M.P.) vide judgment dated 18.04.2012 found that the order passed by the Additional Collector, Gwalior (M.P.) was erroneous and therefore the matter was remanded to re-decide it after complying the provisions contained under Section 6A of the Essential Commodities Act (in short "the EC Act"). Being aggrieved with the aforesaid order and judgment the applicant has preferred the present revision. (2) Facts of the case, in short, are that on 08.07.2009 at about 09:30 pm, the Sub-Divisional Magistrate and the Tahsildar, Bhitarwar along with staff went to the 2 Criminal Revision No.444/2012 applicant petrol-pump at Ghatampur, Bhitarwar, District Gwalior (M.P.). After viewing the inspecting team, the manager and the staff members of the petrol pump, namely, Vikram Singh, Munnalal Agrawal and Ganesh Sahu left the petrol pump and ran away from there. The inspecting team found that an oil tanker bearing registration number MP15-D-0432 was lying in the petrol pump premises and blue kerosene was being shifted in the diesel tank of the petrol pump. Thereafter, the inspection was done in presence of the watchman Mr. Kamal Singh Kushwah. It was found that outlet point of the tanker was connected with the inlet point of diesel tank by a rubber pipe and in the tanker there were four compartments and within those compartments 5000 liters of blue kerosene was found stored. On checking the stock register, it was found that 12557 liters diesel was in excess in the tank against the supply made by the concerned petroleum company. It was found that Mr. Vikram Singh son of the owner of the petrol pump, namely, Mr. Heera Singh, Manager-Ganesh Sahu and Mr. Munnalal Agrawal who were mixing kerosene with diesel did not co-operate in the investigation and ran away from the spot. After inspection, the unit of diesel and petrol tank was sealed and an FIR was lodged at Police Station Bhitarwar, District Gwalior (M.P.). The inspection note was submitted before the Additional Collector. (3) The Additional Collector gave a notice to the applicant under Section 6B of the EC Act to get his comments as to why the entire diesel and petrol may not be forfeited and licence issued to him may not be cancelled. Applicant contested the matter. He cross- examined the various witnesses examined by the 3 Criminal Revision No.444/2012 concerned authority and the Additional Collector vide order dated 01.06.2011 cancelled the licence of the applicant for selling of motor spirit and high speed diesel and directed to confiscate the diesel and petrol found in the tanks of petrol pump. Appeal filed by the applicant was allowed and it is found that dealing Additional Collector did not follow the various provisions of Motor Spirit and High Speed Diesel (Regulation of Supply, Distribution and Prevention of Malpractices) Order, 2005 [for brevity "the Central Control Order, 2005]. Therefore, it remanded the matter to the Additional Collector with the direction that a fresh enquiry be made and separate orders be passed pertaining to cancellation of licence and confiscation of high speed diesel or motor spirit. (4) I have heard the learned counsel for the parties. (5) Mainly, the learned counsel for the applicant has submitted that Clause 8 of the Control Order, 2005 was not complied with by the respondent Additional Collector and therefore the order passed by him was not valid in the eyes of law. Before the appellate court, it was the prayer of the applicant that the order passed by the Additional Collector be set aside. The seals of petrol pump be removed and fresh samples be taken from the motor spirit and high speed diesel tanks because such relief was not granted by the Additional Collector. The applicant has relied upon the order passed by the Single Bench of this Court in the case of M/s Rambabu Govindkumar proprietor Rambabu Agrawal Vs. State of Madhya Pradesh [2010(1) MPJR SN 31] in which it is held that the Sessions Court has no power under Section 6C of the EC Act to remand the matter and therefore on the basis of illegal inspection and violation 4 Criminal Revision No.444/2012 of Clause 8 of the Central Control Order, 2005, no such judgment could be passed by the Additional Sessions Judge. Similarly, the reliance has been placed upon the order passed by the Single Bench of the Allahabad High Court in the case of Virendra Kumar Khandelwal Vs. State of U.P. [1983 EFR 565] in which it is held that the appellate court against the order of confiscation cannot remand the case. It should decide the case on the merits of the evidence.
(6) In the light of the aforesaid contentions, if the present matter is examined then it would be apparent that in the present case the sample was to be taken and examined according to the Clause 8 of the Central Control Order, 2005 whereas the cancellation of licence was to be considered under Clause 11 of the ''M.P Motor Spirit & High Speed Diesel Oil (Licensing & Control) Order 1980'' [in short the "State Control Order, 1980"]. Since the Additional Collector was required to pass an order in both the heads i.e. for cancellation of licence and for confiscation of diesel and petrol found at the petrol pump on the basis of common evidence of one inspection done by the SDM and Tahsildar, Bhitarwar, District Gwalior (M.P.), therefore, it was not required for him to initiate two different proceedings and to pass two different orders. However, the consolidated order passed by the Additional Collector should be considered in two parts. First part relating to Clause 11 of the State Control Order, 1980 pertaining to cancellation of licence and the second part relates to confiscation of diesel and petrol.
(7) So far as the first part is concerned, various provisions pertaining to grant or cancellation of licence 5 Criminal Revision No.444/2012 were provided under the State Control Order, 1980. Clause 16 of that control order is important which is reproduced as under:-
16- vihy vuqKkiu vf/kdkjh ds vuqKfIr eatwj djus] iqu% tkjh djus ;k uohuhdj.k ls badkj djus ;k vuqKfIr dks jÌ djus ;k mls fuyafcr djus ;k bl vkns'k ds mica/kksa ds v/khu vuqKfIr/kkjh }kjk fu{ksi dh xbZ izfrHkwfr dks leiâr djus ds fdlh vkns'k ls O;fFkr dksbZ Hkh O;fDr vuqKkiu izkf/kdkjh dk vkns'k mls izkIr gksus dh rkjh[k ls rhl fnu ds Hkhrj laHkkx ds vk;qDr ;k vij vk;qDr dks vihy dj ldssxkA According to Clause 16 of the State Control Order, 1980 if the licence authority cancels the licence under the State Control Order, 1989 relating to motor spirit and high speed diesel then the aggrieved person is entitled to file an appeal before the Commissioner or Additional Commissioner and thereafter a revision can be filed before the State Government under Clause 17 of the aforesaid control order. Under these circumstances, it was for the applicant to file an appeal before the Commissioner or the Additional Commissioner against the order relating to cancellation of licence. No appeal under Section 6C of the EC Act could be filed against that order and therefore in the appeal filed by the applicant, the Additional Sessions Judge could not pass any order pertaining to matter of cancellation of licence. Under these circumstances, if the Additional Sessions Judge has gone beyond its jurisdiction then his order relating to that portion has no any operative value and therefore the order pertaining to cancellation of licence passed by the Additional Collector remains intact and since no appeal has been filed before the Commissioner or Additional Commissioner then that order has attained finality. Hence, nothing can be done against the portion of that order relating to cancellation of licence. Thus,
6 Criminal Revision No.444/2012 though the Additional Sessions Judge remanded the matter for reconsideration but even he could not pass any order against that portion of the order passed by the Additional Collector which relates to cancellation of licence and therefore, that portion should not be dealt with in the present order. Only it is made clear that order relating to cancellation of licence passed by the Additional Collector has attained finality and it remains in tact. Hence, it would be effective.
(8) The second part of that order is under Central Control Order, 2005. According to Clause 8 of the Central Control Order, 2005, a method is prescribed for taking the sample. That method is prescribed so that one sample should be given to the person in whose control the petrol pump was being run. In the present case, it is alleged that Vikram Singh son of the proprietor of the petrol pump along with manager and others ran away from the spot when the inspection was being initiated, hence, the inspecting authority had no opportunity to provide such samples to the management of the applicant petrol pump. There is no provision under Clause 8 of the Central Control Order, 2005 that if sampling was not done properly then an opportunity be given to the management of the petrol pump to take the sample again and to get the same examined. It is submitted by the learned counsel for the applicant that that diesel and petrol tanks were sealed in the year 2009 and after eight years of that inspection, the petrol tank must have been dried and entire petrol must have been evaporated. Similarly, the diesel tanks may not have huge quantity of diesel in the tank and therefore there is no need to give a further opportunity to get sample of petrol 7 Criminal Revision No.444/2012 and diesel again from the tanks hence, the submission of learned counsel for the applicant is acceptable that the appellate court was not required to remand the case and under Section 6C of the EC Act, in the light of the judgment passed by the Single Bench of this Court in the case of Rambabu (supra) the appellate court was not competent to remand the matter for reconsideration and therefore it was for the appellate court to decide the matter on merits. After passing of the judgment by the appellate court, five years have elapsed and therefore it would not be useful to send the matter back to the appellate court for consideration of the matter on merits for confiscation of petrol and diesel so found. It would be appropriate that merits of the matter should be considered directly in the present revision. (9) If merits of the matter are re-considered then prima facie it is apparent that the inspecting authorities did not take the sample according to Clause 8 of the Central Control Order, 2005, however, if the specimen of sample was not provided to the management of applicant petrol pump then whether it is fatal to accept the factual position of inspection and its outcome. If, for the sake of arguments, it is accepted that the reports received from the laboratory which analyzed the sample is not acceptable as such, still then the report of inspecting authority is acceptable. It is found by the inspecting authority that a tanker containing blue kerosene was standing in the campus of petrol pump and the outlet point of the tanker and inlet point of diesel tank were connected with a rubber pipe. It was important to note that according to stock register, on 06.07.2009, it was found that 34 liters of petrol was in excess in the petrol 8 Criminal Revision No.444/2012 tank whereas 843 liters of diesel was found sold in excess and the entire diesel was found in the diesel tank was 11714 liters and therefore excess of 12557 liters of diesel was found in the diesel tank whereas no petrol or diesel was supplied by the petroleum company according to that stock register and account.
(10) It is possible that distribution and computation device of the petrol pump was not working properly and the applicant petrol pump supplied lesser petrol to the consumers and according to the measurement of computation device if inappropriate quantity of petrol was supplied then such quantity of petrol may be found in excess in that petrol tank. That means short supply of petrol could increase the small quantity of petrol in petrol tank, however, the case of diesel is not so much easy. More than 12000 liters of diesel was found in excess in the diesel tank whereas no supply of diesel was received by the applicant petrol pump and therefore the contention of the various witnesses examined by the Additional Collector appears to be correct that through a tanker, a huge quantity of blue kerosene was shifted in the diesel tank and hence surplus quantity of diesel was found in the diesel tank which was of more than 12000 liters.
(11) Under these circumstances, if the report of the analyst pertaining to diesel and kerosene is discarded because the sample was not taken according to Clause 8 of the Central Control Order, 2005 then still it was found proved beyond doubt that the applicant mixed blue kerosene with diesel before its supply. Diesel which was found in the tank of the applicant was not high speed diesel only but it was the mixture of high speed diesel 9 Criminal Revision No.444/2012 and blue kerosene. If such substance is not confiscated then neither it can be sold to the consumers because consumers are not expected to consume the mixture of diesel and kerosene while purchasing diesel nor could such mixture be returned to the concerned petroleum company. Under these circumstances, the applicant could not be permitted to use or sell that mixture of diesel and kerosene. Hence, the confiscation order passed by the Additional Collector was appropriate and it cannot be discarded only on the technicalities. Hence, there is no reason to make any interference in the order of confiscation passed by the Additional Collector relating to confiscation of high speed diesel as found in the tank of the applicant.
(12) So far as petrol is concerned, if the applicant supplied lesser quantity of petrol to the consumers by manipulation in the measurement device then it is an offence under the EC Act. There is no possibility of surplus of 34 liters of petrol in the stock register whereas no supply was given by the concerned petroleum company in those days and if supply was given then it must have been in the multiplier of thousand liters. Only 34 liters petrol could not be found in excess. (13) Hence, prima facie, the applicant has committed a crime under the provisions of EC Act that he supplied lesser quantity of petrol to the consumers by making manipulation in the measurement device. Hence, the Additional Collector was competent to confiscate the remaining petrol found in the tank, however, due to elapse of a huge span of time the petrol must have been evaporated and now it cannot be given back to the applicant. Since delay was not caused by the inspecting 10 Criminal Revision No.444/2012 authority or the Additional Collector, therefore, no order can be passed even against the order of confiscation of motor spirit petrol.
(14) On the basis of the aforesaid discussion, though the order passed by the Additional Sessions Judge is not correct in which the matter was remanded to the Additional Collector but on merits it is not a good case in favour of the applicant. It is proved that proprietor of the applicant petrol pump Mr. Vikram Singh along with staff was mixing kerosene in the diesel tank of the petrol pump and the mixed liquid was being sold in the name of high speed diesel. Hence, the order passed by the Additional Collector could not be interfered by the Additional Sessions Judge. Since the matter was remanded, no revision was filed by the State against the order of Additional Sessions Judge but since the Additional Sessions Judge could not pass any order relating to the remand of the matter under Section 6C of the EC Act then the present revision should be disposed off with the direction that the order of Additional Sessions Judge be set aside but the order passed by the Additional Collector is to be maintained. Consequently, the revision filed by the applicant is hereby disposed off with the direction that the order passed by the Additional Sessions Judge is hereby set aside but the order passed by the Additional Collector is confirmed. (15) A copy of this order be sent to the courts below along with their respective records for information.
(N.K. Gupta) Judge (28/03/2017) pd