JUDGMENT

1) By way of revision applications under Section 397 (section 438 of BNSS) read with Section 401 (Section 442 of BNSS) of the Code of Criminal Procedure, 1973 (for short “CrPC”), the applicant – State has prayed for quashing and setting aside the judgment dated 04.10.2011 passed by learned Additional Sessions Judge, Bhavnagar, in Criminal Appeal No.44/2008, whereby, learned Addl. Sessions Judge has been pleased to allow the appeal filed by the respondent by quashing and setting aside the order dated 27.05.2008 passed by Collector, Bhavnagar, confiscating seized stock of Rs.84,875/-.

2) Heard Mr.Rohan Raval, learned APP for the applicant – State. Though served, none appears for the respondent.

3) Brief facts of the case are that, the respondent was engaged in the business of selling of light diesel oil and during checking carried out on 29/12/2007 by applicant, the respondent was found with certain irregularities like

(i) display board did not contain the price and stock of the day on which checking was carried out;

(ii) additional stock of 225 liter of diesel and 8150 liter of furnace oil was found

(iii) as the stock of diesel and furnace oil was found access than the actual so there are possibility to believe that accounts are not maintained accordingly;

(iv) licence to sell furnace oil was not obtained

(v) stock register of light diesel oil was not updated mentioning the latest position and

(vi) access stock found for two items for which no such purchase bill was produced and therefore the said stock of two items was found to be unaccounted.

4) Thus, upon found the above referred irregularities, the respondent committed breach of Sections 3, 8 and 9 of the Gujarat Essential Commodities (Control and Regulation of Business) Order, 1977 and also committed breach of Section 3 (1) and 3 (3) of the Solvent Refrinate and Slop (Purchase, Sale Stock and Prohibition of use in Automobiles) Order, 2000. Hence the total stock valued at Rs.1,69,750/- was confiscated.

5) Thereafter, a show-cause notice came to be issued on 29/01/2008 by the authority narrating the irregularities committed by the respondent. In response of the show- cause notice, a written reply was submitted by respondent wherein it has been denied that any irregularities were committed by it.

6) Thereafter, the Collector, Bhavnagar vide order dated 27.05.2008 out of total seized stock of Rs.1,69,750/-, 50% stock of Rs.84,875/- was ordered to be confiscated.

7) Against the said the order of confiscation passed by the District Collector, Bhavnagar of confiscation, the respondent preferred an appeal before the learned Addl. District Judge, Bhavnagar being Criminal Appeal No. 44 of 2008 which came to be allowed and order of confiscation passed by the District Collector, Bhavnagar of confiscation dated 27/05/2008 has been quashed and set aside. Hence, present revision has been preferred before this Court.

8) Learned APP for the respondent State has submitted that respondent accused had not submitted proper explanation with regard to irregularities found from the spot; that the price and stock display board of the respondent-accused firm was not maintained on the date on which checking was carried out and this fact was admitted in the statement recorded by the authority of the person who was present on the spot and thus there is clear breach of Section 3 of the Essential Commodities Act. Further, the bill for additional stock found on the date of checking was produced however the said bill cannot be said to be valid because the said bill can be obtained of back date and thus the respondent committed breach of Section 9 of the Gujarat Essential Commodities Act, 1977.

9) Learned APP has further submitted that the respondent was found selling furnace oil without any permit or licence and explanation tendered in this regard is that he did not have knowledge. The said explanation cannot be said to be val