Confiscation of goods under the Essential Commodities Act is impermissible based solely on technical breaches or unreliable FSL reports resulting from improper sampling, provided there is no evidence of black-marketing.

JUDGMENT

1) By way of revision application 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 05.10.2011 passed by learned Additional Sessions Judge, Bhavnagar, in Criminal Appeal No.64 of 2008, whereby, learned Addl. Sessions Judge has been pleased to allow the appeal filed by the respondent by quashing the order of confiscation dated 30.08.2008 passed by Collector, Bhavnagar.

2) Heard Mr.Rohan Raval, learned APP for the applicant – State. Advocate notice for the respondent is unserved.

3) Brief facts of the case are that, the respondent was engaged in the business of selling of solvents item and on 24/06/2007 the tanker bearing Registration No.GJ-2X-1115 containing FA Residual Oil 12000 liters was to be delivered to S K Impex Firm, Mamsa, Bhavnagar and on 25/06/2007 the Police Sub Inspector, LCB, Bhavnagar carried out the checking and did not find satisfactory reply from the driver and cleaner and the same was produced before the Court and thereafter learned Magistrate, Ghogha passed an order on 29/12/2007 to release the said truck. However, the Mamlatdar carried out the checking of the truck and stock in the truck and found with certain irregularities like

(i) tanker contained 12000 liters of FA Residual oil which was to be delivered to SK Impex Firm, Mamsa, Bhavnagar However, as the said liquid was found to be suspicious, it was sent to FSL and as per report of the FSL, it was furnace oil mixed with water and as per Section 3 of the Solvent Refrinate and Slop (Purchase, Sale Stock and Prohibition of use in Automobiles) Order, 2000, licence to sell furnace oil requires to be obtained. And, upon verification of voucher, no such licence number is mentioned in the said vouchers. Hence, you have not obtained any licence to sell furnace oil

(ii) sale was done by way of issuing false and bogus bills

(iii) that accounts of business are found with irregularities

(iv) by mentioning different address on the government record and bill, intention of committing irregularities is revealed.

4) Thus, upon found the above referred irregularities, the respondent committed breach of Sections 8 and 9 of the Chijarat Essential Commodities (Control and Regulation of Business) Order, 1977 and also committed breach of Section 3 of the Solvent Refrinate and Slop (Purchase, Sale Stock and Prohibition of use in Automobiles) Order, 2000, hence, total stock of FA. Residual of 12000 liters valued at Rs.2,74,560 and tanker valued at Rs.2,20,000/- totaling to Rs 4,94,560/- was confiscated.

5) Thereafter, a show-cause notice came to be issued on 14/03/2008 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 passed an order of confiscation dated 30/08/2008 whereby total seized stock of Rs.2,74,560/- was ordered to be confiscated and as well as 5% of the truck value i.e. Rs.11,000/- was also ordered to be confiscated.

7) Against the said the order of confiscation dated 30/08/2008 passed by the District Collector, Bhavnagar, the respondent had preferred an appeal before the learned District Judge, Bhavnagar being Criminal Appeal No.64 of 2008 on 16/06/2008, which came to be allowed and order of confiscation dated 30/08/2008 passed by the District Collector. Bhavnag