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Judgment
B.D. Rathi, J.—With the consent of the parties matter is heard finally. This revision petition u/s 397/401 of the Code of Criminal Procedure, 1973 (in short ''the Code'') has been preferred being aggrieved by the order dated 14.08.2013, passed in Criminal Appeal No. 294/2012 from the Court of X Additional Sessions Judge, Gwalior whereby the matter was remanded to decide afresh. That appeal was preferred being aggrieved from the order dated 28.05.2012, passed in Case No. Q/Khadiy/Vidhi/7-6/63/12 by the Collector, District Gwalior, whereby it was held that the offence u/s 3/7 of Essential Commodities Act, 1955 (for short ''the Act'') has been committed, therefore, seized petrol 4738 liters worth of Rs. 3,32,750/- and security amount is confiscated.
It is submitted by the learned counsel for the applicant that as per provision of Section 6C of the Act, the appellate Court has no power to remand the case for reconsideration. It is also submitted that as per show cause notice dated 15.03.2012 issued under the Act, in which two allegations were made:-
(i) Preliminary stock position has not been shown in the display board in the petrol pump premises.
(ii) 30 millimeter petrol is being soled lesser in quantity on every 5 liters of petrol.
On this allegation stock available of 4738 liters of petrol has been seized from the possession of the Manager of Petrol Pump Shri Dharshan Singh and to initiate the proceedings under the relevant provision of the Act notice (Annexure P/1) was issued and that was very well replied by Annexure P/2. It is also argued that as per the law laid down by the Supreme Court in the case of N. Nagendra Rao and Co. Vs. State of Andhra Pradesh, , this Court held here as under:-
The language of the section and its setting indicate that every contravention cannot entail confiscation that is why the section uses the word "may". A trader indulging in black marketing or selling adulterated goods etc. should not in absence of any violation be treated at par with technical violations such as failure to put the price list etc. or even discrepancies in the stock.
And by way of this submission, it is prayed that all the proceedings of the Court below be dropped against the applicant and confiscation order be set aside.
On the contrary learned Public Prosecutor opposed the prayer.
Having regards to the arguments advanced by the learned counsel for the parties, record has been perused.
Taking into consideration the entire case of the prosecution in its totality, even then no case was made out for confiscation as reveals from the allegations made in show cause (Annexure P/1). Only on the basis of these two above mentioned minor allegation/contravention order of confiscation could not be passed.
Similarly, again on consideration second allegation was made that on every 5 liters of petrol Pump was showing the reading of 5.03 liters meaning thereby on every 5 liters of petrol 0.03 millimeter equivalent to 30 millimeter of petrol was being sold lessor in quantity. This action of the applicant may be treated as he was selling the petrol in contravention of the licence conditions but that also could not be a ground for confiscation as per law laid down by the Supreme Court in N. Nagendra Rao (supra).
u/s 6C of the Act the case could not be remanded to the Collector/District Magistrate to decide afresh. This issue has been very well discussed in the case of Virendra Kumar Khandelwal Vs. State of U.P., reported in 1983 EFP 565.
Also u/s 6C the case could not be remanded back to the Additional District Magistrate (E) and under the express provisions of this section, the order of the Additional District Magistrate (E) could only be confirmed, modified or annulled. Since there was no provision for remand as it is elsewhere in the Code of Criminal Procedure, the learned Sessions Judge, could not remand this case to the Additional District Magistrate (E)
Thus in view of the aforesaid discussion, this petition is allowed. The order of remand passed by X ASJ, Gwalior in Criminal Appeal No. 294/2012 dated 14.08.2013, and order of confiscation passed by the Collector on 28.05.2012 in case No. Q/Khadiy/Vidhi/7-6/63/12, both are hereby set aside and entire seized quantity of petrol is hereby released. A copy of the order be sent to the Court below for necessary compliance.