Rajput Carrier and Another vs State of Gujarat and Another

C.K. Thakker, J.—Rule. Mr. T.H. Sompura, Assistant Government Pleader appears and waives service of Rule. In the facts and circumstances of the case, the matter is taken up today for final hearing.

This petition is filed for quashing and setting aside the order dt. September 8, 1992 passed by the Collector, Surat and confirmed by the State Government, on June 9, 1994, by which Tanker of the petitioner No. 1 was ordered to be confiscated to the State.

It is the case of the petitioners that petitioner No. 1 is the owner of Motor Tanker, bearing No. GJ-6-T-4975. Petitioner No. 2 had taken the said tanker on hire from petitioner No. 1 on a monthly rent of Rs. 10,000/- with effect from July 3, 1991. On November 26, 1991, when the tanker was plied by one Satyanarayansingh, driver engaged by petitioner No. 2, the Flying Squad of the respondent No. 2 intercepted it and on suspicion that it carried diesel oil contrary to law, seized diesel oil as well as tanker. Proceedings were initiated under the provisions of the Essential Commodities Act, 1955 (hereinafter referred to as "the Act") and at the conclusion of the proceedings, diesel oil as well as tanker were ordered to be confiscated.

The learned counsel for the petitioner submitted that before confiscation of the tanker, no option was given to the owner of the tanker to pay in lieu of confiscation of the tanker a fine not exceeding the market price at the date of seizure of the essential commodities sought to be carried by such tanker. My attention in this connection was invited by the learned counsel for the petitioner to the provisions of Section 6-A of the Act. Relevant part of Section 6-A reads as under:

6A(1). Where any essential commodities is seized in pursuance of an order made u/s thereto, a report of such seizure shall, without unreasonable delay, be made to, the Collector of the district or the presidency town in which such essential commodity is seized and whether or not a prosecution is instituted for the contravention of such order, the Collector may, if he thinks it expedient so to do, direct the essential commodity so seized to be produced for inspection before him, and if he is satisfied that there has been a contravention of the order, may order confiscation of -

(a) and (b) xxxxxxxxxxx

(c) any animal, vehicle, vessel other conveyance used in carrying such essential commodity.

Provided that............

Provided further that in the case of any animal, vehicle, vessel or other conveyance used for the carriage of goods or passengers for hire, the owner of such animal, vehicle, vessel or other conveyance shall be given an option to pay, in lieu of its confiscation, a fine not exceeding the market price at the date of seizure of the essential commodity sought to be carried by such animal, vehicle, vessel or other conveyance.

(2) and (3) xx xx xx xx xx xx

Looking to the aforesaid provision, there is no doubt that when any animal, vehicle, vessel or other conveyance is used for carrying an essential commodity liable to confiscation, such animal, vehicle, vessel or other conveyance is also liable to confiscation. The Legislature, however, enjoins on the authority to give option to the owner of such animal, vehicle, vessel or other conveyance, to pay in lieu of its confiscation, a fine not exceeding the market price at the date of seizure of the essential commodity sought to be carried by such animal, vehicle, vessel or other conveyance, therefore, the contention that before directing confiscation of the tanker in question, an option to pay fine in lieu of confiscation of the tanker ought to have been given to the petitioner No. 1 -owner of the tanker appears to be well founded. The authority is required to give such option to petitioner No. 1 -owner of the tanker to pay fine in lieu of its confiscation, not exceeding the market price at the date of the seizure of the tanker in question. Since no such option was given by the authorities before order of confiscation of the tanker, the action is contrary to law and must be held to be illegal and unlawful. A similar view is taken by the ''High Court of Karnataka in Krishna Bhima v. State, 1979 Cri LJ 977.

The petition, therefore, requires to be allowed by directing the authorities to act in accordance with the second proviso to Section 6-A(1) of the Act. The learned counsel for the petitioner states that pursuant to the order passed by the State Government, Bank guarantee is furnished. The authority will also pass appropriate order regarding bank guarantee. Liberty to apply in case of difficulty.