Rayees Khan and another vs State of M.P.

S.S. Dwivedi, J.

The applicants have preferred this revision u/s 397 Criminal Procedure Code feeling aggrieved by the impugned order dated 24-3-2006 passed by Sessions Judge, Ujjain in Criminal Appeal No. 44/2006 whereby affirming the impugned order dated 25-1-2006 passed by the Collector Ujjain in case No. 125/05-06 Food whereby ordered for confiscation of vehicle No. MP 11 C. 7456 u/s 6Aof the Essential Commodities Act (hereinafter referred to E.C. Act for brevity) and also gave an option for deposit of Rs. 2,50,000/- as the cost of the vehicle.

The brief facts of the case are that on 4-1-2006 the Assistant Food Officer together with police personnel checked the vehicle No. MP 11 C. 7456 driven by the applicant No. 2 Munna s/o Papu Shah and found that this vehicle has been driven by him by filling control blue colour kerosene. The sample of the concerned fuel has been taken up by the Food Officer for examination and found it control blue colour kerosene, which is prohibited for using in the vehicle concerned. On the basis of that a case under Section3read with Section 7 of the E.C. Act has been registered against the driver as well as owner of the vehicle concerned and filed the case before the Collector, Ujjain for confiscation of vehicle concerned u/s 6A of the E.C. Act. The concerned authority has issued the show cause notice to the owner and the driver of the vehicle concerned and after giving them opportunity of hearing vide impugned order dated 25-1-2006 ordered for confiscation of the vehicle concerned u/s 6A of the E.C. Act and also gave an option for deposit of Rs. 2,50,000/- as the cost of the vehicle. Feeling aggrieved by the aforesaid impugned order the applicants have preferred an appeal u/s 6C of the E.C. Act. Vide order dated 24-3-2006, the learned Sessions Judge affirmed the aforesaid impugned order passed by the Collector, Ujjain and dismissed the appeal. Hence, this revision filed on behalf of the applicants.

Having heard the Learned Counsel for the applicants and Government Advocate for the State and perused the record.

It is submitted by the Learned Counsel for the applicants that on perusal of the record, it is apparent that the driver concerned has clearly submits that the due non-availability of the diesel on the road he purchased 10 litre diesel from the another truck driver and after filling it, he was coming to his destination at that time the concerned vehicle has been checked by the concerning Food Officer and on examination it is found that the vehicle was plying by using the blue colour kerosene in the diesel tank. This mistake of the non-applicant No. 2, i.e. driver is a bona fide mistake. In view of that the learned Court below has wrongly held the applicants guilty for the offence concerned and also punished them for deposit of Rs. 2,50,000/- or for confiscation of the vehicle concerned. It is also submitted by the Learned Counsel for the applicants that the Raes Khan who is happened to be registered owner of the vehicle is not having any knowledge that his vehicle has been driven by the driver by filling the control kerosene. In view of that the forfeiture of the vehicle concerned is illegal and liable to be set aside and in alternative he submits that a reasonable fine may be imposed due to the aforesaid mistake committed by the non-applicant No. 2. In such type of cases the Collector has also imposed fine of Rs. 7,000/- and 10,000/- in other cases. Therefore, prayed for reduction of the fine amount concerned.

In reply, the learned Government Advocate supported the impugned order and submits that vehicle has been driven by the applicant No. 2 by using illegally the control item blue kerosene in that vehicle as fuel. In view of that both the Courts below have rightly found the applicants guilty for contravention of the provisions of the E.C. Act and no material grounds are available for interference in the impugned order passed by the Courts below. Therefore, prayed for dismissal of the revision petition.

The procedure for confiscation is provided u/s 6B of the E.C. Act, which provides as under:

No order confiscating (any essential commodity, package, covering, or receptacle, animal, vehicle, vessel or other conveyance) shall be made u/s 6A unless the owner of such (essential commodity, package, covering or receptacle, animal, vehicle, vessel or other conveyance) or the person from whom (it is seized)

(a) is given a notice in writing informing him on the grounds on which it is proposed to confiscate the (essential commodity, package, covering or receptacle, animal, vehicle, vessel or other conveyance).

(b) is given an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds of confiscation; and

(c) is given a reasonable opportunity of being heard in the Matter.

[(2) Without prejudice to the provisions of Sub-section (1), no order confiscating any animal, vehicle, vessel or other conveyance shall be made u/s 6Aif the owner of the animal, vehicle, vessel or other conveyance proves to the satisfaction of the Collector that it was used in carrying the essential commodity without the knowledge or connivance of the owner himself, his agent, if any, and the person in charge of the animal, vehicle, vessel or other conveyance and that each of them had taken all reasonable and necessary precautions against such use.]

In view of the aforesaid provisions of Sub-section 2of the E.C. Act it is apparent that no vehicle can be ordered for confiscation, if it is proved that contravention of the provisions is not within the knowledge of the owner of the concerning vehicle. In the present case also there is no material on record that the vehicle has been driven by the applicant No. 2 by using control blue kerosene with the prior consent or with the prior knowledge of the registered owner. Both the Courts below have ignored the aforesaid facts of the case and ordered for confiscation of the vehicle concerned, which apparent appears to be unreasonable and illegal also. Admittedly at the time of investigation or search, the applicant No. 1 who is the registered owner of the vehicle was not present on the spot. It is also apparent on perusal of the reply filed by the applicant No. 2 due to the peculiar circumstances he purchased so called blue kerosene from the other truck driver and he was going to its destination or nearby petrol pump so that diesel may be filled from the nearby petrol pump.

In view of the aforesaid facts of the case, the order of forfeiture of the concerned truck appears to be erroneous instead of that a reasonable fine may be imposed on Appellants.

Resultantly revision petition is allowed. The impugned order passed by the Courts below for forfeiture of the concerned truck No. MP 11 C. 7456 is set aside and instead thereof it is ordered that the applicants to deposit Rs. 5,000/- (Five thousand) as fine amount to the concerned authority i.e. Collector, Ujjain for illegal use of the control blue kerosene as a fuel in the vehicle concerned. After depositing the aforesaid amount of fine, the concerned vehicle be released in favour of the applicant No. 1. With this observations, this revision petition is disposed of.