State Of Gujarat vs Bgh Exim Limited Thro Suthorized ...
2023 Latest Caselaw 8392 Guj

Gujarat High Court

State Of Gujarat vs Bgh Exim Limited Thro Suthorized ... on 5 December, 2023

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      R/CR.RA/347/2013                           ORDER DATED: 05/12/2023

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
           R/CRIMINAL REVISION APPLICATION NO. 347 of 2013
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                     STATE OF GUJARAT & 2 other(s)
                                Versus
             BGH EXIM LIMITED THRO SUTHORIZED SIGNATORY
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Appearance:
MR KANVA ANTANI, APP for the Applicant(s) No. 1,2,3
MR MRUNAL DHOLARIA, ADVOCATE FOR
MR HRIDAY BUCH(2372) for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE M. R. MENGDEY
                  Date : 05/12/2023
                   ORAL ORDER

1. The present application has been filed by the applicant- State under Section 397 of the Code of Criminal Procedure, 1973 challenging the judgment and order dated 29.09.2012 passed Criminal Appeal No.25 of 2005.

2. The facts and circumstance giving rise to filing of the present application are as under:-

2.1 On 19/20.02.2004, the District Supply Officer and his team had carried out an inspection at the facility of the respondent, which was used for storage of imported free sale kerosene. At the time of inspection, several irregularities were noticed by the District Supply Officer and his team and it was found that the provisions of Kerosene (Restriction on Use and Fixation of Ceiling Price) Order, 1993 were violated. Therefore, the notice dated 03.02.2005 came to be issued against the respondent asking it to show cause as to why the stock of kerosene worth Rs.1,61,87,043/- should not be seized under the provision of Section 6-A of the Essential Commodities Act, 1955 (herein after referred to as the "Act").

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2.2 Upon receipt of the said notice, a reply was given by the respondent to the said notice to the Collector.

2.3 Having found to be the same to be unsatisfactory, the Collector, vide order dated 31.08.2005 was pleased to order confiscation and seizure of kerosene worth 28.664 Metric ton (herein after referred to as the 'MT') and the respondent was directed to deposit a sum of Rs. 6,21,292/- with the authorities of the State Government.

2.4 Being aggrieved and dissatisfied with the same, the respondent had preferred an appeal under the provision of Section 6-C of the Act before the District and Sessions Court, Bharuch, challenging the said order. The Sessions Court, Bharuch, after considering the material available on record and after hearing both the sides, was pleased to allow the said appeal vide impugned judgment and order and was pleased to quash and set aside the order dated 31.08.2005 passed by the Collector.

3. Being aggrieved and dissatisfied with the same, the applicant-State has preferred present application.

4. Learned APP has submitted that the reasons given by the Sessions Court for allowing the appeal filed by the respondent, are not germane to law. The Sessions Court, while allowing the said appeal, has recorded the finding that no show-cause notice was ever issued by the State Authorities before initiating the proceedings in question. However, in fact, the show-cause notice was already issued to the respondent, and thereafter, the

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proceedings in question were initiated. The State Authorities had followed the procedure of natural justice before passing the order of seizure and confiscation of the goods in question.

4.1 Learned APP has submitted that the other grounds which had found favour with the Sessions Court is that no relevant documents were supplied by the State Authorities to the respondent before initiating the proceedings in question against it. However, no such contention was raised by the respondent before the Collector when the proceedings were going on before the Collector. Therefore, the said ground is nothing, but an afterthought, and therefore, the Sessions Court has committed an error in allowing the appeal on the said ground. He, therefore, submitted to allow the present application and quash and set aside the impugned judgment and order passed by the Sessions Court in Criminal Appeal.

5. Learned advocate for the respondent has opposed the present application, inter alia, contending that no show-cause notice at all was issued to the respondent before initiation of the proceedings. It was only after this Court in its order dated 18.10.2004 passed in Special Civil Application No.8525 of 2004 that a show cause notice came to be issued to the respondent for initiation of proceedings. However, the said show-cause notice had been issued after almost one year from the date of inspection.

6. Learned advocate for the respondent has submitted that the seizure of essential commodity against the respondent is only with a view to harass and victimize the respondent, whereas

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certain other importers are allowed to take their goods, without challenge. The credentials of the buyers of the respondent have been doubted and leaving the inquiry against those buyers at a subsequent stage, a negative inference is drawn against the respondent. Thus, not only the honest importers are harassed, but the State Exchequer also suffers a substantial loss.

6.1 Learned advocate for the respondent has submitted that the alleged inspection was carried out by the District Supply Officer on 19/20.02.2004, the same day the seizure order was passed. Even though earlier order of confiscation dated 30.06.2004 has been quashed and set aside by this Court vide order dated 18.10.2004 passed in Special Civil Application No.8525 of 2004, period of more than 4 months has elapsed before initiating the proceedings, which has not been explained.

6.2 Learned advocate for the respondent has submitted that no breach was mentioned in the notice for violation of provisions of Kerosene (Restriction on Use and Fixation of Ceiling Price) Order, 1993 and/or Gujarat Essential Articles Order, 1977. No inquiry was carried out prior to the seizure on 19/20.02.2004 and no report of the District Supply Officer, Bharuch was given. The documents relied upon by the Collector while issuing the show-cause notice were not mentioned and the copy of the same was not supplied. In absence thereof, calling upon the respondent to reply to such notice was obviously causing prejudice and also violated principles of natural justice.

7. Heard learned advocates for both the parties and perused the material available on record. At the outset, it is required to

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be noted that goods belonging to the present respondent were sought to be seized by the Sales Tax Authorities under the guise of mechanism evolved by the Sales Tax Authorities for recovery of the dues of the Sales Tax. The said action on the part of the Sales-Tax Authorities came to be challenged by the respondent before this Court by filing Special Civil Application No.17706 of 2003, wherein the interim-relief order came to be passed by the Division Bench of this Court asking the State Authorities to carry out a necessary inquiry with regard to the contentions raised by the petitioner in the said petition. Since the stock of kerosene worth 747.946 MT lying in the tank of GCPTCL, Dahej was detained by the Sale Tax Authorities, the respondent herein had filed Civil Application No.978 of 2004. The Division Bench of this Court vide interim order directed the Sales Tax Authorities to release the goods belonging to the respondent. However, instead of releasing the goods, the State Authorities have carried out an inspection at 2.00 a.m. (mid-night) falling between 19.02.2004 and 20.02.2004 and the irregularities, as recorded in the notice dated 03.02.2005 were found by the State Authorities and the goods belonging to the respondent were seized without issuing any notice in that regard to the respondent. The said action on the part of the State Authorities was challenged by the respondent by the respondent by filing an amendment application before this Court in the proceedings of Special Civil Application No.17706 of 2003 whereupon the Division Bench of this Court directed the State Authorities to release the detained stock. The Division Bench of this Court had further directed the State Authorities to initiate inquiry and complete the same on or before 30.06.2004. Pursuant to the same, the District Collector,

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Bharuch, passed an order dated 30.06.2004 ordering for seizure and confiscation of goods in question. The said order passed by the District Collector, Bharuch was challenged by the respondent by filing Special Civil Application No.8525 of 2004. The said SCA came to be allowed by this Court vide order dated 18.10.2004, as no notice as required under Section 6-B of the Act was issued by the State Authorities to the respondent. However, it was kept open for the State Authorities to take appropriate steps against the respondent after following the mandatory provisions of the Act. Thereafter, the notice dated 03.02.2005 came to be issued by the Collector to the respondent.

8. The aforesaid facts clearly indicate a high handed approach on the part of the State Authorities in handling the proceedings in question. At the first instance, the inspection was carried out by the State Authorities on 20.02.2004 that was immediately after the Division Bench of this Court passed an interim-order in Special Civil Application No.17706 of 2003.

9. It is pertinent to note that when the said interim-order came to be passed, the officer of the Sales Tax Department was present before the Court. Thus, the proceedings in question appear to have been initiated to circumvent the orders passed by this Court in Special Civil Application No.17706 of 2003.

10. The Sessions Court while passing the impugned judgment and order after examining the record before it, has recorded a finding that no illegality or irregularity has mentioned in the notice dated 03.02.2005 and the order dated 31.08.2005 were

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found.

11. It is settled legal position that the scope for this Court while exercising the jurisdiction under Section 397 of the Code is very limited. The powers under Section 397 of the Code are to be exercised in exceptional cases where an error of law appears to have been committed by the Court below. The Apex Court in its recent judgment in case of State Through Deputy Superintendent of Police Vs. R. Soundirarasu Etc. reported in 2023 (6) SCC 768 has observed that "the revisional power cannot be exercised in a casual or mechanical manner. It can only be exercised to correct manifest error of law or procedure which would occasion injustice, if it is not corrected. The revisional power cannot be equated with appellate power. A revisional court cannot undertake meticulous examination of the material on record as it is undertaken by the trial court or the appellate court. This power can only be exercised if there is any legal bar to the continuance of the proceedings ......"

12. In present case, the applicant-State has miserably failed in demonstrating any manifest error of law committed by the Sessions Court while passing the impugned judgment and order more particularly, when the proceedings in question itself appear to be a colourable exercise of powers as mentioned herein above. Under the circumstances, no case is made out and hence, the present application is hereby dismissed. Rule is discharged.

(M. R. MENGDEY,J) GIRISH