DAHYABHAI MAGANBHAI PATEL Vs. COLLECTOR

JUDGEMENT

(1.) REVISIONIST , by preferring the present application, has challenged the legality and validity of the judgment and order dated 9th April, 1999, passed by the learned Additional Sessions Judge, Banaskantha at Palanpur in Criminal Appeal No. 54/1998 in exercise of powers vested in him under Section 6[c] of the Essential Commodities Act, 1955 [hereafter to be referred to as "the said Act"]. The learned Sessions Judge, by the impugned order confirmed the order of confiscation dated 12th October, 1998 passed by the Collector, Banaskantha at Palanpur in exercise of powers vested in him under Section 6[a] of the said Act.

(2.) IT is contended that both the orders, namely, order passed by the Collector as well as the order passed by the learned Additional Sessions Judge are illegal and erroneous if the legal provisions are considered. The order passed by the Collector is passed under a notion that the applicant was indulging in some processing activity which can be said to be manufacturing process and, therefore, he can be termed as "producer" within the meaning of Section 2[17][ii] of the Gujarat Essential Articles [Licensing, Control and Stock Declaration] Order, 1981 [hereafter to be called as "1981 Order"]. It was consistent stand of the applicant that he is resident of Palanpur, that he is in the profession of roasting peanuts and he is doing simple job work by establishing a system to roast peanuts which is popularly known as "Bhattha". He was charging Re.1/ - per kg of the material received by him from third parties and he was also doing work for himself. On these facts, according to Mr. Mehul Rathod, learned counsel for the applicant were placed by the applicant. At the time of inspection on 23rd September, 1998, about 103 gunny bags having 45 kgs of peanut each were lying at his place. Initially, no seizure order was served to him at the time of preparing rojnama of inspection carried out. It has come on record that the place inspected was neither shop nor godown. It was a place where Bhattha is located. Even large stock of salt was also found, because, in most of the cases, peanuts are being roasted after making them salty. For the sake of arguments if it is accepted that some stock was of the ownership of the applicant, even then, he does not fall in the category of "producer" as defined in Clause -[17] of Section 2 of 1981 Order. According to Mr. Rathod, Clause[17] of Section 2 has been misread by the Collector, who has put the applicant in the definition of "producer", because, roasting of peanut cannot be said to be manufacturing activity. It was the say of the applicant that most of the stock was of the ownership of the persons who had asked him to roast their peanuts, their names were also disclosed and bills were also shown to the inspecting team. In response to the notice to show cause issued to the applicant, this documents were again referred to and names of 6 persons having ownership of 17 to 18 gunny bags were also disclosed. Not only that, but all the 6 persons had also approached the Collector to see that their goods seized erroneously are released at the earliest. Keeping in mind the relevant legal provision that each party can keep stock of 30 quintal of oil seeds, the authority ought not to have held that the applicant had kept stock of more than 30 quintals. There is no allegation of marketing and as the applicant was doing job work and there were speaking circumstances to show that the applicant is operating Bhattha and even salt was also lying there in large quantity, no stock was required to be confiscated. Misreading of Clause[17] of Section 2 of 1981 Order only had taken the Collector to the erroneous finding. As such, the Collector ought to have held that as the applicant does not fall in the category of either "producer" or "dealer", provisions of 1981 Order would not be attracted. The Collector had no jurisdiction to exercise powers under Section 6[a] of the said Act.

(3.) WHILE appreciating the arguments of Mr. Rathod, it emerges that definition of "producer" in Clause -[17] of Section of the 1981 Order appears to have been misread by the Collector. While putting liability over the shoulders of a person branding him as producer, the Collector was supposed to consider the circumstances and the explanation given by such person and other facts that were available before him. There is no dispute as such that 6 persons as owner of different quantity of material out of the seized material had claimed that their goods may be released stating that the same have been seized erroneously. The Collector ought to have called them. It was also possible for the District Supply Officer to cross -check the genuineness of the bills produced during the inspection. Even the person who sold the material is also named in the proceedings. But the order of Collector appears to be totally silent on all these aspects. It would be beneficial to reproduce Clause [17] of Section 2 of 1981 Order referred by the Collector in his order as also by the learned Sessions Judge while dealing with the appeal preferred by the present applicant.