P.S. Brahme, J.
1. Heard the learned counsel for the parties.
2. Rule returnable forthwith.
3. Heard finally by consent of the learned counsel for the parties.
4. In all these writ petitions, a common question of law as to legality of the order passed by the Additional Collector in exercise of powers Under Section 6-A(1) of the Essential Commodities Act, 1955 (for short called 'the Act') as to confiscation of goods' truck belonging to the petitioner is involved. As such, by consent of the parties, all these petitions are decided by this common judgment.
5. The factual position in all these petitions is almost the same. To appreciate the question involved, for the sake of convenience, the facts in Writ Petition No. 350 of 2005 are stated in brief. In the midnight of 16-8-2002, the truck owned by the petitioner was raided by the Police Station Officer, Akot File Police Station, Akola (respondent No. 2). The truck was seized on the allegation that blue kerosene was used in the said truck as a fuel in contravention of the Kerosene (Restriction on the Use and Fixation of Ceiling Prices) Order, 1993 (for short called 'the Order'). The offence was registered against the petitioner. On 19-8-2002, a show cause notice was issued by the Collector, Akola to the petitioner which was duly replied vide reply dt. 26-8-2002. The Additional Collector vide order dt. 7-10-2002 (Annexure No. 1) released the truck on Suprutnama. As per the opinion of the Regional Forensic Science Laboratory vide its C.A. Report dated 31-12-2003 (Annexure-II), the sample-yellow green liquid of fuel sent by respondent No. 2 was diesel. However, fresh/second C.A. Report (Annexure III) was obtained by the respondents along with the covering letter (Annexure IV) of even date from the laboratory. The new C.A. Report allegedly indicated that the sample was that of kerosene and the letter dt. 20-2-2004 purportedly explained that the earlier report was issued inadvertently and that was in respect of some other samples. The respondent No. 1 (Additional Collector, Akola) passed the order dt. 28-2-2005 (Annexure-VII) placing reliance on the second C.A. Report (Annexure III) confiscating the truck in question. It is the contention of the petitioner that the proceeding before the Additional Collector was not properly maintained as per the usual practice, to give effect to mala fide designs of the respondents who were acting in collusion with the vested interest/business rivals of the petitioner. In spite of petitioner having objected to the second C.A. Report, the respondent No. 1, without giving personal hearing to him, proceeded to pass the order of confiscation of his truck.
6. The petitioner preferred an appeal before the Sessions Judge, Akola, Under Section 6C of the Act which was registered as Regular Criminal Appeal No. 10 of 2005 (Annexure No. VII). But the learned Sessions Judge refused to stay the order dt. 28-2-2005 vide its order dt. 6-4-2002. Aggrieved by the said order, the petitioner had approached this Court in its criminal writ jurisdiction. This Court vide order dt. 2-5-2005 (Annexure IX) dismissed the said writ petition as withdrawn as the learned Additional Public Prosecutor made a statement that the impugned order will not be implemented for a further period of three weeks within which the learned Sessions Judge was directed to decide the appeal. The learned 4th ad-hoc Additional Sessions Judge, Akola dismissed the appeal vide order dt. 4-6-2005 (Annexure-X). Hence, the petition.
7. In the background of the admitted facts, the learned counsel for the petitioner submitted that respondent No. 1 as well as the learned Sessions Judge failed to see the conspiracy of respondent No. 2, which was hatched in collusion with the vested interest and business rivals of the petitioner, which was apparent on the face of record. This was basically in obtaining the second C.A. Report to substantiate involvement of the' petitioner in commission of the offence and that is how, the proceeding before the Additional Collector was conducted and concluded stealthily without affording opportunity to the petitioner of personal hearing as contemplated under Section 6-B of the Act.
8. Petitioner's claim is controverted by respondent No. 1 by filing affidavit-in-reply. It is contended that after receiving the second C.A. Report dt. 20-2-2004, respondent No. 1 issued show cause notice to the petitioner which was served on him on 14-2-2005 and after the petitioner filed his submissions on 22-2-2005, the respondent passed the impugned order confiscating the truck. It is denied that the respondent passed the order without giving opportunity to the petitioner and that the respondent was bent upon to pass the order impugned with the intention to teach the petitioner a lesson. It is denied that the respondent passed the order without giving any opportunity of hearing to the petitioner. It is submitted that in the second report kerosene was detected in the sample and therefore, respondent No. 1, having satisfied that the petitioner has contravened the provisions of the Act as well as the order by using kerosene as a fuel for the truck, passed the order of confiscation.
9. It is denied that there was conspiracy against the petitioner. All the allegations made in the petition against the respondents are denied. It is contended that the impugned order is legal and the Appellate Court has rightly confirmed it.
10. In this matter, one Shriram Tryambak Vyas filed criminal application No. 1793 of 2005 seeking for intervention. Along with this application, several documents came to be filed as Annexure Nos. 1/1 to 1 -13. We have, by our order dated 12th July, 2005, disposed of this application. However, we permitted the learned counsel for the applicant/intervener to assist the learned A.P.P. in this matter. The learned counsel for the petitioner filed additional submissions in support of the petition and also in response to the said application for intervention. In that, it was emphasized that it is the practice of the Revenue Court/Tribunal to get signed the Rojnama from the respective parties or the counsel who attended day to day proceedings. That the Revenue Authorities are required to maintain Rojnama/ order-sheet in Form XII (Paragraph 7 of Chapter III) of the Revenue Manual. The petitioner annexed true copies of two of such order sheets maintained by respondent No. 1 which clearly demonstrates that the order-sheet/Rojnama is required to be maintained in the prescribed proforma which further prescribes a separate column for signatures of the parties or pleaders when necessary. It is contended that respondent No. 1 has obtained signature of Zakir Ali in all the cases in Rojnama/order-sheet dt. 5-10- ' 2002/7-10-2002. Perusal of Annexure-XIV, order-sheet dt. 28-3-2005, further reveals that even though the parties and their counsel were absent, same authority i.e. respondent No. 1 had granted them last chance and had posted the matter for future date when the matter was heard. In the present case, the petitioner's signature was not obtained on the order-sheet dt. 22-10-2002 which, in all probability, indicates that the petitioner was not made aware of the next date i.e. 28-10-2002. There is nothing on the order-sheet dt. 22-10-2002 from which it can be said that the counsel of the petitioner or the petitioner was given to understand that the matter was posted on 28-10-2002 for further hearing in the matter. Therefore, it was vehemently contended that respondent No. 1 adopted a different yard stick purposely with mala fide intention to conclude the proceedings stealthily behind the back of the petitioner without giving him proper opportunity of hearing, when it was mandatory Under Section 6-B of the Act to decide the proceedings only after giving personal hearing to the incumbent.
11. As regards the allegation about non-handling of possession of the truck, it is submitted that symbolic possession was already handed over vide copy of possession panchnama dt. 6-6-2005 as Annexure-15 which shows that symbolic possession of six trucks has been taken over by respondent No. 1 and their respective owners like petitioners have been entrusted with the upkeep of the respective trucks on behalf of the State. As regards the allegation that the truck which was released on suprutnama was hypothecated with Akola Urban Co-operative Bank Ltd. it is contended that there was no condition in the suprutnama that the same truck cannot be hypothecated. That the three conditions of suprutnama are: 1) the same should not be sold, 2) the petitioner would not make any change in the truck and 3) the same would be produced by the petitioner as and when directed by the Court. This could be found from the suprutnama dated 8th October, 2002 (Annexure-16).
12. It is contended that when the trucks were seized first 011 16-8-2002 and when they were released on suprutnama vide order dt. 7-10-2002, some of the trucks were under hypothecation as they were purchased on loan. But, with the passage of time, after repayment of loan amount, the bank had released the said trucks from hypothecation. The loan amount was paid after 7-10-2002 when the trucks were entrusted under suprutnama to the owners of the trucks like the petitioner.
13. As regards the allegation regarding the alleged prior knowledge of C.A. report, it is specifically submitted that the petitioner, as he was under the belief that the C.A. report was bound to be in his favour as he had not used kerosene as fuel, he made such a statement. Besides that, the petitioner was continuously approaching the respective Police Stations ascertaining the information about chemical analysis. During one of such visits, he had informed that police have received letter dt. 24-9 2003 from the respondent No. 1 seeking the information about the progress in the matter and in pursuance of the same, they had deputed a Constable to obtain the information from the Forensic Laboratory, Nagpur. It was further orally informed to the petitioner that the result of analysis is that the sample sent for analysis was found to be that of diesel. The petitioner in order to substantiate this contention,-placed reliance on letter dt. 24-9-2003 (Annexure-18). The petitioner had also pointed out the same to the Ad hoc Additional Sessions Judge by way of rejoinder dt. 4-9-2005 vide true copy as Annexure-19. A statement to that effect was made by M/s. Atlas Transport Company in its letter dt. 14-10-2003 and therefore, no mala fides can be attributed to the same.
14. The petitioner, having filed additional affidavit, the learned A.P.P. appearing for respondent No. 1 filed a detailed affidavit in rejoinder refuting petitioner's contentions.
15. We have given our thoughtful consideration to the submissions made by the learned counsel for the parties, so also the reasoning adopted by respondent No. 1 in passing the order of confiscation, as also the judgment and order passed by the Ad-hoc Additional Sessions Judge confirming the order of confiscation of the truck. We are of the view that the impugned order passed by the Authorities require re-consideration. In the first place, the provision contained in Section 6-B of the Act mandates giving reasonable opportunity of being heard to the incumbent. We reproduce Section 6-B of the Essential Commodities Act as under :
6-B. (1) No order confiscating (any (essential commodity, package, covering, receptacle, animal, vehicle, vessel or other conveyance)) shall be made under Section 6A unless the owner of such (essential commodity, package, covering, receptacle, animal, vehicle, vessel or other conveyance) or the person from whom (it is seized).
(a) is given a notice in writing informing him of the grounds on which it is proposed to confiscate the (essential commodity, package, covering, 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.
16. It is no doubt true that Under Section 6A of the Act the Authority is competent to pass order of confiscation of the vehicle if the Authority is satisfied that there has been contravention of the order. But, at the same time, it is provided further that when any animal, vehicles, vessel or other conveyance is used for carriage of goods or passengers for hire, the owner of such vehicle shall be given an option to pay in lieu of its confiscation a fine not existing market price at the date of seizure of the vehicle seized.
17. In the instant case, the truck was released on suprutnama under the orders of the Additional Collector on 7-10-2002. It is pertinent to note that though the sample of fuel used in the truck was sent for analysis, the report was not received when the order of releasing the truck was passed by respondent No. 1. It was on 31st December, 2003 that the first report of Chemical Analyser was received which, admittedly declared that the sample sent for analysis was that of diesel. It was in that background that respondent No. 1 in the order dt. 7-10-2002 (Annexure-I) specifically stated that the report of C.A. was awaited and the prosecution against the petitioner was pending and therefore, the action as to confiscation in pursuance of Section 6-A of the Act was stayed and subject to the report of C.A. as also decision of the prosecution initiated against the petitioner, the truck was ordered to be released on suprutnama. This itself shows that as the sample was not analysed, there was no prima facie material to the satisfaction of the competent authority i.e. respondent No. 1 to come to the conclusion that the petitioner has contravened the provisions of the Act as well as the order and therefore, it was thought fit to release the truck on suprutnama. But then, after a period of about 14 months the report of C.A. was received and as per the report (Annexure-II) it was found that the sample of fuel was that of diesel. That is the reason why no action of confiscation was taken till the second C.A. report dt. 20-2-2004 was received. As per this report, the sample of fuel used in the truck contained kerosene.
18. As the impugned order reveals, since kerosene was detected in the sample, the respondent No. 1, on the basis of that result of analysis, proceeded to pass the order of confiscation. In this context, it is pertinent to note that the report of C.A. was sent by the Office of Forensic Science Laboratory vide covering letter dt. 20-2-2004 (Annexure-IV). This letter purportedly explains that the earlier reports were issued inadvertently and they were in respect of some other samples. It is pertinent to note that the second C.A. report was obtained only after the petitioner had filed first C.A. report before this Court in W.P. (Civil) No. I/ 2004. A statement was made before this Court in that Writ Petition that the second set of sample would be sent for analysis. It is specifically contended by the petitioner that the second set of sample was never sent and the second C.A. report was based on earlier samples only. The petitioner has specifically denied the second C.A. report and contended that the petitioner has not contravened any provision of the Act. It is needless to say that if the result of analysis of the sample, as stated in the first report dt. 31-12-2003, is accepted, then prima facie no offence is committed by the petitioner. But, respondent No. 1 placing reliance on the second C.A. report, passed the order of confiscation of the truck. The question that arises for consideration is whether respondent No. 1 was right in accepting the explanation given in the letter, whereunder it is stated that inadvertently the first report was submitted in respect of samples in other cases without there being any material on record. The factual position is that the samples of fuel in the truck, rather part of it was very much with the police authorities. But that part of the sample was not sent for analysis, in spite of having received the letter dt. 20-2-2004. It was incumbent upon respondent No. 1, before accepting the second C.A. report, to verify that the said report relates to the sample of fuel of the truck owned by the petitioner. It is categorically contended by the petitioner that the second part of the sample of fuel was not sent to analysis. It was absolutely necessary for respondent No. 1 to go Into this question as the petitioner has, in his explanation, categorically denied the second C.A. report and authenticity of the same. In the absence of that, the second C.A. report itself becomes doubtful as nothing is clinchingly established to connect the second report of C.A. with the sample of fuel of the truck seized by the police.
19. In this context, the learned counsel for the petitioner has rightly placed reliance on the decision of our High Court in , Madhav Keshav Mirashi v. State of Maharashtra, in which it is held thus,
'Before an order of conviction under Section 7 or an order of confiscation under Section 6-A is passed, requirement to be proved is that there has been a contravention of any order issued under the Act. this being so, mens rea would be a necessary element to be proved before confiscation could be ordered. So far as Section 7 is concerned, an offence under that Section involves mens rea. If the provisions of Section 6-A are in part materia with those of Section 7, there is no reason why the element of mens rea should not form part of the breach of the rules alleged under Section 6-A. The act which constitutes the basis of prosecution as well as the basis of an order, an adjudication and confiscation being the same, it cannot be a different content under Section 6-A and Section 7 of the same Act.'
20. It is in this context, as has been rightly pointed out by the learned counsel for the petitioner, that the Authority in a proceeding for confiscation of vehicle has to apply his mind to come to the conclusion that at least prima facie offence has been committed. In the instant case, when petitioner has controverted the second C.A. report, which was admittedly contrary to the first C.A. report, on the basis of which prosecution was initiated, it was incumbent on respondent No. 1 to make inquiry into the second C.A. report to ascertain the truth as to the result of analysis vis-a-vis the sample in question instead of simplicitor accepting the explanation given by the C.A. in the letter. It shows that respondent No. 1 has not applied his mind inasmuch as the explanation given by the petitioner in his submission was not taken into consideration.
21. Even the Appellate Authority i.e. the 4th ad hoc Additional Sessions Judge has not applied his mind to the contentions raised by the petitioner, wherein he has reiterated his contentions raised in the submissions which he filed before the respondent No. 1. The learned .Additional Sessions Judge did not notice that respondent No. 1 has not gone into the controversy that was raised by the petitioner in denying the second C.A. report. It was necessary for the Appellate Authority to apply its mind to the explanation given by the petitioner and the circumstances of the case with a view to determine whether the offence has been committed by the petitioner when the second C.A. report is contrary to the first C.A. report. Therefore, in our view, even the Appellate Authority has committed an error in confirming the order passed by respondent No. 1.
22. We also find that the respondent No. 1 has not given opportunity of hearing to the petitioner. We have pointed out earlier that the petitioner submitted his, explanation in response to the notice on 22-2-2005, on which date, as it is revealed from the order sheet, the matter was adjourned to 28-2-2005. The record and proceedings of the matter goes to show that no signature of the petitioner or his counsel was taken to apprise them that the matter was adjourned to 28-2-2005 for further hearing. The order- sheet shows that on 28-2-2005 respondent No. 1 passed the impugned order as the petitioner was not present. When the order was challenged before the Appellate Authority a specific contention was raised, rather a grievance was made that the petitioner was not given proper opportunity of hearing. Respondent No. 1 as well as the Appellate Authority did not consider petitioner's grievance regarding opportunity of hearing only on the ground that the petitioner himself remained absent on 28-2-2005 and therefore, he is not entitled to make grudge that an opportunity of hearing was not given to him. We are of the considered view that the reasoning given by respondent No. 1 as well as the Appellate Authority in this regard is beyond our comprehension, so also in violation of the principles of natural justice.
23. If we consider the mandatory requirement of Section 6-B of the Act, as we have reproduced in the earlier part of the judgment, requirement of giving personal hearing or opportunity of hearing was in addition to giving opportunity to the incumbent to give explanation to the show cause notice. In this context, the learned counsel for the petitioner has rightly pointed out that the process for confiscation of truck was initiated almost three years after the order of releasing the truck on suprutnama and that too, when the first report given by the C.A. was positive to the effect that the fuel used for the truck was diesel. The petitioner has in his submissions placing reliance on the first C.A. report emphatically claimed that he has committed no offence or there was no contravention of the provisions under the Act. Therefore, respondent No. 1 was not justified in deciding the case unless petitioner was heard. As pointed out earlier, though as per the usual practice by the Revenue Authorities and particularly, respondent No. 1 in the proceedings before it, the signature of incumbent or his counsel is taken as an acknowledgment of next date in the matter, the contention of the petitioner appears to be plausible that he was not apprised of the next date of hearing of the proceedings. In view of the fact that no signature has been taken either of the petitioner or his counsel in the proceeding sheet dt. 22-2-2002, it is very difficult to agree with the respondent No. 1 that the petitioner remained absent on 28-2-2005 in spite of knowing that the matter was fixed on that date. Even accepting that the petitioner though knew that the matter was fixed on 28-2-2005, he remained absent, was it not incumbent for the authority to adjourn the matter so as to provide an opportunity to the petitioner to substantiate his explanation. It is needless to say that the second C.A. report was the basis on which depended the crucial question as to whether the petitioner has committed offence or not. In substance, in our opinion, though respondent No. 1 was well aware of the mandate Under Section 6-B of the Act as regards giving personal hearing and opportunity of hearing to the incumbent, the respondent No. 1 has decided the matter on 28-2-2005 in the absence of petitioner or his Advocate which, in our considered opinion, was in violation of principles of natural justice. The reasoning given by respondent No. 1 as well as the Appellate Authority that the petitioner has not produced material to substantiate his contention that the second C.A. report was obtained by fraud, is very fallacious. That was so in the background that, apparently on the face on record the second report is contrary to the first report and the consequences of acceptance of the second report were far reaching. In that context, it was necessary at least to have material on the record as to which sample was analysed visa-vis the second report. It was incumbent on respondent No. 1 at least to ascertain that the sample analysed by the C.A. in respect of the second C.A. report was pertaining to the sample of the fuel taken from the truck belonging to the petitioner. There is no material to show as to when the sample, in respect of which the second C.A. report pertains, was analysed by the C.A. In that context, it is also necessary to find out as to where that sample was lying arid in which condition, when the sample, in respect of fuel in the truck of the petitioner, was taken on 16-8-2002, while the second C.A. report is dt. 20-2-2004. This again makes the claim of C.A. vis-a-vis the second C.A. report doubtful when second part of the sample of fuel of the truck in question remained with the police officer concerned as that part of sample was not sent for analysis on the second time. The appellate authority has not applied his mind while considering the claim of petitioner in the appeal. That is why, in our opinion, even confirmation of the order by the appellate authority suffers from non-application of mind in proper perspective, as also in violation of the principles of natural justice.
24. The learned counsel for the petitioner, after pointing out the manner in which respondent No. 1 concluded the proceeding on 28-2-2005, submitted with emphasis that the petitioner was deprived of his right of option as provided under second proviso to Section 6A of the Act. The second proviso reads as under :
'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.'
25. The Apex Court in : [2000]2SCR24 , Deputy Commissioner, Dakshina Kannada District v. Rudolph Fernandes, considered the question whether fine in lieu of confiscation contemplated under the second proviso to Section 6A(1) of the Essential Commodities Act, 1995 provides for levy of fine on the basis of market value of the confiscated vehicle and not on the basis of the market price of the essential commodity sought to be carried by such vehicle. The Apex Court observed thus (para 6) :
'second proviso to Section 6A limits the power of the competent authority to recover fine upto the market price for releasing the animal, vehicle, vessel or other conveyance sought to be confiscated. So maximum fine that can be levied in lieu of confiscation should not exceed the market price. Relevant part of proviso would be : in the case of... vehicle... the owner of such... vehicle 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...vehicle'.
'The proviso requires the competent authority to give an option to the owner of such vehicle to pay in lieu of confiscation a fine exceeding the market price. What is to be confiscated is the vehicle and, therefore, measure of fine would be relatable to the market price of the vehicle at the date of seizure of the essential commodity sought to be carried by such vehicle. This would also be consistent with the scheme of Section 7 which provides for levy of penalty. It empowers the Court trying the criminal case to pass an order forfeiting to the Government any property in respect of which the order under Section 3 has been contravened.... Therefore, not only the essential commodity which is seized is to be forfeited, but the vehicle also could be forfeited to the Government. Hence, measure of fine which is required to be levied in lieu of confiscation under second proviso to Section 6A(1) would be relatable to the market price of the vehicle and not of the seized essential commodity.'
26. It is thus clear that for the authority who has conducted the proceedings for confiscation of the vehicle when there is contravention of Section 3 of the Act was required to give opportunity to the owner of the vehicle to give his opinion as provided under second proviso to Section 6A of the Act. Neither the authority i.e. respondent No. 1 nor the appellate Court took into consideration the provision under second proviso nor provided opportunity to the petitioner to exercise the option to pay fine to the extent of price of the vehicle in lieu of confiscation of the vehicle. It is true that in the proceedings before respondent No. 1 though the petitioner filed his submissions/ explanation on 22-2-2002, he did not remain present on 28-2-2002 when respondent No. 1 passed the order of confiscation. But, as observed earlier, no fault can be found with the petitioner for not appearing on 28-2-2005 as the record shows that the petitioner or his counsel were not apprised of the fact that the matter was to be taken on 28-2-2005. But, apart from that, what we feel is that respondent No. 1 failed in his duty to call upon the petitioner to ascertain whether he wanted to exercise option as provided under second proviso to Section 6A of the Act. It was mandatory on the part of the authority as the provision read in correct perspective goes to show that the order of confiscation cannot be passed unless the incumbent is given opportunity to opt for the option as to payment of fine equivalent to the market price of the vehicle. Therefore, merely because the petitioner failed to appear on 28-2-2005, the respondent No. 1 was not justified legally in passing the order of confiscation of the vehicle as the petitioner had no opportunity to exercise his option as provided under second proviso to Section 6A of the Act.
27. Even the appellate Court, as could be seen from the order impugned, has not properly dealt with this aspect of the matter. It is pertinent to note that even before the Appellate Court the grievance of the petitioner was that opportunity was not given to him by the competent authority i.e. respondent No. 1 before passing the order of confiscation. It is pertinent to note that before the appellate Court on behalf of the petition submission was made that as per Section 6A of the Act, an option to pay fine in lieu of confiscation must be given to the appellant. In that regard, the appellate Court has observed that in the explanation which the petitioner has given, it is not stated that in lieu of confiscation he was ready to pay fine at the market price of essential commodity and therefore, due to the aforesaid reason, the order of confiscation passed by the Additional Collector cannot be said to be illegal merely on the ground that he did not give option to pay fine to the petitioner in lieu of confiscation. In fact, no reasons are assigned by the Appellate Authority for rejecting the contention raised by the counsel for the petitioner in this regard. It is true that the petitioner in his explanation has not referred to his option as to payment of fine on confiscation of the vehicle. However, in our view, it was not necessary for the petitioner to say so or to contend so in his explanation. It was only after the Authority decides to pass an order of confiscation that the incumbent is required to give his option as to payment of fine in lieu of confiscation of the vehicle. It is very unfortunate that the Authorities below have not appreciated the contention of the petitioner in correct perspective. It is in this sense that respondent No. 1 has utterly failed to provide option to the petitioner as contemplated under second proviso to Section 6A of the Act. If that is so, then it is crystal clear that respondent No. 1 committed grave irregularity in passing the order of confiscation without taking into consideration the fact that the petitioner was deprived of his right of giving option as provided under second proviso to section 6A of the Act.
28. The learned counsel for the petitioner has rightly placed reliance on the decision of the Kerala High Court in (1983) 1 Crimes 424 in Satish and Co. Palghat v. State of Kerala, wherein it is held that it is clear from the express provisions in Section 6A and 6B of the Act, that before passing an order of confiscation, the concerned authority must be satisfied that there was contravention of a proviso of law touching the matter and there was proper and justifiable grounds for confiscation. It is not enough if the .Collector is satisfied that there is contravention of the Order, he must further be satisfied that there are proper and adequate grounds for passing an order of confiscation. In other words, mere violation of any of the clauses of the Order by itself will not be sufficient to pass an order of confiscation. All the relevant and material facts and circumstances must be subject to an objective test. That an order of confiscation is penal in nature and is a very drastic action. An enquiry in this regard must be a fair and proper one and not as a mere formality. The order of confiscation depends only on the satisfaction of the Collector of the District. The discretion vested in the officer in this regard must be exercised in a fair and judicial manner. Satisfaction Under Section 6A is not to be arrived at merely as the matter of Officer's opinion and therefore, a full enquiry as contemplated Under Section 6-B of the Act has to be conducted before an order of confiscation is made Under Section 6A of the Act.
29. In the decision reported in (1983) 1 Crimes 536, Firm Ramgopal Ramashanker v. State of M.P., it is held that in case of confiscation Under Section 6-A of the Act, the Authority conducting the proceeding must apply his mind in the matter of contravention of the provisions of the order. As we have stated in the earlier part of the judgment, the respondent No. 1 did not afford opportunity of being heard to the petitioner. He was not given opportunity to offer his option as regards the payment of fine in lieu of confiscation of the vehicle. Therefore, utter non-application of mind on the part of respondent No. 1 is reflected in this case.
30. In this context, the learned Additional Public Prosecutor appearing for the respondents placed reliance on the decision of our High Court in : 1999(5)BomCR487 , State of Maharashtra v. Lalit S. Nagpal. In that case, the Special Court, before whom the prosecution for contravention of the provisions of the Essential Commodities Act was pending, by an interim order passed, released all the property seized under the Act. Therefore, placing reliance on this decision, the learned Additional Public Prosecutor vehemently submitted that the Special Court constituted under the Essential Commodities Act has no jurisdiction to pass the interim order and as such, respondent No. 1 was right in confiscating the truck in question. It was, therefore, submitted that the Appellate Court has rightly exercising jurisdiction confirmed the order passed by respondent No. 1 as regards the confiscation of the truck. We are unable to accept this submission placing reliance on this decision. In the first place, the Sessions Judge was competent to decide the appeal as under the Statute jurisdiction was conferred on him and therefore, the petitioner has rightly preferred appeal before the Sessions Judge. The learned counsel for the petitioner has rightly pointed out that this decision will not come in the way of this High Court as this decision on which reliance is placed by the learned Additional Public Prosecutor is not applicable in view of lapse of the amended provision w.e.f. 31-8-1997. Under the old provision, appeal was provided to the State Government against the order of confiscation passed by the Collector whereas due to lapse of amendment on 31-8-1997, the appeal lies before the Sessions Court. This submission of the learned counsel for the petitioner gains support by the judgment of the Apex Court reported in : 2001CriLJ4772 , State of Tamil Nadu v. Paramasiva Pandian (1998) 1 Crimes 526, Mahesh Kumar Gupta v. Collector Shivpuri and the judgment of this Court reported in : 2000(5)BomCR889 , Purthviraj Chandrakant Shinde v. The State of Maharashtra.
31. The learned Additional Public Prosecutor urged that our jurisdiction under Article 226 of the Constitution of India is limited and we should not interfere with the findings of fact. Even assuming that to be so, we find that the petitioner is being deprived of a valuable property and if that deprivation is brought about by not following the procedure of law, it. would be obviously open to this Court to lay down the law in the matter and quash the order, if it is found that there has been no proper application of mind to the facts and circumstances of the case. The foregoing discussion which we have made in this judgment will show that the Additional Collector has failed to consider the explanation of the petitioner from proper point of view and the Appellate Authority has practically abdicated its functions as an Appellate Authority. In the circumstances, it is necessary for us to indicate how this matter must be dealt with. The Appellate Authority should have come to its own conclusion about the existence or non-existence of mens rea after examining the facts and circumstances of the case. That being not done, the order suffers from serious infirmity requiring rectification. That an authority being created as a full-fledged appellate authority under Section 6-C, it has all the powers of the original authority. It has also power to examine whether the discretion has been properly exercised by the Collector in passing the order under Section 6A and to substitute its own decision regarding discretionary powers in place of the exercise thereof by the original authority.
32. The learned counsel for the petitioner has rightly placed reliance on the decision of the Gujarat High Court in , Rajput Carrier v. State of Gujarat in which it is held that when no option is given to the owner of the tanker by the Authorities before its confiscation, the order of confiscation is illegal. Therefore, the contention of the learned counsel for the petitioner that the option to pay fine in lieu of confiscation of truck ought to have been given to him before passing the order of confiscation is well-founded. Since no such option was given by respondent No. 1 before order of confiscation of the truck, the action is contrary to law and must be held to be illegal and unlawful.
33. Before disposing of these petitions, we would like to consider Criminal Application No. 1847 of 2005 (respective applications in the other connected petitions) filed by the intervenor (in Criminal Writ Petition No. 350 of 2005) praying for directing the Government Regional Forensic Science Laboratory to produce original record of analysis of the sample relating to this matter and also for directing the responsible Officer from that office to file an affidavit explaining as to why the report dated 31-12-2003 concerning the samples not relating to these matters were sent to the Police' Station Officer, Akola. In fact, we have not permitted the applicant to intervene in the matter. But, at the same time, we have by our order passed on 8th July, 2005, permitted the learned counsel appearing on behalf of the intervenor to assist the learned Additional Public Prosecutor appearing for the respondent Nos. 1 and 2. It is crystal clear that this application came to be filed when, during the course of submissions made by the learned counsel for the parties, we have expressed that the disputed question of fact as to the correctness of the report of the C.A. as two contrary reports are on the record has to be dealt with either by respondent No. 1 while enquiring into the proceedings for confiscation of the truck or by the Judicial Magistrate before whom the prosecution is pending. It is pertinent to note that because of this disputed question regarding contrary reports of C.A. the learned Additional Public Prosecutor vehemently contended that this petition is not maintainable. So the controversy will have to be resolved either by respondent No. 1 or by the Magistrate and for that purpose it was his domain to call the Officer of the Regional Forensic Science Laboratory to produce the original record of the analysis of the sample and also to explain the controversy or inconsistency in the reports which he has submitted. In this view of the matter and also as we are allowing the petitions and remitting back the matter to respondent No. 1 for re-consideration of the order, we dispose of this application.
In the result, for the aforesaid reasons, we pass the following order.
ORDER
Criminal Writ Petition Nos. 350/2005, 351/2005, 352/2005, 353/2005, 354/ 2005,355/2005, 356/2005 and 357/2005 are allowed.
The impugned orders are quashed and set aside.
We direct respondent No. 1 to release the trucks of the petitioners on furnishing fresh suprutnama.
Respondent No. 1 is at liberty to conduct proceedings for confiscation of the trucks afresh and decide the same after giving full opportunity of hearing to the petitioners adhering to the observations made by us in this judgment.
We further direct that the Judicial Magistrate, before whom the criminal cases filed against the petitioners are pending, to dispose off the same as expeditiously as possible, preferably within a period of four months from the date of this order.
Rule is made absolute in the aforesaid terms.