Smt. Pushpa Devi vs State of U.P.

S.C. Agarwal, J.—This criminal revision u/s 397/401 of the Code of Criminal Procedure is directed against the judgment and order dated 8.4.2010 passed by the A.C.J.M.-Ist, Bijnor, in Case Crime No. 48 of 2010 (State v. Kripal Singh and Ors. Case Crime No. 48 of 2010.), u/s 3/7 Essential Commodities Act, P.S. Kotwali Shahar, District-Bijnor, whereby the application filed by revisionist-applicant Pushpa Devi for opening the seized establishment situated at Village-Nondarhu was rejected.

In brief, the facts are that on 28.1.2010 at Dhampur-Noorpur Road, Bijnor, near village Nondarhu, S.D.M. Accompanied by Supply Inspector, Dhampur inspected the establishment of the revisionist and seized petrol, diesel and dispensing unit as well as the establishment. The samples were sent to Forensic Science Laboratory, Agra for analysis. The FIR was lodged against the owner and salesman u/s 3/7 E.C. Act with the allegations that the accused persons were accumulating and selling diesel and petrol illegally.

On 8.3.2010, an application was filed by the revisionist Pushpa Devi wife of accused Kripal Singh for de-sealing the establishment on the ground that she was a dealer of Bio-diesel supplied by Gomti Bio-tech Ltd, Haldwani and this commodity is not covered by Essential Commodities Act.

Learned Magistrate called for a report from the police and rejected the application vide order dated 8.4.2010 on the ground that the establishment of the applicant had not been sealed but only dispensing unit, 8 drums diesel and underground tanks had been sealed.

Heard Sri Manish Tiwary, learned Counsel for the revisionist and learned AGA for the State.

Learned Counsel for the revisionist submitted that the revisionist is the dealer of Bio-diesel, which is not an essential commodity and the S.D.M. as well as a Supply Inspector had no authority to seize the Bio-diesel or to seal the establishment of the revisionist and learned Magistrate, though noted the contentions raised by the revisionist, did not decide the same and rejected the application on the ground that establishment had not been sealed. The contention is that underground tanks, dispensing unit and Bio-diesel have been seized and sealed and the Magistrate was not right in saying that establishment had not been sealed.

The State was granted time to file counter affidavit but despite sufficient opportunities, no counter affidavit had been filed.

The samples were taken on 28.1.2010 and were sent to Forensic Science Laboratory, Agra for analysis. The Analysis Report must have been received by now. The learned Magistrate was obligated to record a finding on the basis of analysis report as to whether the seized commodity was diesel or Bio-diesel as claimed by the revisionist. It was also imperative on the part of the Magistrate to prima-facie see whether provisions of Essential Commodities Act were applicable in the instant case or not.

The underground tanks and dispensing unit have been sealed, how can it be said by the Magistrate that the establishment of the applicant-revisionist had not been sealed. Even if the case was covered by provisions of E.C. Act, the seized articles could have been removed by the State Officers and officials from the disputed premises but the learned Magistrate has not considered any of the above contentions raised by learned Counsel for the applicant-revisionist. Therefore impugned order cannot be sustained and is liable to be set aside.

The revision is allowed. The impugned order dated 8.4.2010 passed by the A.C.J.M.-Ist Bijnor is set aside. Learned Magistrate is directed to disposed of the application dated 8.3.2010 filed by Pushpa Devi afresh giving a specific finding whether the seized commodity was diesel or Bio-diesel and whether the same was covered by provisions of E.C. Act. If the commodity is not covered by E.C. Act, the Magistrate shall order for release of the seized property and de-sealing the establishment of the revisionist and if on the other hand, the commodity seized is found to be diesel, which may be covered by the provisions of E.C. Act, the Magistrate may direct authorities concerned to dispose of the same in accordance with law and to vacate the property of the applicant-revisionist.