Allahabad High Court
Shyam Singh Kushwaha vs State Of U.P. And Anr. on 27 March, 2012
Author: Vinod Prasad
Bench: Vinod Prasad
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved AFR Criminal Misc. Writ Petition No.5468 of 2011 Shyam Singh Kushwaha ..................... Petitioner. Versus State of U.P. and another ......................Respondents. Hon'ble Vinod Prasad, J.
Writ petitioner Shyam Singh Kushwaha has invoked the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India praying for issuance of a writ of certiorari for quashing the impugned order dated 24.7.2010 passed by Ist ACJM Etawah and earlier two orders dated 5.2.2011 and 8.3.2011 passed by learned Special Judge E.C. Act Etawah, Annexure nos.1, 2 and 3, respectively to this writ petition.
From the pleadings made in the petition the recapitulated background facts indicate that the petitioner is the owner of DCM Truck MP 09-GE 5233, which was financed by Kotak Mahindra Bank with Rs.38,167/-, as it's E.M.I. which, the petitioner was regularly paying. Ramu was the driver of the aforesaid vehicle. Annexure No.4 to the petition are the papers regarding the registration of the aforesaid vehicle and various documents in respect of loan advanced to the petitioner. Genuineness of these document are not in dispute. On 2.7.2010, aforesaid vehicle was checked by Incharge Inspector, Kotwali, Jaswant Nagar at 9.30 p.m. on the Highway towards Kachora and 132 bags of rice laden on it were seized by SDM Jaswant Nagar. Driver of the vehicle made his escape good but the three passengers travelling in it disclosed his identity as Ramu son of Raghuveer, resident of Mohammadpur. Rice bags had inscriptions of Food Corporation of India and it whereof 15 k.g. each, which were meant for public distribution system and consequently, according to the prosecution, the driver had breached PDS Control Order, 2001, which was punishable under Section 3/7 ET Act. DCM was brought to P.S. Jaswant Nagar and was detained there and the laden rice, which weighed 66 Quintals, were given in the supurdagi (custody) of Shiv Kumar, husband of Munni Devi, shopkeeper of Sishant fair price shop. At the direction of the District Magistrate, recovery and seizure culminated in registration of FIR of Crime No.276 of 2010 under Section 3/7 EC Act at P.S. Jaswant Nagar, district Etawah against the driver Ramu vide Annexure No.5 to the writ petition.
Ramu, after being arrested, applied for his bail and the same was allowed by this Court in Criminal Miscellaneous Bail Application No.21231 of 2010, Ramu Vs. Sate of U.P. on 11.8.2010, vide Annexure no.6 to the petition.
The petitioner after gaining knowledge about seizure of his vehicle moved for it's release before ACJM, court no.1, Etawah but was unsuccessful to obtain a release order from the court as ACJM, vide its order dated 24.07.2010, opined that, in respect of the said vehicle, a proceeding for confiscation was under consideration before District Magistrate, Etawah under Section 6A of the E.C. Act. In this respect, it is pertinent to mention here that vide Annexure No.7, a show cause notice was issued by District Magistrate, Etawah, on 16.7.2010, to the petitioner as well as to the driver Ramu calling from them to show cause as to why seized rice, which was being carried for the purposes of black marketing and the vehicle, be not confiscated in favour of the State. By the aforesaid notice, District Magistrate had fixed 4.8.2010 at 10 a.m. for appearance of the petitioner and his driver and for filing of reply to show cause notice. D.M. has further intimated them that, if they want, they can lead evidence in support of their claim and, in the event, no explanation is offered by them, it will be presumed that they do not have to offer any explanation and ex-parte decision shall be taken.
Being aggrieved by the order dated 24.07.2010 passed by ACJM court no.1, Etawah, a revision was taken up before learned Special Judge E.C. Act by the writ petitioner unsuccessfully, as his revision too was dismissed. Subsequent thereto, writ petitioner moved a release application, on 4.2.2011, vide annexure No. 8, before learned Special Judge E.C. Act, Etawah but on 8.3.2011, his prayer for release was rejected by the revisional court by observing that when confiscation proceeding is pending before the District Magistrate, question of release of the vehicle does not arise. Hence, this petition challenging the inaction on the part of lower authorities to release petitioner's vehicle. As an exemplar petitioner has filed Annexure no.9, which is an order passed by learned Special Judge E.C. Act by which order, he has released Tractor No. UP 75 K 9938 with similar allegations and hence petitioner has also alleged bias against the Special Judge, EC Act.
In above background facts, I have heard learned counsel for the petitioner and Sri Patanjali Mishra, learned AGA representing both the respondents, State of U.P. as well as Supply Inspector and have critically examined the material on record.
It is contended by learned counsel for the petitioner that the petitioner had no knowledge about the involvement of his vehicle in the aforesaid crime and pending consideration of confiscation proceeding, retaining of the vehicle at the police station Jaswant Nagar will not serve any purpose and, therefore, the vehicle should have been released to the petitioner. It is next contended that all the three impugned orders firstly, dated 24.7.2010 passed by A.C.J.M., Court No. 1, Etawah, secondly, order dated 5.2.2011 passed by, learned Special Judge (E.C. Act), Etawah in Criminal Revision No. 148 of 2010 and thirdly, order dated 8.3.2011 passed by learned Special Judge (E.C. Act), Etawah, Annexure nos. 1 to 3 respectively to the writ petition are illegal and have to be quashed. Petitioner also prayed for a mandamus to be issued against the respondents to release the aforesaid vehicle DCM MP 9- GE 5233 to the petitioner pending consideration of it's confiscation proceeding. In support of his submissions, petitioner's counsel relied upon various decisions of the Apex Court as well as of this Court in Sundar Bhai Amba Lal Desai Vs. State of Gujrat 2003 (1) JIC 615; State of M.P. and others Vs. Rameshwar Rathore 1990 (27) ACC 480; Rameshwar Shanker Yadav Vs. State of U.P. 2010 (68) ACC 16; Shabir Ali Faridi Vs. State of U.P. and others 2009 (2) ADJ 172; Virendra Pal Singh Vs. State of U.P. 2008 (60) ACC 481; Sirajuddin Vs. State of U.P. and others 2011 (8) ADJ 753; Shiv Shanker Vs. Judicial Magistrate-IInd, Jaunpur and others 2010 (1) JIC 257 (All.d.); and Maharani Deen Bind Vs. State of U.P. and others 2012 (76) ACC 219. Armed with aforesaid decisions, writ petitioner contended that the petition be allowed and impugned orders be set aside.
Learned AGA conversely submitted that the vehicle of the petitioner was involved in transportation of the rice belonging to the Public Distribution System meant for poor people and was involved in black marketing and since, confiscation proceeding in it's respect, was pending before the District Magistrate, the vehicle cannot be released to the petitioner. In the event vehicle is confiscated, writ petitioner will not be entitled to possess it and, in case, vehicle is not confiscated, it will be released to the petitioner or his driver. It is, therefore, contended that the writ petition is bereft of merits and be dismissed and only a direction should be issued for expediting confiscation proceedings.
I have considered the facts and circumstances of the petition and have gone through the decisions cited at the bar by the petitioner. So far as facts are concerned, it is not in dispute that the vehicle DCM belonging to the petitioner was involved in crime no. 276 of 2010, under section 3/7 E.C. Act. Papers, which have been filed as Annexure no. 4 to the petitioner indicate that the petitioner is the registered owner of the aforesaid vehicle. From his pleading, it transpires that he had no knowledge about transportation of rice belonging to the Public Distribution System. Petitioner has challenged the entire seizure for this reason. In respect of the said vehicle, confiscation proceeding was pending before the District Magistrate / Collector under section 6-A of the E.C. Act. It was during pendency of aforesaid confiscation proceedings that an application for release of the vehicle was filed before A.C.J.M., Court No. 1, Etawah in concerned crime no. 276 of 2010 by the writ petitioner. The said application was heard and rejected vide order dated 24.7.2011, vide Annexure no. 1, by the learned Magistrate, which is one of the impugned orders under challenge in the instant writ petition and has been prayed to be quashed. While passing that impugned order, learned Magistrate had taken note of various decisions cited before it, both of the Apex Court as well as of this Court, and has opined that where the confiscation proceeding is pending before the District Magistrate, under section 6-A of the E.C. Act, in respect of a property regarding which a breach of any control order has been alleged under section 3, then only the Collector is entitled to order for it's release in view of provisions of section 6-E of the E.C. Act. Learned Magistrate further held that sections 451 and 457 Cr.P.C., is not applicable in such fact situation and hence, he had no jurisdiction to order for release of the vehicle. This order by the Magistrate, Annexure no. 1, was subjected to challenge in criminal revision no. 148 of 2010 before learned Special Judge (E.C. Act), Etawah who, vide Annexure no. 2, dated 5.2.2011 (another impugned order in the instant writ petition) returned the finding that the view of the Magistrate that only the District Magistrate had the jurisdiction to order for release of the vehicle, under section 6-E of the E.C. Act, is not correct and is illegal. Lower Revisional Court further held that under section 6-E of the Act, District Magistrate as well as the Judicial Authority appointed by the State Government under section 6-C can order for said release. It however, affirmed A.C.J.M's opinion that A.C.J.M. had no power to order for release of the vehicle. While dismissing the revision by the impugned judgment dated 5.2.2011, learned Special Judge (E.C. Act), Etawah granted liberty to the writ petitioner, that if he so desires, he could move an application for release of the vehicle before appropriate Court. In pursuance of the order by the lower revisional court, Annexure no. 2, writ petitioner moved an application before learned Special Judge (E.C. Act), Etawah, but the same was dismissed vide Annexure no. 3 dated 8.3.2011 on the basis of a decision by this Court in Jogendra Prasad Vs. State of U.P. and others 2011 (1) JIC 132. Consequently, the writ petitioner has come up to this Court.
In such recapitulated facts, the question which arises for consideration is as to whether the Special Judge (E.C. Act), Etawah had got the power to release the vehicle pending consideration of confiscation proceeding before District Magistrate or not, in accordance with provisions of section 6-A, read with sections 6-C and 6-E of the E.C. Act or not? For deciding cropped up legal proposition, sections 6-A, 6-C and 6-E of the E.C. Act are reproduced below:-
"6-A (1) Confiscation of foodgrains, edible oilseeds and edible oils.- Where any [essential commodities is seized] in pursuance of an order made under Sec. 3 in relation thereto, [a report of such seizure shall, without unreasonable delay, be made to], the Collector of the district or the presidency-town in which such [essential commodity is seized] and whether or not a prosecution is instituted for the contravention of such order, the Collector [may, if he thinks it expedient so to do, direct the essential commodity so seized to be produced for inspection before him, and if he is satisfied] that there has been a contravention of the order, [may order confiscation of-
(a) the essential commodity so seized;
(b) any package, covering or receptacle in which such essential commodity is found; and
(c) any animal, vehicle, vessel other conveyance used in carrying such essential commodity]:
Provided that without prejudice to any action which may be taken under any other provision of this Act, no foodgrains or edible oilseeds seized in pursuance of an order made under Sec. 3 in relation thereto from a producer shall, if the seized foodgrains of edible oilseeds have been produced by him, be confiscated under this action:
[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.] [(2)] Where the Collector, on receiving a report of seizure or on inspection of any essential commodity under sub-section (1) is of the opinion that the essential commodity is subject to speedy and natural decay or it is otherwise expedient in the public interest so to do, he may-
(I) order the same to be sold at the controlled price, if any, fixed for such essential commodity under this Act or under any other law for the time being in force ; or
(ii) when no such price is fixed, order the same to be sold by public auction :
[Provided that in the case of any such essential commodity the retail sale price whereof has been fixed by the Central Government or a State Government under this Act or under any other law for the time being in force, the Collector may, for its equitable distribution and availability at fair prices, order the same to be sold through fair price shops at the price so fixed.] (3) Where any essential commodity is sold, as aforesaid, the sale-proceeds thereof, after deduction of the expenses of any such sale or auction or other incidental expenses relating thereto, shall-
(a) where no order of confiscation is ultimately passed by the Collector ;
(b) where an order passed on appeal under sub-section (1), of Sec. 6-C so requires; or
(c) where in a prosecution instituted for the contravention of the order in respect of which an order of confiscation has been made under this section the person concerned is acquitted, be paid to the owner thereof or the person from whom it is seized.] 6-C. Appeal.-(1) Any person aggrieved by an order of confiscation under Sec. 6-A may, within one month from the date of the communication to him of such order, appeal to [the State Government concerned and the State Government] shall, after giving an opportunity to the appellant to be heard, pass such order as it may think fit confirming, modifying or annulling the order appealed against.
(2) Where an order under Sec. 6-A is modified or annulled by [the State Government] or wherein a prosecution is instituted for the contravention of the order in respect of which an order of confiscation has been made under Sec. 6-A, the person concerned is acquitted, and in either case it is not possible for any reason to [return the essential commodity seized] [such person shall, except as provided by sub-section (3) of Sec. 6-A, be paid] the price therefor [as if the essential commodity] had been sold to the Government with reasonable interest calculated from the day of the seizure of [the essential commodity] [and such price shall be determined-
(i) in the case of foodgrains, edible oilseeds or edible oils, in accordance with the provisions of sub-section (3-B) of Sec. 3;
(ii) in the case of sugar, in accordance with the provisions of sub-section (3-C) of Sec. 3; and
(iii) in the case of any other essential commodity in accordance with the provisions of sub-section (3) of Sec. 3.
[6-E. Bar of jurisdiction in certain cases.- Whenever any essential commodity is seized in pursuance of an order made under Sec. 3 in relation thereto, or any package, covering or receptacle in which such essential commodity is found, or any animal, vehicle, vessel or other conveyance used in carrying such essential commodity is seized pending confiscation under Sec. 6-A, the Collector, or, as the case may be, the State Government concerned under Sec. 6-C shall have, and, notwithstanding anything to the contrary contained in any other law for the time being in force, any Court, Tribunal or other Authority shall not have jurisdiction to make orders with regard to the possession, delivery, disposal, release or distribution of such essential commodity, package, covering, receptacle, animal, vehicle, vessel or other conveyance.]"
From a joint reading of the aforesaid provisions it is evident, without any ambiguity, that whether a prosecution is launched or not, District Magistrate has got the power to order for confiscation of the essential commodity, packages etc. and also the vehicle in which, it was being transported, in case of contravention of any provisions of any of the control order is made under section 3 of the E.C. Act in respect of any essential commodity. The parent provision of section 6-A (1) has to be read in conjunction with section 6-A(3) of the E.C. Act, which provides that where no order of confiscation is passed, or where under the order passed in appeal, under section 6-C, or where the person charged with offence under the E.C. Act is acquitted, then the owner of the commodity or the person from whom it has been seized is to be returned the sale proceeds of the essential commodity. The natural corollary is that the vehicle and the packages, covering, receptacle etc. and the vehicle, animal, vessel or conveyance has also to be returned to the person, who is entitled for the same. Harmonious construction of the aforesaid two provisions section 6-A (1) and 6-A (3) yield to such a conclusion. Under section 6-C, an order of confiscation can be challenged in an appeal. The said sub section has been subjected to various amendments from time to time, which has been noted by the lower revisional court in the impugned order dated 5.2.2011, Annexure no. 2. Initially, an appeal against confiscation order under section 6-A(1) lay before the Session's Judge. Subsequently, by amending Act 18 of 1981, for a period of 15 years, appellate power vested with the Session's Judge was transferred to the State Government by the legislature and hence appeal against confiscation under section 6-A(1) used to be filed before the State Government and were heard and decided by Secretary Food and Civil Supplies, Government of U.P., Lucknow. The amendment however, was for a fix term of 15 years and was infused with life on 1.9.1982 and, consequently, it lost it's efficacy on 31.8.1997. From that cut of date, the appeal against confiscation again became maintainable before the learned Session's Judge concerned. Since power to hear Essential Commodities Act cases was conferred on Special Judge (E.C. Act) and, therefore, under section 6-C of the E.C. Act, Special Judge (E.C. Act) became the appellate authority. In view of provisions of section 6-E, the Collector as well as Special Judge, can order for confiscation and release and consequently, there remains no doubt that learned Special Judge (E.C. Act) had got the power to order for release of the vehicle pending confiscation proceeding before the District Magistrate. This legal aspect is more than evident by a bare reading of section 6-E, whereunder following words have been incorporated "such essential commodity is seized pending confiscation under section 6A, the Collector, or, as the case may be, the State Government concerned under section 6C shall have, and ...........". The words "State Government", as noted above has been substituted with the words "Judicial Authority appointed by the State Government" and, therefore, the law as it stands today is that the District Magistrate or the Judicial Authority under section 6-C, Special Judge, E.C. Act, can order for such a release.
Analyzed in the light of the said statutory provision and the exposition of law, so far as Annexure no. 3 i.e. impugned order dated 8.3.2011, is concerned, the same is indefensible. Learned Special Judge (E.C. Act), Etawah rejected the prayer of the writ petitioner for release of the vehicle on the basis of a decision of this court in Jogendra Prasad (supra). Perusal of the said decision, specially paragraph 10 thereof, clearly indicates that learned Special Judge (E.C. Act), Etawah completely misapplied said ruling on the facts of the present case and in fact, he seems to have not understood the imported of the said decision. In paragraph 10, this Court has held that if a final order of confiscation has been passed then, so far as release of the vehicle is concerned, the said prayer becomes infructuous or redundant, so long as the confiscation order stands, unless it is set aside. After final order of confiscation, vehicle could not be given or released in interim custody. This aspect of the matter is more than clear from the reading of paragraph 10 of the aforesaid decision, which is quoted herein below:-
"10. The seized Wheat has been confiscated vide order dated 17.5.2010 passed by Additional District Magistrate (Finance and Revenue), Ballia (Annexure No. 14 to the writ petition). The petitioner has not challenged in this petition the order passed by A.D.M. (Finance and Revenue). Unless the order passed by A.D.M. (Finance and Revenue) confiscating the Wheat is challenged, the petitioner is not entitled to release of the Wheat. After confiscation of the Wheat in favour of the State, even if the order passed by Chief Judicial Magistrate and the order passed by learned Additional Sessions Judge in revision are quashed, even then the petitioner would not be able to get the release of Wheat in his favour, as the same has already been confiscated in favour of the State. The order confiscating the Wheat has not been challenged by the petitioner. Unless the order passed by Additional District Magistrate (Finance and Revenue), Ballia is set aside by a competent authority, the same will remain in force and the Wheat cannot be ordered to be released in favour of the petitioner."
The situation in the present writ petition is slightly different. Till now no final order of confiscation has been passed by the District Magistrate. The confiscation proceeding is still in the offing and, therefore, learned Special Judge (E.C. Act), Etawah was competent to consider the prayer for release of the vehicle. In such a view, so far as Annexure no. 3 to the writ petition is concerned, it is susceptible to criticism and is illegal and cannot be upheld.
Turning towards various decisions cited at the bar, which has been noted herein above, it is not essential for me to dilate and deliberate those decisions as, I have come to the conclusions that impugned order dated 8.3.2011, Annexure no. 3 to the writ petition is illegal and cannot be affirmed. In view of above, so far as Annexure nos. 1 and 2 to the writ petition are concerned, those orders cannot be set aside by issuance of a writ of certiorari, as the opinion by the A.C.J.M. and the lower revisional court in them, are in consonance with law and has to be affirmed. To that extent, the writ petition stands dismissed. However, Annexure no. 3, the last order passed by learned Special Judge (E.C. Act), Etawah, is indefensible and cannot be sustained and has to be set aside. The said order is hereby quashed by issuance of writ of certiorari and the matter is remanded back to the learned Special Judge (E.C. Act), Etawah or his link officer to consider the case of the petitioner for release of the vehicle pending consideration of it's confiscation proceeding in respect of vehicle no. DCM MP 9- GE 5233. Learned Special Judge (E.C. Act), Etawah is directed to consider the said prayer positively within one month from the date of production certified copy of this order.
Writ petition is partly allowed to the aforesaid extent.
Cost is made easy.
This order is directed to be communicated to the Special Judge (E.C. Act), Etawah for compliance without unreasonable delay by the office of this Court.
Dt.27.3.2012 Rk/Arvind/-