Telangana High Court
Kyasa Santhosh vs The State Of Telangana on 27 November, 2020
Author: K. Lakshman
Bench: K. Lakshman
HONOURABLE SRI JUSTICE K. LAKSHMAN
CRIMINAL PETITION No.5454 OF 2020
ORDER:
This Criminal Petition is filed under Section 482 read with 451 of the Code of Criminal Procedure, 1973, to quash the order dated 20.10.2020 in Crl.M.P. No.309 of 2020 in Cr.No.194 of 2020 passed by the learned Judicial Magistrate of First Class, Husnabad, and also for consequential direction of release of the crime vehicle.
2. Heard Mr. V. Srikantha Rao, learned counsel for the petitioner, and the learned Public Prosecutor appearing on behalf of respondent No.1 - State. Perused the entire material on record.
3. The crime vehicle bearing registration No.TS 36T 8541 (Mahindra Bolero) was seized in Crime No.194 of 2020 of Husnabad Police Station, Siddipet District. The petitioner is owner of the said crime vehicle. The offences alleged against accused Nos.1 and 2 in the said crime are under Section - 420 of IPC and Section 7 of the Essential Commodities Act, 1955 (for short 'Act').
4. The petitioner herein claiming to be the owner of the said crime vehicle, filed an application under Section 451 of Cr.P.C. vide Crl.M.P. No.309 of 2020 in Crime No.194 of 2020. The same was dismissed by the learned Magistrate on the ground that its jurisdiction to release the vehicle is expressly barred as per Section 6 of the Act.
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5. The petitioner has filed a Photostat copy of certificate of registration to show that he is the owner of the crime vehicle. Perusal of the said certificate discloses the same. Thus, there is no dispute with regard to petitioner's ownership over the crime vehicle. But, the fact remains is as to whether Magistrate Court is having jurisdiction to entertain an application for release of vehicle seized in a crime registered under the provisions of the Act.
6. In view of the same, it is apt to refer to Section - 6E of the Act for better appreciation of the case and to decide the issue in question, which is as under:
"6E. Bar of jurisdiction in certain cases.- Whenever any essential commodity is seized in pursuance of an order made under section 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 section 6A, the Collector, or, as the case may be, the State Government concerned under section 6C 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."
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7. The above said provision was inserted in the Act, 1955 by the Amendment Act No.92 of 1976 w.e.f. 02.09.1976. As per the said provision, it is clear that any other Court, Tribunal or Authority shall not have jurisdiction to make orders with regard to the possession, disposal, release of such vehicle or other conveyance seized in cases registered for the offence under the provisions of the Act. Thus, in the matter of order of confiscation of essential commodities except the Collector and the judicial authority as the case may be, the jurisdiction of the other Court, Tribunal or other authority is expressly barred to make any order in view of the specific bar engrafted under Section 6E of the Act.
8. In Shambhu Dayal Agarwala v. State of West Bengal1, the Apex Court held as under:
" It is obvious on a plain reading of this provision that the same was brought on the statute book with a view to debarring the courts from making any order with regard to the possession, delivery, disposal or distribution of any essential commodity seized under an order made under Section 3 of the Act. Section 7 prescribes the penalties for the contravention of any order made under Section 3 and provides for the forfeiture of the essential commodity to the government and for the forfeiture of the essential commodity to the government and for the forfeiture of any animal, vehicle or other conveyance used in carrying the said essential commodity, if the court so orders."1
. (1990) 3 SCC 549 KL,J Crl.P. No.5454 of 2020 4
9. It has further been held in later part of the above referred judgment as under:-
"6..........It provides that whenever any essential commodity is seized under an order made in exercise of power conferred by Section 3 in relation thereto no court, tribunal or other authority shall have jurisdiction to make any order with regard to the possession, delivery, disposal, release or distribution of such essential commodity save and except the Collector pending confiscation under Section 6-A, or the State Government concerned pending confiscation under Section 6-C."
8......... And now to the structural setting and context in which the word 'release' is used in Section 6-E. While debarring courts, tribunals and other authorities from exercising power in relation to the seized commodity, power is conferred on the Collector or the State Government concerned under Section 6-C, to make orders with regard to the possession, delivery, disposal, release or distribution of such commodity, etc. This power can be exercised pending confiscation. The power conferred by this section is unqualified. The word 'release' is preceded by the words 'possession, delivery and disposal' and followed by the word 'distribution'. The setting and context in which the word 'release' is used makes it clear that it is not used in the sense of 'return'. In the first place as pointed out earlier it would completely defeat the purpose and object of the Act if the essential commodity seized for suspected contravention of the order made under Section 3 is returned to the owner or person from whom it was seized even before the confiscation proceeding were completed. Such an intention cannot be ascribed to KL,J Crl.P. No.5454 of 2020 5 the legislature. Secondly, it is not possible to believe that the legislature would confer unqualified and unrestricted power to return the essential commodity to the owner or the person from whose possession it was seized before a decision whether or not to confiscate the same is taken. As the section stands, if the interpretation put by the learned counsel for the appellant is accepted, it would be permissible to the Collector to return or restore the commodity without imposing any condition, pending confiscation proceedings."
10. Finally, concluding paragraph of the above referred judgment states as under:-
"..........It seems to us that Section 6-E is intended to serve a dual purpose, namely (i) to prevent interference by courts, etc., and (ii) to effectuate the sale of the essential commodity under sub-section (2) and the return of the animal, vehicle, etc., under the second proviso to sub-section (1) of Section 6-A."
11. The above-stated judgment was followed by the Hon'ble Supreme Court in Oma Ram v. State of Rajasthan2, in which it has clearly been held that Section 6E of the Act deals with bar of jurisdiction of courts in certain cases except the Collector or the State Government, all other authorities including Magistrate has no jurisdiction to grant relief against seizure under Section - 457 of the Code. The Apex Court further held as under:
"Certain provisions of the Essential Commodities Act, 1955 have relevance. Section 6-A deals with 2 . AIR 2008 SC (Supp) 1844 KL,J Crl.P. No.5454 of 2020 6 confiscation of food grains, edible oil seeds and edible oils. Section 6-B deals with issue of show- cause notice before confiscation of food grains, etc. Section 6-E deals with bar of jurisdiction in certain case. Section 6-E has been substituted to provide that except the Collector or the State Government, all other authorities, judicial or otherwise, would be debarred from making any order with regard to the possession, delivery, disposal or distribution of any essential commodity, seized in pursuance of an order made under Section 3. Thus a Magistrate has no jurisdiction to grant relief against seizure under Section 457 Cr.P.C."
12. The decision rendered in Shambhu Dayal Agarwala1 and Oma Ram2 has been reiterated and followed by the Hon'ble Supreme Court in State of Bihar v. Arvind Kumar3, holding that the release order passed in favour of the respondents therein without regards to Section 6A and Section 6E of the EC Act, 1955 is improper.
13. The above analysis of statutory provisions and the law laid down by the Apex Court in the above referred cases would show that whenever any essential commodity is seized, under an order made in exercise of power conferred by Section 3 of EC Act, in relation thereto no court, tribunal or authority shall have jurisdiction to make any order with regard to possession, delivery, disposal, release or distinction of such essential commodity save and except the Collector pending confiscation under Section 6A of the EC Act, therefore, in the matter of making orders with regard to disposal of seized vehicle in 3 . AIR 2012 SC (Supp) 8 KL,J Crl.P. No.5454 of 2020 7 pursuance to order made under Section 3 of the Act, only the Collector or judicial authority, as the case may be, shall have jurisdiction to make orders with regard to the disposal of that vehicle/essential commodity seized in pursuance of order made under Section 6E of the EC Act. Jurisdiction of Magistrate to grant custody under Section 457 is expressly barred. Thus, there is no error in the order passed by the learned Magistrate dismissing the application filed by the petitioner for release of the seized vehicle warranting interference by this Court. The petition is devoid of merit and accordingly the same is liable to be dismissed.
14. Accordingly, the present Criminal Petition is dismissed confirming the order dated 20.10.2020 in Crl.M.P. No.309 of 2020 in Cr.No.194 of 2020 passed by the Judicial Magistrate of First Class, Husnabad. However, liberty is granted to the petitioner to approach the competent authority under the Act for release of the vehicle.
As a sequel, miscellaneous petition, if any, pending in the Criminal Petition, shall stand closed.
_________________ K. LAKSHMAN, J 27th November, 2020 Mgr