Rajasthan High Court - Jodhpur
State Of Rajasthan Through The ... vs Bhanavi Agro Pvt. Limited on 21 November, 2022
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision Petition No. 520/2022
1. State Of Rajasthan Through The Secretary, Food And Civil
Supplies Department , Government Of Rajasthan
2. The District Supply Officer, Udaipur
----Petitioners
Versus
1. Bhanavi Agro Pvt. Limited, F 318, Industrial Area,
Kaladwas, Udaipur Through Its Director Shri Diwakar
Agarwal
2. R.P. Agarwal S/o Late Sh. Lala Babu Ram Agarwal,
Resident Of 421, Panchratan Complex, Bedla Road
3. Diwakar Agarwal S/o Shri R.P. Agarwal, Director Bhanavi
Agro Pvt. Ltd. Resident Of 421, Panchratan Complex,
Bedla Road
----Respondents
For Petitioners : Mr. Karan Singh Rajpurohit, A.A.G.
Mr. Rajat Arora
For Respondents : Mr. Dhirendra Singh, Sr. Adv. assisted
by Ms. Priyanka Borana
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Judgment Reserved on 14/11/2022 Pronounced on 21/11/2022
1. This Criminal Revision Petition under Section 397/401 Cr.P.C. has been preferred claiming the following reliefs:-
"It is, therefore, most respectfully prayed on behalf of the petitioners that this revision petition may kindly be allowed and the impugned order dated 13.08.2015 passed by learned Sessions Judge, Udaipur may kindly be quashed and set aside. Any other relief which this Hon'ble court, deems, proper may kindly be given in favor of the petitioner".
2. Brief facts of the case as placed before this Court by learned counsel for the State-petitioners are that the respondents were found to be in possession of sacks of imported food grains, namely (Downloaded on 21/11/2022 at 09:10:08 PM) (2 of 21) [CRLR-520/2022] red wheat, and that the same was used for manufacturing processed flour. On information being received by the concerned State authorities, that the respondents were engaged in black market activity and illegal sale/purchase of the red wheat, a raid was conducted and the said food grain was seized. Pursuant thereto, the District Collector, Udaipur initiated proceedings under Section 6A (1) of the Essential Commodities Act, 1955 (hereinafter referred to as 'Act of 1955'). And that the respondents were found to be flouting the order passed under Section 3 of the Act of 1955, and consequently the seized imported red wheat was confiscated. Subsequently, a criminal case was registered against the respondents under Section 3/7 & 3/8 of the Act of 1955 and the same is pending trial. For the sake of brevity, the Section 6A is reproduced as hereunder:-
"6A. Confiscation of essential commodity.― (1) Where any essential commodity is seized in pursuance of an order made under section 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 or other conveyance used in carrying such essential commodity:(Downloaded on 21/11/2022 at 09:10:08 PM)
(3 of 21) [CRLR-520/2022] Provided that without prejudice to any action which may be taken under any other provision of this Act, no food grains or edible oil seeds in pursuance of an order made under section 3 in relation thereto from a producer shall, if the seized food grains or edible oil seeds have been produced by him, be confiscated under this section:
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) where no such price is fixed, order the same to be sold by public auction:
Provided that in case of food grains, 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 fixed by the Central Government or by the State Government, as the case may be, for the retail sale of such food grains to the public.
(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 or confiscation is ultimately passed by the Collector,
(b) where an order passed on appeal under sub-section (1) of section 6C so requires, or
(c) where in a prosecution instituted for the contravention of the order in respect of which an order of confiscation has (Downloaded on 21/11/2022 at 09:10:08 PM) (4 of 21) [CRLR-520/2022] been made under this section, the person concerned is acquitted, be paid to the owner thereof or the person from whom it is seized."
3. Learned counsel for the State-petitioners submitted that in the proceedings initiated under Section 6A of the Act of 1955, it was the case of the State that the respondents could not have come into the possession of the imported red wheat since it was to be distributed under the public distribution system through fair price shops. And that the fair price shopkeepers were provided with the imported red wheat by cooperative distributing agencies which had originally procured the said food grain from the Food Corporation of India ("F.C.I."), which was, in turn, imported the same from Australia.
3.1 Learned counsel further submitted that the samples, taken from the seized commodity, were sent to the F.C.I. for verification and the report of the same, came back positive. 3.2 Learned counsel also submitted that the imported red wheat is not available in the free/open market for sale or purchase and thus such large quantities procured from the respondents imply foul play on their part. Furthermore, it was submitted that the respondents failed to prove purchase of imported red wheat by way of furnishing purchase bills corresponding to such purchase/sale.
3.3 Learned counsel also submitted that assuming arguendo that the respondents had purchased the seized commodity in question, the imported red wheat, no bills corresponding to the same were ever produced and neither any proof was furnished in respect of buying the said seized commodity from the auction exercise (Downloaded on 21/11/2022 at 09:10:08 PM) (5 of 21) [CRLR-520/2022] undertaken by the concerned Government. And that, during the course of the investigation of the criminal case, statements of the traders have been recorded to the effect that against bills submitted by the respondents, no such sale of imported red wheat was made.
3.4 Learned counsel also submitted that taking into consideration the above aspects, the District Collector, Udaipur issued an order of confiscation, dated 18.02.2014, in exercise of powers under Section 6A (1) of the Act of 1955, which came to be challenged by the respondents by way of appeal, under Section 6C of the Act of 1955, before the learned Sessions Judge, Udaipur; whose order dated 13.08.2015 impugned herein set aside the aforementioned order of confiscation, while directing that the amount of Rs.59,01,000/- realized by way of auctioning of the seized commodity, being the imported red wheat in question, be refunded.
For the sake of brevity, Section 6C of the Act of 1955 is reproduced hereinunder:-
"6C. Appeal.― (1) Any person aggrieved by an order of confiscation under section 6A may, within one month from the date of the communication to him of such order, appeal to any judicial authority appointed by the State Government concerned and the judicial authority 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 section 6A is modified or annulled by such judicial authority, or where in a prosecution instituted for the contravention of the order in respect of which an order of confiscation has been made under section 6A, the person concerned is acquitted, and in either case it is not (Downloaded on 21/11/2022 at 09:10:08 PM) (6 of 21) [CRLR-520/2022] possible for any reason to return the essential commodity seized, such persons shall, except except as provided by sub-
section (3) of section 6A, be paid the price therefore 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 food grains, edible oil seeds or edible oils, in accordance with the provisions of sub-section (3B) of section 3;
(ii) in the case of sugar, in accordance with the provisions of subsection (3C) of section 3; and
(iii) in the case of any other essential commodity, in accordance with the provisions of subsection (3) of section 3." 3.5 Learned counsel also brought to the attention of the Court that a writ petition being S.B. Civil Writ Petition No. 11690/2017 (State of Rajasthan & Anr. Vs. Bhanavi Agro Pvt Limited & Ors.) was preferred against the impugned order dated 13.08.2015, passed by the learned Sessions Judge, Udaipur, on behalf of the petitioners before this Hon'ble Court, which came to be summarily dismissed, as not maintainable, vide judgment dated 22.07.2019. The said judgment dated 22.07.2019 reads as under:
"The present writ petition under Article 227 of the Constitution of India has been filed against the order dated 13.08.2015, passed by the learned Sessions Judge, Udaipur in Criminal Appeal No.120/2014, arising out of the proceedings under Section 6A of the Essential Commodities Act, 1955 (hereinafter referred to as "the Act of 1955").
In response to the Court's query regarding maintainability of the writ petition under Article 226/227 of the Constitution, against the order passed by a Court of criminal jurisdiction, learned counsel for the petitioners submits that as the Act of 1955 bars jurisdiction of Courts against the order passed under Section 6C of the Act of 1955, the petitioners are justified in invoking supervisory jurisdiction of this Court under Articles 226 and 227 of the Constitution of India.(Downloaded on 21/11/2022 at 09:10:08 PM)
(7 of 21) [CRLR-520/2022] In considered opinion of this Court against the order dated 13.08.2015, passed by the learned Sessions Judge, Udaipur under Section 6C of the Essential Commodities Act, 1955, no writ petition under Article 226/227 of the Constitution of India is maintainable.
That apart, in an identical matter (S.B. Civil Writ Petition No.11880/2017; State of Raj. & Anr. Vs. Shyam Lal), this has dismissed the writ petition, involving the identical question while observing as under:
"The impugned order is challenged principally on the ground that the Sessions Court has no jurisdiction to entertain the appeal under Section 6C of the Essential Commodities Act. However, despite a pertinent query being raised by the Court in this behalf, Mr. L.R. Bishnoi, learned DyGC, was unable to apprise the Court of any notification issued by the State Government, whereby it can be constructed that the appeal under Section 6C of the Essential Commodities Act has to be registered as a civil appeal and can be entertained only by the District Judge concerned..........."
The writ petition is accordingly dismissed. The Stay Petition No.10872/2017 also stands dismissed.
Needless to observe that the petitioners shall be free to take appropriate remedy available under the law."
4. Learned counsel for the State-petitioners placed before this Court the following issues for its consideration and made arguments accordingly;
4.1 Whether Section 293 Cr.P.C. is applicable in the proceedings before the Collector under Section 6A (1) of the Act of 1955.
"293. Reports of certain Government scientific experts.--
(1) Any document purporting to be a report under the hand of a Government scientific expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code.(Downloaded on 21/11/2022 at 09:10:08 PM)
(8 of 21) [CRLR-520/2022] (2) The Court may, if it thinks fit, summon and examine any such expert as to the subject-matter of his report.
(3) Where any such expert is summoned by a Court, and he is unable to attend personally, he may, unless the Court has expressly directed him to appear personally, depute any responsible officer working with him to attend the Court, if such officer is conversant with the facts of the case and can satisfactorily depose in Court on his behalf.
(4) This section applies to the following Government scientific experts, namely:--
(a) any Chemical Examiner or Assistant Chemical Examiner to Government;
(b) the Chief Controller of Explosives;
(c) the Director of the Finger Print Bureau;
(d) the Director, Haffkeine Institute, Bombay;
(e) the Director 1[, Deputy Director or Assistant Director] of a Central Forensic Science Laboratory or a State Forensic Science Laboratory;
(f) the Serologist to the Government;
(g) any other Government scientific expert specified, by notification, by the Central Government for this purpose."
4.1.1 It was submitted that the provisions of the Cr.P.C. cannot be made applicable to proceedings before the Collector under Section 6A(1) of the Act of 1955 as the exercise of the power of the Collector is as an administrative/executive exercise, and not an exercise done as a judicial authority. And that, only when a prosecution is instituted before a competent judicial forum, would the provisions of the Cr.P.C. become applicable, as under Section 12 of the Act of 1955. Reliance in this regard was placed upon the judgment rendered by the Hon'ble High Court of Judicature at Allahabad in the case of M/s. Sahu Brothers v. Government of U.P. 1992 SCC Online All 1207.
Relevant portion of the aforesaid judgment as relied upon by the learned counsel is reproduced as hereunder:- (Downloaded on 21/11/2022 at 09:10:08 PM)
(9 of 21) [CRLR-520/2022]
"7. The first question now which arises for
consideration is whether the Collector, in the present case, is functioning as judicial authority. The word "Collector" has been defined in Section 2(iia) of the Essential Commodities Act which includes an Additional Collector and such other officer, not below the rank of sub-Divisional Officer, as may be authorised by the Collector to perform the functions and exercise the powers of the Collector under this Act. The word "Collector" has not been defined in the Code of Criminal Procedure. As a matter of fact the Collector is a District Revenue Officer. He exercises revenue functions which have been passed to him under the U.P. Zamindari Abolition and Land Reforms Act, U.P. Land Revenue Act and other revenue laws of the State. While working under these Acts the Collector does not act Magistrate but he works on the administrative side. Section 7 of the Act provides penalties against a person who contravenes any of the order made under Section 3. Section 11 of the Act provides for cognizance of the offence which provides that no Court shall take cognizance of any offence punishable under this Act except on a report in writing of the facts constituting such offence by a person who is a public servant. Section 12 of the Act provides for constitution of Special Courts of a Single Judge and the qualifications for appointment of such Judge have been given in sub-clause (3) to Section 12-A of the Act. Therefore, this Act postulates two kinds of authorities who can work independent of each other; one authority which is concerned with the seizure and confiscation of the goods. Against the order of confiscation of the goods under Section 6-A of the Act a right has been conferred on the person aggrieved to prefer an appeal under Section 6-C of the Act. But when a report of the offence is made then the work is to be done by the regular Court and in the present case by a Special Judge who is appointed under Section 12 of the Act. After taking cognizance of the offence the orders passed by the Special Judge shall be called judicial orders and they are amenable to the jurisdiction of the High Court because special Judge will be a Court inferior in rank than the High Court and the High Court can issue direction in appropriate case under Section 482 of the Code of Criminal Procedure. But as regards the order of confiscation under (Downloaded on 21/11/2022 at 09:10:08 PM) (10 of 21) [CRLR-520/2022] Section 6-A and the decision on appeal under Section 6 -C, this work is done by the executive authorities. Thus, the orders passed by the executives under Sections 6-A and 6-C of the Act are administrative in nature and they cannot be said to be judicial orders. These authorities are not amenable to the control of the High Court and no direction under Section 482 of the Code of Criminal Procedure can be issued in these proceedings. A brief reference may be made to the case of Thakur Das v. State of Madhya Pradesh, (1978) 1 SCC 27 : AIR 1978 SC 1. In that case, the Sessions Judge was appointed as appellate authority by the State Government under Section 6-C of the Act. The Hon'ble Supreme Court held that the Court of Sessions Judge was not appointed a persona designata but it was constituted under the Code of Criminal Procedure and indisputably it is a Court which is inferior in relation to the High Court in exercise of powers conferred by Section 6-C of the Act. This case was decided under the old Act. Now, as seen in the earlier part of the Judgement, this right of appeal to the Sessions Judge has been taken away and this power has been conferred on the State Government. If the order in appeal was passed by a Sessions Judge then naturally that would be a judicial order and would have been amenable to jurisdiction of the High Court but as in the present case the order has been passed by the State Government acting on the administrative side, it cannot be said that the Joint Secretary who passed that order on behalf of the State Government, is an inferior Court in relation to the High Court. In view of these provisions of law this Court cannot issue any directions under the provisions of Section 482 of the Code of Criminal Procedure. It is, therefore, held that the order passed by the Joint Secretary to the State Government is an administrative order passed by an executive officer, hence it is not amenable to the jurisdiction of the High Court under the provisions of Section 482 of the Code of Criminal Procedure." 4.2 Whether proceedings under Section 6A of the Act of 1955 are summary in nature, or final.
4.2.1 It was submitted that the nature of proceedings under Section 6A of the Act of 1955 is summary in nature, and that the (Downloaded on 21/11/2022 at 09:10:08 PM) (11 of 21) [CRLR-520/2022] subjective satisfaction of the Collector in terms of the said Section suffice, and that the learned Sessions Judge failed to appreciate the same. And that as per Section 6C (2) of the Act of 1955, if an accused is acquitted in the prosecution initiated against him for the penalty under Section 7, the amount to the confiscated commodity would be returned despite passing of the confiscation order under Section 6A of the Act of 1955. Reliance in this regard was placed upon the judgments rendered by the Hon'ble High Court of Judicature at Patna in the cases of Surendra Kumar Jhunjhunwala v. State of Bihar 1990 SCC Online Pat 205 and Lal Babu Tiwari and Anr. v. State of Bihar 1990 SCC Online Pat 57.
Relevant portions of the said judgments, as relied upon by the learned counsel, are reproduced as hereunder:-
In Surendra Kumar Jhunjhunwala (supra):-
"21. On careful perusal of the decisions and the relevant provisions of the Act as contained in Sections A, 6-C and 7 of the E.C. Act, I am of the considered opinion that the finding of the Collector in confiscation proceeding cannot be considered to be conclusive or even decisive for the purpose of holding whether or not cognizance should have been taken or prosecution initiated for any contravention of the provisions of any order issued in pursuance of Section 3 of the Act should or should not continue. The jurisdiction given to the Collector for initiating the confiscation proceeding and the finding arrived at by him in this regard have a completely different objective and has nothing to do with the question of finding any person guilty or not guilty for any alleged contravention of the provisions of any order issued in pursuance of Section 3 of the E.C. Act. It may be noticed that confiscation proceeding may be started even without lodging a prosecution. The material on which the Collector has to be satisfied as to whether there is any (Downloaded on 21/11/2022 at 09:10:08 PM) (12 of 21) [CRLR-520/2022] contravention or not for the purpose of confiscation is different from the materials which are to be considered by the Special Court for the purpose for coming to a finding whether or not any person is guilty of any contravention. The standard of proof required for the Collector in order to satisfy himself regarding contravention for the purpose of confiscation is different from the standard of proof required for finding a person guilty of the offence punishable under Section 7 of the E.C. Act. The Collector has primarily to be concerned with the way in which the seized articles (Essential Commodities) has to be dealt with and that is the focus of his attention while exercising jurisdiction given to him under Section 6A of the E.C. Act. Ordinarily he has to consider at that stage the report of the seizure, which has to be made without delay to him according to requirement of the provisions of Section 6-A of the E.C. Act and to consider and hear on show cause if filed in pursuance of notice that is given under Section 6-B of the E.C. Act. The result of the investigation in respect of the alleged contravention by any person is not normal available to the Collector at the time he decides the confiscation proceeding and the way as to show the seized articles should be disposed of. All this would indicate that the Collector while exercising his jurisdiction in confiscation proceeding and the Special Court while exercising the jurisdiction of trying any person against whom contravention of any order issued under E.C. Act, is alleged are having different objectives and different materials and they have to act on different standard of proof in exercising their respective jurisdiction. The finding of the Collector in confiscation proceeding, therefore, cannot be considered by itself to be a ground for quashing any order of taking congnizance or any criminal proceeding before the Special Court.
22. Indeed, some provisions of the Act clearly go to indicate that the Collector's finding in confiscation proceeding is only tentative and subject to ultimate decision given by the Special Court in cases in which the prosecutions have been launched against any person for contravention of the order issued by the E.C. Act, relating to which the Collector has also initiated a confiscation proceeding under Section 6-A of the E.C. Act. Sub-section (2) of Section 6-C and sub-section (5) of Section 6-A (Bihar (Downloaded on 21/11/2022 at 09:10:08 PM) (13 of 21) [CRLR-520/2022] Amendment which corresponds to sub-section (3) of Section 6-A of the Central Act, inter alia, provides that if a person charged with any contravention is acquitted, the essential commodities which were confiscated after seizure, would be returned, and in case if it had been sold, the price of the same along with 'reasonable interest' shall be paid to the person. Section 7 of the Act provides that in case the person concerned is found guilty of an offence for contravening any order issued in pursuance of Section 3 of the Act, the property shall be forfeited. Thus it appears that whatever order had previously been passed by the Collector in the confiscation proceeding, that is not final, because in case of acquittal of the person concerned, the articles has to be returned or if it has been sold during the course of confiscation proceeding, its price along with reasonable interest has to be paid to the concerned acquitted person, while if he is held guilty, the article has to be forfeited even if the Collector might have dropped the confiscation proceeding.
23. So in view of what I have stated in the preceding two paragraph, I am of the opinion that the aforesaid decisions relied upon by Mr. Dayal seem to have given undue primacy and conclusiveness to the finding/decision of the Collector in confiscation proceeding and it is observed respectfully that they do not seem to lay down correct law so far as they go to indicate that after and because of a finding of the Collector in a confiscation proceeding in favour of the person against whom prosecution has been lodged in the Special Court for contravention of an order issued in pursuance of the provisions of Section 3 of the E.C. Act, the continuance of the prosecution shall be an abuse of the process of the court."
In Lal Babu Tiwari and Anr. (supra):-
"13. This also shows that the award of any confiscation under this Act by the Collector shall not prevent the infliction of any punishment to which the person affected thereby is liable under this Act. If this is true, then the converse may also be true namely that if the Collector decides to release the seized goods for the reasons recorded by him it will not mean that the offender cannot be prosecuted and punished under the (Downloaded on 21/11/2022 at 09:10:08 PM) (14 of 21) [CRLR-520/2022] provisions of Section 7 of the Act. Also a reference may be made to subsection (5)(c) of Section 6A of Bihar Amendment. Section 6A(3) provides that the food grains seized under the provisions of sub-section (1) has to be sold through fair price shops at the price fixed by Central Government or the State Government, as the case may be. Sub-section (5) provides that where any essential commodity is sold, as aforesaid, the sale-proceeds thereof after deduction of all expenses of the sale or auction, as the case may be, shall be paid to the owner thereof or the person from whom it is seized, in the case of prosecution of the owner in respect of which an order of confiscation has been made under this section and where the person concerned is acquitted. This shows that an order of confiscation and the sale of the confiscated articles can be made under the previsions of Section 6A against the owner who is standing his trial under section 7 of the Act and in case of his acquittal the sale proceeds can be paid to the owner thereof or the person from whom it is seized. This also shows that the findings of the Collector with respect to confiscation and sale will not be binding on the court trying the offender under section 7 of the Act and the court can come to an independent finding and acquit the offender. It may further be noticed that the first proviso to section 6A(1) shows that the order of confiscation can be passed by the Collector without prejudice to any action which may be taken under any other provisions of this Act. These are some of the instances to show that section 6A and section 7 of the Act are independent provisions and while under section 6A the order of confiscation can be passed by the Collector if he is satisfied that there has been a contravention of the order, under section 7 of the Act a person is liable to punishment to various terms of imprisonments if it is found that he has contravened any order made under section 3. Section 7(1)(B) provides that any property in respect of which the order has been contravened shall be forfeited to the Government. This also shows that the Special Judge while trying an offender under section 7 of the Act can order for the forfeiture to the Government any property in respect of which the order has been contravened. So while section 6A relates to the confiscation of the goods by the Collector, if he is satisfied that there has been a contravention of (Downloaded on 21/11/2022 at 09:10:08 PM) (15 of 21) [CRLR-520/2022] the order made under section 3 of the Act, Section 7 provides that apart from the various terms of the imprisonments to which the offender may be liable, even the property in respect of which the order has been contravened shall be forfeited to the Government. From this it would also appear that under section 6A of the Act the power is given to the Collector for confiscation of the essential commodity for contravention of the order made under section 3. Under section 7 power is given to the criminal court to punish a person who contravenes the order made under section 3. Thus the two jurisdictions are different. Under section 6A the Collector can only confiscate the commodity. He cannot convict a person for contravention of the order and sentence him to imprisonment. Under section 7 a Magistrate can convict a person and sentence him to imprisonment. He cannot confiscate the essential commodity. He can only forfeit it. Merely because the Collector had not chosen to confiscate the essential commodity under section 6A, it does not mean that the Special Judge cannot convict a person under section 7 for the contravention of the order made under section 3. This has been so held in the case of A. Krishnaiah v. State (1981 Cri. L.C. 577 (A.P.)
14. It is clear that the confiscation proceedings are quite independent of and unconnected with taking cognizance of the offence for the purpose of punishing contravention of the Act or order made thereunder. So if the confiscation proceedings under section 6A are dropped it has no effect on the criminal proceeding from the stage of taking cognizance. This view finds support from the case of Ramesh Chandra Darabudu v. State 1986 (1) Cr. L.J. 644 (Orissa). However, the converse would not be true as held in the case of Ashok Kumar v. State of U.P. (1984 A.L.J. 876) that if the accused is acquitted in the criminal proceeding during the pendency of confiscation proceeding in appeal, then an order holding that it will have no effect on confiscation proceeding on the basis of its being independent and separate is erroneous. Its effect will render all confiscation proceeding without jurisdiction.
15. To sum up, a reading of section 6A itself shows that the prosecution is not barred. It specifically provides that when an essential commodity is seized in persuance of an order made (Downloaded on 21/11/2022 at 09:10:08 PM) (16 of 21) [CRLR-520/2022] under section 3 and, whether or not the prosecution is instituted for the contravention of such order, the Collector may direct the essential commodity so seized to be produced before him. Similarly clause (c) of sub-section (3) of section 6A provides that 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, if the concerned person is acquitted he shall be paid the sale proceeds. It only means that the sale proceeds should be paid even when that person is prosecuted for contravention of the order and when he is acquitted even though there was an order of confiscation by the Collector. A reading of section 6-D makes it clear that the order of any confiscation by the Collector shall not prevent the infliction of any punishment to which the person affected thereby is liable under this Act. Under section 7 of the Act, if a person contravenes any of the Order made under section 3, he can be punished with imprisonment. Therefore, in view of section 6D the order of the confiscation under the Act by the Collector does not prevent infliction of the punishment, under section 7. Evidently, therefore, it would appear that the power exercisable under section 6A of the Act is summary in nature in the sense that it is to be exercised for the limited purpose, namely, for confiscation or release of the seized goods. Section 6A of the Act does not envisage a regular trial and it has nothing to do with the merits of the criminal case even though confiscation itself may have penal consequences."
4.3 Whether Section 6A (2) of the Act of 1955 would be applicable in the present case.
4.3.1 It was submitted that the said Section provides for the sale of seized commodity whereas Section 6A (1) provides for confiscation, and that the exercise of confiscation was undertaken by the concerned Collector under Section 6A (1) of the Act of 1955, and that since Section 6A (2) has not been invoked, the proviso to Section 6A (2) would also therefore not apply, and thus the finding recorded by the learned Court below, that the (Downloaded on 21/11/2022 at 09:10:08 PM) (17 of 21) [CRLR-520/2022] petitioners could not have auctioned the seized commodity in question, being the imported red wheat, is erroneous and not sustainable in the eye of law. Reliance in this regard was placed upon the judgment rendered by the Hon'ble High Court of Judicature at Allahabad in the case of Krishna Gopal v. State of U.P. 1986 EFR 268; it was submitted that in the said case, it was held that the order for sale under Section 6A sub-section (2) of the Act of 1955 cannot be equated with the actual order of confiscation under sub-section (1) of Section 6A and that since an appeal under Section 6C is provided only against the order of confiscation, the appeal filed before the learned Sessions Judge against the order for sale of the seized commodities pending proceedings for confiscation, was not sustainable in the eye of law.
5. On the other hand, Mr. Dhirendra Singh, learned Senior Counsel assisted by Ms. Priyanka Borana, appearing on behalf of the respondents, opposed the submissions made on behalf of the State-petitioners, and submitted that the learned Court below, has passed the order impugned, after taking into due consideration the overall facts and circumstances of the case, and the evidences placed on the record. And that, the order of the Court below has dealt with the issues raised by the learned counsel appearing for the State-petitioners, and hence does not deserve this Court's indulgence in the instant matter.
6. Learned Senior Counsel placed reliance on the judgment rendered by the Hon'ble High Court of Chattisgarh, Bilaspur in the case of Sunil Kumar Jaiswal v. State of Chhattisgarh (CRMP No.1213/2017) alongwith a connected petition (Downloaded on 21/11/2022 at 09:10:08 PM) (18 of 21) [CRLR-520/2022] No.1475/2017 (Amit Dubey Vs. State of Chhatisgarh), decided on 15.07.2019.
For the sake of brevity, the relevant portion of the said judgment is reproduced as hereunder:-
"22. Learned counsel for the petitioners have placed heavy reliance on Supreme Court decision in the case of Rameshwar Rathod (supra). What has been observed in para-6 of that judgment goes to show that provision contained in Section 6-A and Section 7 of the EC Act were pressed into service to advance that jurisdiction of the Criminal Court would be ousted, to which Their Lordships replied by observing that under the Criminal Procedure Code, the Criminal Courts of the country have the jurisdiction and the ouster of the ordinarily Criminal Court in respect of a crime can only be inferred if there is irresistible conclusion flowing from necessary implication of the new Act. The observation were made repelling the argument of ouster of jurisdiction of Criminal Court in respect of a crime. In the case of Shambhu Dayal Agarwala (supra) the statutory scheme contained in Section 6-A to 6-E was considered in great details that jurisdiction of all Courts, Tribunal and Authority would be ousted.
23.The provision relating to bar of jurisdiction under Section 6-E of the EC Act has an overriding effect in view of non- obstante clause. True it is that this non-obstante clause using the expression " notwithstanding anything to the contrary contained in any other law " refers to any law other than the Act in which the provision with non-obstante clause exists, but it is equally well settled that the special provision attracted by non- obstante clause will have overriding effect on any other law of general application on the subject to the extent it is inconsistent therewith.
25.An order of confiscation passed under Section 6-A of the EC Act is appealable under Section 6-C of the Act. The remedy of appeal, as Section 6-C of the EC Act reads, is available only to the person aggrieved by an order of confiscation under Section 6-A. The appellate authority has been empowered to pass such order as it thinks fit, confirming, modifying or annulling order appealed against. During the (Downloaded on 21/11/2022 at 09:10:08 PM) (19 of 21) [CRLR-520/2022] pendency of the said appeal, the status of essential commodity or other things is that of a confiscated good. Therefore, the power of jurisdiction under Section 6-E of the EC Act puts an embargo on the jurisdiction of any Court, Tribunal, Authority and it is only the judicial authority concerned, which shall have exclusive jurisdiction at the stage of pendency of appeal, in the same manner as the Collector had prior to passing of the order of confiscation. This is the only conclusion which can be drawn in view of interpretation of Section 6-E of the EC Act by the Supreme Court in the case of Shambhu Dayal Agarwala (supra).
The proceedings of confiscation or the proceedings in appeal under Section 6-C of the Act against an order of confiscation are not matters of investigation, inquiry or trial for alleged commission of any offence under Section 7 of the EC Act. As has already been discussed herein-above, the prosecution for alleged commission of offence under Section 7 of the EC Act and scheme of confiscation as contained under Section 6-A to 6-E are independent, different and are governed by separate set of provisions. Once an essential commodity or incidental property is seized under Section 6-A or where an appeal is pending before the judicial authority, as provided under Section 6-C of the Act, the sole repository of power would be the Collector or Judicial authority as the case may be and only those authorities, to the exclusion of all, are empowered to pass appropriate order regarding disposal, release etc. as provided under Section 6-E of the EC Act.
In the ultimate analysis, we are of the considered opinion that the bar of jurisdiction as envisaged under Section 6-E of the EC Act gets attracted no sooner 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. From that stage, till disposal of the appeal as provided under Section 6-C of the Act, the Collector or the Judicial Authority, as the case may be, depending upon the stage of proceedings, alone have power, authority and 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.(Downloaded on 21/11/2022 at 09:10:08 PM)
(20 of 21) [CRLR-520/2022] In other words, the bar of jurisdiction of any Court, Tribunal and Authority is not inoperative until a formal show cause notice as envisaged under Section 6-B is issued.
26.We must, however, hasten to add and clarify that our opinion, as expressed herein-above, should not be understood as Section 6-E of the EC Act barring constitutional jurisdiction under Articles 226 or 227 of the Constitution of India, for the reason that such constitutional jurisdiction of the High Court is far beyond the reach of Section 6-E of the Act, notwithstanding the purported broad sweep and apparent amplitude of provision under Section 6-E. The constitutional jurisdiction under Articles 226 & 227 is untrammeled and survives with all its magnitude despite all legislative on slaughts creating bar of jurisdiction of ordinary Courts, Tribunal and Authorities. In taking this view, we respectfully agree with the verdict of the High Court of Calcutta rendered in the case of Achinta Kumar Saha Vs. State (1992 Cr.L.J. 3).
27.In view of the above consideration, we answer the stated questions of law under reference, as below:
(A). Section 6-E of the Essential Commodities Act, 1955, creates an absolute bar and puts embargo on the jurisdiction of the Magistrate or any other Court, authority or Tribunal to make any order with regard to possession, delivery, disposal, release or distribution of seized essential commodity, any package, covering, receptacle, animal, vehicle, vessel or other conveyance, to the persons entitled to possession thereof under Section 457 of the Code of Criminal Procedure or under any other law for the time being in force dealing with such essential commodity or other articles.
(B). Pending appeal under Section 6-C of the Essential Commodities Act, 1955, in view of bar created under Section 6-E of the Act, the Judicial Authority appointed by the State Government as provided under Section 6C alone is empowered to make orders with regard to possession, delivery, disposal, release or distribution of seized essential commodity, package, covering, receptacle, animal, vehicle, vessel of other conveyance and no other Courts, Tribunal, or Authority has jurisdiction to make orders with regard to possession, (Downloaded on 21/11/2022 at 09:10:08 PM) (21 of 21) [CRLR-520/2022] delivery, disposal, release or distribution of seized essential commodity, package, covering, receptacle, animal, vehicle, vessel or other conveyance."
7. Heard learned counsel for the parties as well as perused the record of the case, and the case laws cited at the Bar.
8. At the outset, this Court takes note of the fact that the present revision petition is grossly time barred by 2242 days, which, in the peculiar factual matrix, does not merit condonation; this is more so when the prescribed limitation for filing a revision petition is 90 days; the impugned order was passed by the learned Court below on 13.08.2015, while the present revision petition was preferred on 20.05.2022. Although the present petitioners have filed an application under Section 5 of the Limitation Act, this Court is not inclined to condone such an inordinate delay, as the same has not been sufficiently and justifiably explained, on behalf of the present petitioners.
9. Furthermore, this Court, on a perusal of the record and the judgments cited at the Bar, also finds that the pleaded facts and the record of the case, also are not sufficient so as to make out a case for condonation of delay in favour of the present petitioners, more particularly, looking into the fact that there are two concurrent orders of the learned Courts below on merits, and thus, this Court is further disinclined to make any interference.
10. In view of the above, and in the peculiar facts and circumstances of the case, the present petition deserves to be dismissed on the sole ground of delay itself, and the same is accordingly dismissed. All pending applications stand disposed of.
(DR.PUSHPENDRA SINGH BHATI), J.
Skant/-
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