Gauhati High Court
Dhananjay Roy & Ors vs The State Of Assam on 16 July, 2013
Author: T. Vaiphei
Bench: T. Vaiphei
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND
ARUNACHAL PRADESH)
CRL. REVN. PETN. NO. 196 of 2013
1. Dhananjay Roy,
S/o. Sambaru Ram Roy,
Village- Sanakhuli.
2. Jahirul Hoque @ Ali,
S/o. Sofiur Rahman,
Village - Kabaitary, Part-IV.
3. Aloka Tahabildar,
S/o. Karuna Tahabildar.
4. Manaranjan Ray,
S/o. Haren Ch. Ray,
Village - Chakrasila.
5. Suresh Ch. Ray,
S/o. Umesh Ray,
Village - Batabari,
All are of PS - Abhayapuri, Dist - Bongaigaon.
...... Petitioner
.......... VS .........
The State of Assam
......Respondent
BEFORE THE HON'BLE MR. JUSTICE T. VAIPHEI Advocate for the Petitioners - Mr. A.R. Roshid, Advocate.
Mr. A Mobaraque, Advocate.
Advocate for the Respondent - Mr. BS Sinha, Addl. P.P. Assam.
Date of Hearing - 25.06.2013.
Date of Judgment - 16.07.2013
Crl Revn No. 196/13 Page 1 of 6
JUDGMENT AND ORDER (CAV)
01. Aggrieved by the order dated 15-5-2013 passed by the learned Sub-Divisional Judicial Magistrate (M), North Salmara, Abhayapuri in Abhayapuri P.S. Case No. 114 of 2012 U/s 7, Essential Commodities Act, 1955 rejecting their application for releasing the seized LPG cylinders to their custody on Zimma, the petitioners are now preferring this revision.
02. The case of the petitioners is that they are authorised/bonafide LPG consumers from M/s Rani Indane, Abhayapuri, which is the authorised distributor of the Indian Oil Corporation Ltd. (IOC). The LPG connection Consumer numbers are shown hereunder against the names of the petitioners:
Names of Petitioners LPG connection numbers
1. Dhananjoy Ray LPG consumer No. R 4083
SV No. 11602050002522
Date 28-1-2010
2. Suresh Ray LPG consumer No. R 08453
SV No. 11602050001496
Date 10-9-2009
3. Manoranjan Ray Consumer No. R 4046
SV No. 892631.
4. Jahirul Hoque Consumer No. RE 264906
SV No. 11601980005146
5. Aloka Tahabildar Consumer No. R 10075
SV No. 11602050001153
03. According to the petitioners, a local boy, namely, Joynul Hoque was authorised to bring filled LPG cylinders from the said M/s Rani Indane, Abhayapuri and carry the empty LPG cylinders from their respective residences to the said M/s Rani Indane. However, on 10-5-2012, the S.D.O.(C), North Salmara Sub-Division lodged an ejahar with the Officer-in-Charge of Abhayapuri Police Station alleging that the said Joynul Hoque had been found unauthorisedly transporting eight filled and 4 empty domestic cylinders from Abhayapuri to Kabaitary in an APE Tempo bearing AS-17-B-0046 and that all these cylinders together with few blue books and cash memos recovered from the said Joynul Hoque were seized by Sri JC Deka, Inspector, F.C.S. & CA, Abhayapuri and were kept under the Zimma of M/s Rani Indane by the Officer-in-charge of Abhayapuri PS as Crl Revn No. 196/13 Page 2 of 6 those items were highly inflammable. The Officer-in-Charge of Abhyaapuri PS accordingly registered a regular case U/s 7 of the Essential Commodities Act, 1955 ("the Act" for short) read with Clause 6 and 7 of Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order, 2000.
04. It would appear that the petitioners subsequently filed a joint application before the learned Sub-Divisional Judicial Magistrate, North Salama for release of the seized LPG cylinders together with the consumer cards to their custody. The learned SDJM, North Salmara thereupon by the order dated 18-3-2013 called for the report from the I.O. of the case as to whether the seized items were "seized for further investigation of the case along with seizure list of the said articles, if any". In the order dated 10-4-2013 of the learned SDJM, it is seen that the report was submitted by the police on that day wherein it was stated that the seized items were not required for further investigation of the case and that five blue books appeared in the names of the petitioners. Notwithstanding his aforesaid observations, the learned SDJM passed the impugned order rejecting the application of the petitioners on the ground that the case is under Section 7 of the Act. The question which now falls for consideration in this revision is whether the learned Magistrate properly exercised his jurisdiction in rejecting the application of the petitioner for release of the seized items to their custody. It is interesting to note that the Abhayapuri Police Station in their report dated 10-4-2013 submitted to the learned Magistrate had stated that the petitioners were not involved in the case and that the seized blue books and LPG cylinders were not required for further investigation, and the same might be considered for giving Zimma to the petitioners.
05. From the impugned order, it becomes evident that the learned Magistrate was apparently of the view that if the case happened to be one registered under the Essential Commodities Act, 1955, a criminal court would not have the jurisdiction under Section 451/457, CrPC to release any commodities/articles seized in connection therewith. Section Crl Revn No. 196/13 Page 3 of 6 6-E of the Act provides for bar of jurisdiction of criminal and other courts in certain cases, and the same reads thus:
"6-E. 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, vessel or other conveyance used in carrying such essential commodity is seized pending confiscation under Section 6-A, the Collector, or as the case may be, the judicial authority appointed under Section 6-C shall have, and, notwithstanding anything to the contrary contained in any other law for the time being in force, any other Court, Tribunal or 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, vessel or other conveyance.
06. In enacting Section 6-E of the Act by way of mandatory command, the intention of Parliament seems to be to bar any other Court, Tribunal or Authority to deal with the disposal, delivery, distribution and possession of the essential commodity. On reading and re-reading Section 6-E, in my judgment, what is unmistakable, however, is that this provision is to be read in the context of Section 6-A inasmuch as the phrase "pending confiscation" contemplated under Section 6-A is used in Section 6-E. So read, it is plainly clear that before the bar of jurisdiction under Section 6-E of the Act becomes operative, what is required is not only a seizure but also pendency of confiscation proceedings U/s 6- A before the Collector. Until and unless a confiscation proceeding is initiated by, or is pending before the Collector under Section 6-A, in my opinion, no embargo can be placed upon the jurisdiction of a criminal court under Section 451/457, CrPC to release the seized commodity/good/article even if the same were purportedly seized in terms of Section 3 of the Act. In the instant case, on the own showing of the Investigating Officer of the case in his report dated 10-4-2013, it is crystal clear that no confiscation proceeding under Section 6-E in respect of these LGP cylinders is pending before the jurisdictional Collector. Crl Revn No. 196/13 Page 4 of 6
07. As a matter of fact, the same IO has clearly stated therein that these items are not required for further investigation and that the petitioners are not involved in the case. Thus, when the seized 5 LPG cylinders are admittedly recorded/registered in the names of the five petitioners respectively, who were issued the Blue Books (Consumer Cards) by the area Agency, it is difficult to comprehend the legal basis upon which the SDO had decided to seize them in the first place or for handing them over to the custody of the police. Under the circumstances, there is no prima facie case of violation of Section 3 of the Act by the petitioners for their punishment U/s 7 of the Act warranting the seizure of these particular LPG cylinders, filled or otherwise by the police. Consequently, the question of invoking confiscation proceeding in respect of these items under Section 6-A of the Act cannot, and does not arise. As the petitioners are the registered/authorised consumers of the LPG, for which Domestic Gas Consumer Cards (Blue Books) were issued, and as there is no dispute that the seized LPG cylinders were seized from their authorised person, namely, Joynu Hoque, they are entitled to the custody thereof. Under Section 451/452/457, CrPC, it is only the person entitled to possession of the seized item, to whom such item is to be released and not to any other person. The learned Magistrate has misdirected himself in law, and has in the process improperly exercised his jurisdiction in refusing to release the seized LPG cylinders to the petitioners on Zimma on the dubious ground that "the case is U/s 7 of the E.C. Act".
08. That apart, the jurisdiction of a criminal court to release seized articles/goods U/s 451/457, CrPC is never completely ousted as evident from the following observations of the Apex Court in State of MP & ors. V. Rameshwar Rathod, (1990) 4 SCC 21:
"6. ...... Mr. Deshpande sought to argue that in view of the enactment of the provisions of Section 6-A as well as Section 7 of the Act, it cannot be held that the criminal court continued to retain jurisdiction, otherwise the very purpose of enacting Section 6-A read with Section 7 would be defeated. We are, however, unable to accept this contention because normally under the Criminal Procedure Code, the criminal courts of the country have the Crl Revn No. 196/13 Page 5 of 6 jurisdiction and the ouster of the ordinary criminal court in respect of a crime can only be inferred if that is the irresistible conclusion flowing from necessary implication of the new Act. In view of the language used and in the context in which this language has been used, we are of the opinion that the criminal court retained jurisdiction and was not completely ousted of the jurisdiction. In that view of the matter, the High Court was therefore right in passing the order under consideration and in the facts and circumstances of the case to return the vehicle to the respondent on furnishing the security. In the premise the appeal fails and is dismissed. There will, however, be no order as to costs."
09. The result of the foregoing discussion is that this criminal revision succeeds. The impugned order dated 15-5-2013 is, accordingly, set aside. The Officer-in-Charge of Abhayapuri is, therefore, directed to release the seized five LPG cylinders together with the Domestic Gas Consumer Cards registered in the names of the petitioners to their custody on Zimma on executing an Idemnity Bond as well as Zimma Bond of ` 2,000/- (Rupees two thousand)only by each of them to his satisfaction. This order is, however, subject to the outcome of the case under investigation, if any.
Judge BIPLAB Crl Revn No. 196/13 Page 6 of 6