Allahabad High Court
Saleem vs State Of U.P. And 4 Others on 3 June, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 73 Case :- MATTERS UNDER ARTICLE 227 No. - 2875 of 2022 Petitioner :- Saleem Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Narendra Pratap Singh,Santosh Kumar Singh Counsel for Respondent :- G.A. Hon'ble Mrs. Sadhna Rani (Thakur),J.
Heard learned counsel for the petitioner and learned A.G.A. for the State-respondents.
This petition has been filed under Article 227 of the Constitution of India with a prayer to set aside the order dated 10.03.2022 passed by the Special Judge, E.C. Act/Additional Sessions Judge, Court No. 14, Bulandshahr in Criminal Revision No. 26 of 2022 (Saleem Vs. State of U.P.) as well as the order dated 07.02.2022 passed by the Additional Chief Judicial Magistrate, Court No. 1, Bulandshahr in Case Crime No. 1897 of 2021 under Section 3/7 of Essential Commodities Act, 1955.
Vide order dated 07.02.2022 the Additional Chief Judicial Magistrate, Court No. 1, Bulandshahr rejected the application of the applicant regarding release of his vehicle No. U.P. 13 AT 7817. The trial court opined that as under Section 6A of the Essential Commodities Act, 1955 the confiscation proceedings are pending before the District Magistrate so as per Section 6E of the Essential Commodities Act, 1955 the Additional Chief Judicial Magistrate has no jurisdiction to release the vehicle.
The revision against the above order dated 07.02.2022 was also rejected by the Special Judge, E.C. Act/Additional Sessions Judge Court No. 14, Bulandshahr vide order dated 10.03.2022 wherein the revisional court confirmed the finding of the trial court and by mentioning Section 6E of Essential Commodities Act, 1955 the revisional court also found the finding of the trial court to be well within the purview of law and dismissed the revision.
The present petition has been filed by the petitioner on the ground that admittedly the confiscation proceedings under Essential Commodities Act, 1955 are pending before the District Magistrate, the order regarding confiscation has not been made final so the Magistrate had jurisdiction to release the vehicle. In case if the confiscation order had been made, the jurisdiction of the Magistrate could have been barred.
In support of his contention learned counsel for the petitioner has placed reliance on Shyam Singh Kushwaha Vs. State of U.P. and another, 2012 (77) ACC 381 wherein the coordinate bench of this Court vide order dated 27.03.2012 found that if the confiscation proceedings are pending before the District Magistrate as the Special Judge, E.C. Act also had same power so it was within the power of Special Judge, E.C. Act to release the vehicle pending consideration of confiscation proceedings before the District Magistrate.
On the contrary, learned A.G.A. placed reliance on the judgement of the coordinate bench of this Court dated 20.01.2021 in Rajesh Kumar Vs. State of U.P. & others, 2021 0 High Court (Alld.) 1371 and argued that in this judgement the question of releasing the vehicle, when confiscation proceedings of the same were pending before the District Magistrate has been seriously dealt with. On the basis of Section 6E of the Essential Commodities Act it was found herein that as per this section 6E there is clear bar of the jurisdiction of the Magistrate with regard to release of essential commodity during pendency of the confiscation proceedings.
Both the parties have placed before the Court the Single Judge Judgements of coordinate bench of this Court which are contradictory. It is apposite to go through the relevant provisions in this regard:-
[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:] Provided that without prejudice to any action which may be taken under any other provision of this Act, no foodgrains or edible oilseeds in pursuance of an order made under section 3 in relation thereto from a producer shall, if the seized foodgrains or edible oilseeds 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 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:
(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 been made under this section, the person concerned is acquitted, be paid to the owner or the person from whom it is seized.] 6-B. Issue of show cause notice before confiscation of essential commodity.--[(1)] No order confiscating [any [essential commodity, package, covering or receptacle, animal, vehicle, vessel or other conveyance]] shall be made under section 6A unless the owner of such [essential commodity, package, covering, receptacle, animal, vehicle, vessel or other conveyance] or the person from whom [it is seized]?
(a) is given a notice in writing informing him of the grounds on which it is proposed to confiscate the [essential commodity package, covering or receptacle, animal, vehicle, vessel or other conveyance];
(b) is given an opportunity of making a presentation in writing within such reasonable time as may be specified in the notice against the grounds of confiscation; and
(c) is given a reasonable opportunity of being heard in the matter.
[(2) Without prejudice to the provisions of sub-section (1), no order confiscating any animal, vehicle, vessel or other conveyance shall be made under section 6A if the owner of the animal, vehicle, vessel or other conveyance proves to the satisfaction of the Collector that it was used in carrying the essential commodity without the knowledge or connivance of the owner himself, his agent, if any, and the person in charge of the animal, vehicle, vessel or other conveyance and that each of them had taken all reasonable and necessary precautions against such use.] [(3) No order confiscating any essential commodity package, covering, receptacle, animal, vehicle, vessel or other conveyance shall be invalid merely by reason of any defect or irregularity in the notice, given under clause (a) of sub-section (l), if, in giving such notice, the provisions of that clause have been substantially complied with.] 6-C 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 possible for any reason to [return the essential commodity seized], [such persons shall, except as provided by sub-section (3) of section 6A, 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 6 [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 (3B) of section 3;
(ii) in the case of sugar, in accordance with the provisions of sub-section (3C) of section 3; and
(iii) in the case of any other essential commodity, in accordance with the provisions of sub-section (3) of section 3.] [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 judicial authority appointed under section 6C] 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, vehicle, vessel or other conveyance.] As per Section 5 of Cr.P.C. the provisions of Cr.P.C. will not affect any special or legal law for the time being in force.
Undisputedly, the Essential Commodities Act, 1955 is a special act, therefore, in view of Section 5 Cr.P.C. the general provision of Cr.P.C. will not affect any special statute or the local law for the time being in force i.e. the provision of Cr.P.C. will not affect the special provisions of Essential Commodities Act. Section 6E of Essential Commodities Act bars the jurisdiction of criminal court regarding release of the vehicle. As per Section 6E, whenever any essential commodity is seized in pursuance of any order made under Section 3 in relation thereto and any vehicle used in carrying such essential commodity is seized pending confiscation under Section 6A any court, tribunal or any other authority shall have no jurisdiction to make order with regard to possession, delivery, disposal or release of such vehicle. Thus, Section 6E of Essential Commodities Act, which is a special act, clearly bars the jurisdiction of the court to release the vehicle pending confiscation proceedings before the Collector.
When there is clear provision barring the jurisdiction of the court then in my opinion any court cannot be said to have jurisdiction to release the vehicle pending confiscation proceedings before the District Magistrate.
It is admitted fact that an F.I.R. has been registered against six accused persons including the present applicant that at the time of raid at D.P. Rice Mill, the illegal storage of subsidized food grains of public distribution scheme was found and the food grains was depleted in new jute bags from grain bags marked tag of Government of Punjab 2020-21 in order to sell the essential commodity in the form of black marketing. The container of the present applicant bearing registration No. UP 13AT 7817 was found loaded with full of bags of food grains. Thus, it is argued by the learned counsel for the petitioner that he has nothing to do with this offence whatever wrong has been done that is done by the mill owner.
Admittedly, he is a driver and the owner of the said container. It is argued that he is having all the documents regarding vehicle and as the confiscation proceedings have not been completed his container deserves to be released.
Per contra, learned A.G.A. has argued that the petitioner is co-accused in the first information report registered in this regard. His container was found loaded with illegal food grains and admittedly the proceedings of confiscation are pending before the District Magistrate. In reply to the notice of these proceedings the applicant has neither put his appearance before the District Magistrate nor he has filed any objection there, so he cannot be said to have come to this Court with clean hands as in the absence of his objections the confiscation proceeding could not be completed till now. Here, he is asking for release of his vehicle on the ground that confiscation proceedings are still pending and the order regarding confiscation has not been passed yet.
It is also admitted by the petitioner that his application for release is pending before the A.D.M. (Administration) and no final order has been passed till date. The question again arises as to whether the Judicial Magistrate had power to release the container of the applicant during pendency of the confiscation proceedings before the District Magistrate. In this regard, the Apex Court in Divisional Forest Officer and another Vs. G.V. Sudhakar Rao and others, (1985) 4 SCC 573 held that the High Court has no jurisdiction to release the vehicle under Section 482 Cr.P.C. when the confiscation proceedings are pending before the designated authority.
In State of Bihar and another Vs. Arvind Kumar (2012) 12 SCC 325 the Apex Court held that so long the confiscation proceedings under Section 6A of Essential Commodities Act are pending the application for release of vehicle and essential commodities involved in the commission of offence under Section 3/7 of Essential Commodities Act is not maitainable in view of statutory bar contained under Section 6E of Essential Commodities Act.
In State of Madhya Pradesh Vs. Uday Singh, (2020) 12 SCC 733, the Apex Court held that once the confiscation proceedings have started an application under Section 451 of Cr.P.C. for release of vehicle seized under Essential Commodities Act is not maintainable.
In the case of Oma Ram Vs. State of Rajasthan and others, AIR 2008 (SC) 1844 the Apex Court observed that Section 6E of Essential Commodities Act, 1955 has been substituted to provide that except Collector or State Government all the other authorities judicial or otherwise would be debarred from making any order with regard to possession, delivery, disposal or distribution of any commodity.
Thus, it is clear that the Special act viz. Essential Commidities Act, 1955 will overrule the provisions of Code of Criminal Procedure and as per Section 6E of Essential Commodities Act there is clear bar of releasing any vehicle by the Magistrate during pendency of confiscation proceedings before the District Magistrate.
Hence, in the light of above clear provisions of law and the case laws of Apex Court, the orders of the trial courts do not suffer from any infirmity or illegality. There is no any manifest error of law and the perversity in the order passed by the Additional Chief Judicial Magistrate, Court No. 1 Bulandshahr and in the order dated 10.03.2022 of Special Judge, E.C. Act/Additional Sessions Judge, Court No. 14, Bulandshahr.
The present writ petition being devoid of merit is hereby dismissed.
Order Date :- 3.6.2022 gp