Allahabad High Court
Nadeem vs State Of U.P. on 30 March, 2018
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Judgment reserved on 19.2.2018 Judgment delivered on 30.3.2018 Court No. - 17 Case :- CRIMINAL REVISION No. - 126 of 2018 Revisionist :- Nadeem Opposite Party :- State Of U.P. Counsel for Revisionist :- Ankit Agarval Counsel for Opposite Party :- G.A. Hon'ble Dinesh Kumar Singh-I,J.
1. This criminal revision has been directed against order dated 25/10/2017 passed by the learned Additional Sessions Judge Court no. 9, Bulandshahar in Criminal Appeal No. 83 of 2017, (Nadeem vs State of U.P.) as well as order dated 24/04/2017 passed by the learned Additional District Magistrate (F) in case no. 17 of 2016/D- 2016111701864, (State vs Kalyan and others) under section 6A of Essential Commodities Act (to be referred as the Act from here onwards in brief), PS, Pahasu, District Bulandshahar, whereby the rice of the revisionist has been confiscated in favour of the Government. It is prayed that the impugned orders be set aside and direction be issued to release the wrongly confiscated 275 quintals of rice in favour of the revisionist.
2. It is contended by the learned counsel for the revisionist that the opposite party has failed to clarify as to which provision of Control Order has been violated by the revisionist, as a result of which the said rice has been confiscated under section 6-A of the Act. The learned counsel took the Court through the provisions of the Uttar Pradesh Scheduled Commodities Distribution Order, 2004 (to be referred from here onwards in short as 'Control Order of 2004' and stated that none of the provisions of this Control Order has been violated by the revisionist nor in the notice, any reference was made of any provision of the Control Order of 2004 being breached. In view of no disclosure in the said notice of violation of any specific provision of Control Order which is made punishable under section 3 read with section 7 of the Act, the confiscation of the said rice is illegal and in view of that the impugned orders need to be set aside.
3. The facts, in brief, of this case are that an F.I.R. was lodged by Supply Inspector, Digvijay Singh on 7/10/2016 at 13.00 hours at P.S. Pahasu, District Bulandshahar that on 06/10/2016 at about 11.00 hours SDM Shikarpur, District Bulandshahr had informed him that on information given by an informer he found a truck no. U.P. 13 ST 0777, loaded with 275 quintals of rice in 550 sacks standing on 15/10/2016 at about 8:30 PM near Gangagarh Piau within the jurisdiction of P.S. Pahasu in suspicious circumstances. With the help of SHO, Pahasu the driver of the vehicle as well as its conductor/cleaner were brought to P.S. Pahasu. In compliance with the direction given by SDM, Shikarpur, the first informant, Digvijay Singh, with Supply Clerk, Mohmmad Akmal and Ved Prakash reached P.S. Pahasu at 4.30 hours. On the said sacks, Government of Punjab was written, regarding which the papers were required to be shown by the driver and the conductor, but the same could not be shown nor any knowledge about the said rice could be given. By opening the stitches of sacks, they were found used from the reverse side for filling rice therein belonging to the public distribution system for being sold in black market on higher price. The truck driver, Kalyan could not show any papers about the loaded material. Similarly the conductor Nehna was also enquired about the owner of the vehicle, whereon he disclosed that the said truck belonged to one, Amit Kumar Goel. The said truck was brought to the police station Pahasu and the above persons were apprised that they had made violation of the Control Order of 2004 read with provisions of section 3/7 of the Act. The said material was taken into custody from the angle of its security by Shri Manoj Kumar, Marketing Assistant, Pahasu who was instructed that the said rice would be kept by him in his supervision and he would produce the same before Court/competent officer in case of demand/direction. The driver and conductor and the vacant truck were given in supervision of SHO Pahasu. After seeking sanction from DM for lodging F.I.R. against Kalyan, Nehna and owner of the truck, Amit Kumar Goel, an F.I.R. was lodged against them.
4. On the basis of a letter dated 09/11/2016 of the District Supply Officer, proceedings under section 6-A of the Act were started by Additional District Magistrate (Finance and Revenue), Bulandshahar. In his order dated 22/04/2017, it has been mentioned that after registration of the case, the opposite parties were sent notices under section 6-B of the Act. From the side of owner of the said rice, it was submitted that Kalyan was his driver, hence he was submitting reply on his behalf. It was stated in reply dated 20/01/2017 that the said rice was not a Government property. No such evidence was led from the side of the State, which could disclose that the said rice belonged to State. It was stated by him that he was owner of the loaded rice, hence he was submitting reply. He does business of grains in Naveen Mandi, Sambhal. The name of his Firm was M/s. Faheem Akhatar and Brothers. On 05/10/2016, 320 quintals of rice, after depositing tax of Rs. 12,800/- of Mandi Samiti from his Firm, the said rice was being sent to Delhi by the said truck. As soon as the truck driver started with the truck from Sambhal for Anoopshahar, he received a phone call that his wife was serious, therefore leaving the truck at Gangagarh, he had gone home. In absence of the applicant, the SDM, Shikarpur called a police from PS Pahasu. As soon as the truck driver returned, after taking care of his wife, the driver and the conductor Nehna were arrested and the entire truck along with the rice was taken to PS Pahasu. The applicant had told the police that the said rice belonged to him and that Kalyan was driver of the truck and the said material was being transported to Delhi, but the SDM got a case lodged under section 3/7 of the Act against both the driver as well as conductor. In 530 sacks, a total 320 quintals of rice was stocked, because in each sack there was 60 Kgs. of rice, which was not Government property. The said rice belonged to him, hence the same should be returned to him. According to law, the property could be seized/confiscated only when some offence was made out pertaining to the same. It was mentioned in the F.I.R. that the Government rice was found filled in bags which were used from the reverse side. The applicant had purchased the sacks from the ration dealer, for filling rice in them, because the sacks of ration dealers were easily purchasable at the rate of Rs.10/- or Rs.15/- per sack, while the new sacks could be purchased only at the rate of Rs.30-Rs.40 per sack. Even if for the sake of argument, it be taken that the said rice was Government rice, then also there was no breach of any Control Order, therefore proceedings under section 6-A were illegal.
5. It is recorded in the impugned order dated 24/4/2017 that no valid documents could be shown by the opposite parties. It was stated in defense that they had tax receipt of Mandi Samiti and receipt of Hindustan Road Lines, by which the said material was sent, but in evidence no such receipt was made available to substantiate the averments made in the reply. The defence of the opposite party mentioned above was found untenable for want of documentary evidence. Therefore, it was concluded that the said rice was being transported for being sold in the black market in contravention of the Control Order of 2004 and that of section 3/7 of the Act, hence the same was liable to be confiscated and accordingly the same was confiscated along with the truck, subject to an order of the trial Court and a copy of the said order was transmitted to the District supply officer, Bulandshahar and SDM, Shikarpur for necessary action.
6. Against the said order Appeal No. 83/2017, (Nadeem vs State of U.P.) was preferred, in which it was pleaded that the District Magistrate ought to have issued a notice under section 6-B disclosing therein as to which provision of the Control Order was violated. Despite the applicant appearing before the Magistrate with a case that the said rice belonged to him, it was incumbent upon the District Magistrate to issue notice to him. No evidence has come on record to the effect that the said rice was Government rice which was meant for distribution to card-holders. There was no evidence on record to the effect that the sacks were filled with rice from the reverse side, hence making mention of the said fact in the order is against evidence on record. Reliance was placed before Learned Magistrate upon 1990 Cr LJ (full citation was not given by court below), in which it is specifically stated that after taking the material in custody, a report sent for initiating action under section 6-A, would not be admissible in evidence. Therefore on the basis of said report, except issuing notice under section 6-B, no use of that report could have been made. It was mandatory for the prosecution to adduce evidence, failing which the proceedings under section 6-A were liable to be terminated. Therefore, the confiscation proceedings merely on the basis of said report were illegal. For initiating proceedings under section 6-A, the report would either be submitted by the said officer, who had taken the material in his custody or by the Investigating Officer. The District Supply Officer had no authority to submit a report because the same falls in the category of hearsay evidence, hence the order of the Magistrate needed to be set aside.
7. The learned Appellate Court has given finding that from perusal of the record of lower Court, it transpires that the show cause notice was issued under section 6-A to Kalyan, Nehna and Amit Kumar Goel on 13/12/2016 which was received by partner of Amit Kumar Goel, Shri Sanjay Singh on 19/12/2016, and in response to this notice under section 6-B (paper no.- 8), the reply was submitted by his counsel on 20/01/2017, which makes it evident that notices were issued to the concerned parties by the Court below, which were served upon them. It is further stated that under section 6 - B (3) of the Act it is provided that 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 (1), if, in giving such notice, provisions of that clause have been substantially complied with. In terms of the said provision, even if the clause of the Control Order of 2004 which was violated, was not mentioned in the notice, but it was specifically mentioned therein that 550 sacks of rice, which had endorsement thereon Government of Punjab, regarding which no papers were reproduced by the driver or conductor, the said act was rightly found to be a breach of the Control Order of 2004. Therefore even if the specific clause of that Control Order was not mentioned in the notice, of which violation was alleged to have been made, in view of the provisions of section 6-B (3) of the Act, the said notice would not be treated to be illegal.
8. It is also mentioned in the impugned order of Appellate Court that from the side of the appellant, reliance was placed on 1978 Cr LJ 672 Chandeshwar Mahato and another vs State of Bihar and another, wherein the Hon'ble Patna High Court had propounded that prior to confiscation order a written notice would have to be sent to the owner of the essential commodity or to such person from whom the said commodity had been recovered and thereafter providing him opportunity to file written reply and of arguing his case, the seizure order could be passed. After completing the formalities and hearing the violator of the said provision, if the Collector finds that there was some violation made of the provisions of section 3 of the Act, then only confiscation order could be passed. In the case at hand, it is held that a perusal of the file of the Court below would indicate that in the written recovery memo/supurdigi Nama, it was mentioned that tractor no. U.P. 13 AT 0777 was found loaded with rice, being driven by Kalyan with conductor being Nehna, those persons did not provide an information regarding the ownership of rice before the concerned officers. Upon those persons giving information about owner, notice was also sent to owner of the vehicle Shri Amit Kumar Goel and thereafter, reply of that notice under section 6-B was given (Paper no.-8), in that document name of the person who had submitted the reply was not mentioned, but only this much was written that he was owner of the rice. The said reply was presented before the learned Magistrate on 20/01/27 which does not make it clear that the revisionist, Nadeem was owner of the said rice. It is further mentioned in the said order that it was stated that tax receipts payable to Mandi Samiti and receipts of Hindustan Road Lines were with the applicant, but no such receipts were filed before the Court below, despite sufficient opportunity having been given, hence no violation has made by the learned Magistrate of the provisions of section 6-A and hence the revisionist would not get benefit of above case law.
9. The other citation relied upon by the learned counsel for the revisionist was 1978 Cr LJ 599 M/s. Prem Ratan Mal vs Collector Ganjam and another, in which Hon'ble Orissa High Court had laid down the principle that issuing notice under section 6-B was essential even if the violator of the provision appeared on his own, before confiscation proceedings. The learned Appellate Court has clearly held that in the case at hand the alleged owner of the rice was sent notice but even then he did not produce any evidence in support of his being owner of the commodity, hence no benefit would go to the appellant of this ruling.
10. The other ground taken by the revisionist was that for initiating proceedings under section 6-A, report was required to be sent by either such officer who had taken the commodity in his possession or by the Investigating Officer. The District Supply Officer had no authority to submit a report, as the same would fall in the category of hearsay evidence. In this regard it was mentioned in the judgment that in section 6-A there was no mention made as to which officer/authority should send report to the Collector about seizure. But in clause 22 of the Control Order of 2004 it was specified that the officer who seizes the essential commodity, only he would send report under section 6-A to the Collector. It is apparent from the recovery memo/supurdigi Nama that during the seizure proceedings, along with other officers, Supply Inspector Shikarpur, Vijay Singh was also present and by him only, a report was presented on 6/10/2016 to the SDM/ADM/DM, Bulandshahar, therefore he was qualified to send such a report as per clause 22 of the Control Order of 2004.
11. The other grounds taken by the revisionist before the Appellate Court, were that there was no evidence on record that the said commodity was Government rice, meant for distribution among card-holders or that the said rice was filled in sacks from the reverse side, which has been mentioned in the order of ADM arbitrarily. In this regard, reliance is placed by the learned Appellate Court on section 13 of the Act which says that where an order purports to have been made and signed by an authority in exercise of any power conferred by or under this Act, a Court shall presume that such order was so made by that authority within the meaning of the Indian Evidence Act, 1872. Citing above provision, it is mentioned by the Appellate Court that in the light of that position of law, the facts mentioned in the recovery memo by the Supply Inspector, Shikarpur, would be taken to be correct and that no separate evidence was required to be adduced.
12. The next argument was placed before the learned appellate Court that before confiscation proceedings, the opportunity to adduce evidence must be given, in this regard it is mentioned in the order that sufficient opportunity was given to the parties to adduce evidence before passing the said order.
13. At the end, the learned appellate Court has found the order of the Court below to be in accordance with law and has dismissed the appeal.
14. In the present revision the learned counsel for the revisionist has mainly emphasised on the point that, which specific provision of the Control Order of 2004 was violated, was not mentioned in the notice issued to the revisionist, which makes the order of confiscation bad in law.
15. From the side of learned AGA the main point raised is that the present revisionist Nadeem has no locus standi, because he was not a party before the Lower Court or before the Appellate Court. Therefore, if he had to say anything in connection with the present confiscation, he ought to have stated it before the Court of Magistrate and the Appellate Court. Therefore on this very ground the revision deserves to be dismissed.
16. The first submission made by the leaned counsel for the revisionist is that before confiscating the essential commodity seized as well as the vehicle in which it was being carried, notice ought to have been given to its owner to show cause, which has not been done in the present case. In this regard, reliance has been placed upon Chandeshwar Mahto's case (supra), in which it has been held that in order to authorize the Collector to make an order of confiscation, firstly, he has to give notice in writing to the owner of the essential commodity in question or the person from whom it is seized. Secondly, he has to give an opportunity of making a representation in writing and a further reasonable opportunity of being heard in the matter. After completing these formalities and hearing the offender, if the Collector comes to a conclusion that there has been a contravention of any order made under section 3 of the Act, in relation thereto, then alone he may order for confiscation of essential commodity so seized.
17. From the side of the learned A.G.A. it has been stated that it is evident from the notice of engagement of a counsel dated 29.12.2016 which has been presented during argument that Sri Ram Bharosey Agarwal, Advocate was engaged from the side of Kalyan, Nehana and Amit Kumar Goel. Kalyan and Nehana had disclosed after being arrested that Amit Kumar Goel was the owner of the seized rice and that is why a notice was issued to Amit Kumar Goel. The present revisionist's name was never disclosed by the driver Kalyan and conductor Nehana that he was owner of the essential commodity seized.
18. From the side of Kalyan, Nehana and Amit Kumar Goel, a reply to the notice issued to them was submitted on 20.1.2017, which is on record. The same has not been signed by any of them nor has it been signed by the present revisionist. Even then the court below has taken the said reply into consideration before passing the impugned order. The contents of the said reply have already been mentioned above while dealing with the impugned order, in which these contents of the reply have been mentioned in detail. In view of the above, it is stated that there was full compliance made by the opposite party of issuing notice to the owner, as well as the person, from whose custody the essential commodity was seized. It was further contended by the learned A.G.A. that the present revisionist has no locus standi because he did not get himself impleaded neither before the Additional District Magistrate who had passed the impugned order dated 20.4.2017 confiscating the essential commodity (rice) recovered nor before the Appellate court which had passed the impugned order dated 25.10.2017. Therefore, the present revisionist cannot be permitted to prefer this revision being not a party in the proceedings before courts below.
19. Record reveals that during hearing at appellate stage, the appeal itself was filed before it by Nadeem, hence, learned A.G.A. cannot be allowed to take this plea that the present revisionist does not have any locus standi to move the present revision. It is also evident from a perusal of the appellate court's judgment that the contention of the revisionist was considered at length and thereafter only the impugned order was passed upholding the order of Additional District Magistrate regarding confiscation of the essential commodity. Therefore, the argument of the learned counsel for the revisionist that no notice was given to the owner of the essential commodity, cannot be held to be proved.
20. Other point raised by the learned counsel for the revisionist is that in the notice issued to the revisionist or the person from whose custody the essential commodity was recovered, no details were mentioned, as to which particular provision of the Control Order of 2004 was violated, which was found punishable under section 3 read with section 7 of the Act. In this regard, reliance has been placed upon the judgment in the case of Kailash Prasad Yadav and others vs. State of Jharkhand and others, (2007) 5 SCC 769 in which it has been held that confiscation of goods and the vehicles and vessels carrying the same, amounts to deprivation of property. Confiscation of essential commodity or a truck is permissible only if the provisions of any Order made under section 3 of Essential Commodities Act, 1955 are violated. When a vehicle is used for carrying an essential commodity, it may be seized and ultimately directed to be confiscated in terms of section 6-A (1) (c) of the 1955 Act. Violation of an order made under section 3 of the 1955 Act, therefore, is a precondition for passing an order of confiscation. The order of confiscation is not passed only because it would be lawful to do so. The authorities must arrive at a clear finding in regard to the violation made under section 3 of the 1955 Act.
21. In the case at hand, a notice is annexed as Annexure-2, which had been issued by the Additional District Magistrate (F&R), Bulandshahar to Kalyan, Nehana and Amit Kumar Goel under section 6-A of the Act mentioning therein that the District Supply Officer, Bulandshahar vide letter dated 9.11.2016 had apprised that in the night of 5.102016 truck no. UP-13-80-0777 was found standing in suspicious condition loaded with 500 sacks of rice regarding which when papers were directed to be shown by the driver and its conductor , nothing could be shown by them, hence prima-facie it was found that they were carrying the said rice after filling it in sacks from the reverse side, which was meant to be distributed under PDS system, for being sold in black market on higher rate and hence they had violated the provisions of Control Order of 2004, punishable under section 3/7 of the Act. They were directed to submit their reply as to why the said vehicle as well as the recovered essential commodity (rice) (275 quintals) be not confiscated in favour of State.
22. It is apparent from the above notice that no mention has been made in the notice about the provision which was found to have been breached of the Control Order of 2004. Copy of the Control Order 2004 has been presented during arguments by the learned A.G.A. and he had tried to convince the Court that this Control Order had been notified under section 3 of the Essential Commodities Act by Hon'ble Governor to ensure supply of essential commodities at appropriate price of all such items which were mentioned in Schedule-II of the said Control Order, which includes rice. Hence, even if any particular clause/provision of the said Control Order was not mentioned in the said notice, the same would not be treated as invalid. This Court has gone through clauses of the said Control Order of 2004 and does not find in it any stipulation to the effect that if any vehicle is found carrying rice which was essential commodity, the same could be taken being carried in violation of this Control Order of 2004, in case the papers regarding ownership of the same were not shown by the truck driver or its owner. Therefore, the act which is alleged to have been committed by the revisionist's driver or his conductor does not appear to fall in any of the clauses mentioned in the above Control Order of 2004. In fact, if any particular provision/clause was found to have been breached then the said notice dated 13.12.2016 ought to have contained therein the said provision so that the noticee could give appropriate reply of the same. This view finds support from the law laid down in the above-mentioned citation by Supreme Court in Kailash Prasad Yadav's case (supra) wherein it has been clearly mentioned that it was a precondition for passing an order of confiscation that violation of the provision of the Control Order was made which has been made punishable under section 3/7 of the Act. In the case at hand, it is found that both the courts below have held that the notice contained sufficient communication of the breach of the provision of the Control Order of 2004, but in the opinion of this Court, the said notice dated 13.12.2016 did not contain sufficient details. It may not be denied that an offence might have been committed by the driver and the conductor of the revisionist under the provisions of some other Act, but so far as the provision of the Control Order of 2004, made punishable under Section 3/7 of the Act, is concerned, no much provision has been clearly pointed out to have been breached. It may also be mentioned here that nowhere has it come on record that the rice which is being claimed by the revisionist as his own was found stolen from some PDS shop, regarding which some complaints might have been filed somewhere. If that were the case, the position could have been different.
23. In view of the above analysis, this Court is not in agreement with the findings of the courts below as regards infirmity in the notice given to the revisionist. This Court comes to the conclusion that both the impugned orders deserve to be set aside with a direction to the courts below that they should decide the matter afresh in accordance with law after giving an opportunity of hearing to the revisionist, as well as the other parties to adduce evidence with regard to his claim to the said essential commodity (rice) and also keeping in view the position of law as cited above in Kailash Prasad Yadav's case (Supra). The revision is accordingly allowed.
Order Date:-30.3.2018 AU