Karnataka High Court
Habeeb U vs State Of Karnataka on 25 June, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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NC: 2024:KHC:23238
WP No. 15021 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 15021 OF 2024 (GM-RES)
BETWEEN:
HABEEB U
S/O USAF
AGED ABOUT 39 YEARS,
R/AT 5/522, MANNIL HOUSE,
KURICHAMKULAM,
KALLEKKAD POST,
PALAKKAD, KERALA-678006.
...PETITIONER
(BY SRI. MAHADEVA R K., ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY PERIYAPATNA P S
Digitally signed
by NAGAVENI HUNSUR SUB-DIVISION,
Location: HIGH MYSURU DISTSRICT-571 107.
COURT OF
KARNATAKA
2. INCHARGE AGRICULTURE OFFICER
AGRICULTURE OFFICE,
KASABA HOBLI,
PERIYAPATNA TALUK,
MYSURU DISTRICT-571 107.
PERMANENT ADDRESS
NEAR TOLGATE,
CHOWKAHALLI K R NAGAR TOWN,
MYSURU DISTRICT-571 602.
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NC: 2024:KHC:23238
WP No. 15021 of 2024
3. AUTHORIZED OFFICER
AND DEPUTY COMMISSIONER
MYSURU DIVISION,
MYSURU-570 001.
...RESPONDENTS
(BY SRI. P. THEJESH, HCGP FOR R1)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO A)
ALLOW THE PETITION AND SET ASIDE THE ORDER PASSED BY
THE HONBLE CIVIL JUDGE AND JMFC AT PERIAYPATNA IN
CRIME NO. 202/23 DATED 08.11.2023 VIDE ANNEXURE-A AND
DIRECT THE R3 TO RELEASE THE ASHOK LEYLAND VEHICLE
BEARING REG NO. KL-02-AR-3107 IN FAVOUR OF THE
PETITIONER.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court calling in question an order dated 08.11.2023 passed by the Civil Judge and JMFC at Periyapatna, arising out of Crime No.202/2023, registered by Periyapatna Police Station, for offences punishable under Sections 420 r/w. 34 of the IPC, Sections 3 and 7 of the Essential Commodities Act, 1955 and Section 25(1) of the Fertilizer Act.
2. Heard the learned counsel Sri.R.K.Mahadeva, appearing for the petitioner and the learned High Court -3- NC: 2024:KHC:23238 WP No. 15021 of 2024 Government Pleader Sri.P.Thejesh, appearing for the respondents.
3. The petitioner gets embroiled in a crime, in Crime No.202/2023, for the afore-quoted offences. The offences were under Sections 420 r/w. 34 of the IPC, Sections 3 and 7 of the Essential Commodities Act, 1955 and Section 25(1) of the Fertilizer Act, wherein some unknown persons have stored fertilizers in a Technical Grade Urea Plastic bags which had been loaded in an Ashok Leyland Lorry bearing No.KL-02-AR- 3107. Since the vehicle had been seized, the petitioner prefers an application under Section 457 of Cr.P.C., before the Civil Judge and JMFC, Periyapatna which comes to be rejected by the impugned order dated 08.11.2023. It is this order that has driven the petitioner to this Court in the subject petition.
4. The learned counsel Sri.R.K.Mahadeva, appearing for the petitioner submits that the rejection of the application is on the face of it erroneous as a coordinate bench of this Court in considering the identical circumstance, in Crl.P.No.137/2018 has clearly held that such application seeking release of vehicle -4- NC: 2024:KHC:23238 WP No. 15021 of 2024 should be permitted. He would seek to place reliance upon the order passed by this Court in Crl.P.No.4492/2022 disposed on 17.06.2022, which covers the issue of jurisdiction on all its fours.
5. The learned High Court Government Pleader would refute the submissions and contends that the vehicle should not be released.
6. I have given my anxious consideration to the contentions of respective learned counsel and have perused the material on record.
7. The afore-narrated facts are not in dispute. The vehicle being intercepted and crime being registered are all a matter of record. A perusal at the order passed by the Civil Judge and JMFC at Periyapatna rejecting the application, reads as follows:
"5. This court has gone through the materials placed by the applicant. As per the prosecution papers, the police officials lodged FIR against the accused persons under section 420 R/w 34 of IPC, Section 3, 7 of Essential -5- NC: 2024:KHC:23238 WP No. 15021 of 2024 Commodities Act, Section 25(1) of Fertilizer Act. The applicant undertaken to abide to the terms and conditions which may imposed by this court.
6. However, the contention of the Learned APP is that, this court has no jurisdiction to entertain the present application as per section 6E of Essential Commodities Act. Hence, it is relevant to refer the section 6E of the Essential Commodities Act.
6E. Bar of jurisdiction in certain cases.- Whenever any essential commodity is seized in pursuance of an order made under section 3 in relation thereto, or any package, covering or receptacle in which such essential commodity is found, or any animal, vehicle, vessel or other conveyance used in carrying such essential commodity is seized pending confiscation under section 6A, the Collector, or, as the case may be, the State Government concerned under section 6C shall have, and, notwithstanding anything to the contrary contained in any other law for the time being in force, any court, tribunal or other authority shall not have, jurisdiction to make orders with regard to the possession, delivery, disposal, release or distribution of such essential commodity, package, covering, receptacle, animal, vehicle, vessel or other conveyance.]
7. On plain reading of the above provision, it is clear that, if any essential commodity is found or any vehicle used in carrying such essential commodity is seized, the application should be put forth before the collector and this section specifically barred this court from making orders with regard to release of the vehicle seized under the Essential Commodities Act. As per Section 6E of The Essential Commodities Act, the present application is not maintainable before this court and this court has no jurisdiction to adjudicate the present application. Hence, this court pass the following:
ORDER The application filed by the applicant u/s 457 of Cr.P.C. is dismissed as not maintainable."-6-
NC: 2024:KHC:23238 WP No. 15021 of 2024 The reasons so rendered in the afore-quoted impugned order is on the face of it erroneous as the co-ordinate bench considering the issue of jurisdiction in the identical matter in Crl.P.No.137/2018, disposed on 27.02.2018 has held as follows:
"5. Learned counsel appearing for the applicant - petitioner made the submission that when the application was made before the JMFC 1st Court, Davangere, the trial Court referring to Section 6E of the Essential Commodities Act opined that the Court is not having any jurisdiction to allow the petition and to release the vehicle to the applicant. Hence the said application filed under Section 457 Cr.P.C. seeking interim custody of the vehicle came to be rejected.
6. Learned counsel appearing for the applicant
- petitioner herein also made the submission that the observation made by the Court below that the Court is not having jurisdiction to release the vehicle in view of Section 6E of the amended provisions of the Essential Commodities Act, is not correct and it is not in accordance with law. In this connection, learned counsel relied upon the decision of the Hon'ble Supreme Court reported in AIR 1990 SC 1849 rendered in the case of STATE OF M.P. AND OTHERS Appellants v. RAMESHWAR RATHOD Respondent. Learned counsel for the petitioner draws the attention of the Court to paragraph No.6 of the said decision. Hence submitted to allow the petition by setting aside the order of the JMFC Court.
7. Learned High Court Pleader opposed the petition contending that the food stuffs which were loaded in the said vehicle were under confiscation and the Deputy Commissioner has to consider those -7- NC: 2024:KHC:23238 WP No. 15021 of 2024 aspects. Therefore at this stage, it is not proper for releasing the vehicle into the custody of the applicant. Hence learned High Court Government Pleader made the submission to reject the petition.
8. I have perused the grounds urged in the petition and also the order of the learned JMFC Court so also the decision of the Hon'ble Supreme Court relied upon by the learned counsel for the petitioner herein. In the decision of the Hon'ble Supreme Court, it is observed that the Court having jurisdiction in respect of criminal matters can invoke the jurisdiction for the release of the said vehicle and the power cannot be taken away. Therefore in view of the said decision and the principle enunciated in the said decision, the order of the learned JMFC Court is not correct and it is not in accordance with law."
This Court following the judgments of the coordinate benches rendered earlier, in Crl.P.No.4492/2022 disposed on 17.06.2022, has held as follows:
"Learned counsel appearing for the petitioner submits that the issue in the lis stands covered by the judgment rendered by the Co-ordinate Bench of this Court in Crl.P.No.100628/2022 dated 21.03.2022, wherein this Court, has held as follows:
"3. The learned High Court Government Pleader appearing for the respondent-State submits that the petitoiner is not entitled for release of the vehicle in view of the bar contained in Section 6E of the Act. Hence, the learned Magistrate has rightly passed the impugned order and the same does not warrant any interference.-8-
NC: 2024:KHC:23238 WP No. 15021 of 2024
4. I have considered the submissions made by the learned counsel for the parties.
5. It is not disputed that the vehicle belonging to the petitioner was seized when the rice meant for public distribution was being transported unauthorisedly which is in contravention of the provisions contained in the Act. The co-ordinate Bench of this Court in Criminal Petition No.137/2018 following the decision of the Hon'ble Apex Court in the case of State of M.P. and Others Vs. Rameshwar Rathod reported in AIR 1990 SC 1849, has held that the criminal court having jurisdiction can exercise the power for release of the vehicle which was involved in commission of the offence under the provisions of the Act. In view of the same, the impugned order passed by the learned Magistrate requires to be set aside."
2. Learned counsel would also take this Court through the order passed in Crl.P.No.671/2010 dated 21.10.2013, wherein the Co-ordinate Bench of this Court, holds as follows:
"4. The ownership of the vehicle is not in dispute. The only ground urged by the State is that the vehicle seized under the provisions of Essential Commodities Act is to be released only by the District Commissioner who is authorized officer and not the jurisdictional Magistrate. This issue came up for consideration before the Apex Court in AIR 1990 SC 1849, wherein, it is held as under:-
"Normally under the Criminal Procedure Code, the Criminal Courts of the country have the jurisdiction and the ouster of the ordinary criminal court in respect of a crime can only be inferred if that is the irresistible conclusion -9- NC: 2024:KHC:23238 WP No. 15021 of 2024 flowing from necessary implication of the new Act. In view of the language used in Ss.6A and 7 of the Essential Commodities Act and in the context in which this language has been used, the inference that arises is that the criminal Court retains jurisdiction and its jurisdiction is not completely ousted"
5. Both the Courts below by following the law declared by the Apex Court have passed the impugned orders. I find no justifiable ground to interfere with the impugned orders. Accordingly, the petition is hereby dismissed."
3. In the light of the orders so passed by the Co-ordinate Bench of this Court as quoted supra, the petitioner is entitled to succeed." In the light of the issue standing answered by the coordinate bench of this Court which is subsequently followed by this Court, the reason so rendered by the concerned Court to reject the application is blatantly contrary to law.
8. For the aforesaid reasons, the following:
ORDER a. The writ petition is allowed.
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NC: 2024:KHC:23238 WP No. 15021 of 2024 b. The order dated 08.11.2023 passed by the Civil Judge and JMFC, Periyapatna in Crime No.202/2023 stand quashed.
c. The application filed under Section 457 of the Cr.P.C.
seeking release of Ashok Leyland vehicle bearing No.KL-02-AR-3107, is allowed. Only the said vehicle be released to the petitioner herein on proper identification and not the stored fertilizers in a technical grade urea plastic bags, subject to the following conditions:
a. Petitioner shall execute an indemnity bond for a sum of Rs.4,00,000/- (Rupees Four Lakhs only) i.e., the value estimated under the PF so also furnish one surety for the said amount to the satisfaction of the concerned Magistrate Court. b. Petitioner shall not change colour and number of the said vehicle.
c. The colour photograph of the said vehicle is to be taken from different angles and they should be produced before the concerned JMFC Court. d. The applicant-petitioner shall not transfer the vehicle in any manner in favour of anybody till conclusion of the proceedings.
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NC: 2024:KHC:23238 WP No. 15021 of 2024 e. The petitioner shall produce the vehicle before the confiscation authority or before the JMFC Court as and when directed.
f. The petitioner shall not repeat the offence that he is now embroiled in.
g. The release of the subject vehicle shall be done, within one week from the date of receipt of a certified copy of the order.
Ordered accordingly.
Sd/-
JUDGE SBN List No.: 1 Sl No.: 40