Madhya Pradesh High Court
Shiv Kumar Gupta vs The State Of Madhya Pradesh on 1 May, 2019
Author: Rajendra Kumar Srivastava
Bench: Rajendra Kumar Srivastava
THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Hon'ble Shri Justice Rajendra Kumar Srivastava
M.Cr.C. No. 8778/2019
Shiv Kumar Gupta
Vs
State of M.P.
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Shri Sourabh Kumar Sharma, learned counsel for the
petitioner.
Shri Arpit Tiwari, learned G.A. for the respondent/State.
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ORDER
(01.05.2019) This petition under Section 482 of Cr.P.C. has been preferred by the petitioner being aggrieved by order dated 22.02.2019, in CNRMP No. 54010035372018, passed by learned Sessions Judge, Umaria, whereby the learned Sessions Judge has rejected the prayer of the petitioner for releasing the vehicle bearing Registration No. MP-18 GA 3548, seized in connection with Crime No. 311/2016 for the offence under Section 3/7 of Essential Commodities Act.
2. Brief fact of the case are that the petitioner has filed an application under Sections 451 and 457 of Cr.P.C. before the JMFC, Umaria contending that he is absolute owner of the aforesaid vehicle, on 22.09.2018 in the presence of SDO, Bandhavgarh, officer of Food Department has made search of aforesaid vehicle in the premises of K.K ware housing Corporation PG Godown, Bharola and 16 gunny begs of rice were found on the truck and the same was illegally kept by driver of vehicle namely Amit Kumar. The police has registered a case against the 2 M.Cr.C. No. 8778/2019 petitioner and driver of vehicle for the offence under Section 3/7 of Essential Commodities Act, 1955. He further contended that the petitioner is owner of a rice mill and he is in a contract with MP State Civil Supplies Corporation Ltd. and doing the work of custom milling of paddy. He submits that according to him there is nothing remained in respect of rice to give the concerned authorities whereas article which has been seized by the authorities is rice, therefore, the case of police is false and doubtful. He further contended that he is owner of the aforesaid vehicle and it is standing position at Police Station Umaria. The petitioner prays that if the vehicle is kept in open for a long time, it will be subjected to the decay and rust. The prayer of the petitioner has been rejected by the learned JMFC and being aggrieved, he has preferred a revision petition before Sessions Judge Umariya and same was also dismissed. Hence, this present petition is preferred for.
3. Learned counsel for the petitioner submits that the petitioner has no roll in the aforesaid offence. Police has filed an objection in the supurdginama proceeding, stated that the vehicle of question is under confiscation proceeding before the Collector. But the information regarding confiscation has not been issued to the petitioner, only on this basis that the letter has been issued to the collector by the police, the learned JMFC has rejected the application. Further, the learned Revisional Court is also erred in passing the order dated 22.02.2019. The learned Revisional Court held that the aforesaid vehicle is being prosecuted under the E.C. Act and it is going to confiscate by District Magistrate Umaria, therefore, under Section 6(e) of the Act,1955 Magistrate has no authority to release the vehicle. The findings of the 3 M.Cr.C. No. 8778/2019 learned Revisional Court is not based upon the settled law of the Hon'ble Apex Court. Further he submits that in this case, opportunity of hearing was not provided by SHO to the petitioner, therefore, the order passed by the learned lower Court is not sustainable.
4. On the other hand, learned counsel for the State submits that the proceeding of confiscation has already been initiated. Therefore, under Section 6(e) of the E.C. Act provides bar of jurisdiction once the confiscation proceeding is going on. Therefore, the order passed by the Courts below is proper and not interferable.
5. Heard both the parties and perused the case diary .
6. The conclusion of the present case is based on the Section 6(e) of the E.C. Act,1955 as same was created bar for releasing the seized articles. The relevant Section are provided under the E.C. Act from Section 6(a) to 6(c) and 6(e) as under:-
"6-A. 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 food grains or edible oil seeds have been produced by him, be confiscated under this section 3 in relation thereto from a producer shall, if the seized food grain or edible oil seeds have been produced by him be confiscated under this Section.4 M.Cr.C. No. 8778/2019
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:
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 foodgrains 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 been made under this section, the person concerned is acquitted, be paid to the owner or the person from whom it is seized."
7. Further Section 6-B of E.C. Act is reproduced herein below:-
"6-B issue of show cause notice before confiscation of food grains, etc.-
(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;5 M.Cr.C. No. 8778/2019
(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."
8. Section 6C provides the provision of appeal. Same read as under:-
"(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. xxxxxxxxxx."
9. Section 6-E provides the bar of jurisdiction of Magistrate. Same read as under:-
"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, 6 M.Cr.C. No. 8778/2019 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."
10. After reading of Section 6-A, it appears that where any article related to Essential Commodities Act is seized and report has been sent to Collector, the Collector may, if he thinks fit direct for the production of the same commodities for inspection and subsequent thereto if he is satisfied that there is contravention of the order is found, he may direct to confiscate the said commodities, including vehicle. Further, Section 6-B prescribed the procedure for confiscation and it is provided in this section that the confiscation of the vehicle, vessel, convenience, Essential Commodities Act can not be made, unless the owner is given a notice and he is heard by the Authorities.
11. Section 6-C provides about the appeal against the confiscation order passed under Section 6A, whereas Section 6-E restricted the jurisdiction of judicial authorities with regard to the possession, delivery etc. In this Section it is provided that whenever any essential commodity is seized or any animal, vehicle, vessel or other convenience used in carrying such essential commodity is impound and in respect of the same confiscation proceeding under Section 6-A is pending then the Collector or as the case may be the State Government concerned under Section 6-C shall have right to pass an order regarding possession delivery, disposal, release or distribution of such commodity.
12. After careful reading of the above said provisions, it is manifested that whenever any essential commodities is seized and confiscation proceeding is pending under Section 6A of the Essential 7 M.Cr.C. No. 8778/2019 Commodities Act, Collector has no power to order release of the essential commodity in favour of the owner. It is well settled by the Hon'ble Apex Court that the scheme of Section 6A, 6B and 6C makes it clear that after the essential commodity is seized and the same is inspected by the concerned Collector, the latter has to decide, after complying with the procedure set out in Section 6B, whether or not to confiscate the essential commodity. Since the procedure delineated in Section 6B is time consuming, the Collector has been given special power to sell the essential commodity as stated in Sub-section (2) of Section 6A, if it is subject to speedy and natural decay or it is expedient in public interest so to do. If the Collector decides not to confiscate the commodity and if no prosecution is launched or contemplated the commodity has to be returned to the owner or person from whom it was seized. If in the meantime it is sold in exercise of power under Sub-section (2) of Section 6A, the price of the commodity has to be paid as provided by Sub-section (3) of Section 6A. If the Collector has ordered confiscation but the order is reversed in appeal under Section 6C and no prosecution is pending, Sub-section (2) of Section 6C enjoins that the essential commodity should be 'returned' and if that is not possible its price together with 'reasonable interest. It is pertinent to note that Sub-section (2) of Section 6C uses the words. 'return the essential commodity seized' and not the word 'release the essential commodity seized'.' It seem to us that having regard to the scheme of the Act, the object and purpose of the statute and the mischief it seeks to guard against the word 'release' is used in the limited sense of release for sale, etc., so that the same becomes available, to the consumer public. There could be no question of releasing the 8 M.Cr.C. No. 8778/2019 commodity in the sense of returning it to the owner or person from whom it was seized even before the proceeding, for confiscation stood completed and before the termination of the prosecution in the acquittal of the offender.
13. So far as arguments of learned counsel for the petitioner regarding entertainability of Sections 451 and 457 of Cr.P.C. is concerned, it is well settled principle of law that special law will always prevail over the general law. If any provision of special law is repugnant to any provision of general law then it has been settled that the provision of special law will always prevail.
14. In the present case, petitioner has preferred an application under Section 451 and 457 of Cr.P.C. for releasing a truck in his favour under supurdginama which were seized under the offence of Essential Commodities Act. The learned Judicial Magistrate has rejected his application on the ground of Section 6E of the Act, 1955, in which it is prescribed that the Court has no jurisdiction to pass an order once the confiscation proceeding is initiated. The learned Appellate Court has also affirmed the same. From perusal of case diary it appears that the proceedings of confiscation has been initiated by the Collector District Umaria and show cause notice has also been issued to the petitioner.
15. From the above said discussion this Court is of the view that under Section 6E of Essential Commodities Act, Court has no jurisdiction to pass any order in respect to possession, delivery, disposal, release or distribution of such essential commodity, package, covering, receptacle, animal, vehicle, vessel or other convenience. Further, in view of the principle laid down by Hon'ble Apex Court, it is found that whenever any 9 M.Cr.C. No. 8778/2019 essential commodity is seized and confiscation proceeding is pending then Collector has no power to order release of the said commodity in favour of the owner. It is to Collector, before passing an order of confiscation, he issue notice to the aggrieved party and an opportunity has to be given for contesting the same under Section 6-B, thereafter, he has to decide the objection and pass an order either confiscating the property or refusing to confiscate the same. If the Collector is found that the compliance of Section 6B is consuming time then under the Act he has power to sell the same, if it is subjected to speedy and natural decay. if the Collector came to this conclusion that the commodity shall not be confiscated and no prosecution is lunched then the seized commodity has to be returned to the owner, but if in the meantime it has been sold then the price of commodity has to be paid as provided by sub Section 3 of Section 6A. Apart from that there is provision to file an appeal under Section 6C, being aggrieved by the order of authority, passed under Section 6A of Act 1955.
16. Accordingly, this petition is hereby dismissed however petitioner shall be a liberty to approach before the Collector, District Umaria and filed an appropriate application in this regard and on the other hand Collector District Umaria is also directed to pass an order in view of the relevant provisions of the Essential Commodity Act, 1955.
(Rajendra Kumar Srivastava) Judge L.R. Digitally signed by LALIT SINGH RANA Date: 2019.05.06 22:09:00 -07'00'