Patna High Court - Orders
Baleshwar Roy vs The State Of Bihar & Ors on 17 May, 2016
Author: Hemant Gupta
Bench: Hemant Gupta, Ahsanuddin Amanullah
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.1647 of 2015
Arising out of
Civil Writ Jurisdiction Case No. 2151 of 2015
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Baleshwar Roy, Son of Late Kusheshwar Roy, Resident of Village -
Dohatbari, P.S. Uda Kishunganj, District - Madhepura
.... .... Appellant
Versus
1. The State of Bihar
2. The Collector, Madhepura
3. The Sub Divisional Officer, Madhepura
.... .... Respondents
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Appearance :
For the Appellant : Dr. Sanjay Kumar Singh, Advocate.
For the State : Mr. Anil Kumar Sinha, A.C. to S.C. 5
Amicus Curiae : Mr. Y.V. Giri, Senior Advocate.
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CORAM: HONOURABLE MR. JUSTICE HEMANT GUPTA
and
HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE HEMANT GUPTA)
7 17-05-2016On 29th of July, 2013, the raiding party raided the Basa (out-house) of the appellant wherein 17 bags of wheat, three bicycles, two motorcycles and one Scorpio vehicle were seized. The learned Collector passed an order on 17th of February, 2014 to confiscate the goods including the vehicle. Appeal against such order was dismissed by 1st Additional Sessions Judge, Madhepura on 22nd of October, 2014. The writ application filed by the appellant was dismissed by the learned Single Bench on 28th of July, 2015 wherein the Court did not find any illegality in the order of confiscation.
Patna High Court LPA No.1647 of 2015 (7) dt.17-05-2016
2 /5 The argument of the learned counsel for the appellant was that in terms of Section 6-A of the Essential Commodities Act, 1955 (hereinafter referred to as "the Act"), as amended in State of Bihar, the Collector has power of seizure of the vehicle but the power of interim or final release of the vehicle is not contemplated under the Act.
Keeping in view the issues arising in the case, Sri Y.V. Giri, learned Senior Counsel was appointed as Amicus Curiae.
Learned Amicus Curiae refers to Supreme Court order reported as Shambhu Dayal Agarwala Vs. State of West Bengal and another, 1990 Supreme Court Cases (Cri.) 489, wherein the High Court's directions for release of the vehicle confiscated in terms of Section 6-A of the Act were maintained.
We find that Section 6-A of the Central Act confers power on the Collector for seizure of any animal, vehicle, vessel or other conveyance used for carrying such essential commodity and also an option to the owner of such animal, vehicle, vessel or other conveyance 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.
Patna High Court LPA No.1647 of 2015 (7) dt.17-05-2016
3 /5 Section 6-A of the Act has been substituted in the State by Bihar Act No. 9 of 1978. By Sub-section (6) of Section 6-A of the Act, as inserted in the State, the exclusive jurisdiction has been conferred on the Collector or the Appellate Authority to the exclusion of all other Courts notwithstanding anything to the contrary contained in the Code of Criminal Procedure, 1973. Therefore, the power of release conferred on the Court under Section 457 of the Code of Criminal Procedure, 1973 stands excluded.
Thus, it transpires that the Central Act as enacted confers power on the Collector for release of the vehicle on payment of a fine which does not exceed the market price on the date of seizure, whereas the State amendment does not empower the Collector for release of the vehicle.
Section 6-D of the Act contemplates that an order of any confiscation under this Act by the Collector shall not prevent the infliction of any punishment to which the person affected thereby is liable under this Act. Section 7 of the Act further shows that the Court has a power to impose penalty including forfeiture of any animal, vehicle, vessel or other conveyance used in carrying the commodity.
Therefore, Section 6-A of the Act deals with Patna High Court LPA No.1647 of 2015 (7) dt.17-05-2016 4 /5 confiscation of an animal, vehicle, vessel or other conveyance, whereas Section 7(1)(c) of the Act deals with forfeiture of such animal, vehicle, vessel or other conveyance.
We find that the following question of law would arise for consideration:-
(1) Whether the Collector, who has seized any animal, vehicle, vessel or other conveyance used in carrying essential commodity, has the jurisdiction to release such animal, vehicle, vessel or other conveyance, and if so, on what conditions?
(2) Whether the separation of judicial and executive functions will empower the Collector to confiscate the animal, vehicle, vessel or other conveyance without trial as the deprivation of a property can be ordered by a Court only after trial of the criminal case?
(3) Whether the provisions of Section 6-D of the Act, so as to inflict any other punishment after confiscation, would stand the legal scrutiny on the touchstone of double jeopardy.
Let notice be served on the Additional Solicitor General of India to assist on the questions of law framed above.
List this appeal on 12th of July, 2016.
In the meantime, the vehicle in question (Truck bearing Registration No. BR-11J-4426) shall be released to the appellant on furnishing surety bonds to the satisfaction of the Collector, Madhepura in connection with Confiscation Case No. Patna High Court LPA No.1647 of 2015 (7) dt.17-05-2016 5 /5 10/2013, arising out of Udakishunganj P.S. Case No. 154/13.
(Hemant Gupta, J) (Ahsanuddin Amanullah, J) P.K.P. U