Andhra Pradesh High Court - Amravati
Geetha Decorticaters vs The State Of Andhra Pradesh on 20 November, 2020
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
****
CRIMINAL PETITION Nos.5139 and 5200 of 2020
Between:
Crl.P.No.5139 of 2020
Geetha Decorticaters,
Rep. by its Proprietor, S.Jaya Chandra Reddy
... Petitioner
And
The State of Andhra Pradesh.
Rep.by its Public Prosecutor,
High Court of Andhra Pradesh.
... Respondent.
JUDGMENT PRONOUNCED ON 20.11.2020
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments? - No -
2. Whether the copies of judgment may be
marked to Law Reporters/Journals - Yes -
3. Whether Their Ladyship/Lordship wish
to see the fair copy of the Judgment? - Yes -
MSM,J
Crlps_5139 and 5220_2020
2
* THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
+ CRIMINAL PETITION Nos.5139 and 5220 of 2020
% 20.11.2020
Crl.P.No.5139 of 2020:
# Geetha Decorticaters,
Rep. by its Proprietor, S.Jaya Chandra Reddy
....Petitioner
v.
$ The State of Andhra Pradesh.
Rep.by its Public Prosecutor,
High Court of Andhra Pradesh.
.... Respondent
! Counsel for the Petitioner : Sri Katta Sambasiva Rao
Counsel for Respondent: Public Prosecutor.
<Gist :
>Head Note:
? Cases referred:
1. AIR 2019 SC 1597
2. (2008) 14 SCC 624
3. (1985) 4 SCC 573
4. (2002) 9 SCC 90
5. (2004) 4 SCC 129
6. (2017) 14 SCC 502
7. (1978) 1 APLJ 391
8. (1980) 1 ALT 8
9. 2003 (4) Mh.L.J 831
10. 1998 (1) Mh.L.J. 431
11. 2012(3) MPLJ 529
12. 2011 (2) EFR 574
13. AIR 1990 SC 1849
14. 2016(3)KLJ221
15. 2016 ALL MR (Cri) 2788
16. 1998(1)MhLJ431
17. 2013(4)KarLJ549
18. AIR 2003 SC 638
19. AIR 1977 SC 1749
20. (1990) 3 SCC 549
MSM,J
Crlps_5139 and 5220_2020
3
21. (2005) 13 SCC 540
22. AIR 1977 SC 2229
23. AIR 1974 SC 1146
MSM,J
Crlps_5139 and 5220_2020
4
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
CRIMINAL PETITION Nos.5139 and 5220 of 2020
COMMON ORDER:
The criminal petition No.5139 of 2020 is filed by the petitioner under Section 482 of Criminal Procedure Code (for short "Cr.P.C.") questioning the order dated 29.09.2020 passed in Crl.M.P.No.752 of 2020 by the Additional Judicial Magistrate of First Class, Kadiri and direct the respondents to release the Eicher vehicle bearing No.AP 02 TJ 1738. A case in Crime No.148 of 2020 on the file of O.D.Cheruvu Police Station, Ananthapur District was registered against the petitioner for the offence punishable under Section 420 read with 34 of Indian Penal Code (for short "I.P.C.") and Section 7 (1) (A) of Essential Commodities Act, 1955 (for short "the E.C.Act.").
The petitioner in Crl.P.No.5220 of 2020 also sought identical relief i.e. to quash the order dated 17.06.2020 passed in Crl.M.P.No.495 of 2020 on the file of the Principal Junior Civil Judge - cum - Judicial Magistrate of First Class - cum - XIII Additional Metropolitan Magistrate, Nandigama including the F.I.R.No.416 of 2020 dated 05.06.2020 on the file of Veerullapadu Police Station, Krishna District, registered for the offence punishable under Sections 407 of I.P.C. and under Section 7 of the E.C.Act.
The respondents intercepted the vehicles of the petitioners, found that the PDS rice is allegedly transporting in those vehicles in contravention of Section 3 of the E.C.Act besides the offences under the provisions of I.P.C., seized the vehicles under the cover MSM,J Crlps_5139 and 5220_2020 5 of mediators report, and the vehicles were produced before the Judicial First Class Magistrate at Kadiri and Nandigama respectively.
The petitioner in Criminal Petition No.5139 of 2020 filed an application Crl.M.P.No.752 of 2020 under Section 451 of Cr.P.C. claiming interim custody of Eicher vehicle bearing No.AP 02 TJ 1738 pending investigation, but the said application was dismissed.
The petitioner in Criminal Petition No.5220 of 2020 filed an application Crl.M.P.No.495 of 2020 under Section 457 of Cr.P.C. claiming interim custody of Auto bearing No.AP 16TY 0725, the said application was also dismissed.
Since the dispute is with regard to competence of the Magistrate to release the vehicles seized for violation of provisions of the E.C.Act, the Criminal Petition No.5139 of 2020 and Criminal Petition No.5220 of 2020 are heard together.
The contentions raised and point involved in both the petitions is also one and the same, I find that it is expedient to decide both the petitions by common order.
During hearing, learned counsel for the petitioners mainly contended that if the vehicles are allowed to be in the custody of the Court, they may be exposed to rain and heat, which would cause substantial damage to the vehicles, become derelict and not fit for use in course of time. Apart from that, both the petitioners have purchased those vehicles by obtaining loan and in case, the vehicles are allowed to be in the custody of police during MSM,J Crlps_5139 and 5220_2020 6 investigation or in the custody of Court, it is difficult for them to eke out their livelihood while paying installments to the financiers, requested to issue a direction for release of the vehicles as interim custody.
Learned Additional Public Prosecutor supported the orders passed by the Additional Judicial Magistrate of First Class, Kadiri and Judicial Magistrate of First Class - cum - XIII Additional Metropolitan Magistrate, Nandigama, while contending that the petitioners are not entitled for release of vehicles since such power is conferred on the Joint Commissioner when the proceedings under Section 6A of the E.C.Act were initiated, to order confiscation of the vehicle, thereby the Joint Collector alone is competent to release the vehicle if any application is filed, but not the Magistrate and that there is a clear bar on the jurisdiction of the Courts under Section 6-E of the E.C.Act, requested to dismiss both the petitions.
The petitioner in Criminal Petition No.5139 of 2020 filed petition Crl.M.P.No.752 of 2020 under Section 451 of Cr.P.C., the petitioner in Criminal Petition No.5220 of 2020 filed petition Crl.M.P.No.495 of 2020 under Section 457 of Cr.P.C. before the concerned Magistrates. However, the effect is one and the same in both the petitions. Therefore, it is appropriate to decide the competence of the Magistrate to order interim custody of the vehicles when proceedings are initiated under Section 6-A of the E.C.Act, if any, against the petitioners, and when no such proceedings were initiated except registration of crime for the MSM,J Crlps_5139 and 5220_2020 7 offence punishable under the provisions of E.C.Act and the provisions of I.P.C.
Section 451 of Cr.P.C. deals with order for custody and disposal of property pending trial in certain cases, whereas Section 457 of Cr.P.C. deals with power of the Magistrate when the property was seized by the police. Clause (2) of Section 457 of Cr.P.C. prescribed the procedure for disposal of property. As per Section 457 (2) of Cr.P.C. if the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation.
In any way, the effect of Section 451 and 457 Cr.P.C. is one and the same, but the difference is that Section 451 of Cr.P.C. deals with release of vehicle for interim custody pending trial, whereas Section 457 of Cr.P.C. deals with release of vehicle during pendency of investigation. But in the present cases, it is not known whether the investigation is completed or not or whether the trial is pending or not?
Section 451 of Cr.P.C. deals with power of the Court to pass order for custody and disposal of property pending trial in certain cases, which reads thus:
"When any property is produced before any criminal court during any inquiry or trial, the Court may order as it thinks fit for the proper custody MSM,J Crlps_5139 and 5220_2020 8 of such property pending the conclusion of inquiry or trial, and if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, 2 the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed off.
For the purpose of this section, property includes :
(a)Property of any kind or document which is produced before the Court or which is in its custody.
(b)Any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence."
Section 451 of Cr.P.C. enables the Court to pass order for custody or dispose of the property, whereas Section 452 of Cr.P.C. deals with power of the Court to order for disposal of property at conclusion of trial. Thus, the power under Section 451 of Cr.P.C. is discretionary and such discretion must be exercised judiciously while granting interim custody of the property subject to certain conditions either under Section 451 or 457 of Cr.P.C. These, two provisions are general in nature and applicable for release of property seized in connection with any crime.
In the present facts of the case, crimes were registered against both the petitioners not only for the offence punishable under the provisions of I.P.C. and also Section 7 of the E.C. Act, which is a special law.
Section 7 of the E.C. Act prescribed certain penalties for contravention of Control Order made under Section 3 of the E.C.Act.
As per Section 7 (1) (b) of the E.C. Act, any property in respect of which the order has been contravened shall be forfeited to the Government. According to Section 7 (1) (c) of the E.C.Act, MSM,J Crlps_5139 and 5220_2020 9 any package, covering or receptacle in which the property is found and any animal, vehicle, vessel or other conveyance used in carrying the commodity shall, if the court so orders, be forfeited to the Government.
If any person to whom a direction is given under clause (b) of sub-section (4) of section 3 fails to comply with the direction, he shall be punishable with imprisonment for a term which shall not be less than three months but which may extend to seven years and shall also be liable to fine. Thus, a specific procedure is prescribed under Section 7 of the E.C.Act enabling the Magistrate to forfeit the property, any animal, vehicle, vessel or other conveyance used in carrying the commodity by specific order.
The Andhra Pradesh State Targeted Public Distribution System (Control) Order, 2018 (for short "Control Order, 2018") specified the procedure and penalties. Clause 20 of the Control Order 2018 enables the authorities under the Act to enter into any premises, inspect, search and seize the scheduled commodities and insist for production of documents. At the same time, as per sub-clause (i) of clause 20 of the Control Order 2018, the inspecting authorities as and when found contravention of the provisions of this Order shall submit necessary inspection reports for initiation of disciplinary action under this Order. In case of seizure of scheduled commodities, for any violation or contravention of the provisions of this Order, a report of seizure shall be submitted to the Collector/Joint Collectors, as the case may be, for initiating the action under section 6-A(1) of the Essential Commodities Act,1955. Simultaneously, a separate MSM,J Crlps_5139 and 5220_2020 10 report shall be filed for initiation of disciplinary proceedings against errant dealer under the provisions of this Order and for violating the conditions of authorization.
Thus, the power is conferred on the authorities under the Act not only to seize essential commodities and also to seize vehicle, vessel or other conveyance etc. Sub-clause (m) of clause 20 of the Control Order 2018 says that as and when, the District Collector/ Joint Collector receives any complaint under Section 6A of Essential Commodities Act, 1955 from the inspecting authorities on involvement of possession of rice intended for Public Distribution System or PDS rice found in the premises of rice mill, after having satisfied the case is proved, shall order for disconnection of electricity connection of such rice mill forever, criminal action under Section 7 of Essential Commodities Act,1955 and the provisions of Criminal Procedure Code, block listing the rice mill for taking delivery of CMR Paddy under Custom Milling Operations besides taking action as deemed fit for the contravention of law under the provisions of the Control Order 2018.
Therefore, power is conferred on the Joint Collector to initiate proceedings under Section 6-A of the E.C.Act as well as prosecution under Section 7 of the E.C.Act against the person, who contravened the control order made under Section 3 of the E.C.Act.
Section 6-A of the E.C.Act conferred power on the Collector or Joint Collector to order confiscation of the essential commodity so seized; any package, covering or receptacle in which such essential commodity is found; and any animal, vehicle, vessel or MSM,J Crlps_5139 and 5220_2020 11 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 oilseeds in pursuance of an order made under Section 3 in relation thereto from a producer shall, if the seized food grains or edible oilseeds have been produced by him, be confiscated.
Second proviso to Section 6-A of the Act further says 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.
Thus, the Joint Collector under the provisions of the E.C.Act is vested with power to order confiscation of the vehicle to the State after following necessary procedure. At the same time, the owner of the vehicle is entitled to exercise an option under second proviso to Section 6-A of the E.C.Act to pay fine in lieu of its confiscation not exceeding the market price at the date of seizure. Therefore, the persons claiming to be the owners are entitled to exercise such option provided under second proviso to Section 6-A of the E.C.Act before confiscating the vehicle to the State.
Section 6-E of the E.C.Act created a direct interdict on the jurisdiction of the Court i.e. bar of jurisdiction in certain cases. As per Section 6-E of the Act 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 MSM,J Crlps_5139 and 5220_2020 12 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, 2[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, 3[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.] Thus, Section 6-E of the E.C.Act took away the jurisdiction of other Courts including tribunal except conferring jurisdiction on the Collector or Joint Collector for release of the vehicle during pendency of the proceedings under Section 6-A of the E.C.Act.
In the present facts of the cases, no material is produced by either party to the effect that proceedings under Section 6-A of the E.C.Act are initiated.
Even a bare look at the provisions of Section 6-A and 6-E of the E.C.Act, it is clear that only in case proceedings under Section 6-A of the E.C.Act are initiated, the Joint Collector will get jurisdiction either to release the vehicle during pendency of the enquiry under Section 6-A of the E.C.Act or to order confiscation after following necessary procedure.
Thus, the law is clear only when proceedings under Section 6-A of the E.C.Act are initiated against the person, who violated the order made under Section 3 of the E.C.Act, the Joint Collector alone is competent to pass any order for release of the vehicle, when no such proceedings are initiated and a complaint is filed MSM,J Crlps_5139 and 5220_2020 13 before the Magistrate as per Clause 20 of the Control Order, 2018, the Magistrate is competent to pass such order of confiscation at the conclusion of trial for the offence punishable under Section 7 (1) (b) and (c) of the E.C.Act.
In similar circumstances, the Courts with regard different enactments, including Forest Act, made clear that the authorities specified under the Act are competent to confiscate the vehicle to the State subject to certain procedure under Section 52 of the Act. At the same time, the power to release the vehicle is also conferred on the same officer when a forest offence is committed by any person.
In "The State of Madhya Pradesh v. Uday Singh1" the Apex Court considered various provisions of Forest Act and the law declared by the Apex Court in "State of Madhya Pradesh v. Madhukar Rao2", "Divisional Forest Officer v. G.V. Sudhakar Rao3", "State of Karnataka v. K.A. Kunchindammed4", "State of West Bengal v. Sujit Kumar Rana5"; and "State of Madhya Pradesh v. Kallo Bai6", concluded that such power to release the vehicle as interim custody under Section 451 of Cr.P.C. is vested on the authorized officer, but not on the Magistrate.
In "State of A.P. v. P.K. Mohammad7" and "Mohd. Yaseen v. Forest Range Officer, Flying Squad, Rayachoti8" the High Court of Andhra Pradesh at Hyderabad while dealing with provisions of the Andhra Pradesh Forest Act, 1967 held that the 1 AIR 2019 SC 1597 2 (2008) 14 SCC 624 3 (1985) 4 SCC 573 4 (2002) 9 SCC 90 5 (2004) 4 SCC 129 6 (2017) 14 SCC 502 7 (1978) 1 APLJ 391 8 (1980) 1 ALT 8 MSM,J Crlps_5139 and 5220_2020 14 Forest Act, 1967 contemplated two procedures, one for the confiscation of the goods forming the subject matter of the offence by an Authorised Officer Under Section 44 (2A)9 and the other for the trial of a person accused of the offence so committed Under Section 20 or 29. Explaining the purpose of the legislation, the Apex Court noted with approval the view of the High Court in the above cases that the provision for confiscation by an authorised officer had been enacted in public interest to suppress an evil which the legislature wishes to avoid, observed as follows:
"We find that a later division bench consisting of Kondaiah, C.J. and Punnayya, J. in Mohd. Yaseen v. Forest Range Officer, Flying Squad, Rayachoti [(1980) 1 ALT 8] approved the view expressed by Jeewan Reddy, J. in P.K. Mohammad case [(1978) 1 APLJ 391], and held that the Act contemplates two procedures, one for confiscation of goods forming the subject-matter of the offence by the Authorized Officer Under Sub-section (2-A) of Section 44 of the Act, and the other for trial of the person Accused of the offence so committed Under Section 20 or 29 of the Act. The learned Judges held that the Act provides for a special machinery for confiscation of illicitly felled timber or forest produce by the Authorized Officer Under Sub-section (2-A) of Section 44 enacted in the general public interest to suppress the mischief of ruthless exploitation of government forests by illicit felling and removal of teak and other valuable forest produce."
Thus, when once the power is conferred for confiscation or release of vehicle on the authorized officer, the Joint Collector in the present case, alone is entitled to release the vehicle if any proceedings under Section 6-A of the E.C.Act are initiated.
When the similar issue came up before the Bombay High Court in "Vitthal v. State of Maharashtra9", the Bombay High Court while placing reliance on earlier judgment in "State of Maharashtra v. Manishkumar10", concluded that when once the Collector or the State Government commences the proceedings for 9 2003 (4) Mh.L.J 831 10 1998 (1) Mh.L.J. 431 MSM,J Crlps_5139 and 5220_2020 15 confiscation either under Section 6-A or 6-C, the Court or other authorities are barred from considering the release and disposal of the said property and to that extent, the general power of the criminal court to dispose of the property is taken away in view of the bar under Section 6-E of the Act. However, in the facts of the above judgment, the Tempo Trax vehicle was ordered to be released subject to furnishing a bank guarantee to the satisfaction of trial Court in the sum of Rs. 75,000/- (Rs. Seventy five thousand only) and on further furnishing a personal bond of Rs. 1.25 lacs (Rs. One lac twenty five thousand only) with one surety in the like amount for securing the return of the vehicle as and when the trial Court directs to do so.
Similar view was taken by the High Court of Madhya Pradesh in "Parsadilal Rathore v. State of Madhya Pradesh11"
In the said case, the Madhya Pradesh High Court explained as to when the property can be disposed during pendency of the case and competence of the officers concerned, relying on "Mewa lal Sharma v. State of M.P. through Police Station Mihona District Bhind12", and "State of Madhya Pradesh v.
Rameshwar Rathod13", concluded that when proceedings under Section 6-A of the E.C.Act are initiated, the Magistrate has no jurisdiction.
In "Mewa lal Sharma v. State of M.P. through Police Station Mihona District Bhind" (referred supra), the High Court of Madhya Pradesh held as follows:
"While considering the facts that applicant is registered owner of the 11 2012(3) MPLJ 529 12 2011 (2) EFR 574 13 AIR 1990 SC 1849 MSM,J Crlps_5139 and 5220_2020 16 seized vehicle no prolific purpose would be served by letting the vehicle idle in the police station for such long period. In view of the aforesaid, the impugned order is having apparent perverse and as such it requires interference in this revision hence impugned order dated 06th August 2010 is set aside with direction to the trial court that tractor trolley bearing No. MP 06 A 7066 be released on interim Supurdginama of applicant on his furnishing surety bond and personal bond of Rs. One Lakh with the condition that during investigation whenever required applicant will produce that vehicle and shall not alienate, dispose of or transfer that vehicle and also produce it before the collector if confiscation proceedings are initiated concerning that vehicle and the aforesaid release of the vehicle will be subject to outcome of confiscation proceedings if initiated.
In "State of Madhya Pradesh v. Rameshwar Rathod"
(referred supra) the Apex Court held as follows:
"It was next contended by the respondent before the High Court that the Criminal Court was empowered under S.7 of the Act to confiscate the vehicle after due and proper inquiry and therefore the proceedings by the District Collector under S.6A and S.6B of the Act should be quashed. Reliance was placed on several decisions and authorities. Our attention was drawn to the decision of the Mysore High Court in the case of "The State v. Abdul Rasheed [AIR 1967 Mysore 231]"; "Sri Bharat Mahey v. State of U.P. [1975 Cri.L.J 890 (All)]" as well as the decision of the learned single Judge in "State of M.P. v. Basant Kumar [1972 Jab LJ Short Note No.99". On a consideration of the relevant authorities, the High Court came to the conclusion that the criminal Court had jurisdiction to deal with the matter. Mr. Deshpande sought to argue that in view of the enactment of the provisions of S.6A as well as S.7 of the Act, it cannot be held that the criminal Court continued to retain jurisdiction. He submitted that in view of the enactment of these provisions, it would be useless to hold that the criminal Court continued to retain jurisdiction, otherwise the very purpose of enacting S.6A read with S.7 would be defeated. We are, however, unable to accept this contention because 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 flowing from necessary implication of the new Act. In view of the language used and in the context in which this language has been used, we are of the opinion that the High Court was right in coming to the conclusion that the Criminal Court retained jurisdiction and was not completely ousted of the jurisdiction. In that view of the matter, the High Court was therefore right in passing the order under consideration and in the facts and circumstances of the case to return the vehicle to the respondent on MSM,J Crlps_5139 and 5220_2020 17 furnishing the security."
In "Biju Sebastian v. State of Kerala14" the High Court of Kerala at Ernakulam referred to the decision of the Apex Court in "State of Madhya Pradesh v. Rameshwar Rathod" (referred supra) concluded that when proceedings are initiated under Section 6-A of the E.C.Act, the jurisdiction of the Courts is barred and only Joint Collector is competent to pass such order for release of the vehicle seized in connection with the proceedings under Section 6-A of the E.C.Act, simultaneously in the prosecution initiated under Section 7 of the E.C.Act.
In "Vasant Annarao Bhosle v. State of Maharashtra15"
the High Court of Judicature at Bombay (Aurangabad Bench) relying on the judgment of the Apex Court in "State of M.P. v.
Ramesh" (referred supra), concluded that that the Magistrate is not competent to release the vehicle and the Collector is entitled to release the vehicle.
Similarly, in "the State of Maharashtra v. Manish Kumar16" the High Court of Bombay held that if there is no confiscation proceeding pending under section 6-A before the Collector and/or under section 6C before the State Government, then the Court or tribunal or any other authority can have jurisdiction to make orders with regard to the possession, delivery, disposal, release or distribution of such essential commodity, etc. Thus, the jurisdiction of the Court or tribunal or any other authority stands ousted only if confiscation proceedings are pending before the Collector and/or the State Government either 14 2016(3)KLJ221 15 2016 ALL MR (Cri) 2788 16 1998(1)MhLJ431 MSM,J Crlps_5139 and 5220_2020 18 under sections 6-A or 6-C of the Act.
The High Court of Karnataka, Circuit Bench at Gulbarga, in "Mahalingappa v. The Deputy Commissioner (Food and Civil Supplies)17" held that the under the second proviso to Section 6-A (1) of the Act, the measure of fine would be up to the market price of the vehicle on the relevant date and it is within the discretion of the Competent Authority to fix such reasonable amount considering the facts and circumstances of each case.
The Apex Court in "Sunderbhai Ambalal Desai v. State of Gujarat18" has held that the power under Section 451 Cr.P.C.
should be exercised expeditiously and judiciously.
The Supreme Court in "Smt. Basavva Kom Dyamangounda Patil v. State of Mysore19" observed as under:
"The object and scheme of the various provisions of the Code appear to be that where the property which has been the subject-matter of an offence is seized by the police, it ought not be retained in the custody of the Court or of the police for any time longer than what is absolutely necessary. As the seizure of the property by the police amounts to a clear entrustment of the property to a Government servant, the idea is that the property should be restored to the original owner after the necessity to retain it ceases. It is manifest that there may be two stages when the property may be returned to the owner. In the first place it may be returned during any inquiry or trial. This may particularly be necessary where the property concerned is subject to speedy or natural decay. There may be other compelling reasons also which may justify the disposal of the property to the owner or otherwise in the interest of justice. The High Court and the Sessions Judge proceeded on the footing that one of the essential requirements of the Code is that the articles concerned must be produced before the Court or should be in its custody. The object of the Code seems to be that any property which is in the control of the Court either directly or indirectly should be disposed of by the Court and a just and proper order should be passed by the Court regarding its disposal. In a criminal case, the police always acts under the direct control of the 17 2013(4)KarLJ549 18 AIR 2003 SC 638 19 AIR 1977 SC 1749 MSM,J Crlps_5139 and 5220_2020 19 Court and has to take orders from it at every stage of an inquiry or trial. In this broad sense, therefore, the Court exercises an overall control on the actions of the police officers in every case where it has taken cognizance."
The question is as to which authority or Court will have jurisdiction to release the commodity seized in pursuance of an order made under Section 3 of the Essential Commodities Act, 1955 if confiscation proceedings have been commenced under Section 6-A of the Act. In view of the judgment of the Supreme Court in case of "Shambhoo Dayal Agarwal v. State of West Bengal20", once confiscation proceedings have commenced neither any Court nor the Collector in proceedings under section 6-A of the E.C. Act can direct the return of the commodity seized during pendency of the proceedings.
Thus, it is clear from the law declared by the various Courts (referred above) when proceedings under Section 6-A of the E.C.Act are initiated, the Court or Tribunal has no jurisdiction to release the vehicle or order confiscation etc., except by the authorities specified by the Act i.e. Joint Collector. If, no proceedings are initiated under Section 6-A of the E.C.Act and only criminal prosecution is pending, the Magistrate is competent to release the vehicle or order confiscation. In the present case, it is not known whether any proceedings under Section 6-A of the E.C. Act are initiated or not.
In view of my discussion in the earlier paragraphs, it is clear that if no proceedings are initiated before the Joint Collector under Section 6-A of the E.C.Act, the Magistrate continued to hold jurisdiction to deal with the property seized by the police in any crime registered against the violators of Control Order made under 20 (1990) 3 SCC 549 MSM,J Crlps_5139 and 5220_2020 20 Section 3 of the E.C.Act when the same is pending either at the Crime stage or at the trial stage.
If proceedings under Section 6-A of the E.C.Act are initiated, the Magistrate automatically lose its jurisdiction, in such case the Joint Collector alone will hold the jurisdiction to release the vehicle under Section 6-A of the E.C.Act.
Coming to the facts of present case, learned counsel for the petitioner in Criminal Petition No.5139 of 2020 submitted that no proceedings under Section 6-A of the E.C.Act are initiated against the petitioner till date, thereby the question of denuding the Magistrate to exercise power under Section 451 of Cr.P.C. does not arise.
Learned counsel for the petitioner in Criminal Petition No.5220 of 2020 submitted that the petitioner applied under the Right to Information Act as to initiation of any proceedings under Section 6-A of the E.C.Act, obtained an endorsement that no proceedings are initiated against the petitioner under Section 6-A of the E.C.Act for violation of any of the Control Order made under Section 3 of the E.C.Act.
Learned Additional Public Prosecutor for the State did not dispute the same and did not produce any material prima facie to establish that the proceedings under Section 6-A of the E.C.Act are initiated against the petitioners.
Thus, in both the matters, no proceedings under Section 6- A of the E.C.Act were initiated prima facie. However, the Magistrate is competent to pass an order of confiscation of the vehicle to the State under Section 7 of the E.C.Act recording MSM,J Crlps_5139 and 5220_2020 21 reasons at the end of trial.
If the vehicles are released and not produced before the Magistrate during trial, the State will be the looser and it causes loss to the State exchequer. Therefore, to protect the interest of the petitioners and respondents by following the principles laid down in the judgments referred supra, I deem it appropriate to direct the respondents to get the vehicles valued by Motor Vehicle Inspector in the presence of the petitioners; after fixation of value of the vehicle, on furnishing immovable property as security equivalent to the value of the vehicle strictly adhering to the Stamps and Registration laws, release the vehicles after obtaining an undertaking from the petitioners to produce the vehicles as and when directed, and that they will not alienate the same and maintain in good condition.
In Criminal Petition No.5220 of 2020 learned counsel for the petitioner not only prayed for setting aside the order passed by the learned Magistrate in Crl.M.P.No.495 of 2020, but also to quash the proceedings in F.I.R.No.416 of 2020 dated 05.06.2020 on the file of Veerullapadu Police Station, Krishna District.
As discussed above, the order passed by the Magistrate in Crl.M.P.No.495 of 2020 is liable to be set aside as it is contrary to the law laid down in the judgments (referred supra), so far as quashment of proceedings in F.I.R.No.416 of 2020 dated 05.06.2020 on the file of Veerullapadu Police Station, Krishna District are concerned, I am not inclined to quash the proceedings for the reason that the powers of this Court under Section 482 of Cr.P.C. at the stage of F.I.R. are limited and this Court can verify the F.I.R. and other material, if any, produced before the Court MSM,J Crlps_5139 and 5220_2020 22 and decide whether such allegations would constitute any offence, but this Court cannot appreciate the evidence and cannot record whether the allegations would constitute any specific offence or not.
Undisputedly, investigation in the present case (Crl.P.No.5220 of 2020) is at the fetus stage, in such case, it is difficult to quash the proceedings as held in "State of Orissa v. Saroj Kumar Sahoo21", wherein the Apex Court held that the inherent powers under Section 482 of Cr.P.C. should not be exercised by the High Court to stifle a legitimate prosecution. The High Court, being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. While exercising jurisdiction under Section 482 of the Cr. P.C., it is not permissible for the Court to act as if it was a trial court. Even when charge is framed at that stage, the Court has to only prima facie be satisfied about existence of sufficient ground for proceeding against the accused. For that limited purpose, the Court can evaluate material and documents on record but it cannot appreciate evidence. The Court is not required to appreciate evidence to conclude whether 21 (2005) 13 SCC 540 MSM,J Crlps_5139 and 5220_2020 23 the materials produced are sufficient or not for convicting the accused.
In "Kurukshetra University v. State Of Haryana22", the Supreme Court took a serious view about quashing the proceedings by the High Court while exercising power under Section 482 Cr.P.C and observed as follows:
"It surprises, us in the extreme that the High Court thought that in the exercise of its inherent powers under Section 482 of the CrPC, it could quash a First Information Report. The police had not even commenced investigation into the complaint filed by the Warden of the University and no proceeding at all was pending in any court in pursuance of the F.I.R. It ought to be realized that inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. That statutory power has to be exercised sparingly, with circumspection and in the rarest of rare cases."
In view of the law declared by the Apex Court in "State of Orissa v. Saroj Kumar Sahoo" and "Kurukshetra University v. State Of Haryana" (referred supra) when the investigation is at fetus stage, this Court cannot interfere with the process of investigation and quash the proceedings by exercising power under Section 482 of Cr.P.C.
In "Jehan Singh v. Delhi Administration23" it was held that where at the date of filing the petition under Section 561-A (old Code equivalent to Section 482 of the Code), no charge sheet has been laid and the matter is only at the stage of investigation by police, the Court cannot, in exercise of its inherent jurisdiction under Section 561-A interfere with the statutory powers of the police to investigate into the alleged offence and quash the proceedings.
22
AIR 1977 SC 2229 23 AIR 1974 SC 1146 MSM,J Crlps_5139 and 5220_2020 24 In the present case, the investigation is at fetus stage. As per the principles culled out from the law declared by various Courts referred above, there is a direct interdict on the powers of this Court to interfere with the investigation and quash the proceedings by exercising power under Section 482 of Cr.P.C.
As per the law declared by the Apex Court in various judgments referred supra, the Court cannot exercise its power to quash the F.I.R. at its inception and more particularly when no investigation is commenced.
In the result, the Criminal Petition No.5139 of 2020 is allowed setting aside the order passed in Crl.M.P.No.752 of 2020 on the file of the Additional Judicial Magistrate of First Class, Kadiri. The respondents are directed to get the Eicher vehicle bearing No.AP 02 TJ 1738 valued by Motor Vehicle Inspector in the presence of the petitioner, after fixation of value of the vehicle, on furnishing immovable security equivalent to the value of the vehicle strictly adhering to the Stamps and Registration laws, release the Eicher vehicle bearing No.AP 02 TJ 1738 after obtaining an undertaking from the petitioner to produce the vehicle as and when directed, and that he would not alienate the same and maintain in good condition. No costs.
Criminal Petition No.5220 of 2020 is partly allowed setting aside the order passed in Crl.M.P.No.495 of 2020 on the file of the Principal Junior Civil Judge - cum - Judicial Magistrate of First Class - cum - XIII Additional Metropolitan Magistrate, Nandigama. The respondents are directed to get the Auto bearing AP 16 TY 0725 valued by Motor Vehicle Inspector in the presence of the MSM,J Crlps_5139 and 5220_2020 25 petitioner, after fixation of value of the vehicle, on furnishing immovable security equivalent to the value of the vehicle strictly adhering to the Stamps and Registration laws, release the Auto bearing No. AP 16 TY 0725 after obtaining an undertaking from the petitioner to produce the vehicle as and when directed, and that he would not alienate the same and maintain in good condition. So far as the relief of quashment of F.I.R.No. F.I.R.No.416 of 2020 on the file of Veerullapadu Police Station, Krishna District is concerned, the same is dismissed. No costs.
The miscellaneous petitions pending in the petitions, if any, shall also stand closed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY 20.11.2020 Note:
Mark L.R. Copy.
B/o Ksp