Allahabad High Court
Rajesh Kumar Yadav vs State Of U.P. And 2 Others on 20 January, 2021
Equivalent citations: AIRONLINE 2021 ALL 449
Author: Subhash Chandra Sharma
Bench: Subhash Chandra Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved Case :- APPLICATION U/S 482 No. - 15174 of 2020 Applicant :- Rajesh Kumar Yadav Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Ravi Ratn Kumar Sinha Counsel for Opposite Party :- G.A. Hon'ble Subhash Chandra Sharma,J.
1. Heard Shri Ravi Ratan Kumar Sinha, learned counsel for the applicant, learned A.G.A. for the State and perused the record.
2. This application u/s 482 Cr.P.C. has been filed by the applicant Rajesh Kumar Yadav with a prayer to set-aside the impugned order dated 25.08.2020 passed by Chief Judicial Magistrate, Chandauli on the release application in Case No. Nil of 2020 (Rajesh Kumar Yadav Vs. State of U.P.) arising out of Crime No. 68 of 2020, under Section 3/7 Essential Commodities Act, 1955, Police Station Alinagar, District Chandauli, whereby the application for release of seized vehicle has been rejected.
3. Factual Matrix of the case is as under.
Applicant Rajesh Kumar Yadav moved an application for release of vehicle (tanker) bearing no. U.P.62 B.T.1335 alleging himself to be its registered owner. On 01.04.2020, Inspector Police Station Alinagar, District Chandauli reported that near Sareshar village Vijay Yadav r/o Domanpur, P.S. & District Bhadohi with three gallons each having capacity of 20 liters and one pipe to be used for extracting oil from the tanker, was found present and from the tanker theft of oil was attempted. All the upper lids of tanker were opened. Supply Inspector Rajeev Kumar along with his staff went to Police Station Alinagar and inspected the tanker, it was found that the tanker contained 20,000 (twenty thousand) liters diesel. Locks of all chambers were found opened, which was illegal. The tanker was registered in favour of Rajesh Kumar Yadav r/o Junwani Road, Bhilai Road, Chhattisgarh. Driver of the tanker was not present. Vijay Shankar Yadav stated that he was brother of owner of the tanker. The driver of tanker drove it from Indian Oil to Shiv Enterprises, Rae Bareli on 31.3.2020 at 3 O'clock, having 20,000 (twenty thousand) liters of diesel. He parked the tanker near Sareshar Village and went to his home. On 1.4.2020 in the morning, police saw the opened seal and made query with him, it was found that 20,000 (twenty thousand) liters diesel was being black-marketed by Vijay Shankar Yadav. As a result, tanker bearing no. U.P.62BT1335 containing 20,000 (twenty thousand) liters diesel and two empty gallons of twenty liters capacity and one other gallon filled with twenty liters diesel alongwith oil extracting pipe was seized and thereafter First Information Report under Section 3/7 Essential Commodities Act was lodged as Crime No. 68 of 2020, Police Station Alinagar, District Chandauli.
4. The owner of vehicle/ applicant Rajesh Kumar Yadav moved an application before learned Chief Judicial Magistrate, Chandauli for release of vehicle which was rejected. As a result Criminal Revision No. 21 of 2020 was preferred before the court of Ist Additional Sessions Judge, Chandauli which was allowed and order passed by learned Chief Judicial Magistrate dated 6.6.2020 was set-aside. Matter was returned back to the learned Chief Judicial Magistrate for passing order afresh in the light of observations made by the learned Ist Additional Sessions Judge.
5. Again applicant moved an application before the learned Chief Judicial Magistrate, Chandauli for release of the seized vehicle in the light of the order passed by the learned Additional Sessions Judged which was again rejected by learned Chief Judicial Magistrate on 25.8.2020 on the ground of non-maintainability of the application on account of confiscation proceedings pending before the court of District Magistrate, Chandauli under Section 6A of Essential Commodities Act. Being aggrieved with this order this Criminal Misc. Application u/s 482 Cr.P.C. has been preferred before this Court.
6. Learned counsel for the applicant submits that applicant is a businessman and has a tanker bearing no. UP62BT1335 for doing transportation work. On 4.1.2020 his tanker was not involved in any Essential commodities Act but the Inspector, in-charge, Alinagar for taking bribe implicated the applicant's tanker containing 20,000 (twenty thousand) liters diesel in a false case. Learned Chief Judicial Magistrate, Chandauli rejected the application of the applicant without considering the real facts and circumstances of the case on 6.6.2020 against which he filed revision which was allowed by Ist Additional Sessions Judge and matter was remanded back for reconsideration but again learned Chief Judicial Magistrate has rejected the application without application of mind which is against the eye of law. He misinterpreted the order dated 13.8.2020 passed by the Additional Session Judge, Chandauli. Applicant's vehicle is detained in the concerned police station and condition of the aforesaid vehicle is being damaged as it is not functioning, therefore, requested to set-aside the order dated 25.8.2020 passed by learned Chief Judicial Magistrate on the release application in Case No. Nil of 2020 and to direct the court concerned to release the applicant's vehicle.
7. Learned A.G.A. opposed the prayer for release of vehicle and submitted that vehicle has been seized in a case under Section 3/7 Essential Commodities Act. Confiscation proceedings are pending before the court of District Magistrate, Chandauli under Section 6-A of Essential Commodities Act. In this situation, the court of Chief Judicial Magistrate has no jurisdiction to entertain the application for release under Section 451 to 457 Cr.P.C. as has been provided under Section 6-E of Essential Commodities Act. Learned Magistrate has passed the impugned order having taken into consideration the relevant provisions of law and legal position as propounded by the Apex Court as well as this Court regarding release of vehicle. There is no illegality in the impugned order but it is based on the sound principles of law. So, this application is devoid of merit.
8. Considering the submissions made by learned counsel for the parties, the issue for consideration before this Court is " whether an application under Section 451 Cr.P.C. for release of seized vehicle is maintainable during pendency of confiscation proceedings before the collector under Section 6A of The Essential Commodities Act, 1955?"
9. Before delving into the issue, it would be useful to quote the relevant provisions of The Essential Commodities Act, 1955 with regard to confiscation of seized essential commodities including vehicles as well as relevant provisions of Cr.P.C., which are as under:-
"6A. Confiscation of Essential Commodity Where any essential Commodity is seized in pursuance of an order made under Sec. 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 oilseeds in pursuance of an order made under Sec. 3 in relation thereto from a producer shall, if the seized food grains or edible oilseeds have been produced by him, be confiscated under this section:
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.
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 such 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 the case of any such essential commodity the retail sale price whereof has been fixed by the Central Government or a State Government under this Act or under any other law for the time being in force, 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 so fixed.
(3) Where any essential commodity is sold, as aforesaid, the sale proceeds thereof, after deduction of the expenses of any such sate or auction or other incidental expenses relating thereto, shall, -
(a) where no order of confiscation is ultimately passed by the Collector,
(b) where an order passed on appeal under sub-section (1) of Sec. 6-C 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.
6B. Issue of Show-Cause Notice before Confiscation of Essential Commodity.
No order confiscating any essential commodity package, covering, 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, receptacle. animal, vehicle, vessel or other conveyance ;
(b) is given an opportunity of making a representation 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.
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.
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, the provisions of that clause have been substantially complied with.
6C Appeal.
(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) Where an order under section 6A is modified or annulled by such judicial authority, or where in a prosecution instituted for the contravention of the order in respect of which an order of confiscation has been made under section 6A, the person concerned is acquitted, and in either case it is not possible for any reason to return the essential commodity seized such persons shall, except as provided by sub-section (3) of section 6A, be paid] the price therefore as if the essential commodity, had been sold to the Government with reasonable interest calculated from the day of the seizure of the essential commodity and such price shall be determined―
(i) in the case of food grains, edible oilseeds or edible oils, in accordance with the provisions of sub-section (3B) of section 3;
(ii) in the case of sugar, in accordance with the provisions of subsection (3C) of section 3 ; and
(iii) in the case of any other essential commodity, in accordance with the provisions of sub-section (3) of section 3.
6E. Bar of Jurisdiction in Certain Cases.
Whenever any essential commodity is seized in pursuance of an order made under Sec. 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 Sec. 6-A, 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.
Section 5 Cr.P.C.
Saving-
"Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force."
Section 451 CrPC Order for custody and disposal of property pending trial in certain cases. When any property is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of. Explanation.- For the purposes 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 457 Cr.P.C.
Procedure by police upon seizure of property.
(1) Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property.
(2) 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.
10. There is no dispute that The Essential Commodities Act, 1955 is a Special Act, therefore, in view of Section 5 of Cr.P.C, the general provisions of Cr.P.C. will not affect any special statute or any local law for the time being in force. In other words, where special provisions have been provided for any particular thing under special law, the general provision of Cr.P.C. to that extent will not be applicable. The provisions of special statute will prevail over general provisions of the Code of Criminal Procedure in case of any conflict.
11. It is also not disputed that under Section 6A The Essential Commodities Act, there is specific provisions of confiscation of essential commodities, etc. The provision of opportunity of show cause before confiscation of food grains, etc. under Section 6B as well as right of appeal by a person aggrieved against the order of confiscation are also there under Section 6C of the said Act. The provisions contained under Section 6E of The Essential Commodities Act, clearly bar the jurisdiction of the criminal Court with regard to possession delivery, disposal, release or distribution of essential commodity, package, covering, receptacle, animal, vehicle, vessel or other conveyance during pendency of confiscation proceedings.
12. Considering the aforesaid provisions, it is clear that the legislature has purposely inserted the said provisions of confiscation under The Essential Commodities Act and saving clause under Section 5 of the Cr.P.C. with a laudable object. The authority concerned under The Essential Commodities Act has been granted a wide discretion and power with regard to confiscation of essential commodities, etc. The object of inserting Section 5 of Cr.P.C. is to give effect the provisions of special Act/local laws in case of any conflict.
13. The Hon'ble Apex Court in the case of Suresh Nanda vs. C.B.I, 2008 (3) SCC 174, has held that the provision of Special Act prevail over the general provisions of the code of criminal procedure. The aforesaid dictum of the Hon'ble Apex Court has been further relied upon by Patna High Court in the case of Manju Kumari and another vs State of Bihar and others, 2006 Cr.L.J 3014 as well as Bombay High Court in Rajendra vs. State of Maharashtra and another, (Criminal Writ Petition No. 846 of 2016 decided on 10.10.2016).
14. The Hon'ble Apex Court in case of Divisional Forest Officer and other Vs. G.V. Sudhakar Rao and others 1985 (4) SCC 573 has held that the High Court has no jurisdiction to release the vehicle under Section 482 Cr.P.C., when a confiscation proceeding is pending before the designated authority.
15. The law with regard to release of essential commodities and seized vehicle etc. during pendency of confiscation proceedings under Section 6A of The Essential Commodity Act has been explained by the Hon'ble Apex Court in case of Shambhu Dayal Agarwala Vs. State of West Bengal and another (1990) 3 SCC 549 in para 7.
Section 6A empowers confiscation of the seized essential commodity, the package, covering and receptacle in which the essential commodity was found and the animal, vehicle or other conveyance in which such essential commodity was carried. The words 'may order confiscation' convey that the power is discretionary and not obligatory. Sub-section (2) thereof confers a special power to deal with any essential commodity which, in the opinion of the Collector, is subject to speedy and natural decay or it is otherwise expedient in public interest to be disposed of in the manner indicated therein. Section 6A, therefore, merely confers power of confiscation and not the power of release, disposal, distribution, etc., except to the limited extent permitted by Sub-section (2) thereof. Of course the second proviso to Sub-section (1) of Section 6A permits the grant of an option to pay, in lieu of confiscation of any animal, vehicle, vessel or other conveyance, a fine equal to its market price at the date of seizure. Section 6E was first enacted to debar courts from making any order with regard to the possession, delivery, disposal or distribution of any essential commodity seized in pursuance of an order made under Section 3 in relation thereto. By the substituted Section 6E as it presently stands the scope of the provision has been enlarged by extending the bar of jurisdiction of the Court, tribunal or other authority to the release, etc., of packages, coverings or receptacles as well as animals, vehicles, vessels or other conveyances also. It provides that whenever any essential commodity is seized under an order made in exercise of power conferred by Section 3 in relation thereto no court, tribunal or other authority shall have jurisdiction to make any order with regard to the possession, delivery, disposal, release or distribution of such essential commodity save and except the Collector pending confiscation under Section 6A, or the State Government concerned under Section 6C.
16. In the Case of Oma Ram Vs. State of Rajasthan and others AIR 2008 SC(Supp.) 1844 their lordships observed in Para 13.
Certain provisions of the Essential Commodities Act, 1955 have relevance. Section 6A deals with confiscation of food grains, edible oil seeds and edible oils. Section 6B deals with issue of show cause notice before confiscation of food grains etc. Section 6E deals with bar of jurisdiction in certain cases. Section 6E has been substituted to provide that except Collector or State Government, all other authorities, judicial or otherwise, would be debarred from making any order with regard to the possession, delivery, disposal or distribution of any essential commodity, seized in pursuance of an order made under Section 3. Thus a Magistrate has no jurisdiction to grant relief against seizure under Section 457 Cr.P.C.
17. In State of Bihar and another Vs. Arvind Kumar and another (2012) 12 SCC 395, wherein the Hon'ble Apex Court has again considered the view taken in the cases of Shambhu Dayal Agarwala & Oma Ram and held that so long as the confiscation proceedings under Section 6A of The Essential Commodities Act are pending, release of vehicle, etc and essential commodities involved in the commission of an offence under Section 3/7 of The Essential Commodities Act is not maintainable in view of statutory bar contained under Section 6E of The Essential Commodities Act.
18. Recently, the Hon'ble Apex Court in the case of State of M.P. and others Vs. Uday Singh and others 2019 SCC Online SC 420 has considered the power and jurisdiction of the Magistrate under Section 451 Cr.P.C. during pendency of confiscation proceedings under the Forest Act and held that the jurisdiction under Section 451 of the Code of Criminal Procedure is not available to the Magistrate, once the authorized Officer initiated the confiscation proceedings on account of clear bar of jurisdiction in certain cases under the Act.
19. After the aforesaid analysis in the light of dictum of the Hon'ble Apex Court, there is no doubt that an application under Section 451 Cr.P.C., for release of vehicle seized under Essential Commodity Act, during pendency of confiscation proceedings before the collector under Section 6A of The Act is not maintainable before the Magistrate.
20. Learned counsel for the applicant has specifically relied on the judgment propounded by the Hon'ble Apex Court in the case of Kailash Prasad Yadav Vs. State of Jharkhand 2007 LawSuit(SC)540 in which the issue of jurisdiction of the Magistrate under Section 6E of Essential Commodities Act was not in question but appeal under Section 6C was preferred before the Additional Session Judge against the confiscation order made by the Deputy Commissioner which was dismissed by the Additional Session Judge, that order was under challenge before the Hon'ble Court and was set aside.
21. Another case of Sunderbhai Ambalal Desai vs State Of Gujarat, 2003(3)JIC615 has also been relied on by learned counsel but the question involved in that case was not related to provisions of Essential Commodities Act but it was specifically related to the provisions of Section 451/457 Cr.PC. Hon'ble Court had no any occasion to examine the affect of Section 6E of the Essential Commodities Act on the power of Magistrate to release seized vehicle in view of Section 5 of Code of Criminal Procedure.
22. A careful scrutiny of the decision of their Lordships in Sundarbhai Ambalal Desai (supra) clearly indicates that the decision is an authority about the general law regarding release of vehicles seized in connection with any criminal case, but the same does not answer the issue whether in a case where there are special provisions under a local or special Act, like the Essential Commodities Act, relating to seizure and confiscation of vehicles, the powers under Section 451 or for that matter under Section 457, would still be available with the Magistrate pending confiscation proceedings under the special or the local law. In fact, the decision of their Lordships in Sundarbhai Ambalal Desai (supra) arose in the context of a challenge to an order of police remand for the petitioners granted to the prosecuting agency, where the petitioners were police personnel involved in offences punishable under Sections 429, 420, 465, 468, 477A and 114 IPC. The allegations against them were that while working at different police stations, they had committed offences over a period of time involving replacement of valuable articles retained as case property by other spurious articles, misappropriation of money also seized in connection with cases, unauthorized auction of property seized and kept at the police station, pending investigation or trial. In short, the offences that engaged the attention of their Lordships were all offence to which the Code, including the provisions of Sections 451 and 457 wholesomely applied, therefore, Sunderbhai Ambalal Desai can at best be said to be an authority on the general law regarding release of vehicle seized in connection with any criminal case.
23. From the perusal of impugned order dated 25.08.2020 passed by learned Chief Judicial Magistrate, it transpires that learned Magistrate has considered and followed the legal position as expounded by the Hon'ble Apex Court in the Case of Shambhu Dayal Agarwala, Oma Ram and followed in the case of Vishnu Prasad Vaishnav Vs. State of Chattisgarh Cr.M.P. No. 1068 of 2014 decided on 17.12.2014 and concluded that during pendency of confiscation proceedings before Collector under Section 6A of Essential Commodities Act, Magistrate has no jurisdiction to entertain the application for release of vehicle, is correct and proper in the eye of law.
24. In view of above, there is no any manifest error of law or perversity in the impugned order passed by learned Chief Judicial Magistrate, therefore, it does not warrant any interference by this Court.
25. The present application u/s 482 Cr.P.C. being devoid of merits is hereby dismissed accordingly.
Order Date :-20th January 2021 A. Singh (Subhash Chandra Sharma,J.)