Saturday, 23 July 2016

Whether magistrate can release vehicle seized under essential commodities Act on supratnama?

It will be apposite to refer to the Judgment of the Apex

  Court in State of West Bengal & Others v. Sujit

  Kumar Rana 2004 KHC 942, at this juncture. In the

  said case in para materia provisions in the Forest Act,

  1927 were considered by the Apex Court and in paragraph

  31 of the said judgment it was held as follows:


          "31. The said authority before passing a final order

          in terms of S.59-A (3) of the Act is required to issue

          notice and give opportunity of hearing to the parties

          concerned.     Unless such a notice is issued, the

          confiscation proceedings cannot be said to have

          started. Once, however, a confiscation proceeding

          is initiated; in terms of S.59-G of the Act, the

          jurisdiction of the criminal court in this behalf stands

          excluded. The criminal court although indisputably

          has the jurisdiction to deal with the property which

          is the subject matter of offence in terms of the

          provisions of the Code of Criminal Procedure but

          once a confiscation proceedings is initiated, the said

          power cannot be exercised by the Magistrate.

          ( emphasis supplied)

  The conclusion can be found in paragraph 46 of the above

  judgment, wherein it was held as follows:

         "46. The upshot of our aforementioned discussion is

         that once a confiscation proceeding is initiated the

         jurisdiction of the criminal court in terms of S.59-G of

         the Act being barred, the High Court also cannot

         exercise its jurisdiction under S.482 of the Code of

         Criminal Procedure for interim release of the property.

         The High Court can exercise such a power only in

         exercise of its power of judicial review."

18.The ratio in Sujit Kumar Rana ( Supra ) will squarely


  apply in the instant case as well. After evaluating the

  submissions and having gone through the precedents

  cited and the materials on record, I am of the considered

  view that the finding in the order impugned that the

  learned Magistrate had no jurisdiction as it is barred under

  Section 6E of the Act 10 of 1955 cannot be sustained. It

  is felt that it will not be in the interest of justice to deprive

  the petitioner of the interim custody of the vehicle when

  no steps have been initiated for confiscation. I find merit

  in the submission of the learned Counsel that the vehicle

  would be irreversibly damaged if it is made to lie exposed

  to the vagaries of nature. The petitioner has produced

  Annexure A1 registration certificate in respect of the

  vehicle which reveals that the petitioner is the registered

  owner of the vehicle.
In that view of the matter, the petition is allowed.

  Annexure A4 order is quashed. The learned Magistrate is

  directed to consider the application filed by the petitioner

  under Section 451 of the Code and pass appropriate


   orders releasing the vehicle to the petitioner on furnishing

   Bank Guarantee for the value of the vehicle or such other

   sufficient security to the satisfaction of the learned

   Magistrate for the said amount.
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                    PRESENT:

               THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

                FRIDAY, THE 15TH DAYOF JULY 2016

                                          Crl.MC.No. 3415 of 2016
                                       

                     BIJU SEBASTIAN,
                    Vs
                     STATE OF KERALA,
                    



1.Whether the jurisdiction of the Criminal Court to grant

  interim custody of a vehicle will be barred under Section

  6E of the Essential Commodities Act ( "Act 10 of 1955" for

  brevity) even in cases where steps for confiscation of the

  vehicles have not been initiated under Section 6A of Act

  10 of 1955 is the question posed by the petitioner in this

  case.

2.Bare minimum facts are required to be stated. On

  30.7.2015, an Eicher Lorry owned by the petitioner was

  seized while in transit, on the allegation that rationed rice

  was being transported.          Crime No 798 of 2015 of

  Venmony Police Station was registered under Section

  5 (A) of the Kerala Rationing Order read with Section 3

  and 7 of the Act 10 of 1955. The specific allegation is that


  the rice was being transported from the FCI go down at

  Mavelikkara to the shop of the respective licensees which

  were located at Mavelikkara and Pandalam.

3.The petitioner, incidentally, is not arrayed as an accused

  in the said crime. The vehicle of the petitioner, which was

  used allegedly for transportation was seized.       As the

  vehicle was lying exposed to the vagaries of nature, the

  petitioner had filed an application seeking temporary

  custody of the vehicle. The same was dismissed as per the

  impugned order. Later, when the suspension of license of

  the respective licensees were revoked, the petitioner

  approached the Court again seeking interim release, which

  also met with the same fate.

4.I have heard the learned counsel appearing for the

  petitioner as well as the learned Public Prosecutor.

5.It is submitted by the learned counsel that though Section

  6E of the Act 10 of 1955 bars the jurisdiction of the court,

  the said bar would operate only when confiscation

  proceedings under Section 6A of the Act 10 of 1955 has


  been initiated. It is assiduously urged that a show-cause

  notice as contemplated under Section 6B of the Act 10 of

  1955 is to be issued before issuance of an order of

  confiscation under 6A of the Act 10 of 1955. No such

  notice has been issued to the petitioner till date which in

  other words mean that no confiscation proceeding has

  been initiated or is pending before the District Collector. It

  is also pointed out that the suspension of the license of

  the Wholesale dealers have been revoked. In view of the

  above, the bar under Section 6E of the Act 10 of 1955 will

  not apply, is in essence the crux of the submission.

6.The learned counsel further contended that under Section

  7(1)(c) of the Act 10 of 1955, a vehicle can be forfeited

  only after a conviction has been entered against the

  person who has contravened the provisions of the Act. In

  the case on hand, when the confiscation proceedings have

  not been initiated, nothing prevented the learned

  Magistrate from granting interim custody of the vehicle. It

  is further urged relying on the judgment of the Apex Court


  in State of Madhya Pradesh & Others v. Rameshwar

  Rathod [(1990) 4 SCC 21] that the exclusion of the

  jurisdiction of the Criminal Court cannot be readily

  inferred. The learned counsel also relied on a unreported

  judgment of this Court in Crl.M.C.No.2433 of 2009 dated

  25.8.2009 to canvass his prayer for interim release.

7.I have heard the learned public prosecutor as well and

  have perused the materials on record. It is submitted by

  the learned Public Prosecutor on instructions that no

  show-cause notice under Section 6B of the Act 10 of 1955

  has been issued prior to initiation of the process of

  confiscation under Section 6A of the Act 10 of 1955.

8.The impugned order reveals that the court below has

  dismissed the application filed by the petitioner on the

  sole ground that section 6E of Act 10 of 1955, expressly

  bars the jurisdiction of a Court or Tribunal or Authority 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. The Learned

  Magistrate had relied on the judgement of the apex court

  in Shambu Dayal V state of West Bengal [(1990) 3

  SCC 549] to hold that the legislature has entrusted the

  tasks to the District Collector in its entirety and has ruled

  out    interference    by   Courts,    Tribunal's   and  other

  Authorities by placing an embargo on their jurisdiction in

  this behalf by section 6E of the Act 10 of 1955.

9.To comprehend the contention of the petitioner, it will be

  apposite to extract the relevant provisions of Act 10 of

  1955 .

  Section 6A :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 foodgrains or edible

          oilseeds seized in pursuance of an order made

          under section 3 in relation thereto from a

          producer shall, if the seized foodgrains 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.]

          (2) 
          (3
  6B     Issue     of   show-cause        notice    before

  confiscation of essential commodity

          (1)   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.

          (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 (1), if, in giving such notice,

          the provisions of that clause have been

          substantially complied with.

  Section 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, not with standing

          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.

          ( emphasis supplied)

          Section 7- Penalties

          (1) If any person contravenes any order made

          under section 3 ,-

          (a) he shall be punishable,-

          (i)in the case of an order made with reference

          to clause (h) or clause (i) of sub-section (2) of

          that section, with imprisonment for a term

          which may extend to one year and shall also be

          liable to fine, and

          (ii) in the case of any other order, 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 ;

          Provided that the court may for any adequate

          and special reasons to be mentioned in the

          judgement, impose a sentence of imprisonment

          for a term of less than three months;

          (b) any property in respect of which the order

          has been contravened shall be forfeited to the

          Government;

          (c) any packing, 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.

          (2) 


10.The provisions as extracted above will go to show that

  section 6A of the Act 10 of 1955 provides for confiscation

  of essential commodities which among other things would

  also include the vessel or other conveyance used in

  carrying the essential commodity. Section 6B of the Act 10

  of 1955 mandates that no order of confiscation is to be

  passed under section 6A of the Act 10 of 1955 unless the


  owner of such essential commodity or the vehicle as the

  case may be is given a notice in writing informing him of

  the grounds on which the essential commodity, package,

  covering receptacle, animal, vehicle, vessel or other

  conveyance is proposed to be confiscated. Such person is

  also statutorily required to be granted an opportunity of

  making a representation in writing within such a

  reasonable time as may be specified in the notice against

  the grounds of a confiscation and also is to be given a

  reasonable opportunity of being heard in the matter.




11.In the case on hand the seizure was effected on

  30/07/2015 and admittedly no notice has been issued

  under section 6B of the Act 10 of 1955. If that be the case

  it cannot be said that the confiscation proceedings are

  pending in respect of the vehicle.

12.A perusal of section 7 of the Act 10 of 1955 would reveal

  that the confiscation proceedings under section 6A of the

  Act 10 of 1955 is not dependent on the result of a criminal


  prosecution for an offence committed under the Act 10 of

  1955. Section 7 of the Act 10 of 1955 enables the learned

  Magistrate before which the prosecution proceedings have

  been initiated to forfeit the vehicle after conviction in

  cases where confiscation proceedings were not initiated by

  the authorities as provided under section 6A of the Act 10

  of 1955. Section 7 (1) (c) of the Act 10 of 1955 leaves no

  manner of doubt that the criminal court where the

  proceedings are pending can order that the vehicle be

  forfeited to the Government only if it is ultimately found

  on evidence that the vehicle or other conveyance was

  used for the purpose of carrying the commodity. This

  however does not mean that while the proceedings

  pending before the court, simultaneous proceedings

  cannot be initiated under Section 6 of the Act 10 of 1955

  after complying with Section 6B of the Act 10 of 1955. If

  prior to the finding of guilt by the learned Magistrate, the

  vehicle involved is confiscated after complying with the

  procedures under sections 6A and 6B of the Act 10 of


  1955, there will be no occasion for the learned Magistrate

  to exercise powers under section 7 (1) (C) of the Act 10 of

  1955 and order forfeiture of the vehicle. Necessarily, in

  those cases where proceedings have been initiated under

  section 6A after complying with section 6B of the Act 10 of

  1955, Section 6E of the Act 10 of 1955 will come into play

  and the jurisdiction of the learned Magistrate to grant

  interim custody will be barred. The aggrieved party will

  have to exhaust his remedies under the statute and will

  have to approach the Authorities who are empowered to

  confiscate the vehicle and seek for interim Custody.

13.Section 6E of the Act 10 of 1955 which bars the

  jurisdiction of the Courts, Tribunal or Authority applies

  only when the Confiscation proceedings have been

  initiated under Section 6A of the Act 10 of 1955 and is

  pending consideration. In those cases, the jurisdiction of

  the above Authorities is expressly barred.

14. But the question is whether, as in this case, when no

  such proceeding has been initiated, the Criminal Court


  should abstain from exercising its Jurisdiction and relegate

  the parties to the Authority before whom no proceeding

  for confiscation is admittedly pending. Section 6 A

  mandates that the steps under the said provision is to be

  carried out expeditiously as it involves perishable goods,

  vehicles, animals etc. If that be the case show cause

  notice under Section 6B will have to be issued without

  unreasonable delay. In the case on hand the seizure was

  on 30.7.2015 and close to a year has passed without any

  steps being initiated under Section 6B. In such a case, can

  the courts shrug off its hands and referring to Section 6E

  of the Act dismiss the application on the ground that its

  jurisdiction is barred. It appears on a meaningful reading

  of Section 6E that jurisdiction of the Court can be said to

  be barred only in cases where confiscation steps have

  been initiated and pending and not in cases where no

  steps have been initiated even after passing of a year

  after the seizure.

15.In State of Madhya Pradesh & Others v. Rameshwar


  Rathod [(1990) 4 SCC 21], the Apex Court had

  occasion to consider whether the jurisdiction of the

  Criminal Court can be said to be excluded in all cases. It

  was 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 State v. Abdul

           Rasheed, (AIR 1967 Mys 231) Bharat

           Mahey v. State of U.P. (1915 CriLJ 890) as

           well as the decision of the learned Single

           Judge in State of M.P. v. Basant Kumar

           (1912    JLJ   Short   Note   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 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, to

           accept this contention because normally

           under the Criminal Procedure unable 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 furnishing the

           security. ......................."

16.The    learned    Magistrate           held that the  ratio in

  Rameshwar Rathod (supra)                    could not be   made

  applicable, as Section 6E of the Act 10 of 1955 was

  brought into the statute book only by Act 42 of 1986 and

  relied on the judgement of the Apex Court in Shambu

  Dayal's case (supra) to repel the contentions of the

  petitioner. In Shambu Dayal (Supra) what was sought

  to be released was the essential commodity seized under

  the Act 10 of 1955 and Confiscation proceedings was also

  pending.

17.It will be apposite to refer to the Judgment of the Apex

  Court in State of West Bengal & Others v. Sujit

  Kumar Rana 2004 KHC 942, at this juncture. In the

  said case in para materia provisions in the Forest Act,

  1927 were considered by the Apex Court and in paragraph

  31 of the said judgment it was held as follows:


          "31. The said authority before passing a final order

          in terms of S.59-A (3) of the Act is required to issue

          notice and give opportunity of hearing to the parties

          concerned.     Unless such a notice is issued, the

          confiscation proceedings cannot be said to have

          started. Once, however, a confiscation proceeding

          is initiated; in terms of S.59-G of the Act, the

          jurisdiction of the criminal court in this behalf stands

          excluded. The criminal court although indisputably

          has the jurisdiction to deal with the property which

          is the subject matter of offence in terms of the

          provisions of the Code of Criminal Procedure but

          once a confiscation proceedings is initiated, the said

          power cannot be exercised by the Magistrate.

          ( emphasis supplied)

  The conclusion can be found in paragraph 46 of the above

  judgment, wherein it was held as follows:

         "46. The upshot of our aforementioned discussion is

         that once a confiscation proceeding is initiated the

         jurisdiction of the criminal court in terms of S.59-G of

         the Act being barred, the High Court also cannot

         exercise its jurisdiction under S.482 of the Code of

         Criminal Procedure for interim release of the property.

         The High Court can exercise such a power only in

         exercise of its power of judicial review."

18.The ratio in Sujit Kumar Rana ( Supra ) will squarely


  apply in the instant case as well. After evaluating the

  submissions and having gone through the precedents

  cited and the materials on record, I am of the considered

  view that the finding in the order impugned that the

  learned Magistrate had no jurisdiction as it is barred under

  Section 6E of the Act 10 of 1955 cannot be sustained. It

  is felt that it will not be in the interest of justice to deprive

  the petitioner of the interim custody of the vehicle when

  no steps have been initiated for confiscation. I find merit

  in the submission of the learned Counsel that the vehicle

  would be irreversibly damaged if it is made to lie exposed

  to the vagaries of nature. The petitioner has produced

  Annexure A1 registration certificate in respect of the

  vehicle which reveals that the petitioner is the registered

  owner of the vehicle.

19.In that view of the matter, the petition is allowed.

  Annexure A4 order is quashed. The learned Magistrate is

  directed to consider the application filed by the petitioner

  under Section 451 of the Code and pass appropriate


   orders releasing the vehicle to the petitioner on furnishing

   Bank Guarantee for the value of the vehicle or such other

   sufficient security to the satisfaction of the learned

   Magistrate for the said amount. The above endeavour

   shall be completed within a period of two weeks from the

   date of receipt of a copy of this order. The order, shall be

   subject to the orders, if any, passed by the Appropriate

   Authority under the Act.


                                          Sd/-
                              RAJA VIJAYARAGHAVAN.V.,
                                              JUDGE

Print Page

No comments:

Post a Comment