Bombay HC: Under which circumstances the offence under The Essential commodities Act will be non bailable?

The case debated on whether the offences under the Essential Commodities Act were bailable - It was held that the offences were made 'cognizable' by the amendment of 1974, Section 10-A but by the amendment of 1981, the offences were made 'non bailable' initially for the five years but finally for fifteen years - As that period had been lapsed, the position would revert back to the offences being cognizable only - Further, since the charges against the petitioners were framed under Section 7(1)(a)(ii) of the Act , providing for seven years of Rigorous Imprisonment, the same would render the offence cognizable and non bailable.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Criminal Writ Petition No. 302 of 1999

Decided On: 26.08.1999

Purthviraj Chandrakant Shinde and Ors. Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

V.K. Barde and B.B. Vagyani, JJ.

Author: V.K. Barde, J.

Citation:  MANU/MH/0606/2000.

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Under which circumstances the offences under the Essential commodities Act are triable by a Magistrate?

 In the judgment rendered by the Hon'ble Apex Court reported in 2001 Cri LJ 4722, it has been held that after lapse of two ordinances the cases registered under Essential Commodities Act 1955 are to be tried by the Magistrate having jurisdiction because in the Schedule under the head "Offences Against Other Laws" in the Central Code the offences carrying imprisonment of not more than seven years were triable by the Magistrate of the First Class and it is in that backdrop it was held that Magistrates having the jurisdiction will try the offences registered under the Essential Commodities Act 1955, whereas, in terms of Section 30 of the State Code which overrides Section 29 as well as II Schedule offences carrying imprisonment upto seven years are shown triable by the Chief Judicial Magistrate. It is in that backdrop it was clear that the cases registered under Essential Commodities Act were not exclusively triable by the Sessions Court. {Para 7}

(2011) 09 J&K CK 0021

In The Jammu & Kashmir High Court (Srinagar Bench)

Case No : Criminal Ref. No. 03 of 2009

State of Jammu & Kashmir Vs Mushtaq Ahmad Ganai

Dated : 22-09-2011

Citation : (2011) 3 JKJ 65

Hon'ble Judges : Virender Singh, J

---

Conflict between Section 30 of the Code of Criminal Procedure and Schedule II under the head "Offences Against Other Laws" vis-a-vis trial by the Court and the law as laid down in State v. Ashok Kumar & Ors. has prompted the court of learned Sessions Judge Srinagar to refer the matter to this Court for opinion while having recourse to Section 432 of the Code. As per part of the Schedule II under the head "Offences Against Other Laws", it is provided that where the punishment for the offence is imprisonment of seven years or upwards same is to be tried by the Court of Sessions as reflected in Column 6th of the said Schedule. Some of the offences under Essential Commodities Act are punishable with imprisonment which may extend upto seven years so as per Schedule referred the offence is triable by the Court of Sessions. In the Central Code of Criminal Procedure under the head "Offences Against Other Laws" when the imprisonment is not more than seven years the case is triable by the Magistrate of the First Class.

2. The position vis-a-vis trial of the cases by the court as reflected in the If Schedule is subject to the control as contained in Section 30 of the Code. Section 29(2) of the Code reads as under:-

"When no court is so mentioned, it may be tried by the High Court or subject as aforesaid by any Court constituted under this Code by which such offence is shown to be triable in the sixth column of the Second Schedule under the heading offences against the other laws."

3. The position of Section 29 is controlled by Section 30 which reads as under:-

"Offences punishable with imprisonment not exceeding seven years. Notwithstanding anything contained in sections 28 or 29, a Chief Judicial Magistrate or where there is no Chief Judicial Magistrate, the Additional District Magistrate shall have the powers to try as a Judicial Magistrate all offences not punishable with death or imprisonment for life or imprisonment for a term not exceeding seven years. "

4. The plain language of Section 30 provides that when an offence is punishable with imprisonment for a term not exceeding seven years same is triable by the Chief Judicial Magistrate. The position of the law being clear, there is no requirement of declaring the part of the Schedule II under the head "Offences Against Other Laws" as invalid and inoperative. Therefore, in terms of Section 30 the offences carrying imprisonment of not exceeding seven years are triable by the Chief Judicial Magistrate.

5. The flashback which has given rise to such a situation is precisely required to be noticed.

Offences punishable under the Essential Commodities Act 1955 were to be tried by the Magistrate of the First Class. In the year 1981 the Essential Commodities (Special Provisions) Act, 1981 came into force in terms whereof various provisions of the Act of 1955 were amended/substituted. In terms of Section 12(A) of the Act Special Courts were constituted for trial of the said offences. Session courts were notified to be the Special Courts, accordingly, from the year 1981 cases were tried by the Special Courts.

The said Act of 1981 was initially to remain in force for five years but finally its application was extended upto fifteen years which expired in the year 1996, then, Essential Commodities (Special Provisions) Ordinance 1997 was promulgated followed by the Essential Commodities Amendment Ordinance 1998. Both the two ordinance lapsed so were not replaced by any enactment, therefore, Special Courts established in terms of Section 12 (A) of the Special Provisions of the Act 1981 ceased to function.

The position for trial of the offences was, therefore, relegated to the position obtaining in terms of the provisions of Essential Commodities Act 1955. This position is also clear from the Hon'ble Apex Court's judgment reported in 2001 Criminal Law Journal 4772 wherein it has been held that after lapse of two ordinance 1997 and 1998, the consequential position that followed was that the cases registered under the Essential Commodities Act 1955 were to be tried by the Magistrate having jurisdiction as it was being done prior to enactment of Essential Commodities Special Provisions Act 1981.

The position of the cases registered under Essential Commodities Act 1955 continued to be presented before the Special Courts perhaps on the premise that for some of the contravention of the orders issued u/s 3 of the Act were punishable with imprisonment extending to seven years.

6. The Single Bench of this Court in the judgment rendered in case State v. Ashok Kumar & Ors. has held that the offences u/s 7(1)(a)(2) EC Act are to be tried by the Court of Sessions because punishment prescribed there for extended to seven years. But while rendering the judgment it appears that the controlling position of Section 30 of the Code has not been noticed and while relying on the part of the II Schedule under the head "Offences Against Other Laws" it has been held that the offence which carry punishment to the extent of seven years are triable by the Court of Sessions, same law in view of the clear position of Section 30 of the Code of Criminal Procedure does not hold good.

7. In the judgment rendered by the Hon'ble Apex Court reported in 2001 Cri LJ 4722, it has been held that after lapse of two ordinances the cases registered under Essential Commodities Act 1955 are to be tried by the Magistrate having jurisdiction because in the Schedule under the head "Offences Against Other Laws" in the Central Code the offences carrying imprisonment of not more than seven years were triable by the Magistrate of the First Class and it is in that backdrop it was held that Magistrates having the jurisdiction will try the offences registered under the Essential Commodities Act 1955, whereas, in terms of Section 30 of the State Code which overrides Section 29 as well as II Schedule offences carrying imprisonment upto seven years are shown triable by the Chief Judicial Magistrate. It is in that backdrop it was clear that the cases registered under Essential Commodities Act were not exclusively triable by the Sessions Court.

8. The controversy now no more survives because Schedule II for the chapter offences against other laws has been amended and brought at par with the Central Code. Said amendment reads as under:-

In the Code of Criminal Procedure, Samvat 1989, for the Chapter "Offences against other Laws" appearing at the end of Schedule II, the following Chapter shall be substituted, namely:

Offences Against other Laws

Offences	Cognizable or non-cognizable		Bailable or non-bailable	By what court triable
1.	2.		3.	! 4.
If punishable with death, imprisonment for life or imprisonment for more than 7 years	Cognizable		Non-bailable	Court of Sesssions.
If punishable with imprisonment for 3 years and upwards but not more than 7 years	Cognizable	Non-bailable			Magistrate of the First Class.
If punishable with imprisonment for less than 3 years or with fine only.	Non-cognizable	Bailable			Any Magistrate."

9. It is now clear that the offences against other laws punishable with imprisonment for not more than seven years are triable by the Magistrate of the First Class. Thus, under the Essential Commodities Act 1955 any offence which shall be punishable with imprisonment upto seven years i.e. including seven years are to be tried by the Judicial Magistrate First Class within whose jurisdiction occurrence has taken place.

10. The references stand answered accordingly.

Copy of this judgment shall be circulated among all the judicial officers of the State.

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Whether a statement made by accused to investigating officer before registration of FIR is hit by S 162 of CRPC?

The appellant is said to have admitted to the sub inspector of police that be was the driver of the autorikshaw. The sub inspector in his deposition has said that the appellant told him like that when he went to the spot for seizing the contraband oil. The lower court relied on that part of the testimony of the sub inspector (P. W. 4) for concluding that the appellant was the driver of the vehicle. Learned Public Prosecutor argued that the said statement made to sub inspector is only an admission and the same could be used as evidence in this case since investigation bad not been commenced during the time when the statement was made by the appellant. If the said statement was made during investigation, is cannot be used for any purpose in view of the embargo contained till Sec. 162 of the Code of Criminal Procedure. So the question to be considered is whether the step taken by the sub inspector in proceeding to the spot was part of investigation in the case.

5. Sec. 2(h) of the Cr. P. C. defines "investigation" as including "all i the proceedings under this Code for the collection of evidence conducted by a police officer". S. 137 of the Code says that, if, from information received "or otherwise" an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered to investigate; he shall forthwith send a report of 'he same to the Magistrate concerned and proceed in person to the spot to investigate the facts and circumstances of the case. If he does not send a report to the Magistrate, that does not mean that his proceeding to the spot is not for investigation. In order to bring such proceedings within the ambit of investigation it is not necessary that a formal registration of the case should have been made before proceeding to the spot. It is enough that he has some information to afford him reason even to suspect the commission of a cognizable offence. Any step taken by him pursuant to such information, towards, detection etc., of the said offence, would be part of investigation under the Code. In Maha Singh v. State (Delhi Administration) ((1976) 5. C. C. 644) the Supreme Court considered a case in which a police officer arranged a raid after recording a complaint, but before sending it for registration of the case. It was held in that case that "the moment the inspector had recorded the complaint with a view to take action to track the offender, whose name was not even known at that stage, and proceeded to achieve the object, visited the locality, questioned the accused, searched his person, seized the note and other documents, turns the entire process into an investigation under the Code." Subba Rao, J. (as he then was) has observed in State of U. P. v. Bhagwant Kiskore (MANU/SC/0066/1963 : AIR. 1964 S. C. 221): "Though ordinarily investigation is undertaken on information received by a police officer, the receipt of information is not a condition precedent for investigation". It was held by a single Judge of the Gujarat High Court (Shelat, J.) in Kantilal v. State (MANU/GJ/0065/1970 : AIR 1970 Guj 218) that the police officer in charge of a police station is empowered to investigate any information received from which he has reason to suspect the commission of an offence which he is empowered to investigate. It has been observed by the learned Judge that "it makes no difference whether that information was reduced to writing or not at that particular stage"

6. I, therefore, conclude that the statement allegedly made by the appellant to the sub inspector of police was during investigation of the case.

7. The embargo contained in Sec. 162 has a wide sweep that no statement made by any person to a police officer in the course of investigation shall be used for any purpose except for the limited purpose mentioned therein. The limited purpose envisaged in the section has no application to the facts of this case. Hence the alleged statement of the appellant to the sub inspector is excluded form legal consideration in this case.

 IN THE HIGH COURT OF KERALA

Crl. A No. 149 of 1985

Decided On: 04.08.1988

C. Chandrababu  Vs.   Sub Inspector of Police

Hon'ble Judges/Coram:

K.T. Thomas, J.

Citation: MANU/KE/0410/1988,1988(3)Crimes757(Ker.), 1988(2)KLJ389

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Bombay HC: Accused can not be convicted under Essential commodities Act if he is not valid license holder

The accused – appellant was not a license holder. Since the

appellant is not a holder of valid licence under section 3 of the Essential

Commodities Act, there could not be any conviction recorded under

section 7 of the Essential Commodities Act.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 782 OF 1997

Shri Jayendra Sadarmal Talereja  Vs. The State of Maharashtra

CORAM: SMT. SADHANA S. JADHAV, J.

DATE : 16th OCTOBER 2019.

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Whether unadulterated essential commodity can confiscated under essential commodities Act?

 The appellate authority has confirmed the order
of confiscation of 3000 liters of H.S.D(high speed diesel)
 as it was
adulterated, but it has set aside the order in respect of
remaining 9000 liters of H.S.D. by observing that it was
not adulterated. This approach is not at all correct. When
the offence is committed, when there is contravention of
the order issued under section 3 or 4 of the Act, such
segregation is not possible. If the tanker can be
confiscated as adulterated essential commodity was being
carried in it, the remaining essential commodity which
was not found to be adulterated, can also be confiscated
as the person who was doing such act tries to use such
tactics. 
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Criminal Writ Petition No.1449 of 2016
 Deepak S/o Kashinath Aher,

V
 The State of Maharashtra

 CORAM: T.V. NALAWADE, J.

 DATE : 3 FEBRUARY 2017
Citation: 2017 ALLMR(CRI)1247

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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)

  
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                    PRESENT:

                MR. JUSTICE RAJA VIJAYARAGHAVAN V

                FRIDAY, THE 15TH DAYOF JULY 2016

                                          Crl.MC.No. 3415 of 2016
                                       

                     BIJU SEBASTIAN,   Vs   STATE OF KERALA,
                    

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When prosecution under provisions of Essential Commodities Act is liable to be quashed?

 The present case stands on a better footing inasmuch as there is
no reference whatsoever in the First Information Report to any order having
been made under Section 3 of the said Act being violated.   The specific
averments made by the applicants in paragraph 4 of the application have not
been specifically controverted.  In that view of the matter, in absence of it
being shown that there was any order made under Section 3 of the said Act
that had been contravened, the proceedings for an offence punishable under
Section 7 of the said Act would not be tenable.  The continuation of these
proceedings therefore would amount to an abuse of the process of law.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (APL) NO.728 OF 2015
 Dhanraj s/o Anandrao Mohod
  
­vs­ 
 The State of Maharashtra,
  
CORAM  : B. R. GAVAI & 
 A.S.CHANDURKAR JJ.
 DATE   :  MARCH 16,  2016 
Citation: 2016 ALLMR(CRI)2208

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Whether it is necessary to conduct smoke test to identify kerosene in case of essential commodities Act?

   

       Before concluding I may observe that the

samples covered by item No.1 & 2 were not identified as

kerosene, since no smoke test was conducted, therefore

Ext.P12 chemical examiner's report is not admissible in law

for a conviction. Normally statutory offence like this, the

requirement of smoke test is mandatory.          The non-

compliance of the smoke test indicates a nullification of

the procedure. It is true that there is no ready test or

formula to determine a provision mandatory or not, but

weighing the consequence of the non-compliance, the


appellant is entitled to get the benefit of doubt.
   IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT:

                THE HONOURABLE MR. JUSTICE P.D.RAJAN

        THURSDAY, THE 28TH DAY OF MAY 2015

                      CRL.A.No. 465 of 1997 (B)
                      
       SAITHALAVI, S/O. AHAMMED KOYA
Vs
       STATE OF KERALA,
    
           

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When prosecution under Essential commodities Act is liable to be quashed?

Considering the aforesaid rival submissions and having regard to the facts and circumstances of the present case, it appears that the learned court below without proper consideration of the notification dated 7.4.1999, which was placed on record by the petitioner along with his Bail application, passed an order taking cognizance against the petitioner. In view of the notification issued by the Government of India, decided to abolish all stock limits on wheat and wheat-products with immediate effect in view of the over all food situation and also the major storage constraints, the respective State Governments were also asked to issue necessary instructions in this regard and accordingly, the State of Jharkhand has also issued the necessary instructions. It appears that the said facts were not properly brought to the notice of the learned court below, and therefore, the learned court below had no opportunity to considered such development which has taken place by virtue of the notification issued by the Government of India.

It further appears that in similar set of facts, this Court observed, in its judgment and order, rendered in case of Bholi Kumar Bhojgariya Versus State of Jharkhand & Anr., reported in 2011 (2) Eastern Criminal Cases 601 (supra), by referring the Central Government notification and also considering the fact that there is no violation of any Control Order so as to attract the offence punishable under Section 7 of the Essential Commodities Act. Paragraph No.6 of the above referred judgment appears to be relevant for the purpose of deciding the present case and, therefore, the same is reproduced hereinbelow :

"6. Learned A.P.P appearing for the State did not dispute the legal position. The learned A.P.P failed to point out as to which provision of law much less the orders/ unification order has been contravened by the petitioner so as to attract the offence under Section 7 of the E.C. Act. Admittedly, the stock limit distribution and transportation on the rice and wheat have been abolished by the notification of the Central Government which has been adopted by Government of Jharkhand vide letter dated 24.04.2002. There appears substance in the argument that the prosecution has raised only suspicion that the food-grains seized from the truck and the godown of the petitioner belonged to the Food Corporation of India, without any evidence whatsoever and seized articles have been released in favour of the petitioner under the orders of this Court referred to here-in-before. In the facts and circumstances, the prosecution of the petitioner is bad in law. Accordingly, the entire prosecution of the petitioner including the order taking cognizance dated 07.08.2007 against the petitioner in Barhi P.S.Case No.63 of 2007 corresponding to G.R. No.865 of 2007 is quashed and this petition is allowed."

In view of the facts and circumstances of the present case as also in view of the above referred decision, the order taking cognizance against the petitioner dated 12.11.2001 in connection with G.R. Case No.1650 of 2001, issued by the learned Sub Divisional Judicial Magistrate, Jamshedpur, is, hereby, ordered to be quashed.

Jharkhand High Court

Md. Jasim vs State Of Jharkhand on 9 October, 2014

     Citation; 2015 (3) Crimes 704 Jhar

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When accused who is prosecuted under essential commodities Act can be discharged?

 It is not in dispute that along with the charge sheet, the
prosecution has not produced on record the order made by the
competent authority under Section 3 of the Essential Commodities
Act, 1955. The offence punishable under Section 7 is about
contravention of any order made under Section 3 of the Essential
Commodities act. In the instant case, neither the F.I.R. nor the
charge sheet anywhere refers to any order made under Section 3 of
the said Act and its contravention having been committed by the
present applicant. In the case of Prakash Babu Raghuvanshi vs.
State of M.P., reported in 2004 ALL MR (Cri) 3473 (S.C.), it has
been held by the Hon'ble Apex Court that for attracting Section 7 of
the Act, contravention of any order made under Section 3 is
essential. This law has been followed by the Division Bench of this
Court in the case of Rakesh s/o. Mahendrakumar Jain vs. The
State of Maharashtra, reported in 2014 ALL MR (Cri) 3144. As
no order made under Section 3 of the said Act has been produced
on record nor is there any mention either in the F.I.R. or in the
charge sheet about the contravention of a particular order passed
under Section 3 of the said Act, it would have to be held that there
is no sufficient ground for proceeding against the present applicant
for the charge made against him. In such a situation, the present

applicant would have to be discharged.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION (APL) No.722 OF 2014
Chandansingh son of Sadhusingh Chandel,

...VERSUS...
State of Maharashtra,
CORAM
: S.B. SHUKRE, J.
DATE : 2 nd FEBRUARY, 2015 .

Citation;2015 ALLMR(CRI)1291

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When magistrate can release property seized under essential commodities Act?

 If the facts in the present case are analysed, it will be evident that in spite of the specific order being passed on 5th November, 1996 that as to whether any proceeding for confiscation is pending before the Collector, the learned A.P.P. could not make any statement before the learned Additional Sessions Judge and proceeded to argue the matter on 6th November, 1996. Thus it is evident that when the Court passed an order on 7th November, 1996, there was no confiscation proceeding pending under section 6A and/or under section 6C either before the Collector or before the State Government in respect of the essential commodity involved in the present matter. Shri Wahane makes a statement that on 7th November, 1996, such application has been preferred by the Police Station Officer to the Collector, Akola. However, no action thereafter also appears to have been taken by the Collector. The above statement itself points out that on date when the matter was heard and disposed of by the learned Additional Sessions Judge, Akola, there was no proceeding pending before the Collector under section 6-A for confiscation of the essential commodity and, therefore, as discussed above, there was no bar for the learned Additional Sessions Judge, Akola, to exercise his powers under section 457 read with section 451 of the Criminal Procedure Code and, therefore, the order passed by the learned Additional Sessions Judge is legal and proper.Bar contemplated Under Section 6E is not a absolute one. Once proceeding for confiscation commences Under Section 6A or 6 C, the bar operates and to that extent the general powers of the Criminal Court to dispose of the property is modified, affected and conditioned by provisions of Section 6E

IN THE HIGH COURT OF BOMBAY

Criminal Revision Application No. 22 of 1997

Decided On: 07.08.1997

The State of Maharashtra  Vs.  Manishkumar s/o Babulal Biyani

Hon'ble Judges/Coram:

S.B. Mhase, J.

Equivalent Citation: 1998BomCR(Cri)452, 1998(100(1))BOMLR760, 1998CriLJ303, 1998(1)MhLj431

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Whether Magistrate has jurisdiction to grant custody of vehicle seized for commission of offence u/S 3/7 of the EC Act, 1955?

The aforesaid analysis of statutory provisions and the principles of
law laid down by their Lordships of the Supreme Court in the above
referred cases (supra) would show that whenever any essential
commodity is seized, under an order made in exercise of power conferred
by Section 3 of EC Act, in relation thereto no court, tribunal or authority
shall have jurisdiction to make any order with regard to possession,
delivery, disposal, release or distinction of such essential commodity save
and except the Collector pending confiscation under Section 6A of the EC
Act, 1955, therefore, in the matter of making orders with regard to
disposal of seized vehicle in pursuance to order made under Section 3 of
the Act, only the Collector or judicial authority, as the case may be, shall
have any jurisdiction to make orders with regard to the disposal of that
vehicle/essential commodity seized in pursuance of order made under
Section 6E of the EC Act, 1955 and jurisdiction of Magistrate to grant
custody under Section 457 is expressly barred.

HIGH COURT OF CHHATTISGARH

Single Bench: Hon’ble Shri Justice Sanjay K. Agrawal

Cr.M.P. NO . 1068 of 2014
PETITIONER Vishnu Prasad Vaishnav
Versus
RESPONDENT State of Chhattisgarh

(Passed on 17. 12.2014)
Citation;2015 CRLJ 961 Chhatis

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Non compliance of terms of licence -offence under Essential commodities Act is made out

If the appellant wants to do business, she must
comply with the terms of the licence and since
she had not kept the accounts of the kerosene
which was allotted to her, the order passed by
the learned trial Judge cannot be faulted.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
CRIMINAL APPEAL NO.518 OF 1993
Smt. Sulochana Ramchandra
Mohite, 
- Versus -

The State of Maharashtra

CORAM: R.C. CHAVAN, J.
DATED: SEPTEMBER 12, 2012
Citation; 2013 ALL M R (cri)1856

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Whether Police sub Inspector can investigate offence under Essential commodities Act?

 Be that as it may, crucial question is as to whether the seizure and search conducted by the PSI Gorhe is illegal as contended by the learned Advocate for the applicant. Section 10AA of the Essential Commodities Act, deals with power to arrest and provides that notwithstanding anything contained in the code of criminal procedure, 1973, no officer below the rank of an officer incharge of a police station or any police officer authorised by him in this behalf in writing shall arrest any person accused of committing an offence punishable under this Act. It is pertinent to note that Section 10AA starts with non obstante clause. Under Section 41 of the Criminal Procedure Code any police officer may without an order from the Magistrate and without warrant arrest any person if one of the clauses thereunder are attracted which includes Clause (a), which provides who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned; The offences in question are cognizable offences but, for Section 10AA of the Essential Commodities Act, any police officer could have arrested a person contravening the provisions of the Essential Commodities Act or the orders passed thereunder. Sub-section (2) of Section 41 of the Criminal Procedure Code provides that any police officer incharge of the police station may in the like manner arrest or cause to be arrested any person belonging to one or more of the categories of the persons specified in Section 109 or Section 110. However, Section 10A empowers an officer of the rank of the officer in charge of the police station or any police officer authorised by him in this behalf in writing shall arrest any person accused of doing any offence punishable under the Essential Commodities Act. Therefore, power under Essential Commodities Act, can be exercised only by the officer of the rank of incharge of the police station or any officer in this behalf in writing. 

Bombay High Court

Laxmikant Shankarlal Sarda vs State Of Maharashtra And Anr. on 30 August, 2001

Equivalent citations: 2002 CriLJ 1040, 2002 (2) MhLj 471

R.K. Batta, J.

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Supreme Court: Procedure to be followed by collector when Essential commodity is seized

This Court while dealing with a similar issue in Shambhu Dayal Agarwala v. State of West Bengal & Anr., (1990) 3 SCC 549, held that whenever any essential commodity is seized, pending confiscation under Section 6-A, the Collector has no power to order release of the commodity in favour of the owner. Having regard to the scheme of the Act, the object and purpose of the statute and the mischief it seeks to guard, it was further held that the word “release” in Section 6-E is used in the limited sense of release for sale etc. so that the same becomes available to the consumer public. The court held as under: “… No unqualified and unrestricted power has been conferred on the Collector of releasing the commodity in the sense of returning it to the owner or person from whom it was seized even before the proceeding for confiscation stood completed and before the termination of the prosecution in the acquittal of the offender. Such a view would render Clause (b) of Section 7(1) totally nugatory and would completely defeat the purpose and object of the Act. The view that the Act itself contemplates a situation which would render Section 7(1)(b) otiose where the essential commodity is disposed of by the Collector under Section 6-A(2) is misconceived. Section 6-A does not empower the Collector to give an option to pay, in lieu of confiscation of essential commodity, a fine not exceeding the market value of the commodity on the date of seizure, as in the case of any animal, vehicle, vessel or other conveyance seized along with the essential commodity. Only a limited power of sale of the commodity in the manner prescribed by Section 6-A(2) is granted. The power conferred by Section 6- A(2) to sell the essential commodity has to be exercised in public interest for maintaining the supplies and for securing the equitable distribution of the essential commodity.”

Supreme Court of India

State Of Bihar & Anr vs Arvind Kumar & Anr on 23 July, 2012

Bench: B.S. Chauhan, Swatanter Kumar

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When wheat seized under Essential commodites Act should not be released on supratnama?

 This Court while dealing with a similar issue in Shambhu Dayal Agarwala v. State of West Bengal & Anr., (1990) 3 SCC 549, held that whenever any essential commodity is seized, pending confiscation under Section 6-A, the Collector has no power to order release of the commodity in favour of the owner. Having regard to the scheme of the Act, the object and purpose of the statute and the mischief it seeks to guard, it was further held that the word “release” in Section 6-E is used in the limited sense of release for sale etc. so that the same becomes available to the consumer public. The court held as under: “… No unqualified and unrestricted power has been conferred on the Collector of releasing the commodity in the sense of returning it to the owner or person from whom it was seized even before the proceeding for confiscation stood completed and before the termination of the prosecution in the acquittal of the offender. Such a view would render Clause (b) of Section 7(1) totally nugatory and would completely defeat the purpose and object of the Act. The view that the Act itself contemplates a situation which would render Section 7(1)(b) otiose where the essential commodity is disposed of by the Collector under Section 6-A(2) is misconceived. Section 6-A does not empower the Collector to give an option to pay, in lieu of confiscation of essential commodity, a fine not exceeding the market value of the commodity on the date of seizure, as in the case of any animal, vehicle, vessel or other conveyance seized along with the essential commodity. Only a limited power of sale of the commodity in the manner prescribed by Section 6-A(2) is granted. The power conferred by Section 6- A(2) to sell the essential commodity has to be exercised in public interest for maintaining the supplies and for securing the equitable distribution of the essential commodity.”
Criminal - Release of seized articles - Sections 3, 6-A and 6-C of Essential Commodities Act, 1955 - High Court held that continuing seizure of seized articles of Respondents by Appellant for long time might not be justified and therefore High Court issued direction for release of wheat - Hence, this Appeals - Whether, order passed by High Court was justified - Held, High Court had not even taken prima facie view that State Government had not issued twice any order/notification under Section 3 of Act though FIR made reference to Clause 6(a) of Public Distribution System (Control) Order, 2001 issued under Section 3 of Act - Further, there was nothing on record on basis of which issue of ownership had been decided by High Court - There was no cogent material on record before High Court on basis of which direction to release goods so seized could be issued - In subsequent order dealing with ownership of wheat High Court had only taken note of fact that as Respondents were prepared to furnish adequate/sufficient security to satisfaction of Court below for release of wheat in question, wheat could have been released by CJM - In case CJM came to conclusion after appreciating evidence on record that Respondents/Applicants were not in position to show any document which may show their ownership to wheat, there was no justification for High Court to issue directions for release of such material merely because Applicant could furnish security - High Court had ignored fact that any order passed under Section 6-A of Act was appealable under Section 6-C of Act - Hence, order passed by High Court was not justified 

Supreme Court of India

State Of Bihar & Anr vs Arvind Kumar & Anr on 23 July, 2012

Citation;2012CriLJ3756, (2012)12SCC395,

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custodial interrogation of accused arrested under essential commodities Act

 The advocate of the applicant relied on copy of the contract made with the Government for transporting the essential commodity but this record is of no use. There is clear prima facie case against the present applicant for aforesaid offences and in such a case, custodial interrogation is must. In view of these circumstances, this Court holds that it is not fit case for grant of anticipatory bail and the application stands rejected.

Bombay High Court

Haridas S/O Pralhadrao Ghumare vs Copy To Be Served On Public on 20 June, 2012

Bench: T.V. Nalawade

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When magistrate should not release property seized under Essential commodities Act on supratnama?

 Section 6-C of the Act provides that appeal can be filed against the order of the Collector. Section 6-E shows that no Court or Tribunal can make order with regard to the possession etc. of the essential commodity so seized and also in respect of the vehicle if the essential commodity was being carried in a vehicle if the Collector starts confiscation proceedings. In criminal case also, there is presumption of culpable mental state available against the accused u/s 10-C of the Act if the offence requires existence of such culpable mental state.

8] In view of the aforesaid provisions, it becomes necessary for every Magistrate or other Court when a matter like present one comes before it to make necessary enquiry with regard to the compliance of Section 6-A of the Act. The Court or Magistrate of Tribunal is expected to bring to the notice of seizing officer that such report needs to be made to the Collector and it becomes necessary for the Magistrate or the Court as the case may be to make enquiry with the Collector as to whether the Collector is likely to take action u/s 6-A of the Act. So, the Magistrate cannot pass straightway the order of interim custody with regard to the essential commodity and even with regard to the vehicle before making such enquiry.

9] The defence of a person like transporter or contractor like the present one cannot be considered at this stage. The provisions of the Act show that the contravention is required to be proved only against the person who was found in possession of essential commodity and so, even at this stage, prima facie case needs to be made against the person from whose possession the

essential commodity and the vehicle are seized for contravention. This can be seen in Section 6-B of the Act. This Section provides that confiscation of essential commodity can be made by giving opportunity of being heard either to the owner or to person from whom the commodity is seized. Section 6-B [2] is in respect of the vehicle only and it is not in respect of the essential commodity. Under Section 6-B [2] of the Act, the owner of the vehicle has right to take defence that the vehicle was used for the purposes alleged by seizing officer without the knowledge or connivance of the owner. Thus, special powers are given to the Collector with regard to the commodity. Thus the J.M.F.C. has committed error in making the order of interim custody in favour of the present applicant. 

Bombay High Court

Haridas Pralhadrao Ghumare Vs State of Maharashtra on 20 June, 2012

Bench: T.V. Nalawade

citation;2012 CR L J (NOC)587 bombay

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