HIGH COURT OF CHHATTISGARH

Transcription

1 1 HIGH COURT OF CHHATTISGARH Single Bench: Hon ble Shri Justice Sanjay K. Agrawal Cr.M.P. NO of 2014 PETITIONER Vishnu Prasad Vaishnav Versus RESPONDENT State of Chhattisgarh PETITION UNDER SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE Appearances: Shri B.D. Guru, counsel for the petitioner. Shri Neeraj Jain, Govt. Advocate for the respondent/state O R D E R (Passed on ) (1) The central legal issue that falls for consideration in this petition is whether the Magistrate has jurisdiction under Section 457 of the Code of Criminal Procedure to grant custody of vehicle seized for violation of an order made in exercise of power conferred by Section 3 of the Essential Commodities Act, 1955? (2) The petitioner is registered owner of four wheeler bearing registration No. CG-04-J.D The said vehicle has been seized by the Police Station Karora, District Raipur in connection with Crime No. 298/13 for commission of offence punishable under Section 379 of the Indian Penal Code read with Section 3 & 7 of the Essential Commodities Act, 1955 (henceforth EC Act, 1955 ) as the said vehicle was found involved in transporting the rice reserved for the poor and needy people under the Public Distribution System.

2 2 (3) The petitioner, being the registered owner of the vehicle, made an application under Section 457 of the Code of Criminal Procedure (henceforth the Code ) stating inter alia that he, being the registered owner of the vehicle, is entitled for custody of the vehicle in question as it is lying unused in the Police Station. The said application was opposed by the Public Prosecutor. (4) Learned trial Magistrate, by its order dated , rejected the said application holding inter alia that the said vehicle is subject to confiscation proceedings under Section 6A of the EC Act, 1955 and, therefore, interim custody of said vehicle cannot be granted to the petitioner. (5) Being aggrieved & dissatisfied with the order of learned Magistrate, petitioner preferred revision before the 6 th Additional Sessions Judge, Raipur. (6) The revisional Court, by its impugned order dated 22 nd November, 2014, concurred with the findings recorded by trial Magistrate holding that Section 6E of the EC Act, 1955 bars the jurisdiction of the Magistrate making order with regard to the disposal of the property/vehicle as the said vehicle was found involved in commission of offences under Section 7 of the Essential Commodities Act, and it has been seized accordingly. (7) Appearing for the applicant, Shri B.D. Guru, learned counsel would submit that the petitioner being the registered owner of the vehicle is entitled for custody of the vehicle and Section 6E of the EC Act would not come in the way to get interim custody to him as the proceeding under section 6A of the EC Act, 1955 has not been initiated as only intimation of

3 3 the seizure of the vehicle has been sent to learned Magistrate and, therefore, the applicant is entitled for interim custody of the vehicle in question under Section 457 of the Code of Criminal Procedure. (8) Appearing for the State, Shri Neeraj Jain, learned Govt. Advocate would submit that the proceeding for confiscation has already been initiated and, as such, the petitioner is not entitled for interim custody of the vehicle in question. (9) I have heard learned counsel appearing for the parties and considered the rival submissions made therein with utmost circumspection. (10) In order to consider to rival submission made at bar, questioning the impugned order, it would be proper to have quick survey of the relevant statutory provisions: Section 6A of the EC Act, 1955 provides confiscation of essential commodities including vehicle etc; Section 6B of the EC Act, 1955 provides for issuance of show cause notice before confiscation; Section 6Cof the Act, 1955 provides appeal against the order of confiscation; and Section 6E of the Act, 1955 in relation to the bar of the jurisdiction in certain cases. Section 6E of the Act states as under:- 6E. Bar of jurisdiction in certain cases.- Whenever any essential commodities 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 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,

4 4 or, as the case may be, [the judicial authority appointed under section 6C] shall have, and, notwithstanding anything to the contrary contained in any other law for the time being in force, [any other court, tribunal or authority] shall not have, jurisdiction to make orders with regard to the possession, delivery, disposal, release or distribution of such essential commodity, package, covering, receptacle, animal, vehicle, vessel or other conveyance. (11) Section 6E was inserted in the Essential Commodities Act, 1955 by the Amendment Act No. 92 of 1976 with effect from (12) Section 6E is disabling provision stating that notwithstanding anything to the contrary contained in any other law for the time being in force, any other Court, Tribunal or authority shall not have jurisdiction to make orders with regard to the possession, disposal, release of such vehicle or other conveyance. (13) Thus, in the matter of order of confiscation of the essential commodity except the Collector and the judicial authority as the case may be, the jurisdiction of the other Court, Tribunal or other authority is expressly barred to make any order in view of specific bar engrafted under Section 6E of the Act, (14) The bar of jurisdiction of Courts under Section 6E of the Act, 1955 came to be considered before the Supreme Court in case of Shambhu Dayal Agarwala Vs. State of West Bengal and another 1, in which their Lordships has held that Section 6-E was enacted to debar courts from making any order with regard to the possession, delivery, disposal or distribution of essential commodity seized in pursuance of an order made 1 (1990) 3 SCC 549

5 5 under Section 3 of the EC Act, Relevant paragraph of the report states as under:- It is obvious on a plain reading of this provision that the same was brought on the statute book with a view to debarring the courts from making any order with regard to the possession, delivery, disposal or distribution of any essential commodity seized under an order made under Section 3 of the Act. Section 7 prescribes the penalties for the contravention of any order made under Section 3 and provides for the forfeiture of the essential commodity to the government and for the forfeiture of the essential commodity to the government and for the forfeiture of any animal, vehicle or other conveyance used in carrying the said essential commodity, if the court so orders. (15) It has further been held in later part of the above referred judgment as under:- 6.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 6-A, or the State Government concerned pending confiscation under Section 6-C. 8 And now to the structural setting and context in which the word release is used in Section 6-E. While debarring courts, tribunals and other authorities from exercising power in relation to the seized commodity, power is conferred on the Collector or the State Government concerned under Section 6-C, to make orders with regard to the possession, delivery, disposal, release or distribution of such commodity, etc. This power can be exercised pending confiscation. The power conferred by this section is unqualified. The word release is preceded by the words possession, delivery and disposal and followed by the word distribution. The setting and context in which the word release is used makes it clear that it is not used in the sense of return. In the first place as pointed out earlier it would completely defeat the purpose and object of the Act if the essential commodity seized for suspected

6 6 contravention of the order made under Section 3 is returned to the owner or person from whom it was seized even before the confiscation proceeding were completed. Such an intention cannot be ascribed to the legislature. Secondly, it is not possible to believe that the legislature would confer unqualified and unrestricted power to return the essential commodity to the owner or the person from whose possession it was seized before a decision whether or not to confiscate the same is taken. As the section stands, if the interpretation put by the learned counsel for the appellant is accepted, it would be permissible to the Collector to return or restore the commodity without imposing any condition, pending confiscation proceedings. (16) Finally, concluding paragraph of the above referred judgment states as under:-.it seems to us that Section 6-E is intended to serve a dual purpose, namely (i) to prevent interference by courts, etc., and (ii) to effectuate the sale of the essential commodity under sub-section (2) and the return of the animal, vehicle, etc., under the second proviso to sub-section (1) of Section 6-A. (17) The above-stated judgment was followed and approved by their Lordships of Supreme Court in case of Oma Ram v. State of Rajasthan and others 2, in which it has clearly been held that Section 6E of the Act deals with bar of jurisdiction of courts in certain cases except the Collector or the State Government, all other authorities including Magistrate has no jurisdiction to grant relief against seizure under Section 457 of the Code. Paragraph 17 of the report states as under:- 2 AIR 2008 SC (supp) Certain provisions of the Essential Commodities Act, 1955 have relevance. Section 6-A deals with confiscation of food grains, edible oil seeds and edible oils. Section 6-B deals with issue of showcause notice before confiscation of food grains, etc. Section 6-E deals with bar of jurisdiction in certain case. Section 6-E has been substituted to provide that except the Collector or the State Government, all other authorities, judicial or otherwise, would be debarred from making any order with regard to the

7 7 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. (18) The decision rendered in Shambhu Dayal Agarwala (supra) & Oma Ram (supra) has been reiterated and followed by their Lordships of Supreme Court in case of State of Bihar & another Vs. Arvind Kumar and anr. 3, holding that the release order passed in favour of the respondents therein without regards to Section 6A and Section 6E of the EC Act, 1955 is improper. (19) In State (NCT of Delhi) Vs. Narender 4, their Lordships of Supreme Court, while considering the bar enacted by Section 33 of the Delhi Excise Act, 2009, has held that in a case where the Authorized Officer is empowered to confiscate the seized forest produce on being satisfied that the offence under the Act has been committed thereof, the general power vested in the Magistrate for dealing with interim custody/release of the seized material under the Code of Criminal Procedure has to give way. (20) 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 3 AIR 2012 SC (Supp) 8 4 JT 2014 (1) SC 274

8 8 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. (21) Revering back to the facts of the case, it would appear that learned Magistrate has rejected the application filed under Section 457 of the Code holding that vehicle in question has been seized in connection with violation of order under the provisions of Section 3 of the EC Act, 1955; and the revision being filed, the learned Additional District Judge has rightly observed that by virtue of provisions contained in Section 6E of the EC Act, 1955, learned Magistrate has no jurisdiction with regard to custody of the said vehicle as pending confiscation under Section 6E of the EC Act, (22) Resultantly, the order passed by the Magistrate as affirmed by the learned Sessions Judge holding that jurisdiction of the Magistrate under Section 6E of the Act is barred in accordance with law, does not call for any interference by this Court in exercise of inherent power conferred under Section 482 of the Code. (23) As a fall out and the consequence of the aforesaid discussion, the petition is held to be devoid of merit and is, therefore, dismissed. Judge D/-

9 9 HEAD NOTE English (1) Judicial Magistrate has no jurisdiction to grant custody of the vehicle seized for commission of offence u/s 3/7 of the EC Act, Hindi U;kf;d n.mkf/kdkjh dks /kkjk vko ;d olrq vf/kfu;e] 1955 ds v/khu dkfjr vijk/k esa tcr okgu dh lqiqnzxh iznku fd;s tkus dh dksbz vf/kdkfjrk ugha gs A (Amit Dubey) Private Secretary