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
1. The State has challenged the order dated 7th November, 1996 passed by the learned Additional Sessions Judge, Akola, allowing Misc. Criminal Application No. 32 of 1996 preferred by the respondent under section 457 read with section 451 of the Criminal Procedure Code for getting the possession of 39 gas cylinders, which were seized by the police on 1st October, 1996 in Crime No. 290 of 1996 registered under sections 3 and 7 of the Essential Commodities Act. The applicant is a dealer of Handi Gas. However, those cylinders were not stored at a storage point to be fixed under the Liquified Petroleum Gas (Regulation and Supply and Distribution) Order, 1993 and thus there was violation of section 3, which is punishable under section 7 of the Essential Commodities Act. The trial is pending. However, pending trial, the above application was submitted and the Court allowed the said application.
2. The only question of law raised by Shri Wahane, learned Additional Public Prosecutor appearing for the applicant/State, is that the learned Additional Sessions Judge, Akola, should not have allowed the application under section 457 read with section 451 of the Criminal Procedure Code, because in the matter of essential commodity, when the said commodity is seized, it is the Collector, who is supposed to deal with and dispose of the said commodity in accordance with the provisions of sections 6-A to 6-E of the Essential Commodities Act. According to the learned Additional Public Prosecutor, there is an express bar to the Court to exercise the powers under the Criminal Procedure Code in view of the provisions of sections 6-A to 6-E of the said Act and, therefore, he submitted that the impugned order be quashed and set aside.
3. Shri Kotwal, learned Counsel appearing for the respondent, submitted that the order passed by the learned Additional Sessions Judge, Akola, is in accordance with law and the Court has relied on the ratio as laid down in the case of State of M.P. v. Rameshwar Rathod, reported in MANU/SC/0323/1990 : 1990CriLJ1756 and, therefore, there is no need to interfere and/or quash and set aside the impugned order.
4. It is pertinent to note [hat the police have seized the gas cylinders as referred to above on 1st October, 1996. The petitioner have submitted application on 19-10-96 for getting the 60 cylinders on supratnama. Notice was issued to the State on 19th October, 1996. On 4th November, 1996, the State filed a say that under section 6-A of the Essential Commodities Act, only the Collector has power to release the property and, therefore, the application is not tenable. The further say was filed by the State 5-11-96 making reference to section 6-E of the said Act and requested to reject the application.
5. Looking to the provisions of law, on 5th November, 1996, the Court passed an order to make a statement as to whether the Collector has been informed about the seizure of the gas cylinders in question and whether any proceeding is started by the Collector in relation to the gas cylinders in question. It appears that on 6th November, 1996, the matter was heard by the learned Additional Sessions Judge and till that time, irrespective of the above order dated 5th November, 1996, till the end of the Court hours, the learned A.P.P., Shri Kate, who appeared in the said proceeding, could not give any information to the Court as to whether any proceeding for confiscation is pending before the Collector. However, the State proceeded with the argument and submitted that the Court had no jurisdiction.
6. The learned Additional Sessions Judge considered the provisions of section 6-A of the Essential Commodities Act and relying on the case of Rameshwar Rathod, cited supra, passed the impugned order. The Supreme Court, considering the provisions of section 6-A, has observed, "Normally under the Criminal Procedure Code, the Criminal Courts of the country have the jurisdiction and the ouster of the ordinary Criminal Court in respect of a crime can only be inferred if that is the irresistible conclusion flowing from necessary implication of the hew Act. In view of the language used in sections 6-A and 7 of the Essential Commodities Act and in the context in which this language has been used, the inference that arises is that the Criminal Court retained jurisdiction and was not completely ousted of the jurisdiction.
7. It may be noted that the Apex Court has considered the provisions of section 6-A read with section 7 of the said Act and has laid down the above-stated ratio. However, by the Act No. 92 of 1976, section 6-E of the Essential Commodities Act was added and introduced in the Statute Book. That was also amended from time to time. However, by the Act No. 42 of 1986, the present section 6-E was introduced with effect from 8th September, 1986. The provisions of section 6-E are required to be considered, because, the Apex Court has considered the provisions of section 6-A, as they were introduced by the Amendment Act of 1974. However, by the said amendment, the provisions of section 6-E were not introduced and, therefore, there was no positive express provision providing for an express bar of jurisdiction earlier to 1976 and the said provision was introduced by the Act No. 92 of 1976. However, even though section 6-E provides for an express bar, that will not make any change if the matter has not commenced for confiscation before the Collector. The provisions of section 6-E of the Essential Commodities Act are as follows :-
"6-E. 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 or other conveyance used in carrying such essential commodity is seized pending confiscation under section 6-A, the Collector, or, as the case may be, the State Government concerned under section 6-A 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."
These provisions show that the jurisdiction of the Court or tribunal or any other authority is ousted only if the essential commodity is seized and confiscation proceeding under section 6-A is pending before the Collector and/or before the State Government under section 6-C. The net result of these provisions is that if there is no confiscation proceeding pending under section 6-A before the Collector and/or under section 6C before the State Government, then the Court or tribunal or any other authority can have jurisdiction to make orders with regard to the possession, delivery, disposal, release or distribution of such essential commodity, etc. Thus the jurisdiction of the Court or tribunal or any other authority stands ousted only if there is a confiscation proceeding pending before the Collector and/or the State Government either under sections 6-A or 6-C. Otherwise, the Court or tribunal have a jurisdiction to dispose of the said property as per the procedure laid down. Thus, it is clarified that in view of the present provisions of section 6E before the Court proceeds to exercise the powers for disposal of the property, the said Court shall get it confirmed as to whether any proceeding for confiscation of the said essential commodity is pending before the Collector under section 6-A or under section 6-C before the State Government and if it is found that no such confiscation proceeding is pending, then the Court can proceed to dispose of the said property in view of the provisions contained in the Criminal Procedure Code. The bar contemplated under section 6E is not a blanket absolute bar, but it is clarified that once the Collector or the State Government commences the proceeding for confiscation either under sections 6-A or 6C, the Court or other authorities are barred from considering the release and disposal of the said property and to that extent, the general power of the Criminal Court to dispose of the property is modified, affected and conditioned by the provisions of section 6E and to that extent, the ratio laid down in the case of Rameshwar Rathod, cited supra, stands modified as a result of the legislation and the introduction of section 6-E of the Essential Commodities Act.
8. 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.
9. Except this submission, no other submission was made.
10. In view of the above discussion, the criminal revision application is dismissed.
11. Application dismissed.
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