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,
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
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