Essential Commodities; Biju Sebastian Vs. State [Kerala High Court, 15-07-2016]

Criminal Procedure Code, 1973 – Section 451 – Essential Commodities Act, 1955 – Sections 6A & 6E – Kerala Rationing Order – Section 5 (A) – Confiscation of the Vehicles – Seized while in transit rationed rice – Whether the jurisdiction of the Criminal Court to grant interim custody of a vehicle will be barred – Held, 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 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 – the vehicle would be irreversibly damaged if it is made to lie exposed to the vagaries of nature – order is quashed.

# Confiscation of Vehicle


IN THE HIGH COURT OF KERALA AT ERNAKULAM

RAJA VIJAYARAGHAVAN.V., J.

Crl.M.C. No. 3415 of 2016

Dated 15th July, 2016

C.M.P.NO.11649/2015 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, CHENGANNUR CRIME NO. 798/2015 OF VENMONY POLICE STATION , ALAPPUZHA

PETITIONER(S)/PETITIONER

BIJU SEBASTIAN, PALATHINKAL VEEDU, FATHIMAPURAM, CHANGANASSERY TALUK, KOTTAYAM DISTRICT. BY ADVS. SRI.M.V.BOSE SRI.VINOD MADHAVAN SMT.NISHA BOSE

RESPONDENT(S)/COUNTER PETITIONER

STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.RAJESH VIJAYAN

ORDER

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) xxxxxxxxxxxxxxxx

(3)xxxxxxxxxxxxxxxxx

# 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) xxxxxxxxxxxxxxxxxxxxxxxx

xxxxxxxxxxxxxxxxxxxxxxxxxxx

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.

Comments