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