HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED AFR Court No. - 13 Case :- CRIMINAL REVISION No. - 2426 of 2006 Revisionist :- Yogendra Rai & Another Opposite Party :- State Of U.P. Counsel for Revisionist :- S.K. Chaubey,S.K. Rai Counsel for Opposite Party :- Govt. Advocate Hon'ble Amar Singh Chauhan,J.
This criminal revision has been preferred by the revisionists against the order dated 17.1.2006, passed by the learned Additional Chief Judicial Magistrate, Court No. 10, Azamgarh in Case Crime No. 232 of 2005, (State vs. Arvind and others), under Section 3/7 of the Essential Commodities Act, 1955, Police Station Raunapar, District Azamgarh whereby the learned Magistrate has rejected the application under Section 457 of Criminal Procedure Code for release of essential commodities viz. food grains etc. As per factual matrix of the case on 23.9.2005, an FIR was lodged against Arvind Kumar Jaiswal and others, a fair price shop holder in Case Crime No. 232 of 2005, under Section 3/7 of the Essential Commodities Act with the allegation that they are carrying essential commodities food grains of fair price shop in Vehicle Truck No. U.P. 53T/2407 for the purpose of selling in the market. Thereafter the revisionists moved an application under Section 457 Cr.P.C. for release of food grains which was seized in relation to crime mentioned above stating that they are farmers and they are carrying their grains for the purpose of sale in Mandi. During the course of transaction in Kankhmar Mandi the truck in question carrying the goods being stopped by certain persons for realising the CHANDA OF DURGA POOJA and in between the said period, some quarrel has been taken place and on the instance of husband of Gram Pradhan, the goods had been seized by saying that it belonged to fair price shop. The said application was rejected by the Magistrate concerned on the ground that proceeding under Section 6-A of the Essential Commodities Act has been initiated and this court has no jurisdiction.
Aggrieved from the said order, present revision has been filed.
I have heard Sri S.K. Chaubey, learned counsel for the revisionists, learned AGA for the State and have perused the record.
In the revision only legality, propriety or correctness of the impugned order be gone into.
Learned counsel for the revisionists submitted that the order passed by the court below is without jurisdiction. The court has vested jurisdiction to release the goods in the interest of justice under Section 457 Cr.P.C. Section 457 specifically provides for the purpose of releasing the goods to its real owner whatsoever the said is to be recovered in pursuance of criminal cases but the Court has passed the order stating therein that the District Magistrate has got jurisdiction under Section 6-A of the E.C. Act. They are farmers and they are carrying their food grains for the purpose of selling in the Mandi and liable to be released in their favour.
The Hon'ble Apex Court in case of Sunderbhai Ambalal Desai vs. State of Gujarat, 2003 (46) ACC 223 has held that the power under Section 451 Cr.P.C. should be exercised expeditiously and judiciously.
The Hon'ble Supreme Court in case of Smt. Basavva Kom Dyamangounda Patil vs. State of Mysore and another, AIR 1977 SC 1749 1977 observed in para 4 as under:
"The object and scheme of the various provisions of the Code appear to be that where the property which has been the subject-matter of an offence is seized by the police, it ought not be retained in the custody of the Court or of the police for any time longer than what is absolutely necessary. As the seizure of the property by the police amounts to a clear entrustment of the property to a government servant, the idea is that the property should be restored to the original owner after the necessity to retain it ceases. It is manifest that there may be two stages when the property may be returned to the owner. In the first place it may be returned during any inquiry or trial. This may particularly be necessary where the property concerned is subject to speedy or natural decay. There may be other compelling reasons also which may justify the disposal of the property to the owner or otherwise in the interest of justice. The High Court and the Sessions Judge proceeded on the footing that one of the essential requirements of the Code is that the articles concerned must be produced before the Court or should be in its custody. The object of the Code seems to be that any property which is in the control of the Court either directly or indirectly should be disposed of by the Court and a just and proper order should be passed by the Court regarding its disposal. In a criminal case, the police always acts under the direct control of the Court and has to take orders from it at every stage of an inquiry or trial. In this broad sense, therefore, the Court exercises an overall control on the actions of the police officers in every case where it has taken cognizance. "
So far as the release of essential commodities is concerned Division Bench of this Court in the case of M/s. Anil Traders vs. State of U.P, passed in Civil Misc. Writ Petition No. 38514 of 1991 and connected writ petition, decided on 10.2.1992 reported in 1994 (4) EFR Page 49 observed that once a cognizance of an offence has been taken by a Special Court and proceedings for confiscation under Section 6-A have not commenced, there can be no difficultly in taking the view that a Special Court alone will have the jurisdiction to deal with an application for release or return of the seized goods. The difficulty, however, arises in a situation where neither any confiscation proceedings have commended nor has the cognizance been taken of the offence by the Special court.
This Court has not been able to lay its finger on any specific provision which may empower the Special Court to release the commodities seized even before the cognizance of an offence is taken by him. From perusal of scheme of the Act appears that the Special Court has the implied power of directing the return of the goods after imposing necessary conditions. The conditions, of course, would be necessary so as to ensure the deposit in the Government account of the market value of the commodity released or returned in the event an order of confiscation is passed under Section 6-A or an order of forfeiture is passed by the Special Court itself, if and when it tries an offence after taking cognizance. However, the Special Court can exercise the power only if proceedings for confiscating the essential commodities have not been initiated by the Collector.
The question is as to which authority or Court will have jurisdiction to release the commodity seized in pursuance of an order made under Section 3 of the Essential Commodities Act, 1955 if confiscation proceeding have been commenced under Section 6-A of the Act. In the present case confiscation proceedings have already been commenced. In view of the judgment of the Supreme Court in case of Shambhoo Dayal Agarwal vs. State of West Bengal (1990) 3 SCC 549 : 1990 (2) EFR 1 (SC), once confiscations proceeding has commenced neither any Court nor the Collector in proceedings under section 6-A of the E.C. Act can direct the return of the commodity seized during pendency of the proceedings.
Section 6-A of the Act provides, inter alia, that where any essential commodity is seized a report of such seizure shall, without unreasonable delay to be made to the Collector of the District in which essential commodity is seized and whether or not a prosecution is instituted for the contravention of any Control Order issued under Section 3, the Collector 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. The conditions, of course, would be necessary so as to ensure the deposit in the Government account of the market value of the commodity released or returned in the event an order of confiscation is passed under Section 6-A or an order forfeiture is passed by Special Court itself, if and when it tries an offence after taking cognizance. The special Court can exercise the power only if proceedings for confiscating the essential commodities have not been initiated by the Collector. Since the proceedings for confiscation is said to be initiated the Magistrate is debarred from taking cognizance of an offence alleged to have been committed under Section 3/7 of the E.C. Act. Therefore, release of the commodity under Section 457 Cr.P.C. cannot be made. The Special Court can exercise the power only if proceeding of confiscation of the commodities have not been initiated by the Collector.
In view of the above discussion, I am of the opinion that the impugned order does not require any interference and liable to be dismissed and also being of devoid of merit. The revision is dismissed. There is no order for cost.
Order Date :- 22.4.2015 Puspendra (Amar Singh Chauhan,J.)