Maharani Deen Bind vs State Of U.P. & Others
2011 Latest Caselaw 6226 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

											Reserved								                 AFR
 
CRL. MISC. WRIT PETITION NO. 7738 OF 2010
 
    Maharani Deen Bind  ....................   Petitioner
 
							   Vs.
 
      State of U.P. and others  ......... Respondents.
 

 
Hon'ble Vinod Prasad, J.

Writ petitioner Maharani Deen Bind, through the instant writ petition, has invoked extraordinary jurisdiction of this Court under Article 226 of the Constitution of India praying for issuance of a writ of certiorari, quashing impugned orders dated 22.1.2010 passed by respondent no.3, District Magistrate, Jaunpur, Annexure No. 10 and subsequent appellate order dated 23.4.2010 passed by respondent no.2, Special Judge (EC Act), Court No. 6, Jaunpur, Annexure No. 11. By the former order District Magistrate, respondent no. 3 had ordered for confiscation of petitioner's truck having registration number UP 70 L 9158 u/s 6-A E.C. Act, which order has been affirmed by respondent no.2, lower appellate court/ Special Judge, E.C.Act vide impugned order annexure no. 11.

Underlying facts, briefly stated, were that,on8.10.2009, Station Officer, PS Machali Shahar communicated Sub Divisional Magistrate(SDM), Machali Shahar that fair price shop rice is being illegally transported for black marketing in petitioner's truck and , consequently, on the instructions of SDM, Om Prakash, Supply Inspector, along with Arvind Kumar Dubey, Marketing Inspector, and Satya Deo, Supply Clerk, checked the said truck, which was parked in front of PS Machali Shahar. On interrogation Lalji, driver of the truck informed the checking party that loaded 182 bags of rice, weighing 110 quintals, were loaded from the go-down of one Israra Khan s/o Asgar Khan and the truck belonged to the petitioner s/o Ram Khiladi, R/O Fatanpur district Pratapgarh. On some of the bags tag of Sudhir Agro Energy Ltd. was stitched. Marketing Inspector , after verifying the tag and quality of the rice informed the Supply Inspector that the quality of rice was common Arva, which was received for being distributed from market centers and was being transported for black marketing. Since the activity was in contravention of provisions of Public Distribution System Control Order 2001 coupled with U.P. Scheduled Commodity Distribution Order 2004,punishable under 3/7 E. C. Act 1955 (herein after referred to as the Act), that the rice bags and the truck were seized and were given in custody of S.O. Machali Shahar. A seizure memo, Annexure no. 3 was also drawn in that respect.

On the basis aforesaid seizure, SDM Machali Shahar sought and was accorded permission by respondent no.3 to get an FIR lodged against Israr Khan vide annexure no.4, consequent upon which, on the instructions of SDM, vide annexure no.6, that Supply Inspector lodged FIR, annexure no.1, against Israr Khan being crime number 769 of 2009, u/s 3/7 E.C.Act at PS Machali Shahar district Jaunpur.

On the basis of SDM's report, District Magistrate, respondent no.3, after registering case no. 12 u/s 6-A of the Act, issued a show cause notice, annexure no. 7, to the writ petitioner u/s 6-B, of the Act, on 26.10.2009,requiring him to show cause as to why his truck in question be not confiscated in favour of the State.

On 16.11.2009 petitioner replied said notice stating thereunder that he is owner of truck no. UP70 L 9158 and has a transport business. Israr had hired his aforesaid truck on 8.10.09 at Rs. 3000/= hire charges and driver Lalji s/o Sri Nath R/o Hathgavan PS Soraon, district Allahabad had plied the truck to Israr Khan. Neither he nor his driver Lalji had any knowledge about the rice belonging to public distribution system. At all times driver was under the impression that the same belonged to the trader. Writ Petitioner further replied that he had never associated his truck with black marketing and had always plied in licerily (according to law). Petitioner's further reply was that he had nothing to do with the rice bags in question. His standard truck was putriscencing at the police station and petitioner was suffering economically and therefore his truck be not confiscated and be released in his favour.

Respondent no.3,Collector/District Magistrate, Jaunpur, after hearing both the sides, concluded, vide impugned order dated 22.1.2010, annexure no.10, that in connivance and with knowledge of the petitioner, without valid papers and documentation, that the rice belonging to Public Distribution System that loaded in petitioner's truck and therefore petitioner allowed his truck to contravene provisions of the Act and, therefore, he rejected petitioner's objection and ordered for confiscation of his truck under Section 6-A of the Act.

Aggrieved by the order of confiscation aforementioned passed by Respondent no.3, writ petitioner preferred Criminal Appeal No. 9 of 2010, Maharani Deen Bind versus State of U.P. before Special Judge (E.C. Act), Jaunpur respondent no. 2 but was unsuccessful as his appeal was dismissed by Special Judge, E.C. Act who concluded, vide impugned judgment and order dated 23.4.2010, annexure no.11, that impugned confiscation order was justified and proper. Hence this writ petition by the petitioner challenging both the orders annexure no. 10 & 11.

Learned AGA has filed a counter affidavit on behalf of respondents 3, 4 and 5, who are District Magistrate, Jaunpur, Additional District Magistrate, Jaunpur and Supply Inspector, Food and Supply Department, Jaunpur.

In the back drop of aforesaid facts that I have heard learned counsel for the petitioner and learned AGA for and against this writ petition and has perused material on the record.

It is submitted by petitioner's counsel that confiscation of petitioner's truck under section 6-A of the Act is illegal and unsanctified as no offence was committed by the petitioner or his driver at any point of time knowingly and consciously. No mens rea was present with the petitioner or his driver as it was unbeknown to them that the rice in question belonged to public distribution system. Driver of truck also had no knowledge of it and he always was under the impression that the same belonged to the trader and, therefore, in absence of any credible material against them truck could not have been ordered to be confiscated. Aforesaid argument was supplemented by contending that during investigation into the crime complicity of the petitioner or his driver was not found and therefore neither of them have been charge sheeted, which was filed only against Israr Khan. It was next submitted that both respondents no. 2&3 wrongly and illegally opined that in future also petitioner will indulge in contravention of the provisions of the Act and hence his truck cannot be released. Said conclusions by both the courts below are based on no material and are purely conjectural based on surmises and hence impugned confiscation orders be quashed and truck of the petitioner be ordered to be released in his favour by issuance of a writ of certiorari.

Learned AGA, albeit, endeavoured to support both the impugned orders but did not dispute that after investigation into the crime complicity of the petitioner or his driver was not revealed and consequently no charge sheet was submitted against them. Learned AGA further submitted that the crime in question is relatable to black marketing of rice belonging to the Public Distribution System and, therefore, no clemency should be shown to the petitioner.

I have considered the arguments raised by both the sides. E.C. Act is a penal statute having civil and criminal consequences. It provides for confiscation of essential commodities as well as vehicles or other transportation means, besides punishment, in the event of violation/ contravention of any of the provisions of any of the control orders enacted thereunder. Since 3/7 E.C. Act is penal in nature, and also has serious civil consequences, therefore it's provisions has to applied in strict adherence to the statute. For fastening criminal liability with penal consequences conjectures, surmises and unwarranted hypothecations have to be kept at bay. Here in the present writ petition, for a transporter, seizure of his truck entails very harsh and extreme civil consequences as it deprives him of his livelihood and impinges upon his Fundamental Rights to vocation and carry on business and therefore should be ordered by observing methodical interpretation of penal provision and tenacious adherence to the due process of law and procedural requirements. In all crimes, especially in crimes such as the present one, mens rea is an essential ingredient for making a person liable for penalty or forfeiture and confiscation of his assets. In absence of mens rea confiscation of property is illegal. Article 19(1) (g) of the Constitution provides it as a Fundamental Right "to practice any profession, or to carry on any occupation, trade or business." To facilitate application of such a Fundamental Right, Article 300-A of the Constitution further provides that " No person shall be deprived of his property save by authority of law". In such a view deprivation of property should be only in accordance with law. Natural corollary of above discussion is that unless it is established beyond doubt that the vehicle or other means of transport carrying essential commodities was used consciously and knowingly in contravention of the provisions of the Act and Control Orders formulated thereunder no confiscation order can be made depriving the owner of his right to carry on business as a transporter or other person of his means of transport. The maxim "actus curiae neminem gravabit" meaning that act of court should prejudice none, should not be lost sight of.

Applying above dictum on the facts of the present petition, it is revealed that it is not the case that petitioner was present at the go- down of Israr Khan, when the rice was being loaded in his truck. Defence of the driver is that it was unbeknown to him that the rice was common Arva meant for public distribution and at all times he was under the impression that the same was traders commodity. Respondents have failed to bring on record conscious knowledge of these persons about the rice belonging to public distribution system. Both the courts below applied conjectures in concluding that the said fact was known to the petitioner. None of the reports submitted to respondent no. 3 stated so.No oral evidence was taken. Neither the seizure memo, nor the FIR nor report by SDM made petitioner a privy to the crime. During investigation also I.O. did not found involvement of the petitioner or his driver into the offence and therefore did not charge sheet them. While ordering for confiscation of a means of transport what is most essential is that the owner of the vehicle or it's drive was in conscious knowledge of the fact that he is indulging into an activity which is contrary to any of the provisions of any of the control orders made under E.C. Act. A confiscation of a vehicle can be ordered only if it is found to have been indulging into contravention of any control order consciously and knowingly. Thus for confiscation of a vehicle under Section 6-A (2) of the Act, what is sine qua non is that there should be some contravention of the provisions of a control order within the knowledge of the transporter or owner of the vehicle. In this respect reliance can be had from apex court decision in Nathulal versus State of Madhya Pradesh: AIR 1966 SC 43 wherein it has been held by the apex court as under:-

" The law on the subject is fairly well settled. It has come under judicial scrutiny of this Court on many occasion. It does not call for a detailed discussion. It is enough to restate the principles. Mens rea is an essential ingredient of a criminal offence. Doubtless a statute may exclude the element of mens rea, but it is a sound rule of construction adopted in England and also accepted in India to construe a statutory provision creating an offence in conformity with the common law rather than against it unless the statute expressly or by necessary implication excluded mens rea. The mere fact that the object of the statute is to promote welfare activities or to eradicate a grave social evil is by itself not decisive of the question whether the element of guilty mind is excluded from the ingredients of an offence. Mens rea by necessary implication may be excluded from a statute only where it is absolutely clear that the implementation of the object of the statute would otherwise be defeated. The nature of the mens rea that would be implied in a statute creating an offence depends on the object of the Act and the provisions thereof; see Srinivas Mill v. King Emperor, ILR 26 Pat 460 : (AIR 1947 PC 135), Hariprasad Rao v. State, 1951 SCR 322 : (AIR 1951 SC 204): and Sarjoo Prasad v. State of Uttar Pradesh, (1963) 3 SCR 324 : (AIR 1961 SC 631). Most of the relevant English decisions on the subject were referred to in the judgment of this Court in State of Maharashtra v. Mayer Hans George, Cri Appeal No. 218 of 1963, dated 24-8-1964 : (AIR 1965 SC 722). How to disprove mens rea has been succinctly stated in Halsbury's Laws of England, 3rd Edition, Col. 10, at p. 283, thus:

"When the existence of a particular intent or state of mind is a necessary ingredient of the offence, and prima facie proof of the existence of the intent or state of mind has been given by the prosecution, the defendant may excuse himself by disproving the existence in him of any guilty intent or state of mind, for example, by showing that he was justified in doing the act with which he is charged, or that he did it accidentally, or in ignorance, or that he had an honest belief in the existence of facts which, if they had really existed, would have made the act an innocent one. The existence of reasonable grounds for a belief is evidence of the honesty of that belief.

Having regard to the object of the Act, namely, to control in general public interest, among others, trade in certain commodities, it cannot be said that the object of the Act would be defeated if mens rea is read as an ingredient of the offence. The provisions of the Act do not lead to any such exclusion. Indeed, it could not have been the intention of the Legislature to impose heavy penalties like imprisonment for a period upto 3 years and to impose heavy fines on an innocent person who carries on business in an honest belief that he is doing the business in terms of the law. Having regard to the scope of the Act it would be legitimate to hold that a person commits an offence under S. 7 of the Act if he intentionally contravenes any order made under S. 3 of the Act. So construed the object of the Act will be best served and innocent persons will also be protected from harassment."

Further in the same decision it has been held by the apex court as under:-

"The answer given by the accused is consistent with the evidence adduced in the case. The Additional District Magistrate in substance accepted the defence. If so it follows that the accused stored the goods under a bona fide impression that the licence in regard to which he had made an application was issued to him though not actually sent to him. The fact that the licensing authority did not communicate to him the rejection of his application confirmed the accused's belief. On that belief he proceeded to store the food grains by sending the relevant returns to the authority concerned. It was, therefore, a storage of food grains within the prescribed limits under a bona fide belief that he could legally under a bona fide belief that he could legally do so. He did not, therefore, intentionally contravene the provisions of S. 7 of the Act or those of the Order made under S. 3 of the Act. In the result we set aside the order of the High Court convicting the appellant and acquit him of the offence with which he was charged."

In Kishori Lal Bihani versus The Addl. Collector and District magistrate Kanpur:AIR 1969 All 159 it has been held by this court as under:-

"2. The question is whether the contravention spoken of in section 6-A has the same legal incidence and consequences and has the same nature and character as the contravention made punishable by section 7. In Nathu Lal v. State of Madhya Pradesh, AIR 1966 SC 43 the Supreme Court held that mens rea was an essential ingredient of an offence under Section 7 of the Essential Commodities Act. An intentional contravention of an order made under Section 3 of that Act has to be established. If it is proved that the breach of an order under Section 3 was under a bona fide belief that the dealer could legally store the foodgraing seized, without infringing any order, there would be no "contravention" under Section 7 of the Act.

3. In my opinion the contravention attracting the provisions of section 6A is of the same character. It is to be seen that the same transaction of seizure of food grains on the ground that an order under Section 3 has been violated attracts liability to forfeiture under section 6A as well as punishment under Section 7. Section 6A as well as section 7 expressly use the same word "contravention" on the existence of which the power to take action arises. Under section 6A the Collector has to be satisfied that there has been a contravention of the order. Under Section 7 the Court has to find contravention of the same order. Two provisions are in pari materia. They should bear the same significance and legal incidents. Thus for satisfying himself that the provisions of an order under Section 3 have been contravened, the Collector would be entitled to take into consideration the question whether there was an intentional contravention of the order, or whether the conduct of the dealer was bona fide, under the belief that he was acting legally. These considerations would not be outside the purview of the satisfaction of the Collector that there has been a contravention of the order.

4. This view is strengthened by the scheme of the Act. Under Section 7 after the Court finds that there has been a contravention, the property in relation to which there has been a contravention is to stand forfeited to the Government, subject to the Court directing to the contrary. The Court can for reasons to be recorded refrain from directing the forfeiture if in its opinion it is not necessary to do so. So, in a case where initially an order of confiscation has been passed under section 6A, and the dealer is subsequently prosecuted, the Court is entitled to look into the whole matter and to see whether there were reasons for not directing so. If it finds that it is not necessary to order forfeiture of the goods, it can direct that the goods need not be forfeited. In that case the initial order of the Collector would stand modified or abrogated.

Thus the orders under section 6A are provisional, that is they are subject to the orders passed by the Court. Section 7 does not require that the contravention for which the dealer was liable to be punished under it, was something different in nature and character than the contravention for which an order of forfeiture is to be passed by the Collector in the first instance u/s. 6A. That shows that the contravention which entails forfeiture is of the same kind as that for which a dealer can be punished. I am, therefore, of the opinion that the question whether there was mens rea was relevant at the stage of passing an order of forfeiture under Section 6A."

For supplementary argument that unless there is contravention of any of the control order, no confiscation of vehicle can be ordered, learned counsel for the petitioner further relied upon Apex Court decision in Deputy Commissioner, Dakshina Kannada District Vs. Rudolph Fernandes: (2000)3 SCC 306 wherein, it has been provided as under:-

"Further it is required to be noted that under Section 6-B(2) no order confiscating the vehicle or other conveyance can be passed if the owner proves to the satisfaction of the competent authority that it was used in carrying the essential commodity without his knowledge or connivance."

Further, both the courts below surmised that in future petitioner will indulge in repeating the offence. There was total absence of any material for such a conclusion. Petitioner has no criminal proclivity nor has any criminal history. On what basis such a finding was recorded by the lower appellate court is not understandable.

On the facts of the present case it is established that neither writ petitioner nor his driver has been charge sheeted for violating 3/7 E.C.Act and hence non- involvement of the writ petitioner in the crime is writ large on the record. Respondent authorities failed to take note of the said fact and, therefore, confiscation order of the petitioner's truck in question cannot be sustained.

Writ petition is allowed.

A writ of certiorari is issued quashing both the impugned orders dated 22.1.2010 passed by District Magistrate, Jaunpur, respondent no.3,Annexure No.10, and subsequent order dated 23.4.2010 passed by Special Judge E.C.Act Court No. 6, Jaunpur, Annexure No. 11, to the writ petition. Truck No. UP 70 L 9158 is directed to be released to the petitioner forthwith without surety or security. Cost is made easy.

Dt.30.11.2011

AKG/-