Chandra Rekha vs The State Of U.P. Thru. Addl. Chief ...
2023 Latest Caselaw 20019 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?AFR
 
Neutral Citation No. - 2023:AHC-LKO:50907
 
Court No. - 13
 
Case :- MATTERS UNDER ARTICLE 227 No. - 3275 of 2023
 
Petitioner :- Chandra Rekha
 
Respondent :- The State Of U.P. Thru. Addl. Chief Secy./ Prin. Secy. Home, Lucknow And Others
 
Counsel for Petitioner :- Nadeem Murtaza,Suryansh Singh Suryavanshi,Wali Nawaz Khan
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Karunesh Singh Pawar,J.

1. Heard learned counsel for the petitioner and Shri Alok Tiwari, learned A.G.A. for respondent no. 1, 3 and 4 and has filed affidavit on their behalf which is taken on record.

Learned A.G.A. has also filed a personal affidavit on behalf of respondent no. 2 informant of the case which is taken on record.

2. Learned counsel for the petitioner submits that the petitioner is the sole proprietor of M/s Glorious Khushi Enterprises and the Tanker vehicle No. UP70JT8187 is registered in the name of the said firm. It is alleged in the recovery memo that on a tip received by the informant, vehicle of the petitioner i.e. tanker bearing No. UP70 JT 8187 was intercepted and driver of the tanker namely Ramesh and Azhar Ali were apprehended. They confessed their crime and further alleged that co-accused Ankit Sahu, Vakil Ahmad, Mukesh, Avinash and Rahul Kumar Rawat were also involved in the illicit sale-purchase of ATF who were coming behind in a Creta Car bearing No. UP78 GW 1792. The Creta Car was also intercepted and all the accused persons were arrested. The accused confessed that they steal ATF from airport and sell it in the open market after filling it in tanker. On inspecting the tanker bearing No. UP70 JT 8187, it was found that 8500 liters of ATF was filled in it which is in contravention of Aviation Turbine Fuel (Regulation and Marketing) Order 2001 and is an offence under Essential Commodities Act 1955. The vehicles were taken into custody and the co-accused persons were also arrested.

The recovery memo dated 07.06.2022 was prepared and consequently after permission of District Magistrate, Lucknow, a case was registered as case crime No. 186/2022, under Section 6A of Essential Commodities Act 1955 P.S. Banthara, District Lucknow against the above seven named accused persons.

The investigating officer after recording the statement of the accused persons under Section 161 Cr.P.C. submitted charge sheet against seven named accused persons in the F.I.R. A separate charge sheet has also been submitted against the petitioner and one another namely Fakir Mohammad (owner of creta car).

The court of Additional Collector/Additional District Magistrate (Civil Supplies), Lucknow passed an order dated 04.01.2022 under Essential Commodities Act 1955 confiscating the tanker of the petitioner and also the creta car belonging to owner of creta car.

3. Learned counsel for the petitioner further submits that the petitioner being the sole proprietor of the firm M/s Glorious Khushi Enterprises is the actual owner of the vehicle. Tax invoice of the vehicle and registration details of the tanker vehicle are on record. The petitioner purchased a tanker vehicle after getting it financed from SBI and is regularly paying the monthly installment. Bank statement of M/s Glorious Khushi Enterprises is on record. The vehicle is also ensured from New India Assurance Company on 02.03.2023 at the current value of Rs. 25,20,000/-. The insurance papers of the vehicle are also on record.

4. Learned counsel for the petitioner further submits that the petitioner is not named in the F.I.R. Confessional statement of the accused in the police custody has no evidentiary value. No statement of any of the accused under Section 164 Cr.P.C. has been recorded before the magistrate. The petitioner moved an application for release of the vehicle, however, his release application has been rejected in a mechanical manner and the Appellate Court while rejecting the appeal has also overlooked the express provision of Section 6A of Essential Commodities Act, 1955 (UP Amendment) whereby it is incumbent upon the District Collector to give an option to pay a fine in lieu of confiscation not exceeding market price at the date of seizure of the essential commodity sought to be carried.

In support of his contention, learned counsel for the petitioner has relied on the judgment of the Supreme Court in "Deputy Commissioner, Dakshina Kannada District Vs. Rudolph Fernandes, reported in (2000) 3 SCC 306".

5. Learned counsel for the petitioner further submits that the petitioner was not named in the F.I.R. The petitioner was not having any knowledge regarding the alleged offence committed by her driver. The offence was committed without the knowledge and connivance of the petitioner and in absence of any knowledge or connivance of the offence, the petitioner cannot be deprived of her livelihood by means of confiscating tanker vehicle of the petitioner and such act is in violation of Article 19(1) (g) of the Constitution of India.

6. Learned counsel for the petitioner further submits that the petitioner has been charge sheeted only under Section 3/7 of Essential Commodities Act 1955 and no charge sheet has been filed under Section 120B IPC, therefore, prima facie it is not the case of the State that there was any connivance of the petitioner with the other accused persons for committing the offence. The charge sheet appears to have been filed against the petitioner only because of the fact that the vehicle of the petitioner was used in commission of the offence by the co-accused persons.

7. Learned A.G.A. has opposed the petition submitting that the petitioner has been charge sheeted. Separate charge sheets have been brought by the learned A.G.A. which have been perused by this Court.

Learned counsel for the State has submitted that since charge sheet has been filed, the cognizance may have been taken at the appropriate stage and therefore, it will be appropriate for the petitioner to move an application under Section 451 Cr.P.C. for custody and disposal of the assets/property which in this case is alleged tanker vehicle.

8. Learned counsel for the petitioner has submitted that vehicle has been seized under Essential Commodities Act, 1955 which is a Special Act and section 5 of the Cr.P.C. also contains a non obstante clause and therefore, there is no impediment for this Court in considering this option.

9. Having heard learned counsel for the parties, perusal of the record, so far as the issue of jurisdiction is concerned, I find force in the submission of learned counsel for the petitioner that the vehicle has been seized under the Special Act which in this case is Essential Commodity Act and in view of Section 5 of Cr.P.C., I am of the view that there is no impediment in entertaining the petition for the custody of the vehicle which has been confiscated under Essential Commodity Act, 1955. Definition of conveyance is provided under Section 6(A) of the Essential Commodities Act, 1955 (UP Amendment) which is extracted below:-

"6-A. (1) Where any essential commodity is seized in pursuance of an order made under Section 3 in relation thereto a report to this effect shall, without any unreasonable delay, be sent to the Collector of the district in which the seizure is made, and the Collector may, if he thinks it expedient so to do, inspect or cause to be inspected such essential commodity and whether or not a prosecution is Instituted for the contravention of such order. the Collector, if satisfied that there has been contravention of the order. may order confiscation of,-

(a) the essential commodity so seized:

(b) any package, covering or receptacle in which 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 that 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 where any animal, vessel or other conveyance is 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

(2) Where the Collector on receiving a report or on inspection of any essential commodity under sub-section (1) is of the opinion that such essential commodity is subject to speedy and natural decay or that it is otherwise expedient in the public interest so to do, he may order the same to be sold at the controlled price, if any, fixed under any law for the time being in force, or where no such price is fixed. by auction:

Provided that, in the case of foodgrains, where there is no controlled price, the Collector may order the foodgrains seized to be sold through fair price shops at the price fixed by the Central Government, or the State Government, as the case may be. for the sale of such foodgrains to the public through these shops:

Provided also that whenever it is practicable so to do having regard to the nature of the essential commodity he shall take and preserve sample of the same before its sale or auction.

(3) Where any essential commodity is sold as aforesaid, the sale-proceeds, thereof after deduction of the expenses of the sale or auction, as the case may be, shall,-

(a) where no order of confiscation is ultimately passed by the Collector: or

(b) where an order passed on appeal under sub-clause [1] of Section 6-C so requires: or

(c) in the case of prosecution being instituted for the contravention of the order in respect of which an order of confiscation has been made under this section, where the person concerned is acquired, be paid to the owner thereof or the person from whom it is seized:

Provided that in the case of foodgrains sold through fair price shops in accordance with the first proviso to sub-section (2) the owner shall be paid for the foodgrains so sold the price fixed by the State Government, for retail sale of such foodgrains through such shops less all expenses of sale or auction under sub-section (2)."

Section 6A (1)(c) empowers the collector to confiscate the vehicle or other conveyance used in carrying essential commodity. The second proviso to Section 6A further castes a mandatory duty upon the collector to give an option to the owner of such vehicle which has been confiscated to pay a fine in lieu of its confiscation not exceeding the market price on the date of seizure of the essential commodity. The above proviso is mandatory.

Perusal of the impugned order passed by the District Magistrate reveals that although reference of Section 6A of Essential Commodity Act, 1955 has been given in the order, however, it is admitted case of prosecution that no option under Section 6(A) of Essential Commodities Act 1955 has been given to the owner of the vehicle to pay a fine. The appellate order appears to have been passed in a mechanical manner ignoring the fact that specific ground has been taken by the appellant that in Second Proviso to Section 6(A) of Essential Commodity Act, 1955 there is an option to pay a fine. The impugned order has been passed by the District Collector by overlooking the Second Proviso to Section 6(A) of Essential Commodity Act, 1955, still the Appellate Court proceeded to decide the appeal in a mechanical and cursory manner without giving any finding to the specific ground raised by the petitioner/appellant before the Appellate Court.

The proviso is clear. It was incumbent upon the District Collector as well as to the Appellate Authority to provide/give an option to the petitioner who is the owner of the tanker vehicle No. UP70-JT-8187 in lieu of his confiscation to pay a fine below the market price of the vehicle.

The Supreme Court in the case of Deputy Commissioner (supra) inn para 9 has held that owner of the vehicle is to be given an option to pay a fine in lieu of the confiscation of the conveyance not exceeding the market price of the of the conveyance. Para 9 of the said judgment is extracted below:-

9. The Court observed that though the language of the aforesaid proviso is clear, the idea sought to be conveyed under the proviso to Section 6-A(1) of the Act appears to be the same. In our view, the analogy drawn by the High Court is erroneous because the proviso specifically mentions that where any such conveyance is used as a means of transport in the smuggling of goods, the owner of any conveyance is to be given an option to pay in lieu of the confiscation of the conveyance, a fine not exceeding the market price of the goods which are sought to be smuggled. The explanation provides that the market price means market price at the date when the goods are seized. As against this, Section 6-A second proviso does not refer to payment of fine not exceeding the market price of the essential commodity but apparent reference is to a fine not exceeding the market price of the vehicle sought to be confiscated. This appears to be obvious because in a case where the market price of the seized essential commodity is more than the price of the conveyance then the owner of the conveyance would not come forward to take it back if he is asked to pay something more than its market price. Similarly, when the market price of the seized vehicle is much more than of the essential commodity, it cannot be said that instead of confiscation it should be released at a price which is less than its market price. 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.

10. In view of the above discussions, the petition is allowed. The impugned judgment and order dated 01.06.2023 passed by the Court of District and Sessions Judge, Lukcnow as well as the impugned order dated 04.11.2022 passed by the Additional District Magistrate (Civil Supplies), Lucknow in case No. 186/2022, under Section 6(A) of Essential Commodities Act 1955, contained in Annexure No. 1 and Annexure No. 2 to the petition are quashed.

11. So far as payment of fine is concerned, this Court has taken note of the fact that ATF 8500 liters as per FIR was approximately amounting to Rs. 10,45,000/- and as per order dated 10.05.2013, it is evident that the said seized ATF was auctioned and the amount has been deposited in the treasury. As per insurance receipt, the vehicle has been valued at Rs. 25,20,000/-, considering the amount already received by the State out of the sale of ATF oil, the vehicle is lying idle in the concerned police station since 07.06.2022; more than one year has passed and there is no earning to the petitioner from the said vehicle, coupled with the fact that the petitioner are also paying heavy installments which is evident from perusal of the statement of the firm belonging to SBI Bank which is on record as Annexure No. 8 to the petition, in order to balance the equities, it is provided that the petitioner shall deposit a sum of Rs. 3,00,000/- as fine before opposite party no. 3 under Section 6(A) of Essential Commodities Act, 1955. Upon deposit of the said amount, opposite party no. 3 shall release the vehicle of the petitioner bearing No. UP70 JT 8187 forthwith.

12. The vehicle of the petitioner shall be released subject to the undertaking given by the petitioner that as long as the trial under the Essential Commodities Act 1955 is pending, she shall not alienate the vehicle or create any third party interest and shall produce the vehicle as and when required by the Court.

Order Date :- 1.8.2023

R.C.