Vitthal S/O Pandurang Navle vs State Of Maharashtra
2003 Latest Caselaw 737 Bom

JUDGMENT

R.S. Mohite, J.

1. Heard Shri Sirpurkar, Advocate for the petitioner and Shri Patel, APP for the respondent.

2. Rule. By consent of the parties, rule is made returnable forthwith.

3. By this petition, filed under Section 482 of the Criminal Procedure Code, the petitioner who is the owner of the Tempo Trax vehicle bearing registration No. MH 28 C-390 seeks to quash and set aside the impugned order dated 13-1-2003 passed by the J.M.F.C. Malkapur, below Ex. 1, which was passed on an application moved by the petitioner under sections 451 and 457 of the Criminal Procedure Code, for return of the vehicle.

4. A perusal of the impugned order indicates that the application for return of the vehicle was rejected on the ground that the police had informed the

Collector about the crime and since the confiscation proceedings had started, the Court had no power to release any property when such proceeding starts.

5. The order on the face of it is erroneous. In my view, merely because the police had informed the Collector about the seizure of the vehicle and registration of the crime, that by itself cannot tantamount to commencement of confiscation proceedings in respect of the vehicle under Section 6-A of the Essential Commodities Act, 1955, In my view, unless a show cause notice is issued under Section 6-B of the Essential Commodities Act, 1955, it cannot be said that the confiscation proceedings commenced and consequently there can be no bar of jurisdiction of the Court under Section 6-A of the Essential Commodities Act. To appreciate this position, it is necessary to reproduce the relevant portions of Section 6-A(l) and (2), Section 6(B)(1) and 6(E) of the Essential Commodities Act, 1955.

Section 6-A(1) -- Confiscation of seized Commodities. -- (1) Where any essential commodity is seized in pursuance of an order made under Section 3 in relation thereto, a report to that effect shall, without any unreasonable delay, be- sent to the Collector within whose jurisdiction 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 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 that may be taken under any other provision of this Act, no foodgrains or edible oil seeds seized in pursuance of an order made under Section 3 in relation thereto from a producer shall, if the seized foodgrains or edible oil seeds, have been produced by him be confiscated under this section;

Provided further that, where any animal, vehicle, 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 of seizure 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 case of any essential commodity the retail sale price whereof has been fixed by the Central Government or a State Government under this Act or under any other law for the time being in force and which is being sold through fair price shops, the Collector may, for its equitable distribution and availability at fair prices, order the same to be sold through fair price shops at the price so fixed.

Provided further 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. Section 6-B. Issue of show cause notice before confiscation of foodgrains, etc. -- (1) No order of confiscation of any essential commodity package, covering, receptacle, animal, vehicle, vessel or other conveyance shall be made under Section 6-A 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, vessel or other conveyance; and

(b) is given an opportunity of making a representation in writing within such reasonable time as may be specified in notice against the grounds of confiscation;

(c) is given a reasonable opportunity of being heard in the matter. Section 6-E. 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 6-A, the Collector, or, as the case may be, the State Government concerned under Section 6-C shall have and notwithstanding 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."

6. A reading of the provisions would indicate that under Section 6-E of the Act what is required is not only a seizure but also the pendency of the confiscation proceedings under Section 6-A before the Collector, before the bar of jurisdiction under said Section can be invoked. A perusal of this provision with similar provision in other Acts e.g. Section 61-G of the Indian Forest Act (Maharashtra Amendment) would indicate that the words "pending confiscation" is an additional requirement under the Essential Commodities Act, 1955.

7. The learned advocate for the petitioner has relied upon a judgment of this Court in the case of State of Maharashtra v. Manishkumar, reported in 1998(1) Mh.L.J. 431, where this Court, after reproducing Section 6-E of the Essential Commodities Act, has observed as under :

"These provisions show that the jurisdiction of the Court or Tribunal or any other authority is ousted only if the essential commodity is seized and confiscation proceeding under Section 6-A is pending before the Collector and/or before the State Government under Section 6-C. The net result of these provisions is that if there is no confiscation proceeding pending under Section 6-A before the Collector and/or under Section 6-C before the State Government, then the Court or tribunal or any other authority can have jurisdiction to make orders with regard to the possession, delivery, disposal, release or distribution of such essential commodity, etc. Thus the jurisdiction of the Court or tribunal or any other authority stands ousted only if there is a confiscation proceeding pending before the Collector and/or the State Government either under Section 6-A or 6-C. Otherwise, the Court or tribunal have a jurisdiction to dispose of the said property as per the procedure laid down. Thus, it is clarified that in view of the present provision of Section 6-E, before the Court proceeds to exercise the powers for disposal of the property, the said court shall get it confirmed as to whether any proceeding for confiscation of the said essential commodity is pending before the Collector under Section 6-A or under Section 6-C before the State Government and if it is found that no such confiscation proceeding is pending, then the Court can proceed to dispose of the said property in view of the provisions contained in the Criminal Procedure Code. The bar contemplated under Section 6-E is not a blanket or absolute bar, but it is clarified that once the Collector or the State Government commences the proceedings for confiscation either under Section 6-A or 6-C, the Court or other authorities are barred from considering the release and disposal of the said property and to that extent, the general power of the criminal court to dispose of the property is modified, affected and conditioned by the provisions of Section 6-E and to that extent, the ratio laid down in the case of Rameshwar Rathod, cited supra, stands modified as a result of the legislation and the introduction of Section 6-E of the Essential Commodities Act."

8. The learned advocate for the petitioner has also relied upon another judgment of the Calcutta High Court in the case of Purnima Gupta and Ors. v. State of West Bengal, reported in 1(1996) CCR 650, in which case also a similar view has been taken.

9. Insofar as the apprehension of the State that the vehicle is likely to be misused or disposed of, protection can be granted in the interest of the State by imposing suitable conditions. The police have shown the value of the vehicle as Rs. two lacs. The vehicle is registered in the year 1997. In my view, the ends of justice would be met if the vehicle is released subject to petitioner's furnishing bank guarantee of Rs. 75,000/- (Rs. Seventy five thousand only) and further furnishing personal bond in the sum of Rs. 1,25,000/- (Rs. One lac twenty five thousand only) with one surety in the like amount for return of the vehicle as and when the petitioner is called upon to do so by the trial Court. The Bank Guarantee, bond and surety be furnished in the trial Court.

10. In the result, rule is made absolute in terms of prayer Clause (B) of the petition and respondent No. 1 is directed to return the Tempo Trax Vehicle

bearing Registration No. MH-28 C-390 to the petitioner on his furnishing a bank guarantee to the trial Court in the sum of Rs. 75,000/- (Rs. Seventy five thousand only) and on his further furnishing a personal bond of Rs. 1.25 lacs (Rs. One lac twenty five thousand only) with one surety in the like amount for securing the return of the vehicle as and when the trial Court directs to do so.