Pritam S/O Ajabrao Wankhade, Thr. ... vs The State Of Mha. Thr. Pso Ps ...
2023 Latest Caselaw 2644 Bom

                                        1                             CRIWP586.22 (J).odt


      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               : NAGPUR BENCH : NAGPUR.


             CRIMINAL WRIT PETITION NO. 586 OF 2022


 PETITIONER                    : Pritam S/o Ajabrao Wankhade,
                                 Aged about 50 years, Occu. Business,
                                 R/o Sidhartha Nagar, Tah. Chikhali,
                                 Dist. Buldhana,
                                 Represented through its Power of Attorney
                                 Tejpratap Jaisingh Thakur,
                                 R/o Mangrulpir, Dist. Washim.

                                            VERSUS

 RESPONDENTS                   : 1] State of Maharashtra,
                                    through Police Station Officer,
                                    Police Station, Talegaon Dashashar,
                                    Dist. Amravati.

                                 2] The Collector, Amravati,
                                    Tah. & Dist. Amravati.

 ----------------------------------------------------------------------------------------------
           Mr. Sk. S. Jagirdar, Advocate for the petitioner.
           Mr. Amit R. Chutke, A. P. P. for respondent nos.1 and 2.
 ----------------------------------------------------------------------------------------------

                         CORAM : G. A. SANAP, J.

DATE : MARCH 20, 2023.

ORAL JUDGMENT

1. RULE. Rule made returnable forthwith. Heard finally by

consent of the learned advocates for the parties.

2 CRIWP586.22 (J).odt

2. In this Criminal Writ Petition, filed under Article 226 and

227 of the Constitution of India, challenge is to the order dated

10.06.2022, passed by learned Additional Sessions Judge-5, Amravati

in Criminal Appeal No. 34/2022, whereby the learned Additional

Sessions Judge was pleased to dismiss the appeal filed by the petitioner

under Section 6-C of the Essential Commodities Act, 1955 (hereinafter

referred to as "the EC Act" for short), challenging the order dated

28.01.2022 passed by respondent no.2 - District Collector, Amravati.

3. Respondent no.2 - District Collector, Amravati, by order

dated 28.01.2022 had confiscated the essential commodity seized in

crime bearing No. 330/2021, registered with Police Station, Talegaon

Dashashar, Dist. Amravati for the offence punishable under Section 3

read with Section 7 of the EC Act. Respondent no.2, by the same

order, directed release of truck/vehicle seized in the crime on

furnishing Bank Guarantee to the extent of 50% of the market price of

the vehicle on the given date.

4. The petitioner is the registered owner of Ashok Leyland

Truck bearing registration No. MH-28/BB-0261. On 13.10.2021, the

3 CRIWP586.22 (J).odt

said truck was intercepted by the officials of Talegaon Dashashar police

station. The truck was found carrying essential commodity contrary to

the order issued by the respondent no.2 under Section 3 of the EC Act.

The said truck was driven by driver Mohd. Sadique Mohd. Yusuf. The

truck with the essential commodity was seized. An offence came to be

registered as stated above.

5. Respondent no.2, in terms of the provisions of Section

6-A of the EC Act commenced the confiscation proceeding for the

seized essential commodities as well as the vehicle. Respondent no.2,

by his order dated 28.01.2022 confiscated 243 quintal 23 Kg 140

gram of rice, which was seized in the crime. Respondent no.2 also

ordered for determining the market price of the vehicle in question and

for release of the said vehicle on furnishing Bank Guarantee to the

extent of 50% of the market price of the vehicle. The petitioner/

owner of the vehicle, being aggrieved by this order, preferred an appeal

by invoking Section 6-C of the EC Act. Learned Additional Sessions

Judge, by his order dated 10.06.2022, dismissed the appeal holding

that the order passed by the respondent no.2 in respect of the vehicle

4 CRIWP586.22 (J).odt

was not an order of confiscation strictly in terms of Section 6-A of the

EC Act, in its application to the State of Maharashtra, and therefore,

the appeal was not maintainable. Against this order, the

petitioner/owner of the truck is before this Court.

6. I have heard Mr. Sk. S. Jagirdar, learned advocate for the

petitioner and Mr. Amit R. Chutke, learned Additional Public

Prosecutor for respondent nos.1 and 2. I have perused the record and

proceedings.

7. Learned Additional Sessions Judge, by his order dated

10.06.2022 has recorded the reasons for holding that the appeal filed

by the petitioner was not maintainable. In view of the order passed by

the learned Additional Sessions Judge, it is necessary to see whether

the order in question passed by respondent no.2 is the order of

confiscation in terms of Section 6-A of the EC Act, in its application to

the State of Maharashtra.

8. It is the grievance of the petitioner that before passing the

order in question, respondent no.2 had not issued a Show Cause

5 CRIWP586.22 (J).odt

Notice to him. In order to meet this submission, learned Additional

Public Prosecutor has pointed out that the person from whose

possession the vehicle was seized, was given a notice before passing the

order. In my view, the question that needs to be addressed is whether

the order in question is the confiscation order by strictly complying the

provisions of Section 6-A(1) of the EC Act. Section 6-A(1), in its

application to the State of Maharashtra needs to be reproduced. It

reads thus :-

"6-A 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 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:]

6 CRIWP586.22 (J).odt

[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.]

9. It is to be noted that in this case, the crime has been

registered. Charge-sheet has been filed in the Court of competent

jurisdiction on 09.04.2022. Learned Magistrate has taken

congnizance of the offences. It is, therefore, seen that the respondent

no.2 was within his powers and jurisdiction to commence the

confiscation proceeding. Learned Additional Session Judge, as can be

seen from the order, had serious reservations about the nature of order

passed by respondent no.2. He states that this order could not be said

to be the order of confiscation. In the opinion of the learned

Additional Sessions Judge, it was a plain and simple order of release of

the vehicle. On going through the relevant provisions and the relevant

observations made by the learned Additional Sessions Judge, I am

satisfied that the order in question was not an order of confiscation, but

it was a simple order of release of the vehicle.

7 CRIWP586.22 (J).odt

10. The question is whether the order passed by respondent

no.2 was strictly in accordance with the provisions of Section 6-A, sub-

section 1 and second proviso appended to sub-section 1 of the EC Act.

As per the second proviso, before the order of confiscation is passed in

respect of the vehicle, the owner of the vehicle is required to be given

an option to pay, in lieu of its confiscation, a fine not exceeding the

market price on the date of the seizure of the essential commodities

sought to be carried. The order passed by respondent no.2, on being

examined in the teeth of the Proviso, would show that the order passed

by the respondent no.2 is contrary to this proviso. In terms of this

proviso, the respondent no.2 at the time of passing the order of

confiscation of the vehicle, was duty bound to give an option to the

owner of the vehicle to pay, in lieu of its confiscation, a fine not

exceeding the market price of the vehicle on the date of seizure of the

essential commodity. The order passed by respondent no.2 would

show that he has not complied this mandatory provision. It is also seen

that the respondent no.2 had not given any notice to the owner of the

vehicle. In my view, before passing the order, the respondent no.2 was

duty bound to give a notice to the owner of the vehicle and grant him

8 CRIWP586.22 (J).odt

an opportunity to exercise an option, as provided under the law. The

respondent no.2 in this case has directed the authorities to get the

market price of the vehicle determined and on determination of the

same, directed the owner of the vehicle to furnish the Bank Guarantee

to the extent of 50% of the market price of the vehicle. In my view,

prima facie, the order passed by the respondent no.2 is not proper.

Learned Additional Sessions Judge has, therefore, not committed any

mistake. The appeal was not maintainable. The order in question was

not the order of confiscation strictly in terms of above provisions.

Therefore, in terms of prayer clause 1-a, the impugned order is

required to be set aside.

11. Accordingly, the impugned order dated 28.01.2022,

passed by respondent no.2 - District Collector, Amravati is quashed

and set aside to the extent of release of vehicle bearing registration No.

MH-28/BB-0261.

(i) As far as the order of confiscation of the seized essential

commodity is concerned, the same has not been questioned in this

petition. So that part of the impugned order shall remain as it is.

9 CRIWP586.22 (J).odt

(ii) As far as the vehicle is concerned, respondent no.2 - District

Collector, Amravati shall issue a show cause notice to the vehicle owner

before confiscation of the vehicle. The respondent no.2 in the said

notice is required to give him an option as provided under second

proviso to sub-section 1 of Section 6A of the EC Act. Depending

upon the exercise of the option by the vehicle owner, the respondent

no.2 would be required to pass an order in terms of the said provision.

(iii) The respondent no.2 is required to give an opportunity to

the vehicle owner of representation and hearing, during the course of

the proceeding undertaken pursuant to this order.

12. The writ petition is partly allowed and stands disposed of.

Rule accordingly.

( G. A. SANAP, J. ) Diwale