Calcutta High Court (Appellete Side)
Hanuman Prosad Jhanwar vs The State on 28 November, 2023
1
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Ananya Bandyopadhyay
C.R.A. 197 of 2001
Hanuman Prosad Jhanwar
Vs.
The State
For the Appellant : Mr. Biswajit Manna
For the State : Mr. Madhusudan Sur
Mr. Mirza Firoj Ahmed Begg
Heard on : 31.03.2023, 07.08.2023.
Judgment on : 28.11.2023.
Ananya Bandyopadhyay, J.:-
1.
The instant criminal appeal is preferred by the appellant being dissatisfied
and aggrieved by a judgment and order dated 24.11.1994 passed by
Learned Judge, 2nd Special Court of E.C. Act, Calcutta in G.R. Case No. 148
of 1993.
2. The impugned order dated 24.11.1994, inter alia, states that "After hearing
both parties and after going through the case record, reported decisions I am
of the opinion that the present case is not at all maintainable. Regarding
alamats there is no prayer in the above two petitions and no submission was
made from the defence side of this case. Hence, it is
Ordered
that the petitioner filed on behalf of the accused persons dated 3.3.94 and
16.6.94 be allowed on contest. Accused Kamakshya Narayan Singh,
Smt. Sita Debi Maheswari, Hanuman Prosad Jhanwar and the company
M/s. Bajrang Oil Co. represented by the accused No.3, Hanuman Proasad
Jhanwar be discharged from this case. The alamats be confiscated with the
State after the period of appeal, as the accused persons are discharged on
technical ground."
3. The Learned Advocate for the appellant submitted though the appellants
were discharged by the Learned Trial Court, the goods were ordered to be
confiscated by the State after the period of appeal and the same was
contrary to the provisions enumerated under Section 6A of the Essential
Commodities Act. He further mentioned that the goods were released on
bond and separate proceeding under Section 6A of the Essential
Commodities Act was pending.
4. It was further submitted that the Learned Trial Judge vide Order No. 40
dated 24.11.1994 discharged the petitioner and other accused persons and
the charges, however, without assigning any reason arbitrarily passed an
order of confiscation of the seized goods.
5. The Learned Advocate for the State submitted in view discharge of the
petitioner and other accused persons, the State did not have the power to
confiscate the goods in question and left it to the discretion of the Court.
6. Section 452 of the Code of Criminal Procedure empowers a criminal Court to
pass orders for disposal of property on conclusion of enquiry or trial
granting discretion to the court to determine the person who is entitled to be
in position of the said property.
7. Determining an offence punishable under Section 7(1)(a)(II) of the EC Act,
1955 which is a Special Act, the Learned Trial Court should have considered
the provisions stipulated under Section 6A of the aforesaid Act dealing with
confiscation of essential commodities which states as follows:
"6A. 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 food grains 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:
[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.]
[(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 the
essential commodity is subject to speedy and natural decay or it is
otherwise expedient in the public interest so to do, he may―
(i) order the same to be sold at the controlled price, if any, fixed for
such essential commodity under this Act or under any other law for
the time being in force; or
(ii) where no such price is fixed, order the same to be sold by public
auction:
Provided that in case of foodgrains, 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 fixed by the Central Government or by
the State Government, as the case may be, for the retail sale of such food
grains to the public.
(3) where any essential commodity is sold, as aforesaid, the sale proceeds
thereof, after deduction of the expenses of any such sale or auction or
other incidental expenses relating thereto, shall
(a) where no order or confiscation is ultimately passed by the
Collector,
(b) where an order passed on appeal under sub-section (1) of section
6C so requires, or
(c) where in a prosecution instituted for the contravention of the
order in respect of which an order of confiscation has been made
under this section, the person concerned is acquitted, be paid to the
owner thereof or the person from whom it is seized.]"
8. The aforesaid section empowered the Collector of the District to deal with
the seized articles under the said Act.
9. The general rule is that when a property is seized from any person and the
same is acquitted of the charge the property should be returned to him.
However, the rule is subject to several exceptions depending on
circumstances of each case and the seized property to be returned to him
cannot be claimed by the accused as a matter of right. It has to be judged as
to whether the person acquitted who claims that the property seized should
be returned to him is admittedly the owner of the property entitled to the
possession of the same.
10. The Trial Court erred in its decision in directing the seized articles to be
confiscated to the State. The order impugned is modified to the extent that
the seized articles be returned to its actual owner upon identification and
confirmation of the same complying the directions enumerated under
Section 452 of the Cr.P.C.
11. Under such fact and circumstances of case the instant criminal appeal is
allowed.
12. Accordingly, the criminal appeal stands disposed of.
13. Lower court records along with a copy of this judgment be sent down at
once to the Learned Trial Court for necessary action.
14. Photostat certified copy of this order, if applied for, be given to the parties on
priority basis on compliance of all formalities.
(Ananya Bandyopadhyay, J.)
