Dismissed

M/S Raghuvir Saran Madan Murari (Wholesaler) v. State of U.P. and Anr.

Allahabad HC8 Apr 2019CRLR/1325/2019

Case brief

AI extract

What is this about?

This criminal revision challenged an order rejecting an application for release of seized food grains. The High Court held that during pending confiscation proceedings under the Essential Commodities Act, 1955, a criminal court lacks jurisdiction to order release of seized property under Section 451 Cr.P.C. due to a statutory bar.

What did the court decide?

The impugned order dated 7.3.2019 rejecting the release application was upheld and the criminal revision was dismissed.

M/S Raghuvir Saran Madan Murari (Wholesaler) Vs… — Criminal Trial and Appeal | Allahabad HC (2019)

A.F.R

Court No. - 70

Case :- CRIMINAL REVISION No. - 1325 of 2019

¶5

Revisionist :- M/S Raghuvir Saran Madan Murari (Wholesaler) Opposite Party :- State Of U.P. And Anr. Counsel for Revisionist :- Mahesh Kumar Counsel for Opposite Party :- G.A.

¶6

Hon'ble Sanjay Kumar Singh,J.

¶7

Heard learned counsel for the revisionist and learned AGA for the opposite party no.1/State of U.P.

¶8

This criminal revision under Section 397/401 Cr.P.C. has been filed by the revisionist with a prayer to set aside the impugned order dated 7.3.2019 passed by learned Additional Chief Judicial Magistrate, Court No.1, Jhansi, whereby the application of the revisionist for release of seized essential commodity (food grains) in his favour has been rejected.

¶9

Issue

¶10

The issue for consideration before this Court is "whether the application under Section 451 Cr.P.C. for release of seized food grains (case property) is maintainable during pendency of confiscation proceedings before the authority concerned under The Essential Commodities Act, 1955"?

¶11

Basic Facts

¶12

Filtering out unnecessary details, the brief facts giving rise to present criminal revision are that revisionist is wholesaler of foodgrains, pulses and oil seeds. On 10.1.2019, the opposite party no.2 (District Manager, P.C.F. Jhansi) alongwith General Manager C.W.C. Chirgaon, Regional Manager P.C.F. Jhansi inspected the campus of Krishi Utpadan Mandi Samiti. At the time of inspection a truck No. UP 93 BT 4064 loaded with Urad was found standing there and there was no mark of any purchase centre on the loaded bags of Urad. As such 650 bags (50 kg. Each) of Urad was taken into custody by the officers concerned. The FIR in this regard was lodged against

¶13

¶14

unknown person on 11.1.2019 registered as Case No. 0010 of 2019, under Section 3/7 of The Essential Commodities Act at Police Station Chirgaon, District Jhansi. During confiscation proceeding, the revisionist moved an application under Section 451 Cr.P.C. dated 1.3.2019 before the ACJM, Court No.1, Jhansi, for release of the aforesaid essential commodity (food grains) claiming his ownership, on which police of Police station Chirgaon, District Jhansi submitted report before the concerned Magistrate mentioning that the aforesaid bags of Urad belongs to the revisionist. Thereafter, the aforesaid release application of the revisionist has been dismissed by the impugned order dated 7.3.2019 on the ground that under Section 6A of The Essential Commodities Act, 1955 there is a provision of confiscation of the essential commodities and confiscation proceeding is going on before the authority concerned, therefore, the application for release of the revisionist is not maintainable.

¶15

Submissions on behalf of the revisionist

¶16

Learned counsel for the revisionist submitted that since there is no dispute about the ownership of seized essential commodity (Urad), therefore, same is liable to be released in his favour and Magistrate concerned has committed legal error in rejecting the release application of the revisionist.

¶17

Submissions on behalf of the State of U.P.

¶18

Per contra, learned A.G.A. raised priliminary objection that application under Section 451 Cr.P.C. of the revisionist was not maintainable, because under section 6A of The Essential Commodities Act, there is a provision of confiscation and the same is going on, therefore, Section 451 Cr.P.C. will not be attracted in view of bar contained under Secton 6E of The Essential Commodities Act, hence, the revision is liable to be dismissed.

¶19

Analysis of relevant provisions

¶20

Before delving into the issue, it would be useful to quote the relevant provisions of The Essential Commodities Act, 1955 with regard to confiscation of seized essential commodities as well as relevant provisions

¶21

¶22

of Cr.P.C., which are as follows:-

¶23

“6A. Confiscation of Essential Commodity

¶24

Where any essential Commodity is seized in pursuance of an order made under Sec. 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, -

¶25

(a) the essential commodity so seized;

¶26

(b) any package, covering or receptacle in which such essential commodity is found; and

¶27

¶28

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 Sec. 3 in relation thereto from a producer shall, if the seized food grains or edible oilseeds have been produced by him, be confiscated under this section :

¶29

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.

¶30

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, -

¶31

(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

¶32

(ii) where no such price is fixed order the same to be sold by public auction :

¶33

Provided that in the case of any such essential commodity the retail sale price whereof has been fixed by the Central

¶34

¶35

Government or a State Government under this Act or under any other law for the time being in force, 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.

¶36

(3) Where any essential commodity is sold, as aforesaid, the sale proceeds thereof, after deduction of the expenses of any such sate or auction or other incidental expenses relating thereto, shall, -

¶37

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

¶38

(b) where an order passed on appeal under sub-section (1) of Sec. 6-C so requires, or

¶39

(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 or the person from whom it is seized.

¶40

6B. Issue of Show-Cause Notice before Confiscation of Essential Commodity.

¶41

No order confiscating any essential commodity package, covering, receptacle, animal, vehicle, vessel or other conveyance shall be made under section 6A unless the owner of such essential commodity, package, covering, receptacle, animal, vehicle, vessel or other conveyance or the person from whom it is seized

¶42

(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, vehicle, vessel or other conveyance ;

¶43

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

¶44

¶45

Without prejudice to the provisions of sub-section (1) no order confiscating any animal, vehicle, vessel or other conveyance shall be made under section 6A if the owner of the animal, vehicle, vessel or other conveyance proves to the satisfaction of the Collector that it was used in carrying the essential commodity without the knowledge or connivance of the owner himself, his agent, if any, and the person in charge of the animal, vehicle, vessel or other conveyance and that each of them had taken all reasonable and necessary precautions against such use.

¶46

¶47

No order confiscating any essential commodity, package, covering, receptacle, animal, vehicle, vessel or other conveyance shall be invalid merely by reason of any defect or irregularity in the notice given under clause (a) of sub-section (1), if, in giving such notice, the provisions of that clause have been substantially complied with.

¶48

6C Appeal.

¶49

(1) Any person aggrieved by an order of confiscation under section 6A may, within one month from the date of the communication to him of such order, appeal to any judicial authority appointed by the State Government concerned and the judicial authority shall, after giving an opportunity to the appellant to be heard, pass such order as it may think fit, confirming, modifying or annulling the order appealed against.

¶50

(2) Where an order under section 6A is modified or annulled by such judicial authority, or where in a prosecution instituted for the contravention of the order in respect of which an order of confiscation has been made under section 6A, the person concerned is acquitted, and in either case it is not possible for any reason to return the essential commodity seized such persons shall, except except as provided by sub-section (3) of section 6A, be paid] the price therefore as if the essential commodity, had been sold to the Government with reasonable interest calculated from the day of the seizure of the essential commodity and such price shall be determined―

¶51

(i) in the case of food grains, edible oilseeds or edible oils, in accordance with the provisions of sub-section (3B) of section 3;

¶52

(ii) in the case of sugar, in accordance with the provisions of subsection (3C) of section 3 ; and

¶53

(iii) in the case of any other essential commodity, in accordance with the provisions of sub-section (3) of section 3.

¶54

6E. Bar of Jurisdiction in Certain Cases.

¶55

Whenever any essential commodity is seized in pursuance of an order made under Sec. 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 Sec. 6-A, the Collector, or, as the case may be, the State Government concerned under section 6C shall have. and, notwithstanding anything to the contrary contained in

¶56

¶57

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.

¶58

Section 5 Cr.P.C.

¶59

Saving-

¶60

"Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force."

¶61

Section 451 CrPC

¶62

Order for custody and disposal of property pending trial in certain cases. When any property is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of. Explanation.- For the purposes of this section," property" includes-

¶63

(a) property of any kind or document which is produced before the Court or which is in its custody,

¶64

(b) any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence.

¶65

There is no dispute that The Essential Commodities Act, 1955 is a Special Act, therefore, in view of Section 5 of Cr.P.C, the general provisions of Cr.P.C. will not effect any special statute or any local law for the time being in force. In other words, where special provisions have been provided for any particular thing under special law, the general provision of Cr.P.C. to that extent will not be applicable. The provisions of special statute will prevail over general provisions of the Code of Criminal Procedure in case of any conflict.

¶66

It is also not disputed that under Section 6A The Essential Commodities Act, there is specific provisions of confiscation of essential commodities,

¶67

¶68

etc. The provision of opportunity of show cause before confiscation of food grains, etc. under Section 6B as well as right of appeal by a person aggrieved against the order of confiscation are also there under Section 6C of the said Act. The provisions contained under Section 6E of The Essential Commodities Act, clearly bar the jurisdiction of the criminal Court with regard to possession delivery, disposal, release or distribution of essential commodity, package, covering, receptacle, animal, vehicle, vessel or other conveyance during pendency of confiscation proceedings.

¶69

Considering the aforesaid provisions, it is clear that the legislature has purposely inserted the said provisions of confiscation under The Essential Commodities Act and saving clause under Section 5 of the Cr.P.C. with a laudable object. The authority concerned under The Essential Commodities Act has been granted a wide discretion and power with regard to confiscation of essential commodities, etc. The object of inserting Section 5 of Cr.P.C. is to give effect the provisions of special Act/local laws in case of any conflict.

¶70

Discussion of decided cases

¶71

The Apex Court in the case of Suresh Nanda vs. C.B.I, 2008 (3) SCC 174 , has held that the provision of Special Act prevail over the general provisions of the code of criminal procedure. The aforesaid dictum of the Apex Court has been further relied upon by Patna High Court in the case of Manju Kumari and another vs State of Bihar and others, 2006 Cr.L.J 3014 as well as Bombay High Court in Rajendra vs. State of Maharashtra and another, (Criminal Writ Petition No. 846 of 2016 decided on 10.10.2016).

¶72

The Apex Court in case of Divisional Forest Officer and other Vs. G.V. Sudhakar Rao and others 1985 (4) SCC 573 has held that the High Court has no jurisdiction to release the vehicle under Section 482 Cr.P.C., when a confiscation proceeding is pending before the designated authority.

¶73

The Apex Court in case of State of Best Bengal Vs. Sujeet Kumar

¶74

¶75

Rana (2004) 4 SCC 129 has held that once confiscation proceedings has been initiated, the jurisdiction of criminal court is excluded.

¶76

The law with regard to release of essential commodities and seized vehicle, etc. during pendency of confiscation proceedings under Section 6A of The Essential Commodity Act has also been settled by the Apex Court in case of State of Bihar and another Vs. Arvind Kumar and another (2012) 12 SCC 395, wherein the Apex Court has held that so long as the confiscation proceedings under Section 6A of The Essential Commodities Act are pending, release of vehicle, etc and essential commodities involved in the commission of an offence under Section 3/7 of The Essential Commodities Act is not maintainable in view of statutory bar contained under Section 6E of The Essential Commodities Act.

¶77

Recently, the Apex Court on 26.3.2019 in case of State of M.P. and others Vs. Uday Singh and others 2019 SCC Online SC 420 has considered the power and jurisdiction of the Magistrate under Section 451 Cr.P.C. during pendency of confiscation proceedings under the Forest Act and held that the jurisdiction under Section 451 of the Code of Criminal Procedure is not available to the Magistrate, once the authorized Officer initiated the confiscation proceedings on account of clear bar of jurisdiction in certain cases under the Forest Act.

¶78

Conclusion

¶79

After the aforesaid analysis in the light of dictum of the Apex Court, there is no doubt that release application dated 1.3.2019 under Section 451 Cr.P.C. of the revisionist for release of Essential Commodity during pendency of confiscation proceedings under Section 6A of The Essential Commodities Act was not maintainable. As such, the preliminary objection as raised by learned Additional Government Advocate that the application under Section 451 Cr.P.C. is not maintainable during pendency of confiscation proceedings under Section 6A of The Essential Commodities Act is wholly sustainable.

¶80

¶81

Result

¶82

In view of above, I do not find any manifest error of law or perversity in the impugned order. The observations and findings recorded by the Magistrate concerned are sustainable in the eye of law. The impugned order dated 7.3.2019 is impeccable, therefore, no interference is required.

¶83

The revision lacks merit and is, accordingly, dismissed.

¶84

Order Date :- 8.4.2019 AK Pandey

M/S Raghuvir Saran Madan Murari (Wholesaler) v. State of U.P. and Anr.

Case brief

What is this about?

What did the court decide?

M/S Raghuvir Saran Madan Murari (Wholesaler) v. State of U.P. and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Haneef Vs State of U.P. and Another

Amit Yadav and 3 Others Vs State of U.P. and Another

Pappu Mishra Vs State of U.P. and Another

Guddu Alias Abdul Wafa Vs State of U.P. and Another

Shri Ram Chaurasia Vs State of U.P. and Another

Sudhir Kumr @ Sudhir Kumar Singh Vs State of Up and Another