Full Judgment Text
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CASE NO.:
Appeal (crl.) 659 of 2007
PETITIONER:
Kailash Prasad Yadav & Anr
RESPONDENT:
State of Jharkhand & Anr
DATE OF JUDGMENT: 02/05/2007
BENCH:
S.B. Sinha & Markandey Katju
JUDGMENT:
J U D G M E N T
[Arising out of SLP (Crl.) No. 4144 of 2006]
S.B. SINHA, J :
1. Leave granted.
2. Appellants were owners of a truck. The said truck was hired
for transporation of foodgrains by one Kailash Chand Sahu. It was allegedly
carrying wheat belonging to the Food Corporation of India. A confiscation
proceeding was initiated. An order of confiscation was passed by the
Deputy Commissioner, Sahibganj. An appeal preferred thereagainst has
been dismissed by the Additional Sessions Judge \026 I, Sahibganj by an order
dated 7.03.2005 passed in Criminal (Confiscation) Appeal No. 32 of 2003.
Appellants filed a writ petition before the Jharkhand High Court which by
reason of the impugned judgment has been dismissed by a learned Single
Judge of the said Court.
3. Mr. H.L. Agrawal, learned senior counsel appearing on behalf
of the appellants, in support of this appeal, would submit that wheat being a
de-controlled item and there being no control whatsoever, either on trading
of wheat or possession or transportation thereof, the impugned judgment
cannot be sustained.
4. Mr. B.B. Singh, learned counsel appearing on behalf of the
State, on the other, would submit that the appellants having abetted a fair
price shop dealer who was appointed under the Public Distribution System
(Control) Order, 2001 (for short "the 2001 Order", the impugned order
cannot be faulted with.
5. Indisputably, confiscation of goods and the vehicles and vessels
carrying the same amounts to deprivation of property. Confiscation of an
essential commodity or a truck is permissible only if the provisions of any
order made under Section 3 of the Essential Commodities Act, 1955 (for
short "the Act") are violated. When a vehicle is used for carrying an
essential commodity, it may be seized and ultimately directed to be
confiscated in terms of Clause (c) of Sub-Section (1) of Section 6-A of the
Act. Violation of an order made under Section 3 of the Act, therefore, is a
pre-condition for passing an order of confiscation.
6. The 2001 Order does not deal with a matter dealing in wheat or
transportation thereof. "Fair Price Shop" has been defined in Clause 2(k) of
the 2001 Order to mean "a shop, which has been licensed to distribute
essential commodities by an order issued under Section 3 of the Act, to the
ration card holders under the Public Distribution System." Clause 3
provides for identification of families living below the poverty line. Clause
4 provides for issuance of ration cards. Clause 5 deals with scale of issue
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and issue price. Clause 6 provides for the procedure for distribution of
foodgrains by the Food Corporation of India to the State Government or
their nominated agencies. Sub-clause (2) of Clause 6 obligates the fair price
shop owners to take delivery of stocks from authorised nominees of the State
Governments to ensure that essential commodities are available at the fair
price shop within first week of the month for which the allotment is made.
Sub-clause (4) thereof obligates the authority or person who is engaged in
the distribution and handling of essential commodities under the Public
Distribution System not to wilfully indulge in substitution or adulteration or
diversion or theft of stocks from central godowns to fair price shop premises
or at the premises of the fair price shop. Explanation appended thereto
defines "diversion" to mean "unauthorized movement or delivery of
essential commodities released from central godowns but not reaching the
intended beneficiaries under the Public Distribution System". Clause 9
provides for penalty. There is no provision for search of a vehicle. The
power of search is confined to fair price shop or any premises relevant to
transaction of business of the fair price shop. The power of such authorities
causing a search is confined to Sub-clause (3) of Clause 10 of the 2001
Order to search, seize or remove such books of accounts or stocks of
essential commodities where such authority has reason to believe that these
have been used or will be used in contravention of the provisions of the
Order.
7. A valid seizure, as is well known, is a sine qua non for passing
an order of confiscation of property.
8. Unfortunately, this aspect of the matter has not been considered
by any of the authorities and the courts. The High Court observed:
"From the impugned orders it appears that the
wheat, which were seized, were found kept in FCI
bags duly stitched by the FCI and they were meant
for being distributed to the poor through Public
Distribution System but the same was found being
diverted by the petitioners for the purpose of black
marketing and at the time of raid and seizure no
valid paper was produced by the petitioners
regarding possession of the wheat in question."
9. Whether there was any valid paper regarding possession of
wheat was not the subject matter of the confiscation proceeding. We are
concerned with a vehicle carrying the wheat. Appellants herein are not
concerned with wheat in question.
10. We have to consider the matter from another angle. The order
of confiscation is not passed only because it would be lawful to do so. The
authorities must arrive at a clear finding in regard to the violation made
under Section 3 of the Act. The issues which have been raised before us
have not been considered either by the Deputy Commissioner or by the
learned Sessions Judge as also by the High Court. The matter is pending
before the criminal court. We, therefore, do not intend to delve further into
the matter. Keeping in view the facts and circumstances of this case, we are
of the opinion that it was not a fit case where an order of confiscation could
have been passed.
11. Reliance placed by Mr. Singh on Shambhu Dayal Agarwala v.
State of West Bengal and Another [(1990) 3 SCC 549], itself stated the law,
thus:
"6. Section 6-A empowers confiscation of the
seized essential commodity, the package, covering
and receptacle in which the essential commodity
was found and the animal, vehicle or other
conveyance in which such essential commodity
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was carried. The words ’may order confiscation’
convey that the power is discretionary and not
obligatory\005"
12. Yet again, in Deputy Commissioner, Dakshina Kannada
District v. Rudolph Fernandes [(2000) 3 SCC 306], whereupon again Mr.
Singh has relied upon, it was held:
"6. In the light of the aforesaid provisions, the
second proviso to Section 6-A [ sic 6-A(1)] is
required to be considered. First it is to be stated
that the proviso limits the power of the competent
authority to recover fine up to the market price for
releasing the animal, vehicle, vessel or other
conveyance sought to be confiscated. So maximum
fine that can be levied in lieu of confiscation
should not exceed the market price. For our
purpose, the relevant part of the proviso would be
"in the case of ... vehicle ... the owner of such ...
vehicle ... 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 ...
vehicle". Question is \027 whether fine should not
exceed the market price of the seized essential
commodity or whether it should not exceed the
market price of the vehicle. For this purpose, it
appears that there is some ambiguity in the section.
It is not specifically provided that in lieu of
confiscation of the vehicle a fine not exceeding the
market price of the vehicle or of the seized
essential commodity is to be taken as a measure.
Still however, it is difficult to say that the measure
of fine is related to the market price of the essential
commodity at the date of its seizure. It nowhere
provides that fine should not exceed the market
price of the essential commodity at the date of
seizure of the vehicle. The proviso requires the
competent authority to give an option to the owner
of such vehicle to pay in lieu of confiscation a fine
not exceeding the market price. What is to be
confiscated is the vehicle and, therefore, the
measure of fine would be relatable to the market
price of the vehicle at the date of seizure of the
essential commodity sought to be carried by such
vehicle\005"
13. We do not intend to deal with the question as to whether upon
conclusion of the trial, a case for forfeiture of the vehicle may be passed or
not, being wholly irrelevant at this stage.
14. For the reasons aforementioned, the impugned judgments
cannot be sustained, which are set aside accordingly. The appeal is allowed.