STATE OF BIHAR Vs ARVIND KUMAR
Bench: B.S. CHAUHAN,SWATANTER KUMAR
Case number: Crl.A. No.-001075-001076 / 2012
Diary number: 21622 / 2011
Advocates: GOPAL SINGH Vs
GAURAV AGRAWAL
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REPORTABLE
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 1075-76 of 2012 (Arising out of SLP(Crl.) Nos(s). 8334-8335/2011)
State of Bihar & Anr. …Appellants
Versus
Arvind Kumar & Anr. …Respondents
J U D G M E N T
Dr. B.S. CHAUHAN, J.
Leave granted.
1. These appeals have been preferred against the impugned
judgments and orders dated 15.3.2011 in Cr.WJC No. 215 of
2011 and dated 29.4.2011 in Crl. Misc. No. 14629 of 2011 of
the Patna High Court, by which a huge quantity of wheat
seized by the appellant from the premises of the respondents
under the provisions of Essential Commodities Act, 1955
(hereinafter referred to as ‘EC Act’) has been released.
2. Facts and circumstances giving rise to these appeals are that:
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A. On 15.2.2011, a secret information was received by the
department of the appellants in respect of illegal storage of
subsidized food grains of Public Distribution Scheme by the
respondents which led to the raid upon the premises of M/s Harsh
Tejas Nutrition Pvt. Ltd., (Flour Mill of the respondents) situate at
Patna, New Bypass Road near Petrol Pump. The Sub-Divisional
Officer, Patna City and other officers from the local police raided the
premises of the said flour mill and found off loading of wheat from
Truck bearing registration No. BHI 1899. The driver and other
workers fled away. It was found that the grains bags had the seal of
Food Corporation of India, (hereinafter called `FCI’), U.P.
Government Food Department, Food and Supply Department,
Haryana; and Government of Punjab. The seized material made it
apparent that there had been diversion of FCI grains for the purpose
of black marketing. Appellants seized 5923 bags filled with more
than 2991 quintals wheat.
B. None from the company where the raid was conducted came
forward to claim the seized material or to justify the storage of same.
Thus, the FIR bearing case No. 15/2011 dated 18.2.2011 was lodged
under Sections 7 and 10 of the EC Act in addition to the appropriate
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Sections 421/424 of the Indian Penal Code, 1860 (hereinafter called
‘IPC’) in respect of the said seizure.
C. The respondents herein preferred Criminal Writ Petition No.
215/2011 for quashing confiscation proceedings and/or release of the
confiscated goods.
D. The High Court allowed the said writ petition within a very
short span vide order dated 15.3.2011 and subject to certain
procedural compliances observed that continuing seizure of the
seized articles for a long time may not be justified and therefore the
High Court issued direction for release of the said wheat.
E. The respondent approached the Chief Judicial Magistrate,
Patna, for releasing the wheat in pursuance of the order passed by
the High Court on 15.3.2011 by moving an application. The learned
CJM dismissed the application of the respondent on 7.4.2011 on the
ground that he could not produce any document which may show
their ownership to the said seized material.
F. The respondent again approached the High Court by filing
Criminal Miscellaneous No. 14692/2011 which had been allowed
vide order dated 29.4.2011.
Hence, these appeals.
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3. Mr. Gopal Singh, learned counsel appearing for the State of
Bihar has submitted that the orders had been passed by the High
Court in a mechanical manner in utter disregard of the statutory
provisions of the EC Act, particularly, the provisions of Sections 6-A
and 6-E. Therefore, the impugned judgments and orders dated
15.3.2011 and 29.4.2011 are liable to be set aside.
4. On the contrary, Mr. Nagendra Rai, learned senior counsel
appearing for the respondents has vehemently opposed the appeals
contending that Sections 6-A and 6-E apply only where the goods
are seized in pursuance of an order issued under Section 3 of the EC
Act. In the instant case, no order had ever been issued under Section
3, therefore, the said provisions are not attracted. Respondents were
able to show their ownership in respect of the seized materials. The
High Court in the impugned judgments made it clear that release of
the wheat was only an interim measure subject to the final decision
in the case. Therefore, no interference is warranted by the court, the
appeals are liable to be dismissed.
5. We have considered the rival submissions made by learned
counsel for the parties and perused the record.
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6. The EC Act was enacted to safeguard the public interest
considering it necessary in the interests of the general public to
control the production, supply and distribution of, trade and
commerce in, certain commodities through the legislation. It was in
the light of the aforesaid public policy that Section 3 of the EC Act
empowered the Government to issue notifications and once a
notification is issued, it enables the competent authority to confiscate
the goods under Section 6-A and prosecution leading to punishment
provided under Section 7 of the EC Act. The Collector has been
empowered under Section 6-A, if it is found to be expedient to sell
the seized commodity which is subject to natural decay, at a
controlled price or by public auction or dispose of through Public
Distribution System to avoid artificial shortages, maintain the price
line and secure equitable distribution thereof through fair price
shops as it is in the interest of the general public.
7. Admittedly, the High Court has not even taken a prima facie
view that the State Government had not issued twice any
order/notification under Section 3 of EC Act though the FIR made
reference to clause 6(a) of the Public Distribution System (Control)
Order, 2001 issued under Section 3 of the EC Act. Respondent also
referred to the said Control Order 2001 in Para 3 of the Crl.W.J.C.
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No. 215 of 2011 filed by them. More so, the question of ownership
of the goods seized is a question of fact which ought not to have
been gone into by the High Court in its revisional or extra-ordinary
jurisdiction. Further, there is nothing on record on the basis of which
the issue of ownership has been decided by the High Court. There
was no cogent material on record before the High Court on the basis
of which direction to release the goods so seized could be issued.
8. We are at pains to observe that the High Court has dealt with
the issue in most casual and caviler manner without any application
of mind showing complete disregard of the legislature enacting the
provisions for general welfare.
9. This Court while dealing with a similar issue in Shambhu
Dayal Agarwala v. State of West Bengal & Anr., (1990) 3 SCC
549, held that whenever any essential commodity is seized, pending
confiscation under Section 6-A, the Collector has no power to order
release of the commodity in favour of the owner. Having regard to
the scheme of the Act, the object and purpose of the statute and the
mischief it seeks to guard, it was further held that the word “release”
in Section 6-E is used in the limited sense of release for sale etc. so
that the same becomes available to the consumer public. The court
held as under:
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“… No unqualified and unrestricted power has been conferred on the Collector of releasing the commodity in the sense of returning it to the owner or person from whom it was seized even before the proceeding for confiscation stood completed and before the termination of the prosecution in the acquittal of the offender. Such a view would render Clause (b) of Section 7(1) totally nugatory and would completely defeat the purpose and object of the Act. The view that the Act itself contemplates a situation which would render Section 7(1)(b) otiose where the essential commodity is disposed of by the Collector under Section 6-A(2) is misconceived. Section 6-A does not empower the Collector to give an option to pay, in lieu of confiscation of essential commodity, a fine not exceeding the market value of the commodity on the date of seizure, as in the case of any animal, vehicle, vessel or other conveyance seized along with the essential commodity. Only a limited power of sale of the commodity in the manner prescribed by Section 6-A(2) is granted. The power conferred by Section 6-A(2) to sell the essential commodity has to be exercised in public interest for maintaining the supplies and for securing the equitable distribution of the essential commodity.”
The said judgment was followed and approved by this Court
after explaining the scope of the statutory provisions in Oma Ram v.
State of Rajasthan & Ors., (2008) 5 SCC 502.
10. What we found shocking in the instant case is that the
petition was filed before the High Court for quashing of the FIR and
alternatively for releasing the seized items and the High Court
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without giving any reason whatsoever disposed of the petition
observing as under:
“Considering the submissions of the parties, in the opinion of the court, continuing the seizure of the seized items for a long time may not be justified at least the seizure of the wheat.”
This is the only reason given by the High Court without even
considering what were the averments on behalf of the parties and
without considering the requirement of the statutory provisions.
11. In the subsequent order dealing with the ownership of the
wheat the High Court has only taken note of the fact that as the
respondents herein were prepared to furnish adequate/sufficient
security to the satisfaction of the court below for release of the
wheat in question, the wheat could have been released by the CJM.
In case the learned CJM came to the conclusion after appreciating
the evidence on record that the respondents/applicants were not in a
position to show any document which may show their ownership to
the wheat, there was no justification for the High Court to issue
directions for release of such material merely because applicant
could furnish the security.
If it is so, any stranger or third party may give sufficient
security and get the seized goods release in his favour. Such a course
is not permissible even while deciding the application under Section
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451/457 of the Code of Criminal Procedure, 1973. A person having
no title/ownership over the seized material may get the same
released on furnishing security and sell it in black market and earn
profit several times more than the amount of security furnished by
him. We fail to understand as how such an order of release which
defeat the very purpose for which the EC Act was enacted, could be
passed.
12. The High Court has totally ignored the fact that any order
passed under Section 6-A is appealable under Section 6-C of the EC
Act. Therefore, to consider such an application for release of the
goods was totally unwarranted at least at that stage.
13. In Manish Goel v. Rohini Goel, AIR 2010 SC 1099, this
Court has held that generally, no Court has competence to issue a
direction contrary to law nor the Court can direct an authority to act
in contravention of the statutory provisions. The courts are meant to
enforce the rule of law and not to pass the orders or directions which
are contrary to what has been injected by law. (See also: Vice
Chancellor, University of Allahabad & Ors. v. Dr. Anand
Prakash Mishra & Ors., (1997) 10 SCC 264; and Karnataka State
Road Transport Corporation v. Ashrafulla Khan & Ors., AIR
2002 SC 629).
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14. Learned counsel for the parties are not in a position to reveal
the status of the criminal proceedings initiated against the
respondents. In such a fact-situation, as has been suggested by
learned counsel for the parties we set aside the aforesaid judgments
and orders dated 15.3.2011 and 29.4.2011 and remand the case back
to the High Court to consider afresh after examining all factual and
legal issues involved in the case. Till the disposal of the case afresh,
interim order passed by this Court on 31.10.2011 shall remain
operative.
The appeals stand disposed of accordingly.
……..……………………….J. (Dr. B.S. CHAUHAN)
....….……………………….J. (SWATANTER KUMAR)
New Delhi, July 23, 2012
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