Balwinder Singh vs State of Punjab

M.L. Singhal, J.

This Revision Petition is directed against the order dated 29.7.1997 of Special Court, Ludhiana constituted under the Essential Commodities Act, 1955 (hereinafter referred to as the `Act'') whereby the prayer of the petitioner Balwinder Singh for the release of tanker on Superdari was refused.

This revision has arisen in the following circumstances :

Tanker No. HR170167 was taken into possession by the police of P.S. Focal Point, Ludhiana in connection with FIR No. 94 of 1997 dated 10.5.1997 registered under Section 7 of the Act of 1955 at P.S. Focal Point, Ludhiana. The tanker was allegedly containing 3400 lts. of kerosene oil. It was taken into custody on 12.3.1997 by the police under Section 102 of the Code of Criminal Procedure. Later on, it was found that the kerosene oil contained in the tanker was colourless. It was on the basis of the report of the analyst that a case under Section 7 of the Act of 1955 was registered at P.S. Focal Point, Ludhiana.

Petitioner''s prayer for the release of the tanker on Superdari was declined by the learned Special Court, Ludhiana. In his prayer, the petitioner submitted that the said tanker was the only source of income to him and there was no proper place for its parking in the Police Station. It was likely to be damaged if it was allowed to remain in the Police Station. It was also submitted by him that the tanker was not required by police for the purposes of investigation. It was also submitted by him that if tanker, in question was released on Superdari in his favour, he would undertake to produce the tanker on each and every date of hearing and he would not change its colour or dispose it of during the pendency of the case.

Learned Special Court, Ludhiana declined to release the tanker on Superdari in his favour on the ground that the question of release of the tanker on superdari lies within the jurisdiction of the Collector under Section 6A of the Act.

I have heard the learned Counsel for the petitioner and the learned Deputy Advocate General, Punjab for the State. Section 6A of the Act of 1955 reads 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 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:

(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 or other conveyance.

(2) Where the Collector, on receiving a report of seizure or on inspection of any essential commodity under subsection (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 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 the State Government, as the case may be, for the retail sale of such foodgrains 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 of confiscation is ultimately passed by the Collector,

(b) where an order passed on appeal under subsection (1) of the 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 or the person from whom it is seized.)''''

Learned counsel for the petitioner has submitted that Collector, Ludhiana has not invoked its power so far to confiscate the tanker in question although the same was seized on 12th March, 1997. Under Section 6A of the Act, a report of seizure is required to be made to the Collector of the District or the Presidency town in which such essential commodity is seized without any unreasonable delay and 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.

It is thus clear that the Collector has to remove without any inordinate delay after the seizure of the essential commodity for confiscation of the essential commodity and for the confiscation of any animal, vehicle, vessel or other conveyance used in carrying such essential commodity. The powers of confiscation thus vest in the Collector of the district or the Presidency town.

In State of Madhya Pradesh and others, Appellants v. Rameshwar Rathod, Respondent, 1990(2) RCR 604 SC : AIR 1990 SC page 1849, the question that arose before the Hon''ble Supreme Court was ``whether the Criminal Court has jurisdiction to entertain an application for the return of the vehicle pending final decision of the criminal case under the Act and the Hon''ble Supreme Court held that the Criminal Court retains jurisdiction and was not completely ousted of the jurisdiction. Under the Criminal Procedure Code, the Criminal Courts of the country have the jurisdiction and the ouster of the ordinary Criminal Court in respect of a crime can only be inferred if that is the irresistible conclusion flowing from necessary implication of the new Act and the Hon''ble Supreme Court held that in view of the language used and in the context in which this language has been used, High Court was right in coming to the conclusion that the Criminal Court retained jurisdiction and was not completely ousted of the jurisdiction. High Court was right in passing the order under consideration on furnishing the security.

In other words the Supreme Court held that during the pendency of the case, Criminal Court had jurisdiction to entertain the application. In Bhupinder Kumar, Petitioner v. State of Punjab, Respondent, 1995(3) RCR Page 38, a single bench of this Court held that Criminal Court has jurisdiction to entertain application for release of vehicle during pendency of case under the Act on furnishing adequate security.

In the instant case, the tanker was taken into custody on 12.3.1997. So far, the Collector has not passed any order whether the tanker shall or shall not be confiscated. The tanker is standing idle in the Police Station. Its parts are likely to be pilfered in the Police Station. It is likely to suffer damage if it remains unattended in the Police Station. Besides, the tanker was earning something to the owner. If tanker remains idle in the Police Station without being put to use that is not only loss to the owner, but to the society at large. Keeping in view the larger interests of the society, tanker in question is ordered to be released in favour of the owner on Superdari who will furnish security in the sum of Rs. 2 lacs to the satisfaction of Special Court, Ludhiana under the Essential Commodities Act, 1955.

Superdar shall undertake to produce the tanker in question on that date or those dates of hearing for which the Court gives a prior notice to produce it.

This is only for the purpose of disposal of the question of Superdari in favour of the owner. The power of the Collector of the district to proceed under Section 6A of the Act shall remain unaffected so far as this order is concerned.

This Criminal Revision Petition is disposed of subject to the aforesaid observations.