Gopal Prasad vs State of U.P.

S.R. Bhargava, J.—This Criminal revision is directed against order dated 14th November, 1990, passed by Special Judge (B.C. Act) Mathura, refusing release of seized property on ground of bar of jurisdiction contained in Section 6E of the Essential Commodities Act which runs as under:--

"6-E. Bar of jurisdiction in certain cases:--Whenever any essential commodity is seized in pursuance of an order made u/s 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 u/s 6A, the Collector, or, as the case may be, the State Government concerned u/s 6C shall have, and notwithstanding anything to the contrary contained in 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."

Before proceeding further it would be useful to say that ''Gur'' and sugar are essential commodities. U. P. Sugar and ''Gur'' Dealers Licensing Orders, 1962 were passed u/s 3 of the Essential Commodities Act. In Sub-clause (a) Gur has been defined as it means the article commonly known as gur, gul, jaggery, shakkar and rab, and includes raw sugar and uncrystallised sugar in any other form comprising of original and convertible molasses and other impurities inherent or foreign, prepared by boiling cane or palmyra juice.

In Sub-clause (f) of Clause 2 of the Order sugar has been defined as it means any form of sugar including khandsari sugar containing more than 90% sucrose.

In Sub-clause (3) of Clause 2 of the order ''Dealer'' has been stated as it means a person engaged in the business of purchase, sale, or storage for sale, of vacuum pan factory sugar or open pan khandsari sugar or gur, in quantities (exceeding 10 quintals) at any one time, and includes every such bulk consumer manufacturing biscuits, confectionary or sweetmeats, or engaged in fruit canning, fruit preservation or similar other establishment/ undertaking, utilising sugar in his produce, and storing sugar in any quantity (exceeding 10 quintals) at any one time, but does not include an industrial undertaking which is engaged in the manufacture or production of vacuum pan factory sugar or open pan khandsari sugar or gur, and which is registered or licensed under the Industries (Development and Regulation) Act, 1951.

Clause 3(1) of these orders prohibit any person from carrying on business as dealer except under and in accordance with terms and conditions of licence issued in this behalf by the licensing authority. Sub-clause (3) of Clause 3 gives rebuttable presumption that any person who stores vacuum pan factory sugar or open pan khandsari sugar or gur in any quantity (exceeding 10 quintals) at any one time shall unless the contrary is proved, be deemed to store the sugar for the purpose of carrying on the business of purchase or sale, or storage for sale, of sugar.

Facts as they emerge in this revision are that revisionist Gopal Prasad has a perchune shop within the territorial limits of Police station Raya, Distt. Mathura. The First Information Report lodged against him shows that on 5th May 1990 at about 1.30 p.m. the S.D.M. raided his shop. During inspection he found ten quitals ''Boora'', 9 quintals ''Chini'' and 46 bags of salt stored in the shop. They were seized under the Essential Commodities Act. It was specifically alleged in the First Information Report that the storage was in contravention of the U.P. Sugar and Gur Dealers Licensing Orders, 1962.

u/s 457, Cr. P. C. revisionist approached the Special Judge (E.C. Act) for release of the seized commodities. The learned Special Judge relied upon Section 6E of the Essential Commodities Act and held that he had no jurisdiction and is not competent to release the essential commodities.

Before proceeding further it would be significant to say that bar u/s 6E applies only when an essential commodity is seized in pursuance of an order made u/s 3. If there is seizure which is not in pursuance of any order u/s 3 bar of Section 6E is not attracted. Case of Anil Kumar v. State of U. P. 1990 All Cri R 804 related to non-levy cement regarding which there is now clear law that the U. P. Control Order cannot apply because the Central Order overrides the same. In this context it was held that there could be no contravention of an order u/s 3 nor could there be any offence. Hence the non-levy cement was released. In the case of State of Madhya Pradesh and others Vs. Rameshwar Rathod, provisions of Section 6E of the Essential Commodities Act were not specifically considered. It was a case of fair price shop. It was held that it was not obligatory for the owner to obtain a licence under the Marketing Act. Then there was a general observation regarding jurisdiction of release. I am afraid that this ruling is not helpful in deciding question of jurisdiction u/s 6E.

In the instant case it is evident that for salt there is no order u/s 3 of the Essential Commodities Act. Even in the First Information Report it was not said that the salt was being seized in contravention of any order issued u/s 3. Hence for salt the bar of Section 6E would not have at all arisen. The learned special Judge had jurisdiction to release salt. It is evident that no offence is alleged to have made out in respect of salt seized from the perchune shop of the revisionist. Hence the learned Special Judge should have released salt in favour of the revisionist on such terms and conditions as it thought fit u/s 457, Cr.P. C.

Coming to the question of ''Boora'' and sugar, collectively 19 quintals, it was argued on behalf of the revisionist that ''Boora'' is neither gur nor sugar as defined in the aforementioned orders, I am afraid that the definition of ''gur'' and ''sugar'' in the aforementioned order is very wide. At this stage it cannot be said that the ''boora'' and ''sugar'' were not under any order issued u/s 3 of the Act, hence the bar of Section 6E would apply.

In result, this revision is partly allowed. Special Judge concerned is directed to release salt in favour of the revisionist on such terms and conditions u/s 457, Cr.P.C. So far as ''boora'' and sugar are concerned, revisionist may apply for release to the Collector or the Government u/s 6A or 6C of the Act.