In Re: P.J. Somon and Others

Gokulakrishnan, J.—This revision is against the judgment in Crl. App. No. 273 of 1975 passed by the learned Sessions Judge of Coimbatore (West) on 17th April, 1976.

The facts leading to this revision, in short, are as follows:- The petitioners herein are stated to have transported 35 barrels of groundnut oil from Tamilnadu State to Kerala State, and while in the process of such transport, they were intercepted near Nagoor check-post which is near Kerala border. The interception was done by the Special Tahsildar (C.S.) Pollachi, on 14th July 1974, while these 35 barrels of groundnut oil were carried in a lorry bearing K.L.P. 6746. The Special Tahsildar (C.S.) seized the consignment and the lorry. A case was registered against the petitioners in Crime No. 549 of 1974 of Kinathukadavu police station under Cls. 3(1) and 3(3) of the Tamil Nadu Groundnut and Groundnut Oil (Declaration and Requisitioning of Stocks), Order, 1974 (hereinafter referred to in this judgment as the 1974 Order).

The Collector of Coimbatore issued a notice to the petitioners under S.6-B of the Essential Commodities Act (hereinafter referred to in this judgment as the Act) directing them to show cause as to why the seized 35 barrels of groundnut oil should not be confiscated to the Government. On 29th April 1975 and 20th May 1975 the petitioners have filed petitions under S. 205, Crl.P.C., and their Advocate was permitted to peruse the records. Finally the Collector of Coimbatore heard the case on 10th June 1975. In the course of his order, the Collector has found that the petitioners herein had not made a Declaration in Form II, as provided in Cl. 3(3) of the 1974 Order, and as such they have contravened the said Rule in force. After so finding, the Collector ordered that the 35 barrels of groundnut oil seized and concerned in Crime No. 549 of 1974 of Kinathukadavu police-station be confiscated to the Government under S.6-A of the Act. It is on record that at that time the Sub Divisional Magistrate, Pollachi, while the Police case in Crime No. 549 of 1974 was pending, had released the groundnut oil to the petitioners after getting security from them. So much so, the Collector requested the Sub Divisional Magistrate, Pollachi, to take steps to adjust the value of the 35 barrels of groundnut oil to the credit head of the personal deposit account of the Commissioner of Civil Supplies.

Aggrieved by the said order of the Collector, the petitioners herein preferred an appeal before the Sessions Judge of Coimbatore (West). The learned Sessions Judge has observed in paragraph 5 of his judgment-

No doubt the order of the Collector is not very informative in this respect. The learned Public Prosecutor was also not instructed properly by the concerned officials and ho was able to argue only from the records that were placed before him.

The learned Sessions Judge has also observed that the licence in this case has not been produced to show as to how it was regulated. Nevertheless, he would further observe-

Under Cl. 3(3) of the Tamil Nadu Groundnut and Groundnut Oil (Declaration and Requisitioning of Stocks) Order, 1974, every person who has in his possession or control of not less than 20 quintals of groundnut oil, who intends to transport or otherwise move or carry the whole or any part of the groundnut oil from the place in which it is initially held or stocked, to any other place, shall, before transporting or moving or carrying such groundnut oil, make a declaration to the Authorised Officer in Form II.

The learned Sessions Judge would find that such a declaration has not been made by the petitioners. He would, however, proceed to find that the Collector is empowered to take action against the petitioners under the Act, and observed that under S.2(a)(v) of the Act, foodstuffs, including edible oilseeds and oil are "essential commodity", and that the Collector, acting under the provisions contained in the Act, has got jurisdiction to order confiscation of the goods so transported contravening the provisions, under Ss. 6A and 6B of the Act. The learned Sessions Judge has found that the petitioners intended to transport the groundnut oil in question from the State of Tamil Nadu to the State of Kerala and that they had not made a declaration as provided in Form II under Clause 3(3) of the 1974-Order. With the abovesaid observations and findings, the learned Sessions Judge confirmed the order of the Collector and dismissed the appeal.

Aggrieved by the order of the Sessions Judge, the petitioners have preferred this revision. Mr. Ramalingam who appears on behalf of Thiru P. Chidambaram for the petitioners submitted that there is absolutely no provision in the 1974 Order to confiscate goods seized. According to the learned counsel, no doubt there was a violation of the provisions of Cls. 3(1), and 3(3) of the 1974 Order by the petitioners herein, but punishment is provided for in Cls. 6(1), (e), 6(2) and 6(3) of the 1974, Order. The learned counsel would submit that the Act will not apply to the facts of this case since the registering of the case in Crime No. 549 of 1974 of Kinathukadavu police station was only under Cls. 3(1) and 3(3) of the 1974 Order. No doubt, groundnut oil may come under the definition of ''essential commodity''. S.6A(1) of the Act definitely states-

Where any essential commodity is seized in pursuance of an order made under S.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;

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According to the learned counsel, there was absolutely no order under S.3 of the Act in relation to the groundnut oil, and further the offence charged by the prosecution is not under any of the provisions of the Act or any Rules framed under the Act; and if so, the punishment given under Ss.6-A and 6-B of the Act by the Collector, as confirmed by the Sessions Judge, is definitely without jurisdiction.

Mr. Govindarajulu who appears for the learned Public Prosecutor is also of the view that the prosecution and punishment ought to have been only as provided for under the 1974 Order, inasmuch as no order has been passed under S.3 of the Act as required under S. 6A(1) of the Act.

The 1974 Order no doubt states that the failure to declare as provided under Cls. 3(1) and 3(3) is an offence. C1.6(1) of the 1974. Order States-

If any competent officer has reason to believe that contravention of any of the provisions of this Order has been committed or is about to be committed such officer may-

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(e) seize any groundnut and groundnut oil along with the packages, coverings, or receptacles in which such groundnut and groundnut oil are found or the animals, vehicles, boats, or other conveyances used for carrying groundnut and groundnut oil and thereafter take or authorise the taking of all measures necessary for securing the production of the packages, coverings, receptacles, animal, vehicles, vessels, boats, or other conveyances, so seized in Court and for their safe custody pending such production;

Provided that the competent officer shall give a receipt for what is seized immediately after the seizure is effected;

(2) The Authorised Officer may, after obtaining the orders of the Court and after informing the persons from whom the groundnut and groundnut oil are seized procure the groundnut and groundnut oil so seized; to the Government or an officer or an agent of the Government.

(3) The price payable in respect of the groundnut and groundnut oil procured under sub-cl. (2) shall, be the price for that grade or variety of groundnut and groundnut oil prevailing during the post-harvest period in the district concerned as notified by the Collector of the district in the District Gazette from rime to time.

Thus, from the above provisions of the 1974 Order, it is clearly seen that the only action to be taken in relation to contravention of Cls 3(1) and 3(3), is seizure of the articles, in this case groundnut oil, along with the conveyance carrying the same and production thereof in Court. After obtaining the orders of Court and after notice to the party, the Authorised Officer may procure the articles to the Government at a price as provided under C1.6(3). The Order of the Collector in this case, confiscating the groundnut oil seized, is clearly without jurisdiction.

When the Legislature has framed an Order, it is incumbent upon the Executive Authority to follow it strictly instead of taking upon itself the powers conferred on it by a different enactment, which does not apply to the case. It is unfortunate that the learned Sessions Judge has overlooked this aspect, and has simply confirmed the wrong order of confiscation passed by the Collector. Had the Collector properly applied his mind to the provisions of the 1974 Order, the general public would have had the use of the 35 barrels of groundnut oil for the price that would have been fixed as per Cl. 6(3) of the 1974 Order. Since the Collector has not properly exercised his powers the petitioners have escaped liability. It is really unfortunate that the Executive Authority thought it fit to confiscate the goods which does not lie in his power in the instant case. I do not think any of the provisions of the Act will apply to the facts of the present case for the reasons stated supra.

The order of confiscation made by the Collector and the order of the Sessions Judge confirming the same are set aside. The revision is allowed, with the result the security offered by the petitioners herein has to be cancelled.