Joginder Prasad vs State of U.P. and Others

S.C. Agarwal, J.—Heard learned Counsel for the Petitioner and learned A.G.A. for the Respondents.

Counter-affidavit and rejoinder-affidavit have been exchanged between the parties.

This writ petition under Article 226 of the Constitution of India has been filed with a prayer to issue writ, order or direction in the nature of certiorari to quash the order dated 23.1.2010, passed by Chief Judicial Magistrate, Ballia rejecting the application of the Petitioner for release of seized wheat as well as judgment and order dated 7.5.2010, passed by Special Judge/Sessions Judge, Ballia rejecting Criminal Revision No. 33 of 2010.

As per the F.I.R., on 3.11.2009 at 7: 50 p.m., in village Bairia Chiraiya, P.S. Bairia, district Ballia, the complainant Anil Kumar Mishra, S.D.M., Bairia, in pursuance of a secret information that the wheat of Government Godown, after being repacked, is being transported by a Truck No. WB 41C - 7635 with intention to black market the same, intercepted the aforesaid truck. Truck driver Jitendra Yadav and khalasi Ajit Kumar Yadav could not provide any document regarding 178 bags of wheat. The wheat was seized and both the persons were detained u/s 3/7 of the Essential Commodities Act. F.I.R. was lodged on the same day at 20: 10 hours at Case Crime No. 249 of 2009 u/s 3/7 of the Essential Commodities Act. The Petitioner Joginder Prasad, claiming himself to be the owner of the wheat allegedly purchased by him from M/s. Gupta Grain Store, Uttar Tola, Bansdih, Ballia, moved an application before Chief Judicial Magistrate, Ballia for release of the aforesaid wheat. The copy of the application has not been filed by the Petitioner. The application was rejected by Chief Judicial Magistrate vide order dated 23.1.2010 on the ground that as per the police report, at the time of seizure, no documents regarding purchase of wheat were shown. As per the police report, the documents have been subsequently forged to claim ownership of the wheat. Whether the wheat belongs to the Petitioner or is Government property, can only be decided after evidence. For disposal of the wheat, a report was sent by the police to District Magistrate, Ballia on 21.11.2009. Consequently, application was rejected.

The Petitioner filed Criminal Revision No. 33 of 2010 before the learned Sessions Judge, Ballia, which was dismissed by Special Judge/Addl. Sessions Judge, Ballia vide judgment and order dated 7.5.2010 on the ground that confiscation proceedings were pending before the Addl. District Magistrate. The documents were not produced at the time of seizure. Petitioner failed to prove that he was the owner of the wheat.

The aforesaid order passed by Chief Judicial Magistrate and learned Addl. Sessions Judge are under challenge in this writ petition.

Subsequently, by an order dated 17.5.2010, passed by Addl. District Magistrate (Finance and Revenue), Ballia in Case No. 36 of 2010 u/s 6A of the Essential Commodities Act, the wheat was confiscated in favour of the State. Learned A.D.M. found that at the time of seizure, documents were not shown and no explanation was furnished for absence of documents. The District Supply Officer was directed to auction the confiscated wheat and to deposit the sale proceedings in Treasury subject to final decision of the case.

Learned Counsel for the Petitioner submitted that Petitioner is the owner of the wheat and had purchased the same from M/s. Gupta Grain Store, Uttar Tola. Bansdih, Ballia and mandi shulk was also paid. The invoice and copy of receipt of Krishi Utpadan Mandi Samiti have been annexed as Annexure-2 to the writ petition. The contention is that learned Magistrate committed illegality in not releasing the wheat in favour of the Petitioner and learned Sessions Judge also committed illegality in dismissing the revision. It was also contended that learned A.D.M. (Finance and Revenue) passed order u/s 6A of the Essential Commodities Act in haste and arbitrary manner and has not considered the fact that the Petitioner was the owner of the wheat.

Learned A.G.A. submitted that the documents relied upon by the Petitioner were not available with the truck driver and khalasi at the time of seizure and have apparently been prepared subsequently to escape prosecution and such documents are not reliable. It was also contended that since the wheat having been confiscated in favour of the State by order dated 17.5.2010. passed by A.D.M. (Finance and Revenue), Ballia, the writ petition does not survive for decision, as the order passed by A.D.M. (Finance and Revenue) has not been challenged in the writ petition. Once the wheat has been confiscated in favour of the State, no application for release of the same can be entertained by Chief Judicial Magistrate or any higher Court.

The seized wheat has been confiscated vide order dated 17.5.2010, passed by Addl. District Magistrate (Finance and Revenue), Ballia (Annexure-14 to the writ petition). The Petitioner has not challenged in this petition the order passed by A.D.M. (Finance and Revenue). Unless the order passed by A.D.M. (Finance and Revenue) confiscating the wheat is challenged, the Petitioner is not entitled to release of the wheat. After confiscation of the wheat in favour of the State, even if the order passed by Chief Judicial Magistrate and the order passed by learned Addl. Sessions Judge in revision are quashed, even then the Petitioner would not be able to get the release of wheat in his favour, as the same has already been confiscated in favour of the State. The order confiscating the wheat has not been challenged by the Petitioner. Unless the order passed by Addl. District Magistrate (Finance and Revenue), Ballia is set aside by a competent authority, the same will remain in force and the wheat cannot be ordered to be released in favour of the Petitioner.

In view of the above, I do not find any merit in the writ petition and the writ petition is accordingly dismissed.

After conclusion of the trial, if the Magistrate finds that the Petitioner was the owner of the wheat and the wheat did not belong to the Government Godown, he shall pass an order regarding payment of price of wheat deposited in the Treasury to the Petitioner.