K. Nagabhusan Senapati vs State and Another

A. Pasayat, J.—Petitioner prays for exercise of power u/s 482 of the Code of Criminal Procedure, 1973 (in short, ''the Code'') to quash proceedings in 2 (c) CC No. 4 of 1991 pending before the learned Special Judge-cum- Sessions Judge, Ganjam, Berhampur (in short, ''the Special Judge''). According to the petitioner framing of charge u/s 7 of the Essential Commodities Act, 1955 (in short, ''the Act'') and continuance of the proceedings would be sheer abuse of process of Court.

Foundation of such submission appears to be that in the proceedings u/s 6A of the Act it has been observed that articles seized did not belong to the petitioner, but belonged to some other persons who lodged claim and there has been a direction for release of articles in their favour in a writ application.

According to Mr. Y. Das, learned counsel for petitioner there can be no dispute that proceedings under Sections 6A and 7 of the Act can co-exist and even where Collector did not direct confiscation of the articles, accused can be convicted u/s 7A of the Act, and jurisdiction of the Special Judge and the Collector are conceptually and materially different. What has been emphasised by the learned counsel for petitioner is that in view of specific finding recorded that articles did not belong to petitioner at the relevant point of time and articles having been returned to some other persons, continuance of the proceedings would be against interest of justice and would be an exercise of futile. An application was filed before the learned Special Judge not to proceed with the matter and not to frame charge primarily with similar prayer, and that has been turned down. Learned counsel for the State supported the order.

Accusations In the case at hand against the petitioner are that (a) he had excess of stock at the time of inspection, and (b) improper maintenance of accounts. Proceedings u/s 6A related to desirability of confiscation of articles. The prosecution in the case at hand on the other hand has been lodged on two scores, firstly, excess of stock and secondly, improper maintenance of accounts.

The proceedings in fact has a chequered career. At one stage for non-production of seized registers by the prosecuting agency there was refusal to frame charge. However, in Criminal Revision No. 510 of 1992 this Court set aside the order in view of specific stand taken by prosecution that documents were available, though earlier an affidavit has been filed by the Additional District Magistrate in charge of Civil Supply Section of Ganjam Collectorate indicating loss of seized registers. Prosecution has to establish its case and if it fail to do so, obviously accusations cannot be maintained. Section 6A merely confers power of confiscation and not the power of release, disposal, distribution etc., except to the limited extent permitted by Sub-section (2) thereof. It is axiomatic that the power of confiscation of an essential commodity seized for contravention of an order passed u/s 3 is a discretionary power. The use of the word "may" makes the power coupled with a public duty. Power to confiscate is discretionary. (See State of Andhra Pradesh Vs. Bathu Prakasa Rao and Others, and State of Karnataka Vs. Krishna Bhima Walvakar and Another, ). Section 6A of the Act contemplates an independent proceeding of confiscation unconnected with taking cognizance of an offence, framing of charge and trial thereof Therefore, even if Collector drops confiscation proceedings u/s 6A, it will have no effect on criminal proceedings Provisions of Section 6A are not in pari materia with Section 7. The two provisions entirely stand on different planes. In a case of this nature where there appears to be so many conflicting materials brought on record at different times, I do not think it to be a fit case for quashing the charge and further progress of the case. It is open to petitioner to highlight before learned Special Judge during trial the conclusions if any recorded by the Collector or by this Court, end relevance thereof in relation to the accusations.

The Criminal Misc. Case is disposed of. Misc. case disposed of.