State vs K. Gnanasekaran

Pratap Singh, J.—The respondent in Crl. M.P. 68 of 1991 on the file of Special Judge (E.C. Act), Madras has filed this petition u/s. 482

Criminal Procedure Code praying to set aside the order in the above Crl. M.P. 68/91.

The respondent herein has filed petition in Crl. M.P. 68/91 u/s. 457 Criminal Procedure Code for return of 4 barrels of Palmail, each weighting

200 kilograms and 2 barrels of cotton seed oil, each weighing 200 kilograms on the allegations that he is running a retail oil sales shop at No.

380/1, Konnar High Road, Ottery, Madras, under valid licence No. 37/89-90 issued by the Assistant Commissioner (Civil Supplies) Parambur

Zone, Madras and that the above barrels were seized by the respondent police. They were purchased by the petitioner under valid purchase bill.

The petitioner was not an accused in Cr. No. 37/91 in which the above barrels were seized and kept in the custody of the respondent. This claim

was resisted by the respondent on the ground that the above barrels were seized from the brother and father of the petitioner who are accused in

this case, from the premises bearing Door No. 382, Konnur High Road, Otteri, Madras 12, as the premises had no licence and that the oil

contained in the barrels was suspected to be adulterated and meant for illegal sale. The barrels were not seized from the shop of the petitioner at

Door No. 380/1, Konnur High Road, Otteri, Madras, as alleged. Samples of oil were taken and sent to Public Analyst. King Institute, Guindy and

the result is awaited. During the pendency of the petition, before the learned Special Judge the Special Public Prosecutor had filed same submitting

that Analyst report had been received on 12-3-91 wherein it was found that the sample of Palmoil was not adulterated whereas sample of cotton

seed oil was adulterated. On a consideration of the materials placed before him, the learned Special Judge (E.C. Act) Madras has allowed the

petition in part holding that petitioner is entitled to return of four barrels of Palmoil from the respondent and dismissed the petition with regard to the

claim for return of two barrels of cotton seed oil. Aggrieved by the said order, the respondent has come forward with this petition u/s. 482

Criminal Procedure Code.

The learned Government Advocate would contend that there is bar u/s. 6(E) of the Essential Commodities Act, 1955 (which I shall hereinafter

call as ""the Act"") for the court to make orders with regard to the release of the Essential Commodity in the sense of returning it to the owner or the

person from whom it was seized even before the termination of the prosecution. For centre, Mr. P. Chidambara Subramaniam, the learned counsel

appearing for the respondent, would contend that petitioner was not an accused in the case and that there is a difference between the words

release"" and ""return"" and there is no bar in any of the provisions of the Essential Commodity Act, 1955 for returning the articles to a third party.

Certain facts need be stated; The petitioner herein who is the respondent before the Court below claims to have seized four barrels of palmoil

from the premises bearing Door No. 382, Kannur High Road, Otteri on the ground that the accused Kasi Chettiar and Loganathan who were

initially arrayed as accused 1 and 2 in the First Information Report do not possess any license to store the same in that premises and that the above

quantities of palm oil and cotton seed oil appear to be adulterated. Case was registered in Cr. No. 37/91 under Rule 19(1) Tamil Nadu Essential

Trade Articles (Regulation of Trade) Order, 1984 and under Rules 3 and 4 of Tamil Nadu Scheduled Articles (Presecription of Standard) Order,

1977 with 7(1)(a)(ii) of Essential Commodities Act, 1955. The petitioner who is son of the First accused Kasi Chettiar and brother of the second

accused Loganathan had filed petition in the court below claiming that those barrels of Palmoil and cotton seed oil were seized only from the

premises of his shop bearing door No. 380, Konnur High Road, Otteri and that he is doing business there under the valid licence issued by the

Assistant Commissioner (Civil Supplies) Perambur Zone, Madras. Another related development also needs mention here. On 13-3-91, a day

prior to the passing of order by court below, the respondent had addressed the Deputy Commissioner, (Civil Supplies) Madras 5 for taking notion

u/s. 6(A) of the Act. In the typed set, copy of that letter is filed in which the petitioner herein was also shown as the third accused, along with two

original accused. Thus the resultant position is proceedings u/s. 6(A) of the Act for confiscation of the edible oil was initiated on 13-3-91. There is

also case in Cr. No. 37/91 for contravention of the Rule 19(1)(RT) Order 1984 and Rules 3 and 4 of Taba (PM) Order, 1977 read with S. 7(i)(ii)

of E.C. Act, 1955. The question is while the confiscation proceedings under S. 6(A) of the Act are initiated and while there is possible prosecution

for violation of the above provisions of the orders under the Act, these barrels can be returned to the respondent herein. The learned Government

Advocate relied upon the ruling reports in Shambhu Dayal Agarwala Vs. State of West Bengal and Another, . In that case, the main question

which arose was whether Collector to whom a report of seizure of any essential commodity is made u/s. 6(A) of the Act is empowered by virtue

of S. 6(E) of the Act to release the goods seized in pursuance to an order u/s. 3 in relation thereto, during the pendency of the proceedings before

the Special Court. The High Court has held that the Collector had no power to order release of the seized commodity. That order was confirmed

by the apex court. In para 9, the apex court has held as follows :

There could be no question of releasing the commodity in the sense of returning it to the owner or person from whom it was seized even before

the proceeding for confiscation stood completed and before the termination of the prosecution in the acquittal of the offender. Such a view would

render clause (b) of S. 7(1) totally nugatory.

These observations of the apex court are very relevant in deciding the matter before me. The learned Government Advocate also sentenced that by

virtue of S. 6(E) also, the article cannot be released to the respondent herein in the sense of returning it to him. For appreciating this contention, S.

6(E) of the Act needs extractio. It reads as follows :

6-B, Bar of jurisdiction in certain cases; whenever any essential commodity is stated seized in pursuance of an order made u/s in 3 in relation

thereto, or any package, covering or receptable 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. 6-A, the Collector, or as the case may be, the State Government

concerned u/s. 6-E 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, receptable, animal, vehicle, vessel or other conveyance.

Section 7(1)(b) of the Act also needs extraction. It reads as follows :

Penalties. - In any person contravenes any order made u/s. 3. -

(b) any property in respect of which the order has been contravene shall be forfeited to the Government.

If S. 6(E) of the Act is to be applied, the seizure must be in pursuance of an order made u/s. 3 in relation thereto. The learned Government

Advocate is not able to specifically point out that the order made u/s. 3 of the Act, But any way, the possible prosecution is there. Contravention

of the order made u/s. 3 is alleged. If it is proved, then any property in respect of which the order has been contravened shall be forfeited to the

government u/s. 7(b) of the Act. While so, as pointed out by the apex court, if these articles are returned to the owner, accusing that the petitioner

is the owner, it would render Clause (b) of S. 7(1) totally nugatory as has been pointed out by the Apex Court. Moreover, in this case,

proceedings for confiscation were already initiated before passing of the order by the Court below. So on that score also there is no question of

returning the commodity to the petitioner. So on both these grounds, the articles cannot be returned to the petitioner before the court below viz.,

the respondent herein.

In the impugned order, in para 2, the learned Judge has stated as follows :

At this stage, the question of correct place of seizure cannot be gone into. He also, it cannot be presumed at this stage whether the seized

property was meant for illegal sale.

No doubt there cannot be any such presumption that the property was kept for illegal sale. Any way when there is positive allegation that the

property was kept in the premises bearing Door No. 382, without licence on that score it was seized, the petitioner''s claim that it was seized from

his shop bearing Door No. 380 can be tested only at the time of trial. If the case of the prosecution is proved, the property is liable for confiscation

u/s. 7(b) of the Act. While so the court below is definitely on the wrong in allowing the setition in part holding that petitioner is entitled to get return

of four weeks (sic ?) of palmoil. That order is liable to be set aside.

Mr. P. Chidambara Subramaniam, the learned counsel for the respondent contended that a revision should have been filed against the order of

the learned Special Judge and the petition u/s. 482, Cr.P.C. would not lie. There is no specific provision for appeal against the order of the learned

Special Judge. So only under the general provision u/ss. 397 and 401, Cr.P.C. a revision could have been filed. There is no specific provision for

revision, against the order of learned Special Judge. While so, a petition u/s. 482, Cr.P.C. is certainly maintainable.

In view of my discussion above, the petition is allowed, setting aside the order passed in Crl. R.P. 68 of 1991 on the file of Special Judge (E.C.

Act) Madras.

Petition allowed.