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2004 DIGILAW 762 (RAJ)

Nana Lal v. State of Rajasthan

2004-05-12

SUNIL KUMAR GARG

body2004
JUDGMENT 1. - This revision petition under Section 397 Cr.P.C. has been filed by the accused petitioner against the judgment dated 29.5.2002 eased by the learned Sessions Judge, Pratapgarh camp Chittorgarh in Criminal Appeal No. 38/2001 by which the learned Sessions Judge dismissed the appeal filed by the accused petitioner and upheld the order dated 15.5.2001 passed by the learned Collector, Chittorgarh in Criminal Case No. 4/2001 by which the learned Collector allowed the application under Section 6A of the Essential Commodities Act, 1955 (hereinafter referred to as the Act of 1955) by which seized SPL Wheat of 78 Quintals were confiscated and further DSO, Chittorgarh was ordered to dispose of that wheat and the amount recovered to from the said sale be deposited in the Government treasury. 2. It arises in the following circumstances:- (i) That on 20.1.2001, the Enforcement Inspector, Chittorgarh inspected the shop of the petitioner and he found contravention of Rajasthan Food Grain and other Essential Commodities (Distribution and Regulation) Order, 1976 (hereinafter referred to as the Order of 1976) as 78 Quintal BPL wheat was not found in godown and therefore, he seized that wheat and filed an application before the Collector, Chittorgarh under Section 6A of the Act of 1955. On that complaint a criminal case No. 4/2001 was registered and notice was given to the petitioner. (ii) It may be stated here that in para 6 of the application, it was mentioned by the Enforcement Inspector that the petitioner had submitted an application on 23 1.2001 before the Dist. Supply Officer, Chittorgarh that he had not kept wheat allotted to him in his godown, but it was kept somewhere at other place because in the godown of the accused petitioner work of washing and cleaning was going on that date i.e. 20.1.2004. (iii) That the accused petitioner submitted reply to the application filed by respondent No. 2 under Section 6A of the Act of 1955. (iv) That the learned Collector through order dated 15.5.2001 did not accept the case of the petitioner and found that the petitioner had committed breach of condition No. 1 of the order issued under the order of 1976 and thus he directed that the seized wheat be confiscated and passed the order as aforesaid. (iv) That the learned Collector through order dated 15.5.2001 did not accept the case of the petitioner and found that the petitioner had committed breach of condition No. 1 of the order issued under the order of 1976 and thus he directed that the seized wheat be confiscated and passed the order as aforesaid. (v) Aggrieved from the order dated 15.5.2001 passed by the learned Collector, the petitioner preferred an appeal before the learned Sessions Judge, Pratapgarh and the learned Sessions Judge through impugned judgment dated 29.5.2002 dismissed the same. (vi) Aggrieved from the judgment dated 29.5.2002 passed by the learned Sessions Judge and order dated 15.5.2001 passed by the learned Collector, this revision petition has been filed by the accused petitioner. 3. In this revision petition, the main case of the learned counsel for the accused petitioner is that since on 23.1.2001, the petitioner had submitted an application before the DSO stating the circumstance in which the wheat was kept at other place other than godown and therefore, there was no malafide intention on his part and hence the impugned order of confiscation was perse illegal and without jurisdiction. 4. On the other hand, the learned counsel for the respondent has supported the judgment dated 29.5.2002 passed by the learned Sessions Judge and order dated 15.5.2001 passed by the learned Collector and submitted that the same are based on proper appreciation of evidence and do not call for any interference by this Court. 5. Heard. 6. There is no dispute on the point that since Enforcement Inspector in his application has clearly mentioned that the accused petitioner had submitted an application before the DSO on 23.1.2001 explaining the circumstance in which the wheat was kept by the petitioner at other place other than his godown reserved for keeping the wheat. 7. It may be stated here that the goods seized are liable to be confiscated only if the Collector is satisfied about violation of Control Orders. The language of this section (Section 6A of the Act of 1955) and its setting indicate that every contravention cannot entail confiscation. That is why the section uses the word 'may'. A trader indulging in black marketing or selling 1,0 adulterated goods etc. should not, in absence of any violation, be treated as par with technical violations such as failure to put up the price list etc. That is why the section uses the word 'may'. A trader indulging in black marketing or selling 1,0 adulterated goods etc. should not, in absence of any violation, be treated as par with technical violations such as failure to put up the price list etc. or even discrepancies in stock or placing the goods at some other place. 8. Mensrea is an essential ingredient of criminal offence unless excluded by Statute. Offence under the EC Act necessarily involves a guilty 26 mind as an ingredient of offence. Conduct of offender indicating absence of 'mans roe' being an essential ingredient to prove the guilt would be enough to fail the charges. Further more, particularly in the matter of an order of confiscation u/s 6A, 'mens rea' must be proved/established. Thus, it can be held that while dealing with the cases of confiscation it has to be seen that o the contravention should be deliberate and there should be mens rea and when no material is there to show intentional contravention, the order of confiscation cannot be said to be proper one. 9. The Hon'ble Supreme Court in the case of Jayant Kumar Sharma v. State of Madhya Pradesh, reported in JT 1991 (3) SC 15 has observed that where the food-grain was shifted from one place to another, from that alone it cannot be inferred that the food-grain was concealed for selling the same in the black-market. 10. Since in the present case, it was specific case of the petitioner that he had put wheat at another place because work of washing and cleaning in his godown was going on and for that he had already submitted an application on 23.1.2001 before the DSO, Chittorgarh and reference whereto is found in the complaint of the Enforcement Inspector and for that reason, it cannot be inferred that there was no mens rea on the part of the petitioner to sell that wheat in black-market and in view of this fact, the order of confiscation dated 15.5.2001 passed by the learned Collector and judgment dated 29.5.2002 passed by the learned Sessions Judge cannot be upheld. 11. The High Court's power under Section 397 Cr.P.C. should be exercised only when there exists manifest illegality in the judgment or order or when there is grave miscarriage of justice. 12. 11. The High Court's power under Section 397 Cr.P.C. should be exercised only when there exists manifest illegality in the judgment or order or when there is grave miscarriage of justice. 12. In the present case the order of confiscation dated 15.5.2001 passed by the learned Collector and judgment dated 29.5.2002 passed by the learned Sessions Judge, Pratapgarh suffer from manifest illegality and there is grave miscarriage of justice and hence the order of confiscation dated 15.5.2001 1 passed by the learned Collector and judgment dated 29.5.2002 passed by the learned Sessions Judge, Pratapgarh are liable to be quashed and set aside and this revision petition deserves to be allowed. For the reasons mentioned above, the present revision petition is allowed and the order of confiscation dated 15.5.2001 passed by the learned Collector and judgment dated 29.5.2002 passed by the learned Sessions Judge, Pratapgarh are quashed and set aside and the Collector, Chittorgarh is directed to return the seized wheat to the petitioner and in case the wheat had been said under to petitioner without any delay. Record of the case be sent back forthwith. Revision Allowed as above. *******