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2005 DIGILAW 612 (ORI)

Rama Khandual v. State of Orissa

2005-10-07

N.PRUSTY

body2005
JUDGMENT N. PRUSTY, J. : Both the above Criminal Revisions have been filed by the petitioner challenging the orders dated 29.8.2005 and 6.9.2005 of the learned J.M.F.C., Daspalla in G.R. Case No.156 of 2005 on two separate applications filed under Section 457 of the Code of Criminal Procedure, one for release of her vehicle bearing registration No.OR-02-AB-1250 and the other for release of 45 quintals of rice (90 bags) loaded in the vehicle, seized in connection with the aforesaid G.R. Case. Since both her applications were rejected by two separate orders as stated above, which are impugned in both the Criminal Revisions, the same are taken up together for final disposal. It is the case of the petitioner that she is the proprietor of M/s. Tulsi Traders, a registered dealer under Section 9, 9-A, 9(C) of the O.S.T. Act and also is a dealer under Section 7(2) of the Central Sales Tax Act. The petitioner deals with purchase and sale of rice, broken rice, rice bran, Atta, Suji, Maida, sugar, gunny bag and edible oil. She is also the owner of the vehicle bearing registration No.OR-02-AB 1250. In course of her business she purchases and procures rice from different places of the State and same is carried to her godown and business premises and the same is resold. In course of her business, she purchased 50 quintals of rice from Daspalla from different individuals. She has a waybill to carry 50 quintals of rice in her vehicle. After the rice was purchased for value, the driver of the petitioner’s vehicle who had all necessary papers including the registration certificate and way bills, loaded 45 quintals of rice in the truck and was proceeding to Bhanjanagar and he was to further pick up five quintals of rice later. The vehicle loaded with 45 quintals of rice was detained and seized by the O.I.C., Daspalla P.S. with some ulterior motive. The petitioner is a registered dealer dealing with rice for which there is no control order. The control regarding removal of rice, which was previously in exist¬ence, is no more there in view of the Notification No.PL.IC. 7/2000- 9126/FS & SW dated 3.4.2002 published by the Government of India i.e. “The Removal of (Licensing requirements Stock limits and Movement Restrictions) on Specified Food Stuffs Order, 2002. Paragraph-3 of the said Order reads as follows : “3. The control regarding removal of rice, which was previously in exist¬ence, is no more there in view of the Notification No.PL.IC. 7/2000- 9126/FS & SW dated 3.4.2002 published by the Government of India i.e. “The Removal of (Licensing requirements Stock limits and Movement Restrictions) on Specified Food Stuffs Order, 2002. Paragraph-3 of the said Order reads as follows : “3. With the coming into effect of this order any dealer may freely buy, stock, sell, transport, distribute, dispose,acquire use or consume any quantity of wheat, paddy/rice, coarse grains, sugar edible oil seeds and edible oils and shall not require a permit or license therefore under any order issued under the Essential Commodities Act, 1955”. In view of the above order, there is no restriction for the Traders in doing their business of rice. From the date, the above order came into effect, any dealer may freely buy, stock, sell, transport, distribute, dispose of, acquire rice or consume any quantity of wheat paddy/rice coarse grain, sugar, edible oil seeds and edible oil and shall not require a permit or license therefore under any order issued under the E.C. Act 1955 and as such dealing and trading with rice has been taken out of the purview of the Essential Commodities Act, 1955. The O.I.C., Daspalla, for the reasons best known to him, drew up a plain paper F.I.R., and registered a case on the allegation that suspi¬cion of foul play was noticed on verification of bags, wherein it was stated that the gunny bags had been altered from inside and were stamped as MARKFED Orissa, Maharaja food Products, Chakara Road PBC Rice Net WT. 50 kg. Etc. It is also stated in the FIR that it was confirmed that the rice is meant for food for work programme, as the driver failed to show the house from where he purchased the rice. On the basis of the said F.I.R. the driver was arrested, detained and the I.O. had seized the vehicle and goods as well as registered a case under 379, 411, 468 of the Indian Penal Code read with Section 7 of the E.C. Act. As per the above Notification for selling, stacking, transporting paddy or rice, no order issued under the E.C. Act will be applicable. Therefore, the question of attracting the provisions of Sec.7 of the E.C. Act does not arise in the case. As per the above Notification for selling, stacking, transporting paddy or rice, no order issued under the E.C. Act will be applicable. Therefore, the question of attracting the provisions of Sec.7 of the E.C. Act does not arise in the case. There is nothing available on record to the effect that the rice carried by the petitioner’s driver in the truck was meant for food for work programme, as no competent authority, which has control over food for work, has ever reported any rice having been stolen or missed from their respective stock. As such it appears from the above, the vehicle and the rice were seized with a calculated move to harass and victimize the petitioner. Finding no other way, the petitioner approached the learned J.M.F.C., Daspalla by way of filing an application under Section 457 Cr.P.C. for release of the vehicle as well as rice. Even though the provisions of the above stated Notification dated 3.4.2002 was brought to the notice of the learned Court below, learned Magistrate, did not appreciate the fact and rejected the applica¬tion filed under Section 457 Cr.P.C. on the ground tha under the E.C. Act, the District Magistrate and the Collector is empowered to release the vehicle and seized product in a case registered under the E.C. Act. Mr. Mohanty learned Senior Advocate appearing on behalf of the petitioner submits that in this case falsification of Way Bill does not arise at all. Since transportation of the goods was inside the State, the dealer has herself supplied the waybills, which presupposes the tax paid goods are being transported. The prosecution has failed to make out a case against the petitioner for the offence under Section 379/411/468 of the Indian Penal Code read with Sec.7 of the E.C. Act and the provision of Section 7 of the E.C. Act is also not attracted in the facts and circum¬stances of the case, since transportation and carriage of rice and its business are no more under the purview of the E.C. Act. As such detention of the vehicle and the rice in the above back¬ground is unwarranted and uncalled for. As such detention of the vehicle and the rice in the above back¬ground is unwarranted and uncalled for. The only allegation against the petitioner is with regard to use of gunny bags in which rice was being carried and those empty gunny bags are available easily in the market which the petitioner and all other similarly placed persons use for the purpose of carrying the goods and transportation of the same and as such, for use of the gunny bag with a particular seal no inference can be drawn re¬garding commission of any offence as has been alleged by the prosecution. Admittedly, the vehicle belongs to the petitioner and also she was carrying the rice, which was seized. In view of the above, the learned Court below ought to have allowed the petition filed by the petitioner for release of the seized vehi¬cle and the rice under Section 457 Cr.P.C. and ought to have released the same taking into account the factual backdrop of the case. The provisions of Sec. 457 Cr.P.C. clearly indicate that whenever the seizure of property by any Police Officer is report¬ed to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an en¬quiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property. If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such persons is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation. But in the instant case, the owner of the vehicle has come forward for release of the same in her favour. And the prosecution case also clearly indicates that the present petitioner is the owner of both the vehicle nd the goods seized by the Police in connec¬tion with the aforesaid G.R. Case No.156 of 2005. But in the instant case, the owner of the vehicle has come forward for release of the same in her favour. And the prosecution case also clearly indicates that the present petitioner is the owner of both the vehicle nd the goods seized by the Police in connec¬tion with the aforesaid G.R. Case No.156 of 2005. Furthermore, so far as the offence under Section 7 of the E.C. Act is concerned, the application of E.C. Act as against the present petitioner is not attracted, since by virtue of the Notification dated 3.4.2002 following the order issued by the government of India, Ministry of Consumer Welfare Food and Public Distribution (Department of Consumer Welfare) the provisions of Sec.7 of the E.C. Act can not be made applicable in this case as because any dealer may freely by stock, transport, distribute, dispose of, acquire, use or consume any quantity of wheat paddy, rice, coarse grain, sugar, edible oil etc. and shall not require a permit or license thereof or any order issued under the E.C. Act, 1955. The procurement, transport and sell of rice have been exempted from the purview of the application of E.C. Act by virtue of the Notification dated 3.4.2002. In view of the discussions as indicated above, the impugned orders of the J.M.F.C., Daspalla dated 29.8.2005 and 6.9.2005 passed in G.R. Case No.156 of 2005 rejecting the prayer of the petitioner to release the vehicle as well as the seized rice of 45 quintals in 90 gunny bags, each containing 50 kg on the ground that under the E.C. Act the District Magistrate and Collector is empowered to release the vehicle and the seized produce if the case is registered under the E.C. Act, are liable to be set aside, since in the instant case application of the provisions of Sec.7 of the E.C. Act is unwarranted, keeping in view the Notifi¬cation dated 3.4.2002. As such, since the case is pending before him and not before the District Magistrate and Collector, the ¬learned J.M.F.C., Daspalla, has jurisdiction and power to release the seized vehicle as well as the seized rice in favour of the present petitioner, under the provisions of Sec.457 Cr.P.C. In view of the facts and circumstances narrated above, the orders dated 29.8.2005 and 6.9.2005 refusing to release the seized vehicle as well as the seized rice in favour of the present petitioner, in considering her application under Section 457 Cr.P.C., are set aside and the learned trial Court is direct¬ed to consider the application(s) afresh and release the seized vehicle as well as the seized rice in favour of the petitioner on proper identification, if the same is not required in connection with any other case, on such terms and conditions as would be fixed by him, preferably property security to the extent of the value of the goods/vehicle as well as an indemnity bond for the like amount. Both the Criminal Revisions are accordingly allowed. Crl. Rev. allowed.