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2006 DIGILAW 2835 (ALL)

Dinesh Gupta v. State of U. P.

2006-11-22

B.S.CHAUHAN, DILIP GUPTA

body2006
JUDGMENT : B.S. Chauhan, J. This writ petition has been filed for seeking the following reliefs: (i) to issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 16.10.2006 passed by District Magistrate, Deoria (Annexure-1 to this writ petition) so far as it related to the Petitioner. (ii) to issue a writ, order or direction in the nature of mandamus commanding the Respondents to release the foodgrains measuring 344 quintal rice and 24.50 quintal wheat seized by officials from the house of Ram Asre Gupta belonging to the Petitioner, in favour of the Petitioner. 2. The facts and circumstances giving rise to this case are that on 1.10.2006 an F.I.R. was lodged by the Supply Inspector, Tehsil Sadar Deoria against the Petitioner and Ors. under the provisions of Section 3/7, Essential Commodities Act, 1955 (hereinafter referred to as the Act) and recovered 418 quintals rice and 172.50 quintals wheat alongwith some other articles, on the allegations that the said foodstuff belonged to the public distribution system and had been stored by the accused persons for the purpose of blackmarketting. On 16.10.2006 the District Magistrate, Deoria passed the order u/s 6A(2) for releasing the said foodstuff for sale through public distribution system, and a further direction had been issued to deposit the sale considerations in the Treasury. Notice was also issued to the Petitioner and other accused for confiscation. The Petitioner had filed the reply to the said show-cause, which is still pending consideration, and this petition has been filed for seeking the aforesaid reliefs. 3. Shri Srikant Shukla, learned Counsel for the Petitioner has submitted that this Court may direct the District Collector to release the goods in favour of the Petitioner, as the foodstuff belonged to him. However, it is opposed by Shri C. K. Rai, learned standing counsel, appearing for Respondents submitting that it is neither in public interest, nor such a course is permissible in view of the provisions of the Act, and therefore, the petition is liable to be dismissed. 4. We have considered the rival submissions made by the learned Counsel for the parties and perused the record. 5. 4. We have considered the rival submissions made by the learned Counsel for the parties and perused the record. 5. The scheme of the Act is when an order is passed and proceedings are initiated u/s 3 of the Act for confiscation, the District Collector has a power of seizure and disposal of the commodities in view of the provisions of Section 6A. However, Section 6C provides for an appeal to the State Government against the order of confiscation. Section 6E bars the jurisdiction of the Court to interfere with the order passed by the District Collector. 6. In Anil Kumar v. State of U.P., 1990 All LJ 1114, this Court had taken a view in a case where the cement had been seized by the police from the premises of a person who was the dealer of non-levy cement and an F.I.R. had been lodged u/s 3/7 of the Essential Commodities Act, the application for release can be considered by the competent criminal court u/s 457, Cr. P.C. for release, in view of the fact that, the seized cement was of non-levy and no offence had been committed. While deciding the said case reliance had been placed on the judgment of the Hon'ble Apex Court in State of Madhya Pradesh and others Vs. Rameshwar Rathod, AIR 1990 SC 1849 , wherein, it was held that mere pendency of confiscation proceedings do not oust the jurisdiction of the competent court under the Code of Criminal Procedure to release the seized property u/s 457, Cr. P.C. 7. In Khemraj Jugraj Vs. The State of M.P., (1981) CriLJ 1479, the Madhya Pradesh High Court has held that Section 6E is a disabling provision which overrides any enabling provision that may be there in any other law, though in the Cr. P.C. or in any other Act for the purpose of releasing the goods so seized. The Court had gone to the extent that even the jurisdiction of the High Court is barred while interpreting the term “any other court” used in the said section. 8. However, some courts have taken a view that the said provisions do not take away the power of the writ court and excludes the jurisdiction of the subordinate civil and criminal courts only in this respect. Vide State of Gujarat Vs. Mangal Traders, AIR 1987 Guj 234 . 9. 8. However, some courts have taken a view that the said provisions do not take away the power of the writ court and excludes the jurisdiction of the subordinate civil and criminal courts only in this respect. Vide State of Gujarat Vs. Mangal Traders, AIR 1987 Guj 234 . 9. Be that as it may, the Hon'ble Supreme Court considered this issue in Shambhu Dayal Agarwala Vs. State of West Bengal and Another, (1990) 3 SCC 549 , wherein it has been held that as there is a bar of subordinate civil courts' jurisdiction u/s 6E, the courts below cannot deal with it. Even the jurisdiction of the criminal courts u/s 457, Cr. P.C. is barred. As Section 7(1) (b) and (c) provide for forfeiture of the goods seized and Clause (b) thereof is mandatory, the question of issuing the release order in favour of the owner cannot be passed as it would defeat the very purpose for which the Act has been enacted. The Court held as under: There would 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 proceedings for confiscation stood completed and before the termination of the prosecution in the acquittal of the offender. 10. The Court further explained that such a view would render Clause (b) of Section 7(1) totally nugatory. Section 6E is intended to serve a dual purpose, namely, (i) to prevent interference by Courts etc. and (ii) to effectuate the sale of commodity. 11. The Court further declared that the Legislature did not intend to confer a power on the District Collector to return the essential commodity to the owner or the person from whose possession it was seized for the obvious reason that it would run counter to the very object and purpose of the enactment. Section 6C uses the words return the essential commodity seized and not the words release the essential commodity seized. Section 6C uses the words return the essential commodity seized and not the words release the essential commodity seized. Therefore, having regard to the Scheme of the Act and the object and purpose of the Statute, the word “release”, is used in the limited sense of release for sale etc., so that the same becomes available to the consumer public and 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 proceedings of confiscation stood completed. 12. Learned Counsel for the Petitioner did not press the first relief. The second relief sought in this petition is for issuing a direction to the Respondent District Collector to release the goods in favour of the Petitioner who claims himself to be the owner of the said goods. 13. The Court has no competence to issue a direction contrary to law. Nor the Court can direct an authority to act in contravention of the statutory provisions. Vide State of U. P. and others Vs. Harish Chandra and others, AIR 1996 SC 2173 ; Union of India and Another Vs. Kirloskar Pneumatic Company Limited, AIR 1996 SC 3285 and Vice-Chancellor, University of Allahabad and Others Vs. Dr Anand Prakash Mishra and Others, (1997) 10 SCC 264 . 14. In State of Punjab and others Vs. Renuka Singla and others, AIR 1994 SC 595 , dealing with a similar situation, the Hon'ble Apex Court observed as under: We fail to appreciate as to how the High Court or this Court can be generous or liberal in issuing such directions which in substance amount to directing the authorities concerned to violate their own statutory rules and regulations. 15. Similarly, in Karnataka State Road Transport Corporation Vs. Ashrafulla Khan and Others, AIR 2002 SC 629 , the Hon'ble Apex Court has held as under: The High Court under Article 226 of the Constitution is required to enforce rule of law and not pass order or direction which is contrary to what has been injected by law. 16. In view of the above, we are not inclined to exercise our writ jurisdiction. Petition lacks merit and is accordingly dismissed.