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2008 DIGILAW 1124 (JHR)

Anil Kumar Sahu @ Anil Sahu v. State of Jharkhand

2008-09-15

D.K.SINHA

body2008
JUDGMENT: D.K. Sinha, J.- The petitioners have invoked the extraordinary writ jurisdiction under Article 226 of the Constitution of India with two fold reliefs viz. (i) for release of their tractors bearing Registration No. BR-42-3389 and Registration No. JH08A-1657, and (ii) for quashment of the confiscation proceeding of the aforesaid tractors seized in Lohardaga P.S. Case No. 192 of 2007 for the alleged offence under Section 7 of the Essential Commodities Act. 2. Petitioner No. 1 Anil Kumar Sahu @ Anil Sahu is the owner of Mahendra Tractor No. BR-42-3389, whereas the petitioner No.2 Sohan Sahu is the registered owner of Mahendra Tractor No. JH-08A1657 and both the vehicles are commercial in nature, plying under the control of its drivers. 3. One Jagatpal Bhagat, a dealer and licensee under the public distribution system, asked the drivers of both the tractors on 19.12.2007 for transportation of food-grains from S.F.C. Godown, Lohardaga to his shop running under public distribution system, situated at Madanpur Panchayat within Kisko Block. On 19.12.2007 itself 36.58 quintals wheat and 57.21 quintals rice were issued vide Stock Issue Order dated 19.12.2007 in favour of the dealer Jagatpal Bhagat (Annexure-1) and the same were loaded on both the tractors but during transit transportation on 19.12.2007, both the tractors carrying foodgrains were seized by the respondents and an F.I.R. was lodged against the petitioners, being the owners of the tractors, though neither they were concerned with the foodgrains nor disclosing the violation of any provision of Control Order or Unification Order the learned counsel for the petitioners submitted so as to attract an offence under Section 7 of the Essential Commodities Act against them. The tractors were seized merely on suspicion that the foodgrains were carried on the tractors of the petitioners to be sold in the black-market. Admittedly foodgrains were loaded on the tractors at about 1 :00 p.m. to 2:00 p.m. but the seizure list speaks the time of seizure at about 3:00 p.m. 4. Petitioners were admitted to anticipatory bail by a Bench of this Court in A.B.A. No. 224 of 2008 on 8.2.2008. Admittedly foodgrains were loaded on the tractors at about 1 :00 p.m. to 2:00 p.m. but the seizure list speaks the time of seizure at about 3:00 p.m. 4. Petitioners were admitted to anticipatory bail by a Bench of this Court in A.B.A. No. 224 of 2008 on 8.2.2008. After their release on anticipatory bail, they preferred a petition before the C.J.M., Lohardaga for release of their tractors but in the meantime, request was made by the Superintendent of Police, Lohardaga to the Deputy Commissioner, Lohardaga vide his letter No. 17 dated 26.2.2008 to initiate confiscation proceeding of the seized tractors of the petitioners. As the request was made by the Superintendent of Police, Lohardaga to the Deputy Commissioner, Lohardaga for initiation of confiscation proceeding and a copy of which was produced, the learned C.J.M., Lohardaga declined to release the vehicles. Petitioners were not at all concerned, according to the learned counsel, if at all any allegation was made against the principal accused for contravention of Section 7 of the Essential Commodities Act, who is a dealer and licensee under public distribution system and was carrying the foodgrains by taking the tractors of the petitioners on hire from the drivers of the vehicles. 5. Learned counsel further submitted that neither in the Essential Commodities Act nor in the applicable order issued under Section 3 of the Essential Commodities Act, there is any provision for search of a vehicle rather search is confined to fair price shop or any premises concerned with the transaction of business of the fair price shop. Accordingly, a valid seizure, as is well known, is a sine qua non for passing an order of confiscation of property which is lacking in the instant case. Yet, petitioners have come to know that a confiscation proceeding vide Confiscation Case No.7 of 2007-08 has been initiated, according to their knowledge, for confiscation of only the seized foodgrains of POO.S. Dealer Dhannu Prasad of village Kujra and even then, their tractors have not been released for the reasons best known to the prosecution party. 6. Mr. Nilesh Kumar relied upon the decision of the Hon'ble Supreme Court in the case of "Kailash Prasad Vadav and Another vs. State of Jharkhand and Another", reported in 2007(3) East Cr.C. 107(SC) wherein Hon'ble Supreme Court observed:- "Indisputably, confiscation of goods and the vehicles and vessels carrying the same amounts to deprivation of property. 6. Mr. Nilesh Kumar relied upon the decision of the Hon'ble Supreme Court in the case of "Kailash Prasad Vadav and Another vs. State of Jharkhand and Another", reported in 2007(3) East Cr.C. 107(SC) wherein Hon'ble Supreme Court observed:- "Indisputably, confiscation of goods and the vehicles and vessels carrying the same amounts to deprivation of property. Confiscation of an essential commodity or a truck is permissible only if the provisions of any order made under Section 3 of the Essential Commodities Act, 1955 (for short "the Act") are violated. When a vehicle is used for carrying an essential commodity, it may be seized and ultimately directed to be confiscated in terms of Clause (c) of sub-section (1) of Section 6-A of the Act. Violation of an order made under Section 3 of the Act, therefore, is a pre-condition for passing an order of confiscation." Hon'ble Supreme Court further observed:- "There is no provision for search of a vehicle. The power of search is confined to fair price shop or any premises relevant to transaction of business of the fair price shop. The power of such authorities causing a search is confined to sub-clause (3) of Clause 10 of the 2001 Order to search, seize or stocks of essential commodities where such authority has reason to believe that these have been used or will be used in contravention of the provisions of the Order. A valid seizure, as is well known, is a sine qua non for passing an order of confiscation of property." 7. Finally, Mr. Nilesh Kumar submitted that the petitioners are not pressing the second relief i.e. for quashment of confiscation proceeding if at all is initiated in respect to the tractors in question but for the release of the tractors in their favour and they are ready to execute indemnity bond of sufficient amount. 8. Learned J.C. to G.P.-II simply opposed the contention and submitted that petitioners cannot escape the liability as the tractors were found carrying foodgrains on diverted root and the prosecution, therefore, had reason to believe that it were being carried to be sold in the blackmarket by the dealer. 9. 8. Learned J.C. to G.P.-II simply opposed the contention and submitted that petitioners cannot escape the liability as the tractors were found carrying foodgrains on diverted root and the prosecution, therefore, had reason to believe that it were being carried to be sold in the blackmarket by the dealer. 9. Having regard to the facts and circumstances of the case, I find that the allegations are not direct against the petitioners for the offence under Section 7 of the Essential Commodities Act or violation of any provision of law/or orders as framed under Section 3 of the Essential Commodities Act so as to attract their prosecution. It was alleged that their vehicles were found carrying foodgrains on diverted route, which were meant for distribution through the public distribution system by the dealer. Petitioners are affected only because of the seizure of their tractors and have declined their nexus with the foodgrains, which were seized, tractors were hired by the dealer licensee, which are admittedly commercial vehicles and are kept under open sky, thereby subjected to process of rusting of the engine and body. In the circumstances, I find that the matter needs intervention of this Court. Accordingly, tractors bearing Registration No. BR-42-3389 and another bearing Registration No. JH-08A-1657 are directed to be released from the authority concerned in Lohardaga P.S. Case No. 192 of 2007 on executing indemnity bond separately by the petitioners of RS.1,50,000/- (Rupees One Lakh Fifty Thousand) for corresponding tractor with two sureties of the like amount each to the satisfaction of authority concerned on the terms that the same will not be alienated in any manner without prior permission of the said authority. 10. This criminal writ petition is accordingly allowed in part as aforesaid.