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2012 DIGILAW 793 (PAT)

Jaganath Prasad Singh v. State of Bihar

2012-05-16

ADITYA KUMAR TRIVEDI

body2012
JUDGMENT Aditya Kumar Trivedi, J.- Petitioner, Jaganath Prasad Singh has challenged the successive orders dated 29.08.1997, passed by the Collector, Aurangabad bearing Confiscation Case No. 137/86 (A) Confiscating his truck bearing registration no.BHZ-1415 as well as order dated 24.04.1998 passed by Secretary, Food and Supply, Government of Bihar passed in Confiscation Appeal No. 34/97 dismissing the same vide (Annexure-l and 2 respectively). 2. On account of carrying slack steamed coal on 23.08.1986, over truck bearing No. BHZ-1415. It was intercepted by Krishnan and Pd. Singh. S.I. (Food) along with other police personnel. On query, the driver had furnished the document but the same was not found to be adequate, justifying transportation as a result of which the same was seized and for that Aurangabad P.S. Case No. 303/86 was registered under Section 420, 120B of the IPC as well as 7 of the E.C. Act. 3. While the criminal proceeding was being proceeded with before the Special Court. a Confiscation proceeding was launched before the Collector, Aurangabad bearing Misc. Case No. 137/86 (A) which was ultimately decided on 29.08.1997 permitting for confiscation and the subsequent event bearing Confiscation Appeal No.34/1997 also met with same sequence at the end of appellate authority, hence arose a cause for filing the instant petition. 4. Many-fold argument has been raised on behalf of petitioner. The first and foremost argument, happens to be with regard to propriety of the institution of the case followed with seizure and for that Annexure-5, the gazette notification issued by the Government of Bihar has been relied upon. It has been submitted that on the alleged date of search and seizure, the Inspector (Food) was not at all competent to search and seizure. Therefore, the initiation of proceeding followed with commencement of Confiscation proceeding based thereupon happens to be out and out an illegal event and so neither the FIR happens to be tenable nor the Confiscation proceeding. Further, submitted that unless and until there happens to be valid search and seizure, no confiscation proceeding could proceed. 5. It has further been submitted that there has been utter violation of natural justice on account of non-compliance of mandate of Section 6-B of the E.C. Act whereunder it is incumbent upon the Collector to issue notice detailing therein the requirements as prescribed. Compliance of aforesaid provision happens to be mandatory one. 5. It has further been submitted that there has been utter violation of natural justice on account of non-compliance of mandate of Section 6-B of the E.C. Act whereunder it is incumbent upon the Collector to issue notice detailing therein the requirements as prescribed. Compliance of aforesaid provision happens to be mandatory one. Because of the fact that the Confiscating Authority failed to comply with the mandatory provision therefore petitioner has been deprived of his legal right to raise his issue justifying annulling of the confiscation proceeding. So, virtually non-compliance of Section 6B of the E.C. Act had led the Confiscation proceeding to proceed in ex-parte manner. 6. It has further been submitted that at the time of Initiation of a Confiscation proceeding, the criminal case was already subsisting before the competent Court and in light thereof, at least the Confiscation proceeding should have been allowed to remain in abeyance till the conclusion of the criminal case. It has further been submitted that learned Appellate Court had taken into consideration the aforesaid theme but unfortunately deviated therefrom while dismissing the appeal otherwise should have directed the learned Collector to keep the file in abeyance after setting aside the order of confiscation. 7. Further, submitted that even accepting in worst case the confiscation of truck should not have been made unless and until there happens to be positive and concrete finding with regard to the connivance of the owner during commission of the crime which neither the order of the Collector nor the order of the appellate authority did speak. As such, it has been submitted that the respective orders are cryptic and in utter violation of the natural justice whereunder petitioner has been deprived of his legal right to defend his plea in the aforesaid background the successive orders appear to be bad in law. 8. The learned AC to GA-8 has submitted that from the pleading of the petitioner itself it is evident that the truck in question was released in his favour by the Collector during continuation of the confiscation proceeding. Therefore, petitioner was well aware with the launching of confiscation proceeding. Once it has come to the knowledge of the petitioner then it was incumbent upon him to defend his right, contrary to it sat over the matter and allowed Confiscation proceeding to culminate to its logical end. Now, petitioner is estopped by his conduct. 9. Therefore, petitioner was well aware with the launching of confiscation proceeding. Once it has come to the knowledge of the petitioner then it was incumbent upon him to defend his right, contrary to it sat over the matter and allowed Confiscation proceeding to culminate to its logical end. Now, petitioner is estopped by his conduct. 9. So far other aspect is concerned. it has been submitted that informant, though happens to be the Inspector (Food) and was not authorized on the relevant date but being a Superior officer, he stood as an informant. Moreover, was joined by others whose status is not under challenge. Therefore, search and seizure followed with institution of case happens to be in accordance with law. 10. Be that as it may unless and until complicity of owner is found to be while transporting coal over his truck is a matter of great concern. Admittedly, truck happens to be a public carrier and in the aforesaid background, it has to ply out of place of its owner most of the time. Sometimes, it may happen that the articles being carried therewith is not known to the owner and in that event owner, cannot be held responsible. And that happens to be the reason behind presence of Section 68 of the E.C. Act whereunder notice is condition precedent before proceeding with the Confiscation proceeding. 11. With regard to submission raised on behalf of petitioner on this score, the compliance of notice is found to be exhausted when the petitioner had himself appeared and got the truck released in his favour because of the fact that by such action he came to know with regard to pendency of the Confiscation proceeding and in the aforesaid background, allowing the proceeding to run ex-parte must be considered on account of own lapses. However, there happens to be absence of finding of the learned Collector as well as by the appellate authority on the score disclosing any sort of complicity of the petitioner during course of transportation of coal. 12. The propriety of Annexure-5 has not been disputed by the State rather from paragraph-9 of the counter-affidavit it has been explained in the manner that the Inspector of police was found to be authorized to make search and seizure. 12. The propriety of Annexure-5 has not been disputed by the State rather from paragraph-9 of the counter-affidavit it has been explained in the manner that the Inspector of police was found to be authorized to make search and seizure. On account of his deputation in Department of Food and Supply he became Inspector (Food) but basically he happens to be the Police Inspector and on account thereof, there was no embargo upon his right to search and seizure even being designated as Inspector (Food). This explanation is non-acceptable in light of presence of Annexure-5 because of the fact that had the Government acknowledged the status of Inspector of Police competent enough to discharge his function even on deputation as Inspector (Food) then in that event, there was no occasion for the Government to notify through Annexure-5. That means to say informant in that capacity was not at all competent and when he was not competent the search and seizure followed with institution of case became illegal, incompetent. The proceeding cannot be allowed to run under conjectures and surmises. 13. One should be very definite with regard to his power having been vested to him. Only those powers happen to be subject to exercise which the authority concerned has been infused. Certainly, by the own action of the State whereupon impliedly considering the theme though unsuccessfully subject to explanation makes the situation unrecognizable under the eye of law. 14. As such, the successive orders passed by the respective Courts are hereby set aside. Consequent thereupon the petition is rejected. Petition rejected.