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2019 DIGILAW 265 (ORI)

Pradyumna Kumar Panda v. State Of Orissa

2019-04-02

BISWANATH RATH

body2019
JUDGMENT : Biswanath Rath, J. This writ petition involves a challenge to the impugned order dated 18.4.2009 passed by the Ad hoc Additional Sessions Judge, Fast Track Court No.1, Phulbani in Criminal Appeal No.1/7 of 2002-2009 and the order dated 13.2.2002 passed by the Sub-Collector, Balliguda in Misc. Case No.18 of 2001 vide Annexures-2 and 3 respectively in exercise of power under the provision of the Essential Commodities Act, 1955. 2. Fact involving the case is that the petitioner is the owner of the vehicle involved bearing Registration No.OR-12-0822 and the vehicle was plying on the route from Phulbani to Belgarh and back covering a distance of around 300 Kms. on the strength of a temporary permit granted by the State Transport Authority. It is alleged that the petitioner, the owner of the vehicle on 24.06.2001 filled the tank of the vehicle with 45 litres of high-speed diesel and handed over the vehicle to the driver after obtaining the appropriate receipt from the Filling Station under Bharat Petroleum at Phulbani and the vehicle while was moving on road, on 25.06.2001 the Marketing Inspector of Baliguda in the Civil Supply Corporation intercepted the vehicle found to have contained 50 litres of kerosene in the fuel tank of the vehicle bearing Registration No.OR-12-0822. As a consequence of which, the Marketing Inspector registered a prosecution report U/S.6-A of the Essential Commodities Act, 1955 before the Sub-Collector, Baliguda. After receipt of the F.I.R. from the Investigating Officer-cum-Marketing Inspector, Baliguda, the vehicle of the petitioner was detained in Baliguda Police Station and later on was released on production of indemnity bond of Rs.50,000/- by the petitioner. Misc. Case No. 18 of 2001 was concluded holding the petitioner guilty of offence. On Criminal Appeal bearing No.1/7 of 2002-2009 the appeal was dismissed in confirmation of the order of the Sub-Collector resulting this present writ petition. 3. Misc. Case No. 18 of 2001 was concluded holding the petitioner guilty of offence. On Criminal Appeal bearing No.1/7 of 2002-2009 the appeal was dismissed in confirmation of the order of the Sub-Collector resulting this present writ petition. 3. Confining his argument to the direction part involving both the orders and taking to a decision of this Court further following 2nd Proviso at Section 6-A of the Act, Sri Pal, learned counsel for the petitioner contended that for the 2nd Proviso of Section 6-A of the Act and the Single Bench decision of this Court in the case of Bichitrananda Mohanty v. Colletor, Keonjhar, 2006 11 OrissaLR 248, the price involving confiscation should be involved involving the essential commodity so seized and not the offending vehicle sought to be carrying the essential commodity so seized. 4. To his objection, Sri Sahoo, learned Additional Standing Counsel appearing for the State on the other hand taking this Court to a decision of the Hon'ble Apex Court in consideration of 2nd Proviso at Section 6-A of the Act in the case of Collector of Ganjam and Anr. V. Ramesh Chandra Padhi, 2009 2 OrissaLR 143 (SC) and also the decision referred to therein in the case of Deputy Commissioner, Dakshina Kannada District v. Rudolph Fernandes, (2000) 3 SCC 306 contended that for the support of . the decision indicated herein to the prosecution, there is no infirmity involving both the impugned orders and the writ petition should be dismissed. 5. Considering the rival contentions of the parties, this Court finds the short question involved herein is as to "Whether for compounding of the offence, the price of the commodities involved therein or the vehicle involved therein is the material consideration?" 6. 5. Considering the rival contentions of the parties, this Court finds the short question involved herein is as to "Whether for compounding of the offence, the price of the commodities involved therein or the vehicle involved therein is the material consideration?" 6. Taking into account the rival contention of the parties and going through the 2nd Proviso of Section 6-A of the Act, this Court finds the 2nd Proviso at Section 6-A of the Act reads as follows: 6-A (2) of the Essential Commodities Act, 1955: "Provided further that in the case of any animal, vehicle, vessel or other conveyance used for the carriage of goods or passengers for hire, the owner of such animal, vehicle, vessel or other conveyance shall be given an option to pay, in lieu of its confiscation, a fine not exceeding the market price at the date of seizure of the essential commodity sought to be carried by such animal, vehicle, vessel or other conveyance." Reading of the aforesaid provision, it becomes clear that the provision as appearing in the second proviso is involving the commodity sought to be carried out by such animal, vehicle, vessel or other conveyance and cannot be related to the market price of the essential commodity so seized. It is at this stage, considering the rival contention of the parties and considering the decision cited by learned Additional Standing Counsel in the case of Collector of Ganjam and Anr (supra) and in the case of Deputy Commissioner, Dakshina Kannada District (supra), this Court taking into account the proposition made as to whether the price involved will be related to the essential commodity or to the vehicle involving transportation of the essential commodity?, in the case of Deputy Commissioner, Dakshina Kannada District (supra), the Hon'ble Apex Court held as follows: "6. In the light of aforesaid provisions, second proviso to Section 6A is required to be considered. First it is to be stated that the proviso limits the power of the competent authority to recover fine up-to the market price for releasing the animal, vehicle, vessel or other conveyance sought to be confiscated. So maximum fine that can be levied in lieu of confiscation should not exceed the market price. First it is to be stated that the proviso limits the power of the competent authority to recover fine up-to the market price for releasing the animal, vehicle, vessel or other conveyance sought to be confiscated. So maximum fine that can be levied in lieu of confiscation should not exceed the market price. For our purpose, relevant part of proviso would be in the case of vehicle the owner of such vehicle shall be given an option to pay, in lieu of its confiscation, a fine not exceeding the market price at the date of seizure of the essential commodity sought to be carried by such vehicle. Question is whether fine should not exceed the market price of the seized essential commodity or whether it should not exceed the market price of the vehicle. For this purpose, it appears that there is some ambiguity in the Section. It is not specifically provided that in lieu of confiscation of vehicle a fine not exceeding the market price of the vehicle or of the seized essential commodity is to be taken as measure. Still however, it is difficult to say that measure of fine is related to the market price of the essential commodity at the date of its seizure. It nowhere provides that fine should not exceed market price of the essential commodity at the date of seizure of the vehicle. The proviso requires the competent authority to give an option to the owner of such vehicle to pay in lieu of confiscation a fine not exceeding the market price. What is to be confiscated is the vehicle and, therefore, measure of fine would be relatable to the market price of the vehicle at the date of seizure of the essential commodity sought to be carried by such vehicle. This would also be consistent with the scheme of section 7 which provides for levy of penalty. It empowers the Court trying the criminal case to pass an order forfeiting to the Government any property in respect of which the order under Section 3 has been contravened It also empowers forfeiture to the Government any package, covering or receptacle in which the property is found and in addition any animal, vehicle, vessel or other conveyance used in carrying the commodity. Therefore, not only the essential commodity which is seized is to be forfeited, but the vehicle also could be forfeited to the Government. Hence, measure of fine which is required to be levied in lieu of confiscation under second proviso to Section 6A(1) would be relatable to the market price of the vehicle and not of the seized essential commodity. And, the fine amount in lieu of confiscation is not to exceed the market price of the vehicle on the date of seizure of essential commodity. That is to say, limit of such fine would be up-to the market price of the vehicle on the relevant date and it is within the discretion of the competent authority to fix such reasonable amount considering the facts and circumstances of each case. 7. In Shambhu Dayal Agarwala v. State of West Bengal and another,1990 AIR(SC)Online 58 after considering the scheme of Sections 6A and 7 and dealing with the proviso (ii) to sub-section (2) of Section 6A, this Court observed: - Section 6-A, therefore, merely confers power of confiscation and not the power of release, disposal, distribution, etc., except to the limited extent permitted by sub-section (2) thereof. Of course, the second proviso to sub-section (1) of Section 6A permits the grant of an option to pay, in lieu of confiscation of any animal, vehicle, vessel or other conveyance seizure a fine equal to its market price at the date of seizure. 8. Lastly we would mention that in the impugned order dated 22nd March 1998, the High Court in support of its reasoning referred to a similar provision under Section 115(2) of the Customs Act, 1962, which provides for confiscation inter alia of vehicle used as means of transport in smuggling of any goods or carriage of any smuggled goods which is as under:- 115. Confiscation of conveyance. Confiscation of conveyance. (1) (2) Any conveyance or animal used as a means of transport in the smuggling of any goods or in the carriage of any smuggled goods shall be liable to confiscation, unless the owner of the conveyance or animal proves that it was so used without the knowledge or connivance of the owner himself, his agent, if any, and the person in charge of the conveyance or animal 1 [***]: Provided that where any such conveyance is used for the carriage of goods or passengers for hire, the owner of any conveyance shall be given an option to pay in lieu of the coufiscation of the conveyance a fine not exceeding the market price of the goods which are sought to be smuggled or the smuggled goods, as the case may be. Explanation. In this section, market price means market price at the date when the goods are seized. 9. The Court observed that though the language of the aforesaid proviso is clear, the idea sought to be conveyed under the proviso to Section 6A(1) of the Act appear to be the same. In our view, the analogy drawn by the High Court is erroneous because the proviso specifically mentions that where any such conveyance is used as a means of transport in the smuggling of goods, the owner of any conveyance is to be given an option to pay in lieu of the confiscation of the conveyance, a fine not exceeding the market price of the goods which are sought to be smuggled. Explanation provides that market price means market price at the date when the goods are seized. As against this, Section 6A second proviso does not refer to payment of fine not exceeding market price of the essential commodity but apparent reference is a fine not exceeding the market price of the vehicle sought to be confiscated. This appears to be obvious because in case where market price of the seized essential commodity is more than the price of the conveyance then owner of the conveyance would not come forward to take it back if he is asked to pay something more than its market price. This appears to be obvious because in case where market price of the seized essential commodity is more than the price of the conveyance then owner of the conveyance would not come forward to take it back if he is asked to pay something more than its market price. Similarly, when the market price of the seized vehicle is much more than of the essential commodity, it cannot be said that instead of confiscation it should be released at a price which is less than its market price. Further it is required to be noted that under Section 6B(2) no order confiscating vehicle or other conveyance can be passed if the owner proves to the satisfaction of the competent authority that it was used in carrying the essential commodity without his knowledge or connivance." 7. Above view of the Hon'ble Supreme Court has also been reiterated in the case of Collector of Ganjam and Anr (supra) where the Hon'ble Supreme Court in paragraph-6 held as follows: "6 -In the light of aforesaid provisions, second proviso to Section 6A is required to be considered. First it is to be stated that the proviso limits the power of the competent authority to recover fine up-to the market price for releasing the animal, vehicle, vessel or other conveyance sought to be confiscated. So maximum fine that can be levied in lieu of confiscation should not exceed the market price. For our purpose, relevant part of proviso would be in the case of vehicle the owner of such vehicle shall be given an option to pay, in lieu of its confiscation, a fine not exceeding the market price at the date of seizure of the essential commodity sought to be carried by such vehicle. Question is whether fine should not exceed the market price of the seized essential commodity or whether it should not exceed the market price of the vehicle. For this purpose, it appears that there is some ambiguity in the Section. It is not specifically provided that in lieu of confiscation of vehicle a fine not exceeding the market price of the vehicle or of the seized essential commodity is to be taken as a measure. Still however, it is difficult to say that measure of fine is related to the market price of the essential commodity at the date of its seizure. Still however, it is difficult to say that measure of fine is related to the market price of the essential commodity at the date of its seizure. It nowhere provides that fine should not exceed the market price of the essential commodity at the date of seizure of the vehicle. The proviso requires the competent authority to give an option to the owner of such vehicle to pay in lieu of confiscation a fine not exceeding the market price. What is to be confiscated is the vehicle and, therefore, measure of fine would be relatable to the market price of the vehicle at the date of seizure of the essential commodity sought to be carried by such vehicle. This would also be consistent with the scheme of section 7 which provides for levy of penalty. It empowers the Court trying the criminal case to pass an order forfeiting to the Government any property in respect of which the order under Section 3 has been contravened It also empowers forfeiture to the Government any package, covering or receptacle in which the property is found and in addition any animal, vehicle, vessel or other conveyance used in carrying the commodity. Therefore, not only the essential commodity which is seized is to be forfeited, but the vehicle also could be forfeited to the Government. Hence, measure of fine which is required to be levied in lieu of confiscation under second proviso to Section 6A(1) would be relatable to the market price of the vehicle and not of the seized essential commodity. And, the fine amount in lieu of confiscation is not to exceed the market price of the vehicle on the date of seizure of essential commodity. That is to say, limit of such fine would be up-to the market price of the vehicle on the relevant date and it is within the discretion of the competent authority to fix such reasonable amount considering the facts and circumstances of each case." 8. For the settled position of law declaring that the fine will be related to the vehicle involving the transportation of the essential commodity, this Court finds no force in the claim of learned counsel for the petitioner. This Court accordingly observes that there is no infirmity in either of the orders impugned herein. For the settled position of law declaring that the fine will be related to the vehicle involving the transportation of the essential commodity, this Court finds no force in the claim of learned counsel for the petitioner. This Court accordingly observes that there is no infirmity in either of the orders impugned herein. Further the decision reported in the case of Bichitrananda Mohanty (supra) for no consideration of both the above judgments of Hon'ble Apex Court and remaining contrary to the 2nd proviso to Section 6-A of the Act, 1955 becomes a bad law. As a consequence this Court finds no scope for interfering in either of the orders passed vide Annexures-2 and 3. 9. In the result the writ petition stands dismissed. There is no order as to cost.