Research › Search › Judgment

Jharkhand High Court · body

2023 DIGILAW 466 (JHR)

Anup Kumar Saria v. State of Jharkhand

2023-04-03

RAJESH SHANKAR

body2023
JUDGMENT : The present writ petition has been filed for quashing and setting aside order dated 15.02.2019 (Anneuxre-9 to the writ petition) passed by the Collector-cum-Deputy Commissioner, Dhanbad (the respondent no. 2) in Misc. Case No. 2/2018 whereby the petitioner’s Tanker bearing registration no. JH-17D- 8720 has been confiscated under section 6-A of the Essential Commodities Act, 1955 (in short, “the Act, 1955”). Further prayer has been made for quashing judgment dated 07.05.2019 passed by the Sessions Judge, Dhanbad in Criminal Appeal No. 52 of 2019 whereby the said appeal preferred by the petitioner has been dismissed upholding the order dated 15.02.2019 passed by the respondent no. 2. 2. Learned counsel for the petitioner submits that on the application of Block Supply Officer, Nirsa, an F.I.R. being Chirkunda (Maithan) P.S. Case No. 252 of 2015 was lodged on 15.09.2015 under Section 7 of the Act, 1955 against the owner, i.e., the petitioner herein, driver and helper of the said tanker alleging that the same was illegally carrying 20,000 liters of blue kerosene oil which was intercepted by the police and was subsequently seized. Though the petitioner was not present at the time of alleged occurrence, his name was inserted in the FIR only on the ground that he happened to be the owner of the said tanker. 3. It is further submitted that vide deed of agreement dated 01.09.2015, the said tanker was given by the petitioner to one Krishna Singh to ply the same on rental basis for six months and the petitioner was not involved in direct operation of the said tanker. It was stipulated in the agreement itself that Krishna Singh would operate the tanker in question for the said period with effect from 01.09.2015 who would be liable for carriage, transportation, accident, claims as well as any criminal/civil case arising out of plying the said tanker. It was also mentioned in the said agreement that in lieu of plying the said tanker, the petitioner would be paid an amount of Rs.30,000/- per month. Hence, as per the agreement, the petitioner had no control over day-to-day running of the said tanker. 4. It was also mentioned in the said agreement that in lieu of plying the said tanker, the petitioner would be paid an amount of Rs.30,000/- per month. Hence, as per the agreement, the petitioner had no control over day-to-day running of the said tanker. 4. Learned counsel for the petitioner further submits that the driver and helper of the said tanker were granted regular bail vide order dated 08.12.2015 passed in B.A. No. 9141 of 2015 whereas Krishna Singh was granted anticipatory bail vide order dated 05.05.2016 passed in A.B.A. No. 932 of 2016 by this Court. In course of investigation, it surfaced that after execution of the said agreement, the vehicle in question was being operated by Krishna Singh particularly at the time of interception of the said vehicle by the police on 15.09.2015 and thus, final form was submitted in favour of the petitioner. Accordingly, vide order dated 05.05.2017 passed by the Chief Judicial Magistrate, Dhanbad, Chirkunda (Maithan) P.S. Case No. 252/2015 was dropped as against the petitioner. 5. It is also submitted that pursuant to seizure of the said tanker, a show cause notice was issued by the respondent no. 2 to the petitioner which was replied by him on 29.03.2016 stating that the said tanker was being operated by Krishna Singh and he had no knowledge about the business run by Krishna Singh. However, the respondent no. 2, vide order dated 16.12.2016, passed the order of confiscation of the said tanker in Confiscation Case No. 06/2015 in terms with Section 6-A (Bihar Amendment) of the Act, 1955. Aggrieved thereby, the petitioner preferred appeal being Confiscation Appeal No. 01/2017 which was dismissed by the learned Additional Sessions Judge-VIII, Dhanbad vide judgment dated 29.03.2017. Thereafter, the petitioner filed a writ petition being W.P.(C) No. 3059 of 2017 challenging the order dated 16.12.2016 passed by the respondent no. 2 in Confiscation Case No. 06/2015 as well as the judgment dated 29.03.2017 passed by the learned Additional Sessions Judge-VIII, Dhanbad in Confiscation Appeal No. 01/2017. The said writ petition was disposed of by this Court vide order dated 31.07.2018 remanding the matter to the respondent no. 2 for deciding it afresh. The petitioner, in compliance of the order dated 31.07.2018, filed Misc. Case No. 02/2018 before the respondent no. The said writ petition was disposed of by this Court vide order dated 31.07.2018 remanding the matter to the respondent no. 2 for deciding it afresh. The petitioner, in compliance of the order dated 31.07.2018, filed Misc. Case No. 02/2018 before the respondent no. 2 who, vide impugned order dated 15.02.2019, directed for confiscation of the said tanker in terms with the provisions of Section 6-A (Bihar Amendment) of the Act, 1955. Being aggrieved with said order, the petitioner preferred Criminal Appeal No. 52 of 2019 before the Sessions Judge, Dhanbad, however the same was also dismissed upholding the order dated 15.02.2019 passed by the respondent no. 2. 6. Learned counsel for the petitioner further submits that the said tanker is a commercial vehicle and confiscation of the same will affect the livelihood of the petitioner who has purchased the said tanker on loan and has to pay monthly instalments including interest to the concerned Bank. The confiscation proceeding of the said tanker belonging to the petitioner was itself not proper inasmuch as he was not directly involved in operation of the same and the said fact has been admitted by the confiscating authority as well as the appellate court, but without considering the material facts, the tanker has been refused to be released. The confiscating authority as well as the appellate court also overlooked the provisions of Sub-Section (2) of Section 6-B (Bihar Amendment) of the Act, 1955 as per which no order of confiscation of the said tanker could have been passed particularly when the said incident of transporting blue kerosene oil from the petitioner’s tanker was without his knowledge or connivance as the said tanker was in the custody of Krishna Singh at the time of occurrence by virtue of deed of agreement dated 01.09.2015. 7. On the contrary, Mr. Mithilesh Singh, learned G.A.-IV appearing on behalf of the respondents, submits that in the night of 14.09.2015, the said tanker loaded with blue kerosene oil was intercepted by the Maithan police. Thereafter, the said incident was informed by the Block Development Officer, Nirsa to the Block Supply Officer, Nirsa on 15.09.2015 at about 8.00 A.M. directing him to take action after inspecting the said vehicle. On inspection, 20,000 liters of blue kerosene oil was found loaded in the said tanker. Thereafter, the said incident was informed by the Block Development Officer, Nirsa to the Block Supply Officer, Nirsa on 15.09.2015 at about 8.00 A.M. directing him to take action after inspecting the said vehicle. On inspection, 20,000 liters of blue kerosene oil was found loaded in the said tanker. On further investigation, the driver- Gunjan Singh and the helper- Suraj Rawani informed that they had started to drive the said tanker from the petrol pump of the petitioner namely ‘Anup Automobiles’ situated at Ratanpur, P.S. Govindpur and were going to Bengal following the petitioner’s order but they were intercepted at toll plaza by the Maithan Police. They also stated that the owner of the said tanker did not disclose as to at which place kerosene oil was to be unloaded, rather they were told that they would be informed about the same telephonically. 8. It is further submitted that no document with respect to blue kerosene oil was produced either by the driver or the helper of the vehicle. Blue kerosene oil is supplied through public distribution system and its storage as well as transportation can be done only through a valid license. The blue kerosene oil is not available in the market, hence the said tanker containing 20,000 liters of blue kerosene oil was seized and forwarded to the Deputy Commissioner, Dhanbad through the Sub-Divisional Officer, Dhanbad for initiation of proceeding under Section 6-A (Bihar Amendment) of the Act, 1955. An F.I.R. being Chirkunda (Maithan) P.S. Case No. 252/2015 was also lodged under Section 7 of the Act, 1955 against the owner of the said tanker i.e. petitioner herein, the driver namely Gunjan Singh and the helper- Suraj Rawani. As per the provision of Section 6A of the Act 1955, the Collector of the district is vested with the power to confiscate any vehicle after being satisfied that the said vehicle is involved in any illegal act irrespective of the fact that no prosecution case has been instituted or the concerned person has not been sent for trial. 9. It is also submitted that the tanker has been seized due to illegal transportation of blue kerosene oil and the petitioner has miserably failed to prove that he had no knowledge of illegal transportation of blue kerosene oil through his tanker. As such, the Order dated 15.02.2019 passed by the respondent no. 2 in Misc. 9. It is also submitted that the tanker has been seized due to illegal transportation of blue kerosene oil and the petitioner has miserably failed to prove that he had no knowledge of illegal transportation of blue kerosene oil through his tanker. As such, the Order dated 15.02.2019 passed by the respondent no. 2 in Misc. Case No- 02/2018 confiscating the said tanker has rightly been upheld vide judgment dated 07.05.2019 passed by the learned Sessions Judge, Dhanbad in Criminal Appeal No- 52 of 2019. 10. Heard learned counsel for the parties and perused the materials available on record. 11. The petitioner has sought issuance of direction upon the respondent no. 2 to release the said tanker which has been confiscated vide order dated 15.02.2019 passed by the said respondent in Misc. Case No. 02 of 2018 under section 6-A (Bihar Amendment) of the Act, 1955 and the same has been affirmed vide judgment dated 07.05.2019 passed by the learned Sessions Judge, Dhanbad in Criminal Appeal No. 52 of 2019. 12. Thrust of the argument of learned counsel for the petitioner is that the petitioner was not directly involved in operation of the said tanker since at the relevant point of time, the said vehicle was rented to one Krishna Singh vide deed of agreement dated 01.09.2015 and as such the petitioner being the owner of said tanker cannot be penalized by confiscating the same. The petitioner has put heavy reliance on Section 6-B(2) (Bihar Amendment) of the Act, 1955. 13. Section 6-B(2) (Bihar Amendment) of the Act, 1955 provides that no order confiscating any animal, vehicle, vessel or other conveyance shall be made under section 6-A if the owner of the animal, vehicle, vessel or other conveyance proves to the satisfaction of the Collector that it was used in carrying the essential commodity without the knowledge or connivance of the owner himself, his agent, if any, and the person in charge of the animal, vehicle, vessel or other conveyance as well as that each of them had taken all reasonable and necessary precautions against such use. 14. 14. Thus, on mere ground that the petitioner had no knowledge of operation of the said tanker as he had rented it to someone, does not make him entitled for releasing his vehicle as the knowledge/connivance of his agent or the person in-charge of the vehicle in question is also relevant for release of the vehicle and unless it is proved that the person to whom the vehicle was leased had no knowledge of or connivance in transportation of blue kerosene oil, the petitioner cannot claim release of the said tanker. The petitioner had failed to show either before the respondent no. 2 or before the Sessions Judge, Dhanbad that his agent or the person in charge of the said Tanker had no knowledge of transportation of blue kerosene oil from the same. 15. The next limb of the argument of learned counsel for the petitioner is that an F.I.R. being Chirkunda (Maithan) P.S. Case No. 252/2015 was instituted under Section 7 of the Act, 1955 for the alleged incident wherein the petitioner was also made accused, however the police submitted final form in his favour and the same was accepted by the CJM, Dhanbad which would amount to acquittal of the petitioner. Thus, the said tanker may be released in his favour in view of section 6-C(2) (Bihar Amendment) of the Act, 1955. 16. Section 6-C(2) (Bihar Amendment) of the Act, 1955 provides that where an order under section 6-A is modified or annulled by such judicial authority, or where in a prosecution instituted for contravention of the order in respect of which an order of confiscation has been made under section 6-A, the person concerned is acquitted, and in either case it is not possible for any reason to return the essential commodity seized, such person shall, save as provided by sub-section (3) of section 6-A, be paid the price therefore as if the essential commodity had been sold to the Government, with reasonable interest calculated from the day of the seizure of the essential commodity. Thus, Section 6-C(2) provides that when the person concerned against whom the prosecution has been instituted is acquitted and it is not possible to return such essential commodity, then the price of such essential commodity shall be released in favour of the concerned person. 17. Thus, Section 6-C(2) provides that when the person concerned against whom the prosecution has been instituted is acquitted and it is not possible to return such essential commodity, then the price of such essential commodity shall be released in favour of the concerned person. 17. In the case in hand, the petitioner is seeking release of his confiscated tanker and not the commodity and thus even if the acceptance of final form is treated as acquittal of the petitioner then also, the provision of Section 6-C(2) of the Act, 1955 is not applicable for release of the said tanker in favour of the petitioner. 18. Learned counsel for the petitioner puts reliance on the judgment rendered by Patna High Court in the case of Ram Sharan Sag Vs. State of Bihar reported in 1977 PLJR 343 wherein it has been held that the expression “acquitted” under section 6-C(2) of the Act, 1955 should be construed to be comprehensive enough to include any judicial order passed at any stage of the proceeding setting free the accused of the accusation. The word “acquitted” in section 6-C(2) cannot be given a limited meaning so as not to include order of discharge. When the Magistrate accepts the final report, the order amounts to an order of judicial discharge of the accused from an accusation. 19. Learned counsel for the petitioner puts further reliance on the judgment rendered by the Hon’ble Supreme Court in the case of Abdul Vahab Vs. State of Madhya Pradesh reported in 2022 SCC OnLine SC 262 wherein the appellant’s truck loaded with 17 cow progeny was intercepted and the persons sitting in the truck were arrested. Thereafter, criminal case was registered under Sections 4 and 9 of the M.P Prohibition of Cow Slaughter Act, 2004 read with section 11(d) of the Prevention of Cruelty to Animals Act, 1960 and the vehicle was seized. Subsequently, the accused persons including the truck owner were charge-sheeted for the said offence. The Judicial Magistrate passed the judgment dated 28.11.2016 acquitting all the accused persons observing that the prosecution failed to establish the primary ingredient of the charge that the cow progeny was being transported for the purpose of slaughter. However, The District Magistrate passed the order of confiscation of the vehicle despite being apprised of acquittal of the accused persons by the trial court. However, The District Magistrate passed the order of confiscation of the vehicle despite being apprised of acquittal of the accused persons by the trial court. The High Court also upheld the order of confiscation passed by the District Magistrate with an observation that separate proceedings before two forums, one for prosecution of the accused charged with the offence and the other for confiscation of the vehicle used for commission of offence were legally maintainable. The matter having travelled to the Hon’ble Apex Court, it was held since the vehicle was confiscated on account of the criminal proceeding alone, it could not be withheld and then confiscated by the State when the original proceeding had culminated into acquittal. It was further held that the confiscation of the appellant’s truck when he was acquitted in the criminal prosecution, amounted to arbitrary deprivation of his property and violated the right guaranteed to a person under Article 300A of the Constitution of India. 20. The facts and situation of the present case is completely different from the cases cited by learned counsel for the petitioner. In the present case, the final form was submitted in favour of the petitioner primarily due to the reason that at the relevant point of time, the vehicle was leased by him to someone else for plying it. However, it has not been pleaded by the petitioner that the criminal case against other accused persons i.e., the driver, helper and the lessee has also ended in their acquittal and thus the proposition laid down in the case of Abdul Vahab (supra.) will not be applicable in the case of the petitioner. 21. It is well settled principle of law that the High Court should not interfere with a concurrent finding of fact in exercise of its extraordinary power of judicial review and/or superintendence under Articles 226 and 227 of the Constitution of India unless the authority, which passed the impugned order, did not have jurisdiction to render such finding or had acted in excess of its jurisdiction or the finding was patently perverse. None of such infirmities has been shown by the petitioner in the order of confiscation of the said tanker passed by the respondent no.2 as well as the appellate order passed by the Sessions Judge, Dhanbad upholding the order of the respondent no. 2. 22. None of such infirmities has been shown by the petitioner in the order of confiscation of the said tanker passed by the respondent no.2 as well as the appellate order passed by the Sessions Judge, Dhanbad upholding the order of the respondent no. 2. 22. In view of the aforesaid discussion, I do not find any reason to interfere with the order dated 15.02.2019 passed by the respondent no. 2 in Misc. Case No. 02/2018 confiscating the tanker of the petitioner as well as the order dated 07.05.2019 passed by the Sessions Judge, Dhanbad in Criminal Appeal No. 52/2019 affirming the order of the respondent no.2. 23. The writ petition is accordingly dismissed.