High Court
Legal Reasoning
( 1 )907 cri wp 821.24.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO. 821 OF 2024Aishwarya Indane through Proprietor,Suvarnadevi Narendra Patil,Age : 50 years, Occ : Business,R/o. 27, Magzin Colony, Sadar Bazar,Satara, Maharashtra.Through Power of Attorney,Kamal Kishor S/o Bhanwar Lal,Age: 28 years, Occu. Labour,R/o. Nokhara Charana, Phalodi,Dist. Jodhpur, State Rajasthan....PETITIONERV/s.1.The State of Maharashtra,Through Superintendent of Police,Ahmednagar, Maharashtra.2.The State of Maharashtra,At the instance of Police Inspector,Kopargaon Police Station,Kopargaon, Ahmednagar. ...RESPONDENTS.....Mr. A.D. Sonkawade h/f. Mr. Rajesh Mewara, Advocate for the PetitionerMr. K.K. Naik, APP for the Respondent-State ..…CORAM : Y.G. KHOBRAGADE, J.RESERVED ON :25.02.2025 PRONOUNCED ON :27.03.2025JUDGMENT:-1.Rule. Rule made returnable forthwith. With the consent of bothsides it is heard finally. ( 2 )907 cri wp 821.24.odt2.By the present petition under Article 226, 227 of the Constitutionof India read with Section 482 of the Cr.P.C., the Petitioner takes exception tothe order dated 28.02.2024 passed by the learned Additional Sessions Judge-1,Kopargaon, Dist. Ahmednagar in Criminal Revision Application No.64/2023and thereby upheld order dated 20.07.2023 passed by the learned JMFC,Kopargaon in Cri. Misc. Application No.45/2023 whereby refused to releaseVehicle No. MH-11-CH-4480. 3.The Respondent-Police authorities intercepted the vehicle of thePetitioner while committing the offence punishable under Section 407, 411,285 read with Section 34 of the IPC and under Section 3, 7 of the EssentialCommodities Act, 1955 (for short the EC Act).4.The prosecution case is that, on 03.01.2023, the Informant-ShakilAhmad, Special Inspector General lodged a FIR bearing Crime No.0006/2023alleging that, the Ashok Leyland vehicle bearing No. MH-11-CH-4480 wascarrying LPG Gas and it was parked near U.P.-Haryana-Rajasthani Dhaba inJeurkumbhari area. The accused namely (i) Budharam Anandram Bishnoi, (ii)Prakash Bhagirathramji Bishnoi, (iii) Bhuraram Kojaram Jani, (iv)Dharmendrakumar Bachanu Bind and (v) Sukhram Maganram Bishnoi wereillegally pilfering the gas from the said Ashok Leyland goods carrier vehicle andwere refiling it in commercial cylinders and Rs.700/- per cylinder was beingpaid to the driver of the tanker. The commercial LPG cylinders of LPG are being ( 3 )907 cri wp 821.24.odtsold to the hoteliers by charging Rs.1400/- per cylinder. The accused no.5Sukhram Maganram Bishnoi was running the said Dhaba (Hotel) on lease.5.During the course of raid, the Investigating Officer seized tankerand following articles at the spot which are as under:i)Tanker of Ashok Leyland company bearing no.MH-43-BG-7150 having14 tyres worth Rupees Fifteen Lakhs with 17,000 kg gas bilty.ii)Ashok Leyland company dost vehicle no.MH-11-CH-4480iii)Two gas cylinders with refilled gas of Indane company. Gas pipe tounload gas from tanker MH-43-BG-7150 and to fill up the gas cylinders,3 empty gas cylinders. Vehicle No.MH-11-CH-4480 on which thecylinders were loaded.iv)14 gas cylinders with refilled gas of Indane company.v)10 gas cylinders of Bharat gas company with refilled gas, 45 empty gascylinders of Bharat gas company, one gas cylinder refilled with gas ofHP company, 300 kg kit to take out gas from the tanker.vi)two regulators of rubber pipe, one nozzle, two rubber pipe to take outgas, 4 bilty of HP corporation, spring weigh lever, steel lever, steel pipeetc. for releasing the pressure and other articles including the currencynotes as described in FIR and the spot panchanama. ( 4 )907 cri wp 821.24.odt6.After investigation is over, the I. O. filed charge-sheet against theaccused for the offences punishable under Section 407, 411, 285 read withSection 34 of the IPC and under Section 3, 7 of the Essential Commodities Act.7.The Petitioner has filed Misc. Cri. Application No.45/2023 underSection 457 of Cr.P.C. and prayed for release of Ashok Leyland Vehicle No. MH-11-CH4480 on supurtnama during the pendency of trial. On 20.07.2023, thelearned JMFC, Kopargaon, passed an order and rejected said applicationrelying on case of Vasant Annarao Bhosale V/s. State of Maharashtra, Cri. WritPetition No.905/2012 decided on 05.12.2014, wherein it is held that, as perscheme of Essential Commodities Act, 1955, the Collector is empowered withregard to interim or final disposal of essential commodity seized under Section3 of the Act. Section 6-E of the Act provides bar of jurisdiction of the Court. Soalso, power of interim disposal of said vehicle is with the Collector.8.Being aggrieved by said order, the Petitioner filed CriminalRevision Application No.64/2023 before the learned Sessions Court. On28.02.2024, the learned Revisional Court passed the impugned order andupheld the order dated 20.07.2023 passed by the learned JMFC.9.The learned counsel appearing for the Petitioner canvassed that, ifthere is any contravention of Section 3 of the Essential Commodities Act andany vehicles, commodities are seized in that circumstances the Collector having ( 5 )907 cri wp 821.24.odtpower of confiscation of the commodities and vehicles. Section 6-E provides forconfiscation procedure of the essential commodity, package covering orreceptacle in which such essential commodity is found and any animal vehicle,vessel or other conveyance used in carrying such essential commodity. Section6-E of the E.C. Act provides bar to jurisdiction of the Judicial Magistrate forrelease, delivery, disposal, release or distribution of such essential commodity,package covering, receptacle, animal vehicle, vessel or other conveyance duringpendency of confiscation proceeding. However, the prosecution has filed replyat Exh.10 in Criminal Revision before the Sessions Court as well as before theJudicial Magistrate to oppose release of vehicle. But the Investigating Officerhas not pleaded that the confiscation proceeding under Section 6A of theEssential Commodities Act has been initiated and it is pending before theCollector. Therefore, the Magistrate is empowered to release the vehicle andjurisdiction of Magistrate is not ousted. 10.To buttress these submissions, the learned counsel appearing forthe Petitioner relied on State of Maharashtra V/s. Manishkumar Babulal Biyani;1998 (1) Mh.L.J. 431, wherein it has been held as under:“These provisions show that the jurisdiction of the Court or tribunal orany other authority is ousted only if the essential commodity is seized andconfiscation proceeding under section 6-A is pending before the Collectorand/or before the State Government under section 6-C. The net result ofthese provisions is that if there is no confiscation proceeding pendingunder section 6-A before the Collector and/or under section 6C before theState Government, then the Court or tribunal or any other authority can havejurisdiction to make orders with regard to the possession, delivery, disposal, ( 6 )907 cri wp 821.24.odtrelease or distribution of such essential commodity, etc. Thus the jurisdictionof the Court or tribunal or any other authority stands ousted only if there is aconfiscation proceeding pending before the Collector and/or the StateGovernment either under sections 6-A or 6-C. Otherwise, the Court ortribunal have a jurisdiction to dispose of the said property as per theprocedure laid down. Thus, it is clarified that in view of the presentprovisions of section 6E before the Court proceeds to exercise the powersfor disposal of the property, the said Court shall get it confirmed as towhether any proceeding for confiscation of the said essential commodity ispending before the Collector under section 6-A or under section 6-C beforethe State Government and if it is found that no such confiscation proceedingis pending, then the Court can proceed to dispose of the said property inview of the provisions contained in the Criminal Procedure Code. The barcontemplated under section 6E is not a blanket absolute bar, but it isclarified that once the Collector or the State Government commences theproceeding for confiscation either under sections 6-A or 6C, the Court orother authorities are barred from considering the release and disposal of thesaid property and to that extent, the general power of the Criminal Court todispose of the property is modified, affected and conditioned by theprovisions of section 6E and to that extent, the ratio laid down in the case ofRameshwar Rathod, cited supra, stands modified as a result of the legislationand the introduction of section 6-E of the Essential Commodities Act.8. If the facts in the present case are analysed, it will be evident that inspite of the specific order being passed on 5th November, 1996 that as towhether any proceeding for confiscation is pending before the Collector,the learned A.P.P. could not make any statement before the learnedAdditional Sessions Judge and proceeded to argue the matter on 6thNovember, 1996. Thus it is evident that when the Court passed an order on7th November, 1996, there was no confiscation proceeding pendingunder section 6A and/or under section 6C either before the Collector orbefore the State Government in respect of the essential commodityinvolved in the present matter. Shri Wahane makes a statement that on 7thNovember, 1996, such application has been preferred by the Police StationOfficer to the Collector, Akola. However, no action thereafter also appearsto have been taken by the Collector. The above statement itself points outthat on date when the matter was heard and disposed of by the learnedAdditional Sessions Judge, Akola, there was no proceeding pending beforethe Collector under section 6-A for confiscation of the essentialcommodity and, therefore, as discussed above, there was no bar for thelearned Additional Sessions Judge, Akola, to exercise his powers undersection 457 read with section 451 of the Criminal Procedure Code and, ( 7 )907 cri wp 821.24.odttherefore, the order passed by the learned Additional Sessions Judge islegal and proper.”11.The learned counsel appearing for the Petitioner further relied oncase of Geetha Decorticaters V/s. State of Andhra Pradesh; 2021 Cri.L.J. 429,wherein the Andhra Pradesh High Court considered various case laws includingcase of State of Maharashtra V/s. Manishkumar Babulal Biyani; 1998 (1)Mh.L.J. 431 and held that, if no proceedings are initiated under Section 6A ofthe Essential Commodities Act, the Magistrate continues to hold jurisdiction todeal with the property seized by the police in any crime registered against theviolators of the order made under Section 3 of the Essential Commodities Act,when the same is pending either at the crime stage or at the trial stage. If theproceeding under Section 6A of the Essential Commodities Act are initiated, theMagistrate automatically seize it’s jurisdiction.12.Needless to say that, on 02.05.2024, this Court issued notices tothe Respondent/prosecution but even after availing several opportunities, noreply has been filed. However, the learned APP relied on the reply dated 26-12-2023 filed before the learned Revisional Court and canvassed that theaccused were apprehended red-hand while committing the crime under Section407, 411, 285 read with Section 34 of the IPC and under Section 3, 7 of theE.C. Act. The police authority seized huge articles including one Ashok Leylandtruck bearing no. MH-11-CH-4480, Gas Tanker No. MH-43-BG-7150 described ( 8 )907 cri wp 821.24.odtin seizure panchanama. On 31.01.2023, the Investigating Officer submitted theproposal with the Collector, Ahmednagar (Civil Supply Department) videoutward no.235/2023 dated 30.10.2023 for disposal of seized property.Therefore, confiscation proceeding u/s 6-A of E.C. Act pending before theDistrict Collector in respect of seized vehicles and other articles. Therefore, thePetitioner is not entitled for custody of vehicle bearing no.MH-11-CH-4480. 13.Having regard to the submissions canvassed on behalf of both thesides, I have gone through the record. In case in hand, only legal questionarises that, whether the confiscation proceeding has been initiated by theCollector under Section 6A of the E.C. Act in respect of confiscation of seizedvehicles including vehicle bearing No. MH-11-CA-4480 in pursuance ofproposal dated 13.10.2023 submitted by the Investigating Officer.14.It is not in dispute that, the police authority seized Goods Carriervehicle bearing no.MH-11-CA-4480 in connection with Crime No.6/2023registered with Kopargaon Police Station under Section 407, 411, 285 readwith Section 34 of the IPC and under Section 3, 7 of the E.C. Act. It is also notin dispute that the present Petitioner is a owner of said vehicle. As per law laiddown by this Court as well as the Andhra Pradesh High Court in GeethaDecorticaters V/s. State of Andhra Pradesh; 2021 Cri.L.J. 429 and State ofMaharashtra V/s. Manishkumar Babulal Biyani; 1998 (1) Mh.L.J. 431, cited ( 9 )907 cri wp 821.24.odtsupra, if the confiscation proceeding under Section 6A of the E.C. Act ispending before the Collector in that circumstances the jurisdiction of the Courtor the Tribunal or any other authority is ousted in respect of release of seizedcommodity for contravention of Section 3 of the E.C. Act but if the confiscationproceeding is not initiated, then the jurisdiction of the Court is not ousted.15.No doubt, the Investigating Officer filed reply before the learnedJudicial Magistrate and raised objection for release of vehicle in favour of thePetitioner because seized vehicle is used in connection with serious offencesunder the E.C. Act. In revision, the Petitioner filed Exh.8 and stated that theCollector has not initiated confiscation proceeding. The Investigating Officerfiled reply at Exh.10 before the Sessions court and stated as under:Lknj xqUg;krhy tIr eqnnseky def’kZ;y 115 xWl flysaMjP;k VkD;k] R;ke/;sHkkjr xWl flysaMjP;k 52 xWlVkD;k R;kiSdh 10 flysaMjP;k xWl VkD;k deh tkLrizek.kkr HkjysY;k o b.Msu xWl daiuhP;k 62 xWl VkD;k R;kiSdh 19 flysaMjP;k xWlVkD;k deh&tkLr izek.kkr HkjysY;k] daiuhph 09 flysaMjph xWlVkdh tkLr izek.kkrHkjysY;k v’kk ,dw.k 115 xWl flysaMjP;k VkD;k ?kVuk fBdkk.kko:u iksfyl fufj{kd ch-th-jksgkse] use.kwd fo’ks”k iksfyl egkfufj{kd lks- ukf’kd ifj{ks= ukf’kd o Jh-fnidfHkaxkjfnos] iqjoBk vf/kdkjh] rglhy dk;kZy; dksijxko ;kauh fnukad 06-012023 jksthnksu iapkle{k iapukek d:u tIr dsysY;k vkgsr- ueqnP;k xWl flysaMjP;k VkD;k ;klqj{ksP;k n`”Vhus lacaf/kr xWl daiuhps xksMkmu e/;s ¼ dksGisokMh o dksijxko ½ ;sFksBsoysY;k vkgsr-ueqnps tIr xWl flysaMjps VkD;ke/;s voS/kfjR;k deh&tkLr izek.kkr xWlHkjysyk vkgs- R;kiklwu dkgh vuqfpr ?kVuk ?kM.;kph ‘kD;rk ukdkjrk ;sr ukgh-- djhrklnjpk tIr eqnnseky ¼ xWl flysaMjP;k VkD;k ½ lanHkkZr iq<hy ;ksX; rh dk;Zokghgks.ks ckcr ek- ftYgkf/kdkjh lks-vgenuxj ¼ iqjoBk foHkkx ½ ;kauk 1 ½ bdfMytkod dzekad 235 @2023 fnukad 31 @01@2023 vUo;s] 2 ½ bdfMy tkod dzekad ( 10 )907 cri wp 821.24.odt2885 @2023 fnukad 13 @10 @2023 vUo;s fouarh fjiksVZ lknj dsysyk vkgs-ijarqlnj ueqn tIr eqnnseky def”kZ;y xWlP;k VkD;kP;k fuxZrh lanHkkZr ek-ftYgkf/kdkjhlks-vgenjuxj ] dk;kZy;kdMwu lnj ckcrph dk;Zokgh lq: >kysyh ukgh- 16.On careful perusal of Reply Exh.10, it appears that, theInvestigating Officer submitted proposal with the Collector under outwardno.2885/2023 dated 13.10.2023 for disposal of seized Gas Cylinders.However, the Investigating Officer has not submitted a proposal for theconfiscation of vehicle No. MH-11-CA-4480. It is not the case of theprosecution that, the confiscation proceeding has been initiated by theCollector under Section 6A of the Essential Commodities Act and it is pending.17.Section 6E of the Essential Commodities Act introduced by ActNo.92/1976 expressly provides bar of jurisdiction of the Court/Tribunal or anyother authority if the essential commodities are seized in contravention ofSection 3 of the E.C. Act for confiscation procedure of the essential commodity,package covering or receptacle in which such essential commodity is found andany animal vehicle, vessel or other conveyance used in carrying such essentialcommodity. Since the prosecution failed to bring material on record to showthat the proceeding for confiscation of the vehicle was pending before theCollector on the day of filing of application under Section 457 of the Cr.P.C. forrelease of vehicle no.MH-11-CH-4480, hence, to my view jurisdiction of theMagistrate is not ousted for releasing of said vehicle on supurtnama. However, ( 11 )907 cri wp 821.24.odtthe learned Revisional Court failed to consider the scope of Sec. 6-E of theEssential Commodities Act. Therefore, the impugned order dated 28.02.2024passed by the Revisional Court in Criminal Revision No.64/2023 as well asorder dated 20.07.2023 passed by the learned Judicial Magistrate in Misc. Cri.Application No.45/2023 are hereby liable to be quashed and set aside andVehicle no.MH-11-CH-4480 needs to be release in favour of the Petitioner oncertain terms and conditions. Accordingly, I proceed to pass the followingorder:ORDER:1.Cri. Writ Petition No. 821 of 2024 is hereby allowed.2. The Vehicle No.MH-11-CH-4480 bearing chassis no. MB 1AA 22E1KRH50491, Engine No. HKH014702P be released in favour of the Petitioner duringthe pendency of trial in Crime No.0006/2023 registered with Kopargaon CityPolice Station on supratnama under Section 457 of the Cr.P.C. on the followingterms and conditions:i)The Petitioner shall furnish personal security bond of Rs. 5,00,000/-and Bank Guarantee of Nationalized Bank of Rs. Five Lakhs before thetrial Court for release of vehicle.ii) The Petitioner shall furnish an undertaking that, he shall not transfer,dispose of or create any third party interest over the said vehicle infavour of any person, he shall not change nature of vehicle, duringcourse of trial.
Legal Reasoning
( 12 )907 cri wp 821.24.odtiii)The Petitioner shall furnish an undertaking that, he will produce thesaid vehicle before the learned Magistrate during the course of trial, ifrequired.3.In view of above, Rule is made absolute in the above terms. [Y.G. KHOBRAGADE, J.]mub