Mukhbinder Singh … v. The State of Jharkhand
Case Details
-1- IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Rev. No. 1801 of 2017 Mukhbinder Singh …… Petitioner …. Versus The State of Jharkhand …… Opp. Party ----- CORAM: HON'BLE MR. JUSTICE SANJAY PRASAD ----- For the petitioner : Mr. D. K. Karmkar, Advocate For the State : Mr. Jitendra Pandey, A.P.P. ….. 13/22.01.2024 Heard learned counsel for the petitioner and learned counsel for the State. 2. The Criminal Revision No. 1807 of 2017 has been filed on behalf of the petitioner challenging the Judgement dated 17.11.2017 passed by the learned District and Additional Sessions Judge-X, East Singhbhum whereby and whereunder an appeal, preferred against the order dated 22.11.2016 passed in Confiscation Case No. 77 of 2015-16 by the Deputy Commissioner, East Singhbhum, under which the Vans along with essential commodities i.e. Kerosene Oil seized in Chakulia P.S. Case No. 45 of 2015 has been ordered to be confiscated, has been dismissed. 3. The prosecution case, in brief, is that the informant- Ganesh Mahato while posted as Anchal Adhikari, Chakulia, had submitted written application before the Officer In-charge, Chakulia Police Station stating therein that on receiving secret information on 01.10.2015 at 3.30 A.M., the Officer In-charge, Chakulia alongwith his armed forces came to his residential house situated at Block Premises that some people are trying to take Kerosene Oil in huge quantity by blackmarketing through Jamshedpur via Chakulia to West Bengal, then he constituted a -2- Team and conducted raid alongwith Officer In-charge and police force and when they arrived Birsa Chowk, then saw that two vehicles were fleeing away speedily and both vehicles were chased by him and near Bharat Petrol Pump, they apprehended the driver by overtaking the vehicle. It is alleged that one pickup van bearing registration number JH 05 BB 2842, whose driver’s name is Anand Sharma bearing Driving License No. 972 of 2008, whereas the other pickup van bearing registration number JH05 BF 9472, whose driver’s name is Bideshi Karmkar and papers were asked from them regarding the materials loaded on the pickup vans, then they informed that both the vehicles were loaded with 12-12 drums each containing 2000-2000 liters each kerosene oil. Drivers further discloses that they had loaded the drums from the shop of Biju Ji, who has got his rice store near Kerala Public School and they had loaded kerosene in the drum from there. On further inquiry, they disclosed that the Owner of the pickup van is Malik Mukhvinder Singh @ Monu Singh i.e. the petitioner and he also disclosed that the Owner of the Kerosene Oil is coming from behind from his Bolero Vehicle and the said Kerosene Oil is being sent to Shyamal Da of Jhargram, West Bengal. Thereafter, a seizure list was prepared at the place of occurrence in the presence of two independent witnesses namely Dilip Shukla and Bhaskar Bera and on the instruction of informant and the informant and two independent witnesses and Officer In-charge had put their signature. It has been alleged that approximately 4000 litres kerosene oil were taken illegally for blackmarketing by Bij ji and for being sold to Shyamal Da and both the drivers and the Owner of the vehicles are involved and thus, this is a case of cognizable offence under Section 7 of the Essential Commodities Act. 4. It is submitted by the learned counsel for the petitioner -3- that the impugned Judgment dated 17.11.2017 passed by the learned District and Additional Sessions Judge-X, East Singhbhum and the Judgment dated 22.11.2016 passed in Confiscation Case No. 77 of 2015-16 by the Deputy Commissioner, East Singhbhum are illegal and arbitrary and not sustainable in the eye of law. It is submitted that the petitioner is the Owner of the vehicle and has committed no offence. It is submitted that the petitioner is regularly paying taxes to the Department in connection with the said vehicles and the seized vehicles are under hypothetical and the petitioner is regularly paying installment to the Finance Company also. It is submitted that search & seizure by the informant is illegal and without jurisdiction. It is submitted that the petitioner has no concern with the kerosene oil seized by the informant. 5.
Legal Reasoning
It is submitted that FIR does not disclose as to which provision regulating order or notification has been violated by the petitioner under Section 7 of the Essential Commodities Act. It is submitted that even in the order dated 22.11.2016 passed by the Deputy Commissioner, East Singhbhum at Jamshedpur is also silent in regard to any regulating order even then pick-up vans as well as kerosene oil has been confiscated and even in Appellate order dated 17.11.2017, the learned Appellate Court though in para-6 in finding portion mentioned in regard to the contravention of the order, but not stated as to which regulating order has been violated/contravened by the petitioner. It is submitted that photocopy of the documents of the vehicles has been filed as Annexure-3 series in the supplementary affidavit dated 23.06.2023. It is submitted that notice given to the petitioner is absolutely vague and does not disclose the ground for initiating the confiscating proceeding in respect of the alleged vehicles and -4- hence, the impugned orders passed by the learned Court below and by the Deputy Commissioner, East Singhbhum may be set aside. 6. On the other hand, learned counsel for the State has submitted that the impugned judgments and order passed by the learned Court below and by the Deputy Commissioner, East Singhbhum are fit and proper and no interference is required from this Court. It is submitted that the petitioner is involved in blackmarketing and the vehicles were carrying 4000 litres kerosene oil. It is submitted that FIR reveals that the vehicles were being taken during midnight during early hours in the morning 3.00 to 3.30 PM, which shows the intention of the petitioner and other accused persons. It is submitted that the Deputy Commissioner had rightly passed the order dated 22.11.2016 by which the vehicles of the petitioner along with kerosene oil has been confiscated as the petitioner fails to satisfy the learned Court below. It is submitted that learned Appellate Court below has rightly dismissed the appeal filed by the petitioner while passing the impugned judgment. It is submitted that the petitioner has not submitted any chit of paper for carrying huge quantity of kerosene oil by the driver of his vehicles and the driver of the vehicles have stated in their show cause that they were carrying the articles as per the direction of the Owner of the vehicles and thus, the petitioner will be deemed to have knowledge for carrying kerosene oil by his vehicles. Thus, no illegality has been committed by the learned Courts below while dismissing the appeal filed by the petitioner. Hence, this Criminal Revision Application is devoid of merit and the same may be dismissed. 7. Perused the Lower Court Records of this case and
Legal Reasoning
considered the submission of learned counsel for both the sides. 8. It appears that FIR was lodged on 01.10.2015 by the -5- Anchal Adhikari, Chakulia against several persons including this petitioner under Section 7 of the Essential Commodities Act. 9. It appears that two drivers of pickup van namely Anand Sharma and Bideshi Karmkar along with 4000 litres of kerosene oil were apprehended by the informant alongwith Officer In- charge, Chakulia alongwith his armed forces. However, FIR does not disclose any specific violation of any provisions of Bihar Trade Articles (Licenses Unification) Order, 1984. 10. At this stage it is relevant to mention Section 7 of the Essential Commodities Act, which is as follows:- “7. Penalties. — (1) If any person contravenes any order made under section 3,— (a) he shall be punishable,—(i)in the case of an order made with reference to clause (h) or clause (i) of sub-section (2) of that section, with imprisonment for a term which may extend to one year and shall also be liable to fine, and(ii)in the case of any other order, with imprisonment for a term which shall not be less than three months but which may extend to seven years and shall also be liable to fine:Provided that the court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than three months; (b) any property in respect of which the order has been contravened shall be forfeited to the Government; (c) any package, covering or receptacle in which the property is found and any animal, vehicle, vessel or other conveyance used in carrying the commodity shall, if the court so orders, be forfeited to the Government. (2) If any person to whom a direction is given under clause (b) of sub-section (4) of section 3 fails to comply with the direction, he shall be punishable with imprisonment for a term which shall not be less than three months but which may extend to seven years and shall also be liable to fine: Provided that the court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of -6- imprisonment for a term of less than three months. (2A) If any person convicted of an offence under sub-clause (ii) of clause (a) of sub-section (1) or under sub-section (2) is again convicted of an offence under the same provision, he shall be punishable with imprisonment for the second and for every subsequent offence for a term which shall not be less than six months but which may extend to seven years and shall also be liable to fine:Provided that the court may, for any adequate and special reasons to be mentioned in the judgment impose a sentence of imprisonment for a term of less than six months. (2B) For the purposes of sub-sections (1), (2) and (2A), the fact that an offence under sub-clause (ii) of clause (a) of sub-section (1) or under sub-section (2) has caused no substantial harm to the general public or to any individual, shall be an adequate and special reason for awarding a sentence of imprisonment for a term of less than three months, or six months, as the case may be. (3) Where a person having been convicted of an offence under sub- section (1) is again convicted of an offence under that sub-section for contravention of an order in respect of an essential commodity, the court by which such person is convicted shall, in addition to any penalty which may be imposed on him under that sub-section, by order, direct that that person shall not carry on any business in that essential commodity for such period, not being less than six months, as may be specified by the court in the order.” 11. It has been held in the case of Arun Choudhary Versus State of Jharkhand and Another reported in (2010) 1 JLJR 608 (HC), at Para-12, 13, 14, 15, 16 and 17 as follows:- “Para-12:- That apart, the prosecution for contravention of the provisions of the display order also seems to be bad on account of the fact that before launching prosecution against the petitioners, no sanction has been obtained though under proviso to clause (6) of the display order, it was required to be obtained from the competent authority. The proviso to clause (6) of the display order reads as follows: -7- "Provided that no prosecution shall lie against a person for contravention of any of the provisions of this Order unless the same has been sanctioned by the District Magistrate or Special Officer, In-charge Rationing or Additional District Magistrate (supply) or Sub divisional Magistrate with a limit of their respective local jurisdiction." Para-13:- Thus, proviso makes it clear that no prosecution shall lie against any person for contravention of any of the provisions of the order unless the sanction has been obtained from competent authority. This proposition of law has been laid down in a case of Mithila Cycle Centre v. State of Bihar [1990 (2) PLJR 184]. The said principle has been reiterated in a case of Mali Ram Agarwal v. State of Bihar [2001 (1) East Cr. Cases 24 (R.B)]. Para-14:- Thus, the prosecution on account of contravention of the provision of the display order and also on account of contravention of the provision of Unification Order can certainly be said to be bad and at the same time any proceeding relating to confiscation of the article seized would be invalid. Para-15:- Under the aforesaid situation, continuance of the criminal proceeding against the petitioner would certainly amount to abuse of the process of law and, hence, first information report of Jharia P.S. case no. 231 of 2009 is hereby quashed so far the petitioner is concerned. Para-16:- At the same time, notice dated 10.9.2009 issued under Section 6 B of the Essential Commodities Act contemplating to initiate confiscation proceeding in the aforesaid circumstances is also quashed. Para-17:- Consequently, article seized in connection with the said case is directed to be released forthwith in favour of the petitioner.” -8- 12. It appears that the petitioner was not found at the place of occurrence. 13. It also appears from the Annexure- 3 series that the vehicles belong to the petitioner. 14. It appears that there is specific allegation against Biju Ji and Shyamal Da and it reveals from the FIR that kerosene oil belongs to one Biju Ji of Sakshi Market and Shyamal Da was the purchaser of the kerosene oil. 15. Thus, it would appear that the petitioner is not the owner of the said 4000 litres kerosene oil. 16. It further reveals that the informant has failed to disclose the violation of Specific Provisions of Bihar Trade Articles (Licenses Unification) Order, 1984. 17. In view of the law laid down by this High Court, the Judgment dated 17.11.2017 passed by the learned District and Additional Sessions Judge-X, East Singhbhum and the order dated 22.11.2016 passed in Confiscation Case No. 77 of 2015-16 by the Deputy Commissioner, East Singhbhum in Chakulia P.S. Case No. 45 of 2015 are set aside. 18. Thus, this Criminal Revision is allowed. Kamlesh/ (Sanjay Prasad, J.)