Mahesh
Kumar Chauhan @ Banti Vs. Union of India
& Ors [1990] INSC 170 (2 May 1990)
Pandian,
S.R. (J) Pandian, S.R. (J) Reddy, K. Jayachandra (J)
CITATION:
1990 AIR 1455 1990 SCR (2) 979 1990 SCC (3) 148 JT 1990 (2) 592 1990 SCALE
(1)863
CITATOR
INFO : R 1992 SC 139 (6)
ACT:
Preventive
Detention: Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, 1974: Section 3(1)--Detention Order--Representation of detenu--Expeditious
disposal of--Necessity for--Explanation of delay by appro- priate
authority--Need for--Undue and unexplained delay--Whether violative of Article
22(5) of the Constitu- tion.
HEAD NOTE:
The
appellant filed a writ petition before the High Court challenging the detention
order passed against him under Section 3(1) of the Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act, 1974, alleging that his
representation was dealt with in a cavalier manner, resulting in undue delay in
its disposal.
Refuting
the allegation, it was contended on behalf of the respondents that the
representation, received on 23.8.89, was forwarded to the sponsoring authority
for comments on 25.8.89 and the comments were received only on 11.9.89, and
orders rejecting the representation were issued on 19.9.89, after obtaining the
orders of the appropriate authorities. The High Court rejected the petition as
devoid of any merit.
In the
appeal before this Court, on behalf of the appel- lant it was contended that
the offices of the detaining authority and the sponsoring authority were within
the same city and there was absolutely no explanation for the delay on the part
of the sponsoring authority in sending the comments till 11.9.89, though the
representation dated 18.8.89 was sent for comments to the said authority even
on 25.8.89, thus vitiating the order of detention, and that in view of the
inordinate and unexplained delay in considering and disposing of the
representation, the continued detention of the appellant was impermissible and
unconstitutional, as being violative of the mandatory provisions of Article
22(5) of the Constitution of India.
Allowing
the appeal, this Court, 980
HELD:
1.1 A representation of a detenu whose liberty is in peril and deprived should
be considered and disposed of as expeditiously as possible; otherwise the
continued deten- tion will render itself impermissible and invalid as being violative
of the constitutional obligation enshrined in Article 22(5) of the Constitution
and if any delay is occurred in the disposal of a representation, such delay
should be explained by the appropriate authority to the satisfaction of the
Court. [985A-B] Rama Dhondu Borade v.V.K. Saraf, Commissioner of Police
Bengal, [1969] II Supreme Court Weekly
Reports 529; Jayana- rayan Sukul v. State of West Bengal, [1979] 1 SCC 219; Shaik Hanif& Ors. v. State of W. B., [1974] 1 SCC 637; Raisuddin v.
State of U.P., [1983] 4 SCC 537 and Frances Coralic
Muffin v.W.C. Khambra and Ors., [1980] 2 SCC 275, relied on.
1.2 Inspite
of the weighty pronouncements, of this Court making the legal position clear,
it is still disquieting to note that on many occasion the appropriate
authorities cause considerable delay in considering and disposing of represen- tations
and also exhibit culpable indifference in explaining such delay. In case the
appropriate authority is unable to explain personally the delay at various
stages, then it will be desirable---indeed appropriate--for the concerned
author- ity or authorities at whose hands the delay has occured to individually
explain such delay. [985C-D]
1.3
The Court, in the absence of any explanation, cannot wink at or skip over or
ignore such an infringement of the constitutional mandate and uphold an order
of detention merely on the ground that the enormity of allegations made in the
grounds of detention is of very serious nature, as in the present case. [985D-El
Prabhu Dayal Deorah v. The District Magistrate, Kamrup & Ors., [1974] 1 SCC
103, relied on.
In the
instant case, except merely mentioning that the representation was forwarded to
the concerned sponsoring authority on 25.8.89 and the comments from the
sponsoring authority were received by the Department on 11.9.89, there is
absolutely no explanation as to why such a delay had occured. This undue and
unexplained delay is in violation of the constitutional obligation enshrined in
Article 22(5) of the Constitution of India rendering the order invalid.
[986B-C]
981 Rama Dhondu Borade v.V.K. Saraf, Commissioner of Police & Ors., [1989]
3 SCC 173, relied on.
&
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 302 of 1990.
From
the Judgment and Order dated 29.1.1990 of the Delhi High Court in Crl. Writ
Petition No. 657 of 1989.
Harjinder
Singh and R.N. Joshi for the Appellant.
N.S. Hegde,
Additional Solicitor General and Udai Lalit for the Respondents.
The
Judgment of the Court was delivered by S. RATNAVEL PANDIAN, J. Leave granted.
This
appeal is directed by the detenu, Mahesh Kumar Chauhan Banti questioning the
correctness of the judgment made in Criminal Writ Petition No. 657/89 by the
High Court of Delhi dismissing the petition as devoid of any merit. The above
Writ Petition out of which this present appeal has arisen was filed by the
appellant, Mahesh Kumar Chauhan against the order of detention dated 13.7.1989
clamped upon him by the first respondent, Union of India in exercise of the
powers conferred by Section 3(1) of the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the
'Act') with a view to pre- venting the detenu from engaging in transporting and
con- cealing smuggled goods and dealing in smuggled goods other- wise than by
engaging in keeping smuggled goods.
The
entire facts of the case are well set out in the grounds of detention and,
therefore, we think that it is not necessary to reiterate the same.
Mr. Harjinder
Singh, learned counsel appearing on behalf of the appellant raised a variety of
contentions, one of which being that there is an inordinate and unexplained
delay in considering and disposing of the representation of the detenu dated
18.8.89 and as such the continued detention of the appellant is impermissible
and unconstitutional as being violative of the mandatory provisions of Article
22(5) of the Constitution of India.
982 In
the counter affidavit filed on behalf of the respond- ent before the High
Court, the declarant namely, Joint Secretary, Department of Revenue, Ministry
of Finance while refuting the allegation of the appellant that his represen- tation
has been dealt with in 'cavalier manner' has stated that the petitioner has
made his representation on 21.8. 1989 and not on 18.8.1989 as alleged by the
appellant and that it was received in the office of his Department on 23.8.89
and the same was forwarded to the concerned sponsor- ing authority on 25.8.1989.
The Sponsoring Authority sent his comments only on 11.9.1989. Thereafter, the representa-
tion along with the comments was processed and put up before the Ministry of
State for Revenue, who considered and re- jected the same on 15.9.1989 subject
to the approval of the Finance Minister. On 18.9.89 the file was received back
from the Finance Minister's office and the memorandum was issued on 19.9.89
rejecting the representation. Mr. Harjinder Singh submitted that the offices of
the detaining authority and the sponsoring authority are within the metropolis
of Delhi and that there is absolutely no explanation for the delay occasioned
on the part of the sponsoring authority in send- ing his comments till
11.9.1989 though the representation was sent for comments to the said authority
even on 25.8.1989 and that this considerable delay at the hands of the
sponsoring authority stands unexplained vitiating the order of detention.
In
support of the above contention, he placed much reliance on the decision of
this Court in Rama Dhondu Borade v.V.K. Saraf, Commissioner of Police &
Ors., [1989] 3 SCC 173 to which one of us (Ratnavel Pandian, J.) was a party.
In the
above cited decision, this Court after referring to the dictum laid down in Smt.
Shalini Soni v. Union of India, [1980] 4 SCC 544 and some other decisions of
this Court dealing with the similar questions of delayed disposal of
representation, has laid down the following proposition of law:
"The
detenu has an independent constitutional right to make his representation under
Article 22(5) of the Constitution of India. Correspondingly, there is a
constitutional mandate commanding the concerned authority to whom the detenu
for- wards his representation questioning the correctness of the detention
order clamped upon him and requesting for his release, to consider the said
representation within reasona- ble dispatch and to dispose the same as
expeditiously as possible. This constitutional requirement must be satisfied
with respect but if this constitutional imperative is ob- served in breach, it
would 983 amount to negation of the constitutional obligation render- ing the
continued detention constitutionally impermissible and illegal, since such a
breach would defeat the verycon- cept of liberty--the highly cherished
right--which is en- shrined in Article 21 of the Constitution." However,
in the same decision, it has been pointed out "What is reasonable dispatch
depends on the facts and cir- cumstances of each case and no hard and fast rule
can be laid in that regard." We hasten to say in this connection that inspite
of the fact this Court in a series of decisions has repeatedly and consistently
laid down the rule in precise and clear terms that all the procedural
safeguards prescribed in under Article 22(5) of the Constitution of India
should be scrupu- lously and strictly observed one of which as ingrained in our
system of judicial interpretation, being that the detenu shall be afforded an
earliest opportunity of making a repre- sentation against the validity of the
order of detention clamped upon him and that representation should be consid- ered
and disposed of as expeditiously as possible- How far this Court has seriously
viewed the culpable suppine indifference, callousness and recalcitrant attitude
on the part of the appropriate authorities who while dealing with the
representations at various stages and disposing of the same cause considerable
delay is prismatically reflected with enhanced intensity through a plethora of
pronouncements of this apex Court. We may appositely refer to a few.
Shelat,
J. in Khairul Haque v. State of West Bengal, Writ Petition No. 246 of 1969
decided on 10.9.69 reported in 1969 II Supreme Court Weekly Reports 529 after
referring two earlier decisions in Sk Abdul Karim and Others v. State of West
Bengal, [1960] 1 SCC 433 and Durga Show and Ors. v. State of West Bengal; [ 1970] 3 SCC 696 has observed
thus:
"The
fact that Art. 22(5) enjoins upon the detaining author- ity to afford to the detenu
the earliest opportunity to make a representation must implicitly mean that
such representa- tion must, when made, be considered and disposed of as
expeditiously as possible, otherwise, it is obvious that the obligation to
furnish the earliest opportunity to make a representation loses both its
purpose and meaning".
(emphasis
supplied) 984 A Constitution Bench of this Court in Jayanarayan Sukul v. State
of West Bengal, [ 1979] 1 SCC 2 19 has highly depricated
the conduct of appropriate authorities in unduly and unreasonably delaying the
consideration and disposal of a representation and stated as follows:
"The
reason for immediate consideration of the representa- tion is too obvious to be
stressed. The personal liberty of a person is at stake. Any delay would not
only be an irre- sponsible act on the pan of the appropriate authority but also
unconstitutional because the Constitution enshrines the fundamental right of a detenu
to have his representation considered and it is imperative that when the
liberty of a person is in peril immediate action should be taken by the
relevant authorities." (emphasis ,supplied) ' Sarkaria, J. in Shaik nanif
& Ors. v. State of W.
B., [1974] 1 SCC 637
has expressed as follows:
"It
is the duty of the Court to see that the efficacy of the limited, yet crucial,
safeguards provided in the law of preventive detention is not lost in
mechanical routine, dull' casualness and chill indifference on the part of the
authorities entrusted with their application.
In Raisuddin
v. State of U.P., [ 1983] 4 SCC 537, it is pointed out, " .......... if on
such examination, it is found that there was any remissness, indifference or
avoidable delay on the part of the detaining authority/State. Government in
dealing with the representation, the Court will undoubtedly treat it as a factor
vitiating the continued detention of the detenu .......... " Chinnappa
Reddy, J. in Frances Coralie Muffin v. W.C. Khambra and Others, [ 1980] 2 SCC
275 has expressed his view saying:
"
.......... No allowance can be made for lathgargic indifference. No allowance
can be made for needless procras- tination." We do not like to swell this
judgment by recapitulating all the pronouncements of this Court on this point.
985
Now the unchallengeable legal proposition that emerges from a host of
decisions, a few of which we have referred to above. is that a representation
of a detenu whose liberty is in peril and deprived should be considered and
disposed of as expeditiously as possible; otherwise the continued deten- tion
will render itself impermissible and invalid as being violative of the
constitutional obligation enshrined in Article 22(5) of the Constitution and if
any delay is oc- cured in the disposal of a representation, such delay should
be explained by the appropriate authority to the satisfac- tion of the Court.
Inspite
of the weighty pronouncements, of this Court making the legal position clear,
it is still disquiting to note that on many occasions the appropriate
authorities cause considerable delay in considering and disposing of
representations and also exhibit culpable indifference in explaining such
delay. We feel that in case the appropriate authority is unable to explain
personally the delay at various stages, then it will be desirable--indeed appropri-
ate--for the concerned authority or authorities at whose hands the delay has
occurred to individually explain such delay.
The
next question is should or can the Court in the absence of any explanation wink
at or skip over or ignore such an infringement of the constitutional mandate
and uphold an order of detention merely on the ground that the enormity of
allegations made in the grounds of detention is of very serious nature as in
the present case? Our answer would be 'Not at all'.
In
this connection, it will be relevant to make refer- ence to the view expressed
by Mathew, J. speaking for the majority in Prabhu Dayal Deorah v. The District
Magistrate, Kamrup and Others, [1974] 1 SCC 103 which is as follows:
"We
say and we think it is necessary to repeat, that the gravity of the evil to the
community resulting from antiso- cial activities can never furnish an adequate
reason for invading the personal liberty of a citizen, except in ac- cordance
with the procedure established by the Constitution and the laws. The history of
personal liberty is largely the history of insistence on observance of
procedure. And ob- servance of procedure has been the bastion against wanton
assaults on personal liberty over the years. Under our Constitution, the only
guarantee of personal liberty for a person is that he shall not be deprived of
it except in 986 accordance with the procedure established by law."
Reverting to the facts of the present case as submitted by the learned counsel,
except merely mentioning that the representation was forwarded to the concerned
sponsoring authority on 25.8.1989 and the comments from the sponsoring
authority was received by the Department on 11.9.1989, there is absolutely no
explanation as to why such a delay had occurred. Therefore, in the light of the
proposition laid down in Rama Dhondu Borade's case (albeit), we have no other
option except to allow this appeal on the ground that this undue and
unexplained delay is in violation of the constitu- tional obligation enshrined
in Article 22(5) of the Consti- tution of India rendering the impugned order invalid.
For
the foregoing reasons, we set aside the order of the High Court, allow the
appeal and direct the detenu to be set at liberty forthwith, unless his
detention is required for some other cause.
N.P.V.
Appeal al- lowed.
987
SHAMBHU DAYAL AGARWALA V. STATE OF WEST BENGAL AND ANR.
MAY 3,
1990 [S. RANGANATHAN
AND A.M. AHMADI, JJ.] Essential Commodities Act, 1955: Sections 3, 6A to 6C, 6E
and 7(1) (b)--Seizure of essential commodity under sec- tion 6A--Breach of
order under section 3--Prosecution pro- ceedings pending--Bar on courts to make
an order with regard to the possession, delivery, disposal, release or distribu-
tion of such commodity except the Collector-Whether the Collector empowered to
release the seized goods to owner or to the person from whom the commodity is
seized? On September, 20. 1987 the officers of the Enforcement Branch raided
the factory premises of the Appellant engaged in the manufacture of Mustard
Oil. 562 bags of mustard seeds and 262 tins of oil were seized for alleged
violation of the conditions of licence as well as orders issued under section 3
of the Act. An F.I.R. was lodged with the police and as required under section
6A, the report of the seizure of the goods was also made to the Collector
followed by filing of a Chargesheet before the Special Judge. The petitioner
moved the High Court by a writ Petition for quashing the proceed- ings. The
learned single Judge of the High Court disposed of the Writ Petition reserving
liberty to the Petitioner to move the concerned Collector for release of the
seized goods. The Petitioner accordingly moved an application under section 6E
before the concerned Additional Collector for release of the seized goods. The
Collector dropped the confiscation proceedings and ordered the release of the
seized goods to the Petitioner. Against this order the State Government
preferred a Revision to the High Court. The High Court allowed the Revision and
set aside the order of re- lease of the seized goods passed by the Collector holding
that under the provisions of section 6A read with section 6E of the Act, the
Collector had no power to release the seized goods. Aggrieved by this order the
Petitioner has come up in appeal by special leave to this Court.
Dismissing
the appeal. this Court.
HELD:
The Scheme of sections 6A. 6B and 6C makes it clear that after the essential
commodity is seized and the same is inspected by the concerned Collector, the
latter has to decide after complying with the 988 procedure set out in section
6B, whether or not to confis- cate the essential commodity. Since the procedure
delineated in section 6B is time consuming, the Collector has been given
special power to sell the essential commodity as stated in sub-section (2) of
section 6A if it is subject to speedy and natural decay or it is expedient in
public inter- est so to do. If the Collector decides not to confiscate the
commodity and if no prosecution is launched or contemplated the commodity has
to be returned to the owner or person from whom it was seized. If in the
meantime it is sold in exer- cise of power under sub-section (2) of Section 6A,
the price of Commodity has to be paid as provided by sub-section (3) of section
6A. [998C-E] Sub-section (2) of section 6C uses the prefix 'return' followed by
the words 'the essential commodity seized' and not the word 'release'. It seems
that having regard to the scheme of the Act, the object and purpose of the
statute and the mischief it seeks to guard against, the word 'release' is used
in the limited sense of release for sale, etc., so that the same becomes
available to the consumer public.
There
could be no question of releasing the commodity in the sense of returning it to
the owner or person from whom it was seized even before the proceeding for
confiscation stood completed and before the termination of the prosecution in
the acquittal of the offender. [998F-H] & CRIMINAL APPELLATE JURISDICTION:
Criminal Appeal No. 3 10 of 1990.
From
the Judgment and Order dated 11.5. 1988 of the Calcutta High Court in Crl. Rvn. No. 402 of 1988.
P.P. Rao,
R.K. Gupta and P.C. Kapur for the Appellant.
Kapil Sibbal,
Additional Solicitor General, G. Venkatesh Rao, D.K. Sinha, J.R. Das, H.K. Puri
and A. Paul for the Respondents.
The
Judgment of the Court was delivered by AHMADI, J. Special leave granted.
The
short question which arises for our determination is whether the Collector to
whom a report of seizure of any essential commodity is made under section 6A of
the Essen- tial Commodities Act, 1955 (hereinafter called 'the Act'), is
empowered by virtue of section 6E of the Act to release the goods seized in
pursuance of an order made 989 under section 3 in relation thereto during the pendency
of the proceedings before the Special Court? The facts, in brief, are as Under:
The
petitioner being engaged in the manufacture of mustard oil at his factory at 1,
Canal Road, Police Station Behala, Calcutta-53, was required to maintain a
stock of mustard seed at his factory premises. A contingent of offi- cers of
the District Enforcement Branch led by the Investi- gating Officer Gopal Mosat,
the complainant, raided the factory premises of the petitioner on the morning
of Sunday, September 20, 1987, in the absence of the petitioner. The said raid
continued till the early hours of September 21, 1987. During the said raid 562
bags of Mustard Seeds and 267 tins of Mustard Oil, weighing about 39.92
quintals, were seized for purported infraction of the conditions of the licence
as well as the orders issued under section 3 of the Act. The Investigating
Officer filed a written complaint in that behalf at the Behala Police Station
which came to be treated as the First Information Report. The report of the
seizure of the essential commodity was made to the concerned Collector as
required by section 6A of the Act for initiat- ing confiscation proceedings. On
September 27^ 1987, a charge-sheet was filed before the learned Special Judge.
It may be mentioned that before the submission of the charge- sheet a Writ
Petition was filed in the High Court wherein certain interim orders were made
with which we are not concerned. Suffice it to say that the said Writ Petition
was disposed of by a learned Single Judge of the High Court on February 2,
1988, reserving liberty to the petitioner to apply for release of the seized
goods to the Collector before whom the confiscation proceedings were pending.
Thereupon,
the petitioner preferred an application on Febru- ary 9, 1988 under section 6E
of the Act before the Addition- al Collector for release of the seized commodities.
On March 11, 1988 the said officer dropped the confiscation proceed- ings,
albeit without prejudice to the prosecution pending before the Special Judge,
and directed the release of the seized commodities. Feeling aggrieved by the
said order of release, the State Government invoked the revisional juris-
diction of the High Court. The said Criminal Revision No. 402 of 1988 was
allowed by the High Court on May 11, 1988.
The
High Court set aside the impugned order of release of the seized goods holding
that under the provisions of sec- tion 6A read with section 6E of the Act, the
Collector had no power to order release of the seized commodity. The High Court
approached the question thus:
"Under
Section 6A of the Act the Collector has under certain circumstances been given
power to confiscate the 990 goods. By Section 6A the Collector has not been
given any power to release the goods. Section 6E is to be read in the
perspective of the provision of Section 6A of the Act be- cause of the phrase
"pending confiscation" under Section 6A used in Section 6E. If the
Collector has not been given any power to release the goods under Section 6A,
it can never be assumed that by Section 6E which gives some interim power to
the Collector with reference to the proceeding under Section 6A, the Collector
has been given any power to release the goods after finding that the goods
cannot be confiscated.
Under
Section 6A the Collector may order confiscation of the essential commodities so
seized. He has not been given any power to release the goods." Mr. P.P. Rao,
the learned counsel for the petitioner/appellant contended that on the
Collector having dropped the confiscation proceedings it was incumbent on him
to pass the consequential order of release under section 6E of the Act.
According to him since the jurisdiction of the Court to make orders with regard
to the possession, deliv- ery, disposal, release or distribution of such
essential commodity is specifically and expressly barred by section 6E of the
Act, the Collector alone has jurisdiction to order release of the seized goods.
The words 'pending confisca- tion' employed in section 6E of the Act go with
the word 'seize' and are, therefore, descriptive of the essential commodity and
are not intended to limit the powers of the Collector, argued counsel. He,
therefore, submitted that section 6E confers wide powers on the Collector to
release the goods at any stage of the proceedings and the High Court was not
justified in placing a narrow construction on the language of the said
provision. On the other hand Mr. Kapil Sibal, the learned Additional Solicitor
General while sup- porting the impugned order of the High Court, argued that
the power to release conferred by section 6E on the Collec- tor refers to
release in favour of a third party and not the party from whom the essential
commodity was seized. Accord- ing to him if the construction placed on section
6E on behalf of the petitioner is accepted it would defeat the very purpose of
the Act. He. therefore, submitted that this was not a fit case to interfere
with the order passed by the Division Bench of the High Court.
In
order to appreciate the rival view-points we may at the outset examine the
scheme of the Act. The Act, as the Preamble reveals, was enacted to provide, in
the interest of the general public, for the control of production, supply and
distribution of, and trade and commerce in 991 certain commodities. It extends
to the whole of India. The dictionary of the Act is
contained in section 2. Section 2(ia) defines 'Code' to mean the Code of
Criminal Procedure, 1973. Section 2(f) says that words and expressions used but
not defined in the Act and defined in the Code shall have the meanings assigned
to them in the Code. Section 3 empow- ers the Central Government to provide for
regulating or prohibiting the production, supply and distribution of essential
commodity and trade and commerce therein if the same is considered necessary or
expedient inter alia for maintaining or increasing supplies of any essential commodi-
ty or for securing their equitable distribution and avail- ability at fair
prices. Sub-section (2) of section 3 out- lines what an order made under
sub-section (1) thereof may provide. Besides regulating by licences, permits or
other- wise the manufacture or production of any essential commodi- ty or the
storage, transport, distribution, disposal, acqui- sition, use, consumption,
etc., thereof, the order may, inter alia, provide for controlling the prices at
which the essential commodity may be bought or sold and may also require any
person holding in stock any essential commodity to sell the whole or a
specified part of the quantity held in stock or produced or received by him or
likely to be produced or received by him to the Central Government or a State Government
or to an officer or agent of such Govern- ment, etc. Sub-section (3) of section
3 provides for deter- mination of the price to be paid to the person from whom
the essential commodity is so purchased. Section 6 lays down that an order
passed under section 3 will have effect not- withstanding anything inconsistent
therewith contained in any other enactment or instrument. Then comes section 6A
which provides for the confiscation of essential commodity.
Subsection
(1) of this section may be reproduced for ready reference:
"6A--Where
any essential commodity is seized in pursuance of an order made under section 3
in relation thereto it shall be reported without any unreasonable delay to the
Collector of the district in which such essential commodity is seized and the
Collector may, if he thinks it expedient so to do, inspect or cause to be
inspected such essential commodity, whether or not the prosecution is
instituted for the contra- vention of such order and the Collector, if
satisfied that there has been a contravention of the order, may order
confiscation of-- (a) the essential commodities so seized;
(b)
any package, covering or receptacle in which such essen- tial commodity is
found; and 992 (c) any animal, vehicle, vessel, or other conveyance used in
carrying such essential commodity ;" Sub-section (2) of the said section
empowers the Collector to sell any essential commodity, if the same is subject
to speedy and natural decay or it is otherwise expedient so to do in public
interest, at the controlled price, if any, fixed therefore or by public auction
if no such price is fixed. If the Central or the State Government has fixed the
retail sale price of such commodity under the Act or under any other law, the
Collector is empowered to order its sale through fair price shops at the price
so fixed. Section 6B posits that no order of confiscation of any essential com-
modity or conveyance, etc., shall be made unless the owner or the person from
whom it is seized has been served with a notice informing him of the grounds on
which it is proposed to confiscate the same and he has been given reasonable
time to make a representation in writing against the grounds set out in the
notice and has been given a reasonable opportuni- ty of being heard. This
section incorporates the principles of natural justice to ensure that the owner
of person from whom the essential commodity is seized has the fullest
opportunity to satisfy the Collector against passing a confiscation order under
Section 6A. An appeal is provided by section 6C against the order of
confiscation passed under section 6A. Section 6D clarifies that an award of confisca-
tion under the Act by the Collector shall not prevent the infliction of any
punishment to which the concerned person is liable under the Act. We then come
to Section 6E which was inserted in the Act in place of the existing provision
by Act No. 42 of 1986 with effect from 9th September, 1986.
Since
the incident in question relates to a date subsequent to 9th September, 1986, it is unnecessary to notice the
earlier provision. Section 6E which confers exclusive juris- diction on the
Collector and in the State Government con- cerned under section 6C to pass
certain orders pending confiscation reads as under:
"Whenever
any essential commodity is seized in pursuance of an order made under Section 3
in relation thereto, or any package, coveting or receptacle in which such
essential commodity is found, or any animal, vehicle, vessel Dr other
conveyance used in carrying such essential commodity is seized pending
confiscation under Section 6-A, the Collec- tor, or, as the case may be, the
State Government concerned under Section 6-C shall have, and, notwithstanding
anything to the contrary contained in any other law for the time being in
force, any court, tribunal or other authority 993 shall not have, jurisdiction
to make orders with regard to the possession, delivery, disposal, release or
distribution of such essential commodity, package, coveting, receptacle,
animal, vehicle, vessel or other conveyance".
It is
obvious on a plain reading of this provision that the same was brought on the
statute book with a view to debar- ring the courts from making any order with
regard to the possession, delivery, disposal or distribution of any essen- tial
commodity seized under an order made under section 3 of the Act. Section 7
prescribed the penalties for the contra- vention of any order made under
section 3 and provides for the forfeiture of the essential commodity to the
Government and for the forfeiture of any animal, vehicle or other conveyance
used in carrying the said essential commodity, if the court so orders. Section
10A makes every offence under the Act cognizable and non-bailable,
notwithstanding any- thing contained in the Code. Section 11 provides that no
Court shall take cognizance of any offence punishable under the Act except on a
report made by a public servant as defined by section 21, I.P.C., or any person
aggrieved or any recognised consumer association. Section 12A empowers the
State Government to constitute by notification as many Special Courts as may be
necessary and Section 12AA, which begins with a non-obstante
clause--notwithstanding anything contained in the Code--provides mat all
offences under the Act shall be triable only by the Special Court constituted
for the area in which the offence was committed. Section 12AC makes the
provisions of the Code (including the provi- sions as to bail and bonds)
applicable to the proceedings before the Special Courts as if it is a Court of
Sessions unless the Act provides otherwise.
The
above resume of the relevant provisions of the Act makes it clear that once an
order is made by the Central Government under section 3 for regulating or
prohibiting the production, supply and distribution of any essential commod- ity
it shall have effect notwithstanding anything inconsist- ent therewith
contained in any other enactment or instru- ment. Any person who contravenes
any order made unless section 3 becomes liable to penal action under section 7
and the property in respect of which the order has been contra- vened becomes
liable to forfeiture. Notwithstanding anything contained in the Code, the
offence punishable under the Act for the contravention of an order under
section 3 is cogniz- able and non-bailable and may be tried by the Special Court constituted for the area in which
the offence was committed.
Thus
the breach of an order made under section 3 attracts penal consequences, i.e.,
imprisonment and fine, and also renders the 994 property seized liable to
forfeiture. This is one conse- quence of the breach of an order made under
section 3 of the Act. The Act also provides, section 6A, that where any
essential commodity has been seized in pursuance of an order made under section
3 in relation thereto, a report of the seizure must be sent to the Collector
without unreasonable delay, on receipt whereof the Collector may inspect the
seized property .and on being satisfied about the contraven- tion of the order
made under section 3 may order the confis- cation of such essential commodity
and any package, covering or receptacle wherein such essential commodity is
found as well as any animal, vehicle or conveyance used for carrying such
essential commodity. If the essential commodity is liable to speedy decay, the
Collector is empowered to sell it at the controlled price, if any, or by public
auction or through fair price shops if the retail sale price for such commodity
is fixed. The price so realised minus the expenses incurred for effecting the
sale has to be paid to the owner of the essential commodity or the person from
whom it was seized (a) where no order of confiscation is ultimately passed by
the Collector, or (b) where the appellate order passed under Section 6C so
requires or (c) where in a prose- cution under the Act the person concerned is
finally acquit- ted. An order of confiscation made after following the
requirements of section 6B does not prevent the infliction of punishment under
the other provisions (sections 7 to 10) of the Act. Thus confiscation of the
essential commodity etc., is not in lieu of punishment but can be in addition
to the penal consequences. It is in this background that we must examine the
controversy before us.
Section
6A empowers confiscation of the seized essential commodity, the package,
covering and receptacle in which the essential commodity was found and the
animal, vehicle or other conveyance in which such essential commodity was
carried. The words 'may order confiscation' convey that the power is
discretionary and not obligatory. Sub-section (2) thereof confers a special
power to deal with any essential commodity which, in the opinion of the
Collector, is subject to speedy and natural decay or it is otherwise expedient
in public interest to be disposed of in the manner indicated therein. Section
6A, therefore, merely confers power of confiscation and not the power of
release, disposal, distri- bution, 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, a fine equal to its market
price at the date of seizure. Section 6E was first enacted to debar courts from
making any order with regard to the pos- session, delivery, disposal or
distribution of any essential commo- 995 dity seized in pursuance of an order
made under section 3 in relation thereto. By the substituted section 6E as it
presently stands the scope of the provision has been en- larged by extending
the bar of jurisdiction of the Court, tribunal or other authority to the
release, etc., of pack- ages, coverings or receptacles as well as animals,
vehicles, vessels or other conveyances also. It provides that whenever any
essential commodity is seized under an order made in exercise of power
conferred by section 3 in relation thereto no court, tribunal or other
authority shall have jurisdic- tion to make any order with regard to the
possession, deliv- ery, disposal, release or distribution of such essential
commodity save and except the Collector pending confiscation under section 6A,
or the State Government concerned under section 6C. The question then is
whether this power of release which is conferred on the Collector pending confis-
cation is wide enough to permit the release of the essential commodity to the
owner or to the person from whom it was seized, notwithstanding the pendency of
prosecution for breach of an order made under section 3 in relation thereto?
The Act was enacted to safeguard public interest. It was thought necessary in
the interest of the general public to control the production, supply and
distribution of, and trade and commerce in, certain commodities through legisla-
tion. With that in view, powers to control production, supply, distribution,
etc., came to be conferred on the Central Government by section 3 of the Act.
As pointed out earlier, in order to deter persons dealing in such essential
commodities from contravening any order made under section 3, the law envisages
two independent proceedings, namely, (i) confiscation under section 6A and (ii)
prosecution leading to punishment provided by section 7 of the Act. In order to
ensure that the steady supplies of essential com- modities to the members of the
general public is not dis- rupted, provision is made in sub-section (2) of
section 6A that the Collector may, if it is expedient and in public interest so
to do, sell the seized commodity at the con- trolled price or by public auction
if no such price is fixed or through the public distribution system if the
retail sale price is fixed for the said commodity. Similar powers can be
exercised if the commodity is subject to speedy and natural decay. The obvious
purpose of conferring this power on the Collector without waiting for the
completion of the confis- cation proceedings is to maintain the smooth supplies
of essential commodities to the consumer public, avoid artifi- cial shortages,
maintain the price line and secure equitable distribution thereof through fair
price shops. If such a power was not confined and if the seized commodity could
not be dealt with till the completion of the confiscation pro- ceedings, it
would defeat the very object and purpose 996 for which the Act was enacted. By
the conferment of this power a duty is cast on the Collector to see that
essential commodities are not locked up in proceedings under the Act;
artificial
scarcity is not created to hike up prices; a close watch is kept on the
supplies to the general public;
when
necessary in public interest the stock of seized com- modities is released to
combat short supply and in general to ensure the availability of essential
commodities at fair prices to the general public. To ensure that this objective
of maintaining supplies and securing equitable distribution of essential
commodities is not defeated, the legislature has entrusted the task to the
Collector in its entirety and has ruled out interference by courts, tribunals
and other authorities by placing an embargo on their jurisdiction in this
behalf by section 6E of the Act. While conferring wide powers as above on the
Collector, the legislature has also protected the dealer's interest by
providing that in the event it is ultimately found that he was not guilty of
contravention of any order made under section 3, he shall be paid the price realised
with reasonable interest. But if the prosecution ends in a conviction, section
7(1)(b) enjoins that the property in respect of which the order was contra- vened
'shah be forfeited' to the Government. The language of this clause is clearly
mandatory and leaves no option to the Court but to order forfeiture. This
becomes clear if we read this clause in juxtaposition with clause (c) which
confers a discretion on the Court to order forfeiture of any packing, coveting
or receptacle in which the essential commodity was found or any animal,
vehicle, vessel or any other conveyance which was used to carry the same. If
the property is re- turned to the owner or the person from whom it was seized in
exercise of power under section 6E, it is difficult to understand how the Court
would implement the mandate of clause (b) of sub-section (1) of section 7 of
the Act. But the learned counsel for the appellant argued that even in cases
where the Collector sells the essential commodity under sub-section (2) of
section 6A and retains the price thereof, the essential commodity ceases to be
available for forfeiture under clause (b) of section 7(1) of the Act. He,
therefore, submitted that the Act itself contemplates a situation which renders
clause (b) of section 7(1) otiose where the essential commodity is disposed of
by the Collec- tor under sub-section (2) of section 6A of the Act. He,
therefore, saw no harm in releasing the commodity to the owner or the person
from whose possession it was seized on condition that such person deposits the
market price of the commodity on the date of seizure or gives a bank guarantee
for the said sum. In this connection reference was also made to the provision
in sub-section (5) of Section 452 of the Code which inter alia provides that
the term 'property' shall include, 'in the case of property regarding which an
997 offence appears to have been committed, not only such property as has been
originally in the possession or under the control of any party, but also any
property into or for which the same may have been converted or exchanged, and
anything acquired by such conversion or exchange whether immediately or
otherwise'. This definition can be invoked in view of section 2(f) of the Act
which is not inconsistent with any provision of the Act. But this submission
overlooks the fact that the power conferred by sub-section (2) of section 6A to
sell the essential commodity has to be exer- cised in public interest for
maintaining the supplies and for securing the equitable distribution of the
essential commodity. If the essential commodity is returned to the person from
whom it was seized or to the owner thereof, the very objective of the Act would
be defeated and the purpose of seizure would be frustrated The seizure has to
be effect- ed not for the sake of earning revenue, i.e. the market price of the
commodity at the date of seizure, which may be ultimately forfeited, but to
prevent hoarding of essential commodities, avoid artificial shortages, maintain
a steady supply to the community and ensure equitable distribution at fair and
reasonable prices. If the seized commodity is returned by merely securing its
value, this objective of the act will be wholly defeated. That is why section
6A does not empower the Collector to give an option to pay, in lieu of
confiscation of the essential commodity, a fine not exceed- ing the market
value of the commodity at the date of sei- zure, as in the case of any animal,
vehicle, vessel or other conveyance seized along with the essential commodity.
Only a limited power of sale of the commodity in the manner pre- scribed by
sub-section (2) of section 6A is granted. This shows that the legislature did
not intend to confer a power on the Collector to return the essential commodity
to the owner or the person from whose possession it was seized.
That
is for the obvious reason that it would run counter to the very object and
purpose of the enactment.
And
now to the structural setting and context in which the word 'release' is used
in section 6E. While debarring courts, tribunals and other authorities from
exercising power in relation to the seized commodity, power is con- ferred on
the Collector or the State Government concerned under section 6C, to make orders
with regard to the posses- sion, delivery, disposal, release or distribution of
such commodity, etc. This power can be exercised pending confis- cation. The
power conferred by this section is unqualified.
The
word 'release' is preceded by the words 'possession, delivery and disposal' and
followed by the word 'distribu- tion'- The setting and context in which the
word 'release' is used makes it clear that it is not used in the sense of
'return'. In the first place as pointed out earlier it would completely defeat
the 998 purpose and object of the Act if the essential commodity seized for
suspected contravention of the order made under section 3 is returned to the
owner or person from whom it was seized even before the confiscation
proceedings were completed. Such an intention cannot be ascribed to the
legislature. Secondly, it is not possible to believe that the legislature would
confer unqualified and unrestricted power to return the essential commodity to
the owner or the person from whose possession it was seized before a decision
whether or not to confiscate the same is taken. As the section stands, if the
interpretation put by the learned counsel for the appellant is accepted, it
would be permissi- ble to the Collector to return or restore the commodity
without imposing any condition, pending confiscation pro- ceedings. We are
unable to persuade ourselves to accept the interpretation placed by Mr. Rao on
the word 'release'. The scheme of sections 6A, 6B and 6C makes it clear that
after the essential commodity is seized and the same is inspected by the
concerned Collector, the latter has to decide, after complying with the
procedure set out in section 6B, whether or not to confiscate the essential
commodity. Since the procedure delineated in section 6B is time consuming, the
Collector has been given special power to sell the essential commodity as
stated in sub-section (2) of section 6A if it is subject to speedy and natural
decay or it is expedient in public interest so to do. If the Collector decides
not to confiscate the commodity and if no prosecution is launched or
contemplated the commodity has to be returned to the owner or person from whom
it was seized. If in the meantime it is sold in exercise of power under
sub-section (2) of section 6A, the price of the commodity has to be paid as
provided by sub-section (3) of section 6A. If the Collector has ordered
confiscation but the order is reversed in appeal under section 6C and no
prosecution is pending, sub-section (2) of section 6C enjoins that the essential
commodity should be 'returned' and if that is not possible its price together
with reasonable interest. It is pertinent to note that sub-section (2) of
section 6C uses the words 'return the essential commodity seized' and not the
word 'release the essential commodity seized'. It seem to us that having regard
to the scheme of the Act, the object and purpose of the statute and the
mischief it seeks to guard against the word 'release' is used in the limited
sense of release for sale, etc., so that the same becomes available to the con-
sumer public. There could be no question of releasing the commodity in the
sense of returning it to the owner or person from whom it was seized even
before the proceeding for confiscation stood completed and before the termination
of the prosecution in_ the acquittal of the offender. Such a view would render
clause (b) of section 7(1) totally nugato- ry. It seems to us that section 6E
is intended to serve a dual 999 purpose, namely (i) to prevent interference by
courts, etc., and (ii) to effectuate the sale of the essential commodity under
sub-section (2) and the return of the animal, vehicle, etc., under the second
proviso to sub-section(1) of section 6A. In that sense section 6E is
complementary in nature. We are, therefore, of the opinion that the High Court
was right in the ultimate conclusion it reached.
Counsel
for the appellant next pointed out that this Court had passed an interim order
on December 8, 1988 for sale of the seized commodity and for handing over the sale
proceeds to the appellant on the latter furnishing a bank guarantee to the
satisfaction of the Special Judge, 24 Paraganas (South), Alipore. Despite this
order the seized commodity had not been disposed of Mr. Rao, therefore,
contended that this Court should not assist the respondent State which had
defied and thwarted the order of this Court.
It is
true that the seized commodity has not been disposed of to-date. But it appears
from the subsequent order of February 13, 1989
as amended by the order of February 15, 1989,
that the only direction given to the Special Judge was to dispose of the
pending prosecution within two months. It was further directed that the Special
Judge will pass appro- priate consequential orders regarding the release of the
seized goods. It, therefore, becomes clear that when the subsequent orders were
passed on February 13 and 15, 1989, the appellant did not insist on the sale of
the seized commodity as per the order of December 8, 1988. The matter came up for hearing on
subsequent occasions also but at no time did the appellant press for the
implementation of the said order of December 8, 1988. Even after the Special Judge
recorded an acquittal and directed return of the goods, the appellant did not
seek implementation of the said order. Nor did the appellant move the High
Court for the implementation of the said order in the appeal pending against
the order of acquittal. It is, therefore, too late in the day now to contend
that as the order of December
8, 1988 has remained
unimplemented we should refuse to grant any relief to the respondent State.
For
the reasons stated above we see no merit in this appeal and dismiss the same
with costs.
R.N
.J. Appeal dismissed.
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