1. Heard Mr. N.K.Agrawal, learned senior counsel appearing for the petitioner and Mr. Prashant Pratap, learned GP-2 has assisted the Court on behalf of the State-respondent.
2. The writ petition has been filed for a direction upon the Respondent No.2 (the District Magistrate, Madhubani) to release the public Career Truck bearing registration No. UP 14 GT 6408 seized by the Block Supply Officer, Pandaul, in Confiscation Case No.7 of 2019-20, pending before the learned Collector, Madhubani.
3. The learned Senior Counsel has submitted that the release has been prayed for subject to the normal condition that the petitioner would fulfill the adequate security for its release. Upon its release, he would not create any third party right and the truck would be produced before the Authority as and when required.
4. The truck was seized and criminal prosecution was instituted which led to lodging of Sakri PS Case No 73 of 2019, under Sections 420, 120B of the I. P. C. and Section 7 of the Essential Commodities Act (hereinafter referred to as “the Act”).
5. Being owner of the truck bearing registration No. UP 14 GT 6408, the petitioner filed an application for release of the same in the criminal proceedings pending before the C.J.M. Madhubani, as contained in Annexure-4 of the writ petition. A report was received in the said proceeding that the petitioner’s truck is now subject-matter of Confiscation Proceedings bearing No.7 of 2019-20. In view of these developments, the learned C.J.M., Madhubani vide order dated 23.10.2019 refused to exercise his power for release of the vehicle and the petitioner was, thereafter, left with no alternative than to approach the Collector, Madhubani for release of his vehicle.
6. It is submitted by the learned senior counsel for the petitioner that he has already approached the Court of Collector for release of the vehicle. Till date, however, the vehicle inquestion has not been released. The truck has, thus, been in custody of the Authority and lying under the open sky now for more than 21 months.
7. From the F.I.R., forming the basis of the seizure, it is apparent that the only statement in connection with the petitioner’s truck is that it was parked in the premises of an inoperational rice mill by the name of Madhubani Agro Private Limited. He emphasizes that there is no allegation that the foodgrains had actually been loaded on the petitioner’s truck. There was another truck bearing registration number HR 69D 9313, on which 300 bags rice was found loaded, with which the petitioner has no concern. Thereafter, it has been alleged that both trucks were parked in such a manner from which it was clear that in both the trucks foodgrains were being loaded. Presumption of loading has been stated in the F.I.R. based on the manner in which the petitioner’s truck was parked, though there is no allegation that any foodgrain has been found actually loaded on the truck.
8. The relevant allegations pertaining to the two trucks in the FIR is as follows:
9. He further submits that the Collector, as per order dated 17.05.2019, passed in the Confiscation proceedings has, in fact, not ordered initiation of Confiscation Proceedings in respect of the truck in question. The order of the Collector is confined to the foodgrains/material seized. There is no mention of the truck and, therefore, there is no confiscation proceedings in respect of the petitioner's truck under the relevant provisions of the Act. Unless an offence is committed the petitioner cannot be deprived of his truck and right to ply the same for his livelihood by resorting to the confiscatory proceedings. In this case no foodgrains have actually been found loaded on the petitioner’s truck. On mere apprehension, based on the alleged fact of vehicle being parked there, the truck in-question could not have been subjected to confiscation proceedings. He has relied upon decision of the Apex Court in the case of Malkiat Singh and another v. The State of Punjab reported in AIR 1970 SC 713.
10. It is further submitted by the learned Senior Counsel that from bare perusal of the order of the Collector dated 17.05.2019 it is evident that the Sub Divisional Officer (for short S.D.O.) Sadar, Madhubani had requested for confiscation of only the seized foodgrains/material. The exact expression used by the S.D.O., which has been taken note of by the Collector Madhubani, in the order dated 17.5.2019 passed in Confiscation case no. 7 of 2019-20 is as follows:
11. It is in light of this proposal that the Collector, Madhubani has proceeded to direct for issuance of a general notice in respect of the foodgrains/material. Collector has also directed for issuance of notice upon one Shri Ram Sahu, Proprietor of Madhubani Agro Private Limited in respect of the seized foodgrains/material. However, without any basis, in the same breath, the Collector in the order dated 17.05.2019 has directed for issuance of notice upon the truck owners to submit statement of facts/explanation. In this connection, the exact order of the Collector is being reproduced:
12. The Collector in the order dated 17.05.2019, has not recorded any facts showing actual contravention of any order issued under Section 3 of the Act, in respect of the petitioner’s truck, as there is no allegation that petitioner’s truck was laden with any foodgrains whatsoever. From perusal of the order of the Collector, it is more than apparent that no confiscation proceedings in respect of the petitioner’s truck has been initiated.
13. Sub section (a)(b) and (c), as also the second proviso to Section 6-A makes it abundantly clear that the vehicle would be liable for confiscation only if it is “used in carrying such essential commodities” or the conveyance is “used for the carriage of goods”. A bare perusal of the Criminal case arising out of Sakri PS Case No. 73 of 2019 makes it clear that there is no allegation that the tuck has actually been seized with any essential commodities, laden on the truck, let alone conveyance of the same. In these facts and circumstances, the custody of the truck by the District Magistrate is wholly without jurisdiction as there is no basis for such custody.
14. Mr. Prashant Pratap, learned counsel for the respondent strenuously submits that from perusal of the criminal case proceedings, petition filed by the petitioner before the Criminal Court for release of the vehicle as contained in Annexure-4 to the writ petition and the statement of the driver recorded in the proceedings, it is abundantly clear that the truck in-question had been sent by the petitioner to Bihar for loading of foodgrains at the premises from where it has been seized. These circumstances which are apparent from the records leaves no room for doubt that the truck in-question was intended to be used for the offence under Section 7 of the Act. Under these circumstances, it is submitted that the submissions advanced by the learned senior counsel are without substance. The word “used” in sub section(c) of section 6-A(1) of the Act, or anywhere else has to be given a wide meaning. The expression cannot be considered to have a restrictive context of actual use at the time of seizure. The expression “used” would also include the time prior to loading or after unloading of the foodgrains.
15. State counsel has drawn attention of the Court towards the Full Bench judgment of this Court in the case of Baleshwar Roy vs.The State of Bihar and others and analogous cases passed by this Court in L.P.A. No. 1647 of 2015. Reference has been made to paragraph no. 61 of the said judgment, wherein the Full Bench has held as under:
“61.The upshot of the aforesaid discussion makes it very clear that no Court, even the High Court under the extraordinary powers under Section 482 of the Cr. P.C., shall have any jurisdiction to direct for release of any seized article during the pendency of the confiscation proceedings.”
16. Confiscation proceedings have been initiated against the petitioner’s truck, the petitioner was and is in knowledge of such initiation of Confiscatory Proceedings, and he has also taken steps for release of his truck before the Confiscatory Authority. The remedy of the petitioner, therefore, lies under the statute before the Authority itself. It is not a case where this Court should exercise its extraordinary jurisdiction under Article 226 of the Constitution of India for directing release of the truck.
17. Upon hearing the parties, this Court would observe that the essential facts for considering the scope of exercise of jurisdiction by this Court under Article 226 of the Constitution of India are to be found in the allegations made by the police authorities in relation to the seizure which led to lodging of Sakri P. S. Case No. 73 of 2019, which have been taken note of hereinabove. The facts have also been taken note of by the Collector, Madhubani, in his order dated 17.05.2019 (Annexure- 5 to the writ petition), from which, it is clear that there is no allegation that any foodgrains whatsoever was found loaded on the petitioner’s truck. It is only alleged that the same was parked in the premises of the closed rice mill, along with the other truck bearing registration No. HR 69D 9313, which truck was laden with 300 bags of rice. In absence of any loaded foodgrains on the petitioner’s truck whether, it can be concluded that same was “used in carrying essential commodity” as contemplated under Section 6-(A)(1)(c) of the Act, or not is the issue which arises for consideration.
18. If it is concluded that the truck was “used in carrying such essential commodity”, then submissions advanced by the counsel for the State would assume great force. If, on the contrary, the fact that there was no loaded foodgrains on the petitioner’s truck is taken to mean that it cannot be said to be “used in carrying such essential commodity” then, surely, the fact that the petitioner’s truck may have been parked within the premises of the closed rice mill, per se, would not be sufficient so as to attract the provisions of Section 6-(A) of the Act. Seizure of the petitioner’s truck, in the circumstances, would be wholly without jurisdiction.
19. This Court would, therefore, first be required to consider the object, scope and context of the expression “used in carrying such essential commodity” occurring in section 6- (A)(1) of the Act. For proper appreciation of the said expression, this Court must first consider what would be the contextual meaning of the word “use” occurring in section 6-(A)(1)(c) of the Act. The parties have not produced any authority in this regard. This Court would, thus, consider it useful to reproduce relevant extract of Section 6A(1) of the Act, as amended by Essential Commodities (Bihar Amendment) Act, 1977, Bihar Act 9 of 1978, which reads as follows:
6-A. Confiscation of foodgrains, edible oil-seeds, edible oils, etc.
(1) 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 contravention 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 essential commodity is found, and
(c)any animal, vehicle, vessel, or other conveyance used in carrying such essential commodity; ……”
20. Expression “use” has been considered by the Apex Court in the case of Shivaji Dayanu Patil & Anr. vs. Vatschala Uttam More (Smt) reported in (1991)3 SCC 530.
21. In the said case, the Apex Court was examining the meaning of the word “use”, in relation to Section 92-A of the Motor Vehicles Act, 1939. Since “use” of the motor vehicle was the determining factor under the said provision for giving rise to a liability upon the owner of the vehicle to pay compensation in respect of death or disablement as a result of an accident. Section 92-A of the Act of 1939 is being reproduced:
“92-A. Liability to pay compensation in certain cases on the principle of no fault.-(1) Where the death or permanent disablement of any person has resulted from an accident arising out of the use (emphasis mine) of a motor vehicle or motor vehicles, the owner of the vehicle shall, or, as the case may be, the owners of the vehicles shall, jointly and severally, be liable to any compensations in respect of such death or disablement in accordance with the provisions of this section.”
22. The Apex Court was examining the expression “use” in section 92-A of the Motor Vehicles Act in the context of a claim being raised by representative of a deceased, who died as a result of injuries due to an explosion in the petrol tanker which occurred about 4 and a half hours after it had overturned, as a result, of a collision with a truck on the National Highways. It is, in this factual background, that the Apex Court has held that the word “use” includes the periods when the vehicle was stationary due to breakdown, mechanical defect or accident. The expression “use” was held to cover the stage before explosion and fire, including the 4 hours when the tanker was lying turtle on the roadside.
23. The expression “use” was interpreted to have a very wide meaning, in view of the socially beneficial object of the law. It is in this context that the Apex Court held that the Court is to adopt a construction which advances the beneficent purpose underlying the enactment. In the case of Shivaji Dayanu Patil & Anr(supra) the expression “use” was held to be including the time of more than 4 hours after it’s collision on the Highways when the truck was lying turtle on the side of the road till the explosion took place resulting in death of the claimant. Accordingly, liability was fastened on the owner to pay compensation to the victim.
24. From reading of the judgment of the Apex Court, it is clear that a significant factor in concluding that the vehicle was being “used” so as to attract liability under the Act of 1939, was the fact that it was laden with petroleum coupled with the fact of its collision on the Highways. The essential ingredients/facts to constitute “use” of the vehicle therefore existed. This Court would rely on judgment of the Apex Court in the case of Shivaji Dayanu Patil (supra) so as to arrive at a conclusion whether in view of the facts in the instant case petitioner’s truck can be said to be “used” in carrying essential commodity as per section 6A of the Essential Commodities Act. Also whether there would be any liability, in the instant case for seizure of the petitioner’s truck, in absence of there being any essential commodity loaded on the truck.
25. Having regard to the judgment of the Apex Court in Shivaji Dayanu Patil & Anr(supra) this Court, for the aforesaid reasons(s) is not inclined to consider that the petitioner’s truck was “used” in carrying essential commodity as the admitted fact is that there was no essential commodity whatsoever found loaded on the petitioner’s truck.
26. In support of the other submission of learned senior counsel for petitioner that parking of the vehicle within the closed rice mill, per se, is insufficient to conclude that the petitioner had made any attempt to contravene any order under Section 3 of Act, paragraph No.4 of the judgment of Malkiat Singh and another (supra) has specifically been relied upon. He has submitted that from the prosecution case containing allegation that the petitioner truck was parked in the closed rice mill, it cannot even be concluded that any attempt had been made to contravene the provisions of Section 3 of the Essential Commodity, let alone actual contravention thereof. Even if the facts of the prosecution case are accepted that essential commodity (foodgrains) and bags and other material for packing the essential commodity was lying within the premises of the closed rice mill, from where the petitioner’s truck has been seized, without admitting to the same, it cannot be presumptively concluded that the bags containing essential commodity would ultimately be loaded on the petitioner’s truck.
27. For appreciating this submission, this Court would observe that the judgment of the Apex Court in the case of Malkiat Singh and another (supra) assumes great significance. The Apex Court has laid down the test for determining whether the action constitutes an “attempt” or a “preparation”. The Apex Court has clearly laid down that if the overt acts already done are such that if the offender changes his mind and does not proceed further in its progress, the acts already done would be completely harmless, being merely “preparation”, and not an “attempt” to contravene or violate the Act so as to commit an offence.
28. In the instant case, allegation is that petitioner’s truck was parked inside the closed rice mill where essential commodity (foodgrains) were found. There is no allegation that it had been loaded on the petitioner’s truck. Thus, there is no factual basis for the Collector to conclude that there was even any “attempt” at “carrying such essential commodity” as per Section 6-A(1) (C) of the Act, much less actually contravene the said provision. The uncontroverted allegations, therefore, does not constitute the requisite facts so as to attract the liability of seizure under Section 6-A of the Act.
29. In the opinion of this Court, having regard to the penal consequences under Section 6(A) of the Act, the expression “used in carrying such essential commodity” has to be given a meaning so that the consequence arise only if the conveyance was actually being used in carrying essential commodity, and not by any inference or compelling perception of the same based on suspicion, however, strong it may be. Once the authority finds essential commodity (foodgrains) loaded on the vehicle, animal or vessel, the penal consequences contemplated under Section 6(A) are attracted. Once the provisions are attracted, this Court, exercising jurisdiction under Article 226 of the Constitution of India, would normally refrain from passing any order for release, subject, however, to the conditions contemplated in paragraph Nos. 62,63 and 64 of the decision of the Full Bench in the case of Baleshwar Roy (supra).
30. In the instant case, however, admitted fact is that no foodgrains whatsoever was found loaded on the petitioner’s truck. Had there been any foodgrains found on the petitioner’s truck then the authority would surely have stated so because in respect of the other truck parked in the premises there is a specific assertion that foodgrains were found loaded thereon. Parking of the petitioner’s truck, per se, within the premises of the closed rice mill, in the opinion of this Court, cannot be sufficient to conclude that any attempt was made, or that the vehicle in-question was actually being “used in carrying such essential commodity” as per Section 6(A)(1)( c) of the Act.
31. The case has to be considered keeping in view the factual allegations made by the Block Supply Officer, Pandaul in the F.I.R. leading to lodging of Sakri PS Case No 73 of 2019. In the said FIR also, there is no allegation that any foodgrains/material whatsoever was loaded on the petitioner’s truck.
32. From the materials on record, the admitted factual position that emerges is that no foodgrains “essential commodity” was loaded on the petitioner’s truck bearing Registration No. UP 14GT 6408.
33. In view of the above noted considerations and reasons, this Court would find that there is no factual basis to conclude that the petitioner’s vehicle was being used in carrying essential commodity as per Section 6(A) of the Act. The provisions of Section 6(A) of the Act, therefore, cannot be invoked for seizure of the petitioner’s truck. Seizure of petitioner’s truck and continued custody by the Collector, Madhubani, in the circumstances, must necessarily be held to be without jurisdiction.
34. In view of these findings, this Court is of the opinion that non- exercise of jurisdiction under Articles 226 and 227 of the Constitution of India would amount to perpetuating custody of the petitioner’s truck bearing Registration No. UP 14GT 6408 by the Collector, Madhubani, based on a prima facie illegal seizure, which is without jurisdiction. The Collector, Madhubani, by continuing to hold the custody of the petitioner’s truck is causing substantial injustice to the petitioner. This Court would thus rely upon paragraph Nos. 62, 63 and 64 of the decision of the Full Bench in the case of Baleshwar Roy (supra) which read as under:
“62. It may, however, be added that Article 226 of the Constitution of India provides power to the High Court to issue writs to any person or authority, including in appropriate cases, any Government, any order or writs (including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part-III and for any other purpose). Similarly Article 227 of the Constitution of India provides the power of superintendence over all Courts and Tribunals throughout the territories in relation to which any High Court exercises its jurisdiction. The powers of the High Court under Articles 226 and 227 of the Constitution of India cannot be curtailed under any circumstance, as the power flows from the Constitution itself. No statutory bar can affect the power of the High Court under Articles 226 and 227 of the Constitution of India.
63. Despite such wide and untrammeled powers, without any circumcision by external restrictions, the Courts have evolved certain
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self-imposed limits while exercising these powers. The High Courts, normally, would not go beyond justified inhibitions under any Statue except where there is a complete jettisoning of rule of law or under exceptional circumstances which demand timely judicial interdict. This inhibition is basically ordained, keeping in mind that there is a national weal behind any valid piece of Legislation incorporating and inhering in itself the social objective behind any Legislation. Though, no limitations or fetters have been put on the powers of the High Court under Articles 226 and 227 of the Constitution of India, as the High Courts perform as sentinel on the qui-vive, but such power is not to be exercised casually and without coming to the conclusion that non-exercise of such power would lead to positive injustice. Times without number, it has been held by the High Courts that only under condition of a person establishing that substantial injustice has or is likely to ensue, such extraordinary powers can be exercised. It needs no adumbration by this date that the plenary powers of the High Court have only to be exercised in the interest of justice. 64. Thus, an order of release may be passed under Article 226/227 of the Constitution of India, even pending confiscation proceedings, but only when it is established before the Court that the procedure prescribed and the law in that regard has been completely flouted and that there is complete violation of the procedure prescribed for confiscation, viz., notice to the offender before confiscation, allowing him opportunity of giving written representation and affording hearing on the issue to him and that such injustice cannot be remedied without the exercise of the extraordinary power.” 35. In the considered opinion of this Court interest of justice demands that this Court direct for release of the petitioner’s truck by exercising jurisdiction under Article 226 of the Constitution of India. The Collector, Madhubani (Respondent No.2) is directed to release the petitioner’s truck bearing Registration No. UP 14GT 6408 within two weeks from the date of receipt/production of a copy of this order. The release, as prayed for would be subject to the normal condition that the petitioner would fulfill adequate security for its release, upon its release he would not create any third party right, and the truck would be produced before the Authorities as and when required, and subject to the result of the case.