IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON : 19.06.2017 PRONOUNCED ON : 29.06.2017 CORAM
THE HONOURABLE MR. JUSTICE V.BHARATHIDASAN
CRL.R.C.No.240 of 2016
Criminal Revision Case filed under Sections 397 and 401 of the Code of Criminal Procedure Code to set aside the order passed by the II Additional Sessions Judge, Erode in Crl.A.No.43/2014 dated 02.07.2015.
For Petitioner : Mr.R. Ravichandran, Government Advocate (Crl. Side) For respondent : Mr. Yusuf, Legal Aid Counsel O R D E R Challenging the order passed by the II Additional Sessions Judge, Erode in Crl.A.No.43/2014 dated 02.07.2015/appellate authority under Section 6C of the Essential Commodities Act 1955, allowing the appeal filed by the respondent, the present revision has been filed.
2. The case of the petitioner in brief is as follows:-
While the civil supplies CID police engaged in an inspection, found a vehicle bearing registration No.TN 33 AV 5234 in front of Fair Price Shop near Tamayanthi Baby Sait Marriage Hall at Erode Taluk with four tin barells containing 800 liters of kerosene meant for public distribution system in the ration shop and the vehicle did not possess any voucher or permission for transporting the kerosene meant for public distribution system. Hence, the respondent police seized the vehicle and also registered a case in Crime No.149 of 2013 and proceedings under Section 6A of the Essential Commodities Act 1955 has been initiated for confiscation of the kerosene for violation under clause 3(1) and 17(i) of the Tamil Nadu Kerosene Control order. A notice under Section 6B of the Essential Commodities Act (herein after called “Act”) has been issued to the respondent for confiscating the kerosene and the also the above vehicle.
3. Then an enquiry was conducted on 07.05.2014, in which the respondent has appeared and given explanation stating that the kerosene belongs to a fair price shop, since there is no space available in the fair price shop, the kerosene has been loaded in the lorry to transport the same to the nearby marriage hall. At the time, the lorry and the kerosene has been seized by the petitioner, and he has not intended to illegally transport the kerosene. Since the respondent failed to prove that the kerosene has been transported only for the purpose of storing it into a nearby marriage hall with proper voucher, Revenue authority ordered confiscation of kerosene and imposed a fine of Rs.1,75,000/- against the vehicle. Challenging the same, the respondent filed an Appeal before the appellate authority, namely II Additional Sessions Court, Erode, in C.A.No.42 of 2014. The appellate authority allowed the appeal filed by the respondent holding that only the petitioner has to prove the case beyond reasonable doubt. The respondent has not been convicted for any offence, as he was not found guilty nor convicted by the criminal court. As the prosecution has failed to prove the commission of offence before the court, the respondent cannot be said to have committed the offence. Hence, in the absence of conviction for above offence, the respondent vehicle cannot be confiscated. Now, challenging the above order, the present revision has been filed.
4. Even though notice was served on the respondent and his name was also printed in the cause list, none appeared for him. Hence, Mr. Yusuf, learned counsel, was appointed as legal aid counsel for the respondent.
5. Heard Mr.R. Ravichandran, Government Advocate (Crl.
Side), appearing for the petitioner and Mr. Usuf, learned Legal Aid counsel appearing for the respondent and perused the materials available on records carefully.
6. The main reason stated by the Appellate authority below for allowing the appeal is that, in the absence of any conviction against the respondent, the vehicle cannot be confiscated. That finding is totally illegal, it is a settled law that, the proceedings under Section 6A of the Act, contemplates confiscation of the Essential Commodities, for violation or contravention of any order made under Section 3 of the Act, where as Section 7 of the Act provides for prosecution leading to punishment for contravention of any order made under Section 3. Both the proceedings are independent proceedings, whereas confiscation proceedings under Section 6A of the Act would not affect any order of acquittal in a criminal prosecution under Section 7 of the Act, as there is a clear dichotomy between the two proceedings. Apart from that Section 6D of the Act which reads as follows :
“ Award of confiscation not to interfere with other punishments:
The award of any Confiscatian under this Act by the Collector shall not prevent the infliction of any punishment to. Which the person affected thereby is liable under this Act.”
It clearly says the award of any confiscation by the Collector shall not prevent the infliction of any punishment .
7. The Hon'ble Supreme Court in a judgment in Thakur Das(dead) by Lrs., /vs/ State of Madhya Pradesh and another reported in 1978 Criminal Law Journal held as follows:-
“ The Act envisages two independent proceedings against a person charged with contravention or violation of an order made under Section 3 in relation to an essential commodity. Under Section 6A the Collector can confiscate the seized commodity. Under Section 7 such contravention is made punishable. Under Section 7 even where a prosecution is launched it is not absolutely obligatory upon the Court to fortfeit the property in respect of which the relevant order has been contravened. It is left to the discretion of the Court to direct forfeiture of the whole or part of the commodity brought before the Court in respect of which an offence appears to have been committed.
8. In the above circumstances, the proceedings under Section 6A and 7 of the Act, are independent, and the findings of the court below is liable to be set aside.
9. Regarding the other reasons stated by the appellate authority that it is for the prosecution to establish that the accused has transported kerosene for selling it in black market is concerned, the vehicle has been seized infront of a fair price shop loaded with four barells containing of 800 liters of kerosene without any authorization or voucher and proper explanation, which was meant for public distribution system, and the respondent has no proper explanation for transportation. Thus, the prosecution has proved that the kerosene has been transported by the respondent only to sell it in the black market. Hence, the order passed by the appellate authority is liable to be set aside.
10. In the result, this Criminal Revision Petition is allowed and the Order passed in Criminal Appeal No.43 of 2014 dated 02.07.2015 by the II Additional District Judge, Erode is set aside. Consequently, connected miscellaneous petition is closed.
29.06.2017
Index:Yes/No Internet:Yes/No mrp To
1. The Sessions Judge, II Additional Sessions Court, Chennai.
2. The Public Prosecutor, High Court, Madras.
V.BHARATHIDASAN, J.
mrp
Pre-delivery Order in
Crl.R.C.No.240 of 2016
29.06.2017