DAISHIKBHAI HARIBHAI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By way of this petition under Articles 226 and 227 of the Constitution of India r.w. Section 482 of the Criminal Procedure Code, the petitioner has prayed for an appropriate writ, direction and / or order quashing and setting aside the impugned order dated 7.12.2006 passed by the learned JMFC, Valiya below application under section 451 of the Criminal Procedure Code rejecting the application for releasing the tanker bearing registration No. GJ.6.T.3895. It is also further prayed to quash and set aside the order dated 19.1.2007 passed by the learned Additional Sessions Judge, Fast Track Court No. 3, Camp Ankleshvar, Bharuch passed in Criminal Revision Application No. 5 of 2007 confirming the order dated 7.12.2006 passed by the learned JMFC, Valiya.

(2.) It is the case on behalf of the petitioner that the petitioner is a registered owner of the tanker bearing registration No. GJ.6.T.3895. That the complaint / FIR being CR No. II 105/2006 came to be registered with Valiya Police Station for the offence under sections 3 and 6 of the Essential Commodities Act (hereinafter referred to as Sthe Act for short). That the tanker in question came to be seized by the Investigating Officer therefore, the petitioner submitted an application under section 451 of the Criminal Procedure Code before the learned JMFC, Valiya for releasing the mudamal tanker. The learned JMFC, Valiya by its order dated 7.12.2006 dismissed the said application on the ground that in view of section 6 (E) of the Act, he has no jurisdiction to release the tanker and the Collector only has jurisdiction to do so. Being aggrieved and dissatisfied with the order passed by the learned JMFC, Valiya dated 7.12.2006 passed below application under section 451 of the Criminal Procedure Code, the petitioner preferred Criminal Revision Application No. 5 of 2007 before the District & Sessions Court, Bharuch and by judgment and order dated 19.1.2007 the learned Additional Sessions Judge dismissed the said Criminal Revision Application application confirming the order passed by the learned JMFC, Valiya dated 7.12.2006 by holding that only the Collector has jurisdiction under section 6(E) of the Act to release the tanker. Being aggrieved and dissatisfied with both the orders, the petitioner has preferred the present petition under Articles 226 and 227 of the Constitution of India r.w. Section 482 of the Criminal Procedure Code.

(3.) Shri H.R.Prajapati, learned advocate appearing on behalf of the petitioner has submitted that both the Courts below have materially erred in rejecting the application of the petitioner for releasing the mudamal tanker under section 451 of the Criminal Procedure Code on the ground that it is only the Collector, who has jurisdiction to release the tanker as provided under section 6(E) of the Act. It is submitted by Shri Prajapati that no proceedings are pending before the Collector, Bharuch and section 6(E) of the Act would be applicable only where any proceedings are pending before the Collector. Shri Prajapati has relied upon the judgment of the Hon'ble Supreme Court in case of State of Madhya Pradesh & Others V/s. Rameshwar Rathod reported in (1990) 4 SCC 21 in support of his submission that the powers of the Magistrate under the Criminal Procedure Code to release the mudamal are not taken away and that the criminal Court's jurisdiction to entertain an application is not completely ousted. Under the circumstances, it is requested to allow the present application.