ISHWARBHAI RAMBHAI PATEL Vs. SHYAMAL GHOSH

JUDGEMENT

(1.) What is the effect of an order of acquittal in a prosecution under sec. 7 of the Essential Commodities Act 1955 (the Act on the order of confiscation passed under sec. 6A of the Act by the Collector in respect of a vehicle is the question which arises in this proceeding. A few facts for this purpose may be stated. A truck bearing No. GTD 4207 (hereafter referred to as the truck in question) was loaded with 90 bags of rice in Ahmedabad and was found proceeding towards Broach and beyond Broach it had crossed Narmada bridge. Before that an information about it as well as some other trucks in which rice was to be exported to Maharashtra had reached the Deputy Director Civil Supplies Gandhinagar. He therefore in the company of one Mr. Bachani left Ahmedabad in a car and at Narmada bridge near Broach they could find entry of this truck loaded with foodgrains in the relevant records. Having found that the truck had crossed Narmada bridge they followed; and found it near Ankleshwar going ahead. They closely followed the truck which ultimately was found going from Bardoli towards Ukai. On the way near Bajipura it stopped. There the driver was questioned about its destination. It appears that thereafter the truck started its reverse journey from Bajipura and came to Bardoli. The car in which the Deputy Director was travelling had proceeded ahead in search of other trucks; and on its return they found that the truck was not there near Bajipura. Therefore. they went to Bardoli and found the truck near a garage. There the search of the truck took place and 90 bags of rice were found loaded in it. Thus the truck in question did not go beyond the limits of Gujarat. It is alleged that by this act an attempt was made to contravene clauses 3 and 4 of the Gujarat and Dadra Nagar Haveli Rice Export and Move- ment Control Order which was issued under sec. 3 of the Act. The said Contravention was also in law made punishable under sec. 7 of the Act; and for that contravention the petitioner was one of the six persons prosecuted. He was the owner of the truck in question. The collector of Surat in exercise of his powers under sec. 6A of the Act gave notice to the petitioner to show cause why the truck in question should not be confiscated as the same was found in a surreptitious manner taking rice out of the limits of Gujarat State and thereby contravention of the aforesaid order was made. The petitioner showed cause in reply and the Collector by his order dated September 10 1976 ordered confiscation of the truck in question. Being aggrieved by this order the petitioner preferred an appeal to the Sessions Judge at Surat as provided by sec. 66 of the Act. It may be mentioned that prior to the decision of the appeal by the learned Sessions Judge the petitioner came to be acquitted by the learned Magistrate in respect of the contravention of the aforesaid order which would be punishable under sec. 7 of the Act. One of the contentions therefore raised before the learned Sessions judge on behalf of the petitioner was that in view of the order of acquittal the confiscation order made by the Collector must be set aside under sub-sec. (2) of sec. 6C of the Act and the price for the truck should be paid to the petitioner. Two other contentions including a contention pertaining to the merits of the case were also raised. The learned Judge in appeal did not accept any of these three contentions with the result that he dismissed the appeal confirming the order of confiscation passed by the Collector. Against the said order present Special Criminal Application has been preferred by the petitioner.

(2.) The first contention advanced on behalf of the petitioners that the petitioner having been acquitted of the same contravention of the Movement Control Order on the basis of which the order of confiscation was passed the confiscation ordered by the Collector of the vehicle must give way to the acquittal order which would entitle the petitioner to have his truck back. It is urged that the order of confiscation is based on the alleged contravention of the Movement Control Order made under sec. 3 of the Act and the petitioner (owner of the truck) is acquitted of the offence arising from the same contravention by the Court after a full-fledged trial. Therefore runs the argument the order of confiscation passed by the Collector does not survive and the petitioner is entitled to get back the truck. Having heard the learned advocates of both the sides on this point. I found that there is a good deal of substance in this contention; and therefore it is not necessary to examine the validity or otherwise of the order passed by the Collector and confirmed in appeal by the learned Sessions Judge on the basis of the other two contentions.

(3.) A look at the relevant provisions of the Act will show how well- founded this contention is. Sec. 3 of the Act empowers the Central Government to make an order for regulating or prohibiting inter alia distribution trade and commerce of an essential commodity. The Movement Control Order referred to earlier came to be made under this provision; and about that there is no dispute. The contravention of that order would be punishable under sec. 7 of the Act. Now sec. 7(1)(b) of the Act provides inter alia that any vehicle used in carrying property in respect of which contravention of the order under sec. 3 has been made shall be forfeited to Government. However the Court trying an offender for such contravention may refrain from forfeiting the property to the Government as provided by the proviso to sec. 7(1)(b) of the Act. Thus the law contemplates two consequences following a single contravention viz. confiscation by the Collector under sec. 6A or forfeiture to Government under sec. 7(1)(b) as a result of the order of the Court. The question is can the Collector confiscate property on the basis of a contravention of order under sec. 3 for which the person to whom the property belongs has been tried by a Court of law and acquitted ? Now when the Legislature has conferred power on the Court to refrain from forfeiting property to Government even in a case where contravention of an order under sec. 3 has taken place it would indeed be strange if in case of an acquittal on merits the power of confiscation vested in the Collector is not affected by the acquittal. On the contrary. there is sufficient indication given in the Act itself of the Legislative intent to see that the order of confiscation passed by the Collector is made subject to an order of acquittal passed by the Court. This has been expressly provided in respect of an essential commodity in sec. 6C(2) of the Act. The entire section may be reproduced: