KASAMKHAN RASULKHAN PATHAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) In this petition under Article 226 of the Constitution the petitioner has challenged the order passed by the Collector of Bulsar confiscating truck No. GTY-3865 belonging to the petitioner and he has also challenged the order of the Sessions Judge Bulsar at Navsari confirming the order of confiscation. He has further challenged the order of the Government of Gujarat in the Civil Supplies Department refusing to interfere with the order of confiscation. The order of the Collector of Bulsar is Annexure A to the petition. The order of the Sessions Judge is Annexure B to the petition and the order of the State Government is Annexure D to the petition. The petitioner has also challenged the vires of sec. 6A (1) (c) under which the Collector his got the power to confiscate the vehicle which is used for the purpose of contravening any of the provisions of an order issued under sec. 3 of the Essential Commodities Act.

(2.) The facts leading to this petition are as follows: The petitioner is the owner of the truck bearing No. GTY-3865. On February 14 1976 in the early hours of morning at about 3-30 AM this truck of the petitioner was intercepted by Police Sub Inspector Umbergaon on the national highway near village Atak-Pardi. This village is about forty kilometers inside the Gujarat State territory from the inter-State boundary between the States of Gujarat and Maharashtra. The case against the petitioner was that this truck was loaded with 79 bags of cabbage and below these bags of cabbage were 119 bags of 50 kilogram each packed with rice. These bags of rice goods according to the police authorities were being illegally transported to Maharashtra. The truck was being driven at the time by one Yasinkhan. The truck and the rice in 119 bags were both seized by the police under a Panchnama. On receiving report from the police the Collector of Bulsar initiated action under the provisions of sec. 6A of the Essential Commodities Act hereinafter referred to as the Act. The petitioner contended before the Collector when the appropriate notice under sec. 68 was issued to him that the rice which was found in the said truck was not meant for being carried outside the State of Gujarat. It was the case of the petitioner that the rice contained in the 119 bags was to be delivered at village Vankal in Bulsar Taluka of Bulsar District in the State of Gujarat It was the case of the petitioner that goods were consigned to one Jagubhai Khushalbhai of Vankal by Laxmanbhai Chhaganbhai of Bareja. The petitioner produced the bills in connection with this consignment and the petitioner contended that there was no intention to carry rice across the inter-State boundary and hence no question of the breach of the provisions of clause 3 of the relevant order issued under sec 3 would ever arise. It was the case of the petitioner that village Vankal was a few miles to the east of the point where the truck was intercepted. It was found that Vankal village was situated on Bulsar Dharampur Road and was about five to seven miles to the east of the national highway. It was the case of the petitioner before the Collector that driver Yasinkhan had been instructed to carry the rice to village Vankal and to hand over the same to Jagubhai Khushaldas of Vankal village. It was the case of the petitioner that he had undertaken this contract of transporting lice from Laxmanbhai Chhaganbhii of Bareja for the sum of Rs.357.00. Jagubhai and Laxmanbhai gave their statements supporting the petitioner and according to their statements the rice belonged to Laxmanbhai who bad sent the same to Jagubhai Khushaldas and the bill was already seat to Jagubhai Khushaldas. The Collector of Bulsar relied upon the statement given by driver Yasinkhan before the police under sec. 162 of the Criminal Procedure Code and issued an order of confiscation of the truck and the rice. This order of confiscation was made by the Collector on April 17 1976 Against the order of confiscation the petitioner filed an appeal to the Sessions Judge Bulsar under sec. 6 of the Act. On August 10 1976 the learned Judge by his judgment and order dismissed the appeal and confirmed the order passed by the Collector confiscating the truck herding to the petitioner. Thereafter it appears that the petitioner the driver of the truck and two others were prosecuted in connection with these 119 bags of rice before the learned Judicial Magistrate First Class Valsad and the learned Magistrate acquitted the accused on April 16 1977 that is after the learned Sessions Judge Valsad had dismissed the appeal against the order of confiscation. Thereafter on December 23 1977 the present application under Article 2 6 of the Constitution was filed challenging the order of confiscation as confirmed by the learned Sessions Judge. After this Special Criminal Application was filed it was amended and by the amendment the petitioner has challenged the vires of the section.

(3.) Mr. K. J. Sethna for the petitioner has urged the following four contentions before us: (1) his first contention is that since under sec. 6 of the Act once an accused is acquitted in connection with contravention of an order issued under sec. 3 of the Act the essential commodity or its equivalent is required to be returned to the accused. There is on reason why the truck which was seized because it was being used for the contravention of the order in connection with the essential commodity should not be returned or the value thereof should not b paid to the owner of the vehicle (2) His second submission was that there was in fact no contravention of the order issued under sec. 3 of the Act inasmuch as the truck was slopped at a point which was forty kilometers inside the Gujarat State and therefore there was locus poenitentiae for the driver of the truck. All that had happened in this case was that there was preparation to export rice out of the State of Gujarat but there was no attempt and since preparation to commit an offence of contravention of an order issued under sec. 3 of the Act is not made punishable there was no contravention whatsoever and hence the Collectors order was invalid. (3) The seizure of the truck and of the essential commodity namely the rice could only be done under clause 7 of the Gujarat and Dadra Nagar Haveli Rice (Export) and Paddy (Movement Control) Act 1975 hereinafter referred to as the order under sec. 3. His contention was that the seizure could only be for the purpose of scoring the production of the vehicle in a Court and therefore the Collector could not pass the order of confiscation in raspiest of the goods so seized for the purpose of being produced in a Court of law and therefore the order of confiscation was bad. (4) His fourth and the last submission was that the power of confiscation under sec. 6A(1)(c) is uncanalised and hence is violative of Article 14 of the Constitution and ultra vires.