ANITA SARRAF Vs. STATE OF M.P.

JUDGEMENT

(1.) This petition is preferred under Section 482 of CrPC arising out of the order dated 1.12.2018 passed by Second Additional Sessions Judge, Sheopur in Criminal Appeal No. 37/2018, confirming the order dated 17.7.2018 passed by District Magistrate, Sheopur in Case No.178/2016-17/B-121, whereby the vehicle of the petitioner was confiscated.

(2.) The facts, in nutshell, are that the petitioner is the registered owner of vehicle, which is a truck bearing No. MP31-GA-0280. On 29.06.2017, FIR has been registered against the husband of the petitioner, Ganesh Kumar Sarraf and three other accused persons for the offence punishable u/S 3/7 of Essential Commodities Act, 1955 (for brevity, the 'Act'), at Crime No. 151/17 at Police Station Dehat, Sheopur, Distt. Sheopur. It is alleged in the FIR that the aforesaid vehicle was transporting the food stuff from go-down of Civil Supply Corporation to the fair price shop. It is further alleged that on 13.06.2017, co-accused Ansar Khan who is a driver was required to deliver the total 125 bags of wheat to the fair price shop and to obtain the delivery slip, however the driver of the vehicle did not supply complete quantity of the substance and obtain delivery slip from the fair price shop. On the information, Tahsildar Sheopur intercepted the vehicle and found that the vehicle was possessing 62 bags of wheat weighing 21 quintal, and a bag of sugar weighing 50 kilograms, which was being used for the purpose of making black-money. Thereafter, the food stuff and the vehicle were seized and enquiry was conducted by respondent No. 2. On the basis of enquiry report, the FIR was lodged. It is also submitted that prior to registration of the FIR, a show cause notice was issued to Ganesh Kumar Sarraf, who is the proprietor of Ashirwad Goods Transport Company. The aforesaid notice was not issued in the name of the petitioner, who is the registered owner of the vehicle in question. The respondent No. 1/District Magistrate, Sheopur vide order dated 25.09.2017 has rejected the application for interim custody of vehicle in question. The said rejection was challenged by the petitioner by filing writ petition No. 3857/2018, which was disposed of by this Court vide order dated 05.03.2018. Thereafter, the respondent No. 1 vide order dated 17.07.2018 has passed the order of confiscation of the vehicle in question. Against the order of confiscation, the petitioner filed an appeal under Section 6-C of the Act before the Sessions Court, Sheopur, which was registered as Criminal Appeal No. 37/2018. The Second Sessions Judge, Sheopur vide impugned order dated 01.12.2018 dismissed the appeal filed by the petitioner and confirmed the order of confiscation passed by the District Magistrate, Sheopur.

(3.) Learned counsel for the petitioner has contended that the petitioner is a registered owner of the vehicle in question and show cause notice was not issued to the petitioner. Therefore, in the absence of opportunity of hearing to the petitioner, the orders passed by both the Courts below are liable to be set aside. Both the Courts below have committed error in confiscating the vehicle in question of the petitioner. The District Magistrate ought to have imposed fine amount of the vehicle in question, which is provided in the second proviso to Section 6-A of the Act and the Appellate Court has also not considered the aforesaid ground. It is also submitted that the prosecution was unable to establish the fact that the alleged offence was in the knowledge of the petitioner, who is the registered owner of the vehicle in question, therefore the petitioner's vehicle could not be confiscated. The witnesses produced were either departmental or interested witnesses and no independent witness was produced. Moreover, the opportunity of cross-examination was also not given to the petitioner. As the criminal case is still pending and unless and until the offence has been found proved, the District Magistrate is debarred from exercising the jurisdiction to pass the order with regard to confiscation of the vehicle in question.