SUVENDU BAKSHI Vs. THE STATE

JUDGEMENT

(1.) This Revisional Application is directed against order dated 14.3.1986 passed by the learned Special Judge, Essential Commodities Act, Tamluk in connection with Mahisadal P.S. case No. 19 dated 23.2.1986 under section 7(1)(a)(ii) of the said Act.

(2.) By the impugned order the learned Judge disposed of an application praying for return of the seized truck no. WGB 4227. The petitioner is the registered owner of the said vehicle which was seized by the police in connection with the aforesaid case. This application was opposed by the learned Advocate appearing for the State who relied on the pronouncement of the Division Bench of the Supreme Court, in which the Supreme Court observed that the vehicle should not be returned. No decision could be placed before the learned Judge but only a xerox copy of the order passed by the court was shown to him by which the Honourable Supreme Court set aside the order of return of a vehicle made by the Calcutta High Court and directed the police to take the custody of the vehicle which was an oil tanker. Accordingly learned Magistrate rejected this application and declined to pass an order giving a custody of the vehicle to the petitioner. Mr. Himangsu Dey appearing for the petitioner has submitted that the vehicle was seized by police and is being kept in its custody. The investigation of the case will take time and unless the vehicle is returned it will be damaged because of lack of proper maintenance in the custody of the police. Accordingly, he prayed for return of the vehicle. Learned Additional Public Prosecutor. Mr. N.A. Chowdhury opposed this application and has relied on the decision referred to by the learned Judge. It appears that in Criminal Appeal No. 794/85 preferred by the State of West Bengal against one Ebadat Ali. The said judgment and the order of the Calcutta High Court which was appealed against has been reported in Ebadat Ali Vs. The State, 1983 (1) Cal HN 93. By the said decision Mrs. Nag. J., as she then was, decided that the Special Court Judge has jurisdiction to pass any order regarding disposal of the vehicle which has been involved in an offence under section 7 of the E.C. Act but not the essential commodity. She analysis the provision of section 6(E) of the said Act and concluded that it prohibits the court from passing any order with regard to possession, delivery, disposal or distribution of any essential commodity seized in pursuance of an order made under section 3 of the said Act. On the basis of the position of law she directed the Special Judge to give the custody of the vehicle to the petitioner on his executing a bond to the tune of Rs. 10,000.00 before the Special Judge concerned. In the aforesaid appeal arising against this order of this court the Supreme Court held that it was clear from the record that before the Collector the tanker itself was the subject matter of confiscation proceeding in as much as an application was made by the I.O. praying for its confiscation. In the circumstances, the impugned order was set aside and it was directed that the tanker should be taken into custody forthwith by the police. From the order it is apparent that the Supreme Court set aside the order of this court and directed taking into custody of the vehicle because of the fact that a confiscation proceeding was pending before the Collector. Sec. 6A of the E.C. Act deals with confiscation of essential commodity. It provides that where an essential commodity is seized in pursuance of an order under section 3 or in relation thereto, a report of such seizure shall be made to the Collector of district where the commodity is seized and Collector may if he thinks fit expedient so to do direct the essential commodities so seized to be produced for inspection before him and if he is satisfied that there has been a contravention of the order may order confiscation of any animal, vehicle, vessel or other conveyance used in carrying such essential commodity. Second proviso to the sub-section provides further that in the case of any animal, vehicle, vessel or other conveyance used for the carriage of goods or passenger for hire the owner of such animal vehicle, vessel or other conveyance shall be given an option to pay, in lieu of its confiscation, a fine not exceeding the market price on the date of the seizure of the essential commodity sought to be carried by such animal, vehicle or vessel or other conveyance. It is therefore clear from this provision that where a vehicle is liable to be confiscated under section 6A of the Collector is to offer an option to pay in lieu of its confiscation a fine to the tune of the value of the essential commodity sought to be carried by such vehicle not exceeding the market price on the date of the seizure. Supreme Court obviously passed the order relied on by the Additional Public Prosecutor to save guard the interest of the State in case the vehicle is confiscated. If during the pendency of the confiscation proceeding the vehicle is released it may cause a lot of difficulties after the order of confiscation is passed. But in case the owner of the vehicle or the person who is entitled to the custody of the vehicle offers to the court that he is agreeable to secure an amount not exceeding the market price on the date of seizure of the essential commodity alleged to have been carried by the vehicle and such security is to the satisfaction of the learned Judge. I do not find that this will cause any prejudice to the case of confiscation pending before the Collector. Such a course will also save the vehicle from being damaged in the custody of the police till the disposal of the confiscation proceeding. It appears from the order passed by the Honourable Supreme Court that this aspect of the matter was not taken into consideration by the court. Taking into consideration the reasons for which the Supreme Court passed the aforesaid order, in my view, the course suggested above will meet the ends of justice.

(3.) Accordingly this application succeeds. The learned Special Judge is directed to deliver the vehicle to the petitioner if he is otherwise entitled to the possession of the same on his giving security in the form of cash deposit or Bank guarantee or any other good security undertaking its forfeiture to the Collector in case the confiscation order as passed. The security shall not exceed the market price of the essential commodity sought to be carried by the vehicle in question on the date of seizure. This application is accordingly disposed of.