John v. State Of Kerala

John v. State Of Kerala

(High Court Of Kerala)

Original Petition No. 17868 Of 1997 | 10-08-2007

K. Balakrishnan Nair, J.

The point that arises for decision in this case is whether a person prosecuted for the offence of violation of an order issued under S.3 of the Essential Commodities Act (hereinafter referred to as " the") is entitled to get back his confiscated vehicle on his acquittal in the criminal case.

2. The brief facts of the case are the following: The petitioner is the owner of a Mahindra Mini Lorry bearing registration No.KL-4/C 9810, which was being plied as a public goods carrier. The said vehicle was intercepted on 10.1.1996 by the Mavelikkara Police, while it was transporting wheat from Kollam to Changanassery. The vehicle was detained, alleging that the wheat transported was ration wheat to be distributed through public distribution system. The same was being transported without any permit. Based on the report of the S.I. of Police, Harippad, the District Collector, Alappuzha, the 2nd respondent herein issued Ext.P1 notice under S.6B(1) of the, proposing to confiscate the wheat, the tarpaulin used to cover it and the vehicle used to transport it. The petitioner submitted Ext.P2 reply, objecting to the confiscation of the vehicle. Apparently, he was unconcerned with the wheat, as he was not its owner. The District Collector heard the petitioner on 1.1.1997. Considering the objection filed by him and also the points raised by him at the time of hearing, the said officer confiscated the vehicle. The petitioner was given option to pay the market value of the vehicle, on the date of seizure in lieu of confiscation.

3. The aggrieved petitioner preferred Ext.P4 appeal before the Government. During the pendency of the appeal, the petitioner filed Ext.P5 stay application for staying the impugned order. Since the 1st respondent, Government did not pass any order on Ext.P4 appeal, he filed O.P.No.11368/97. The said O.P was disposed of by Ext.P6 judgment, directing the Government to consider and pass orders on the appeal as well as the stay application expeditiously. It was also ordered that Ext.P5 application shall he disposed of within three weeks from the date of receipt of the copy of the judgment. The Government heard the appeal itself and dismissed the same by Ext.P7 order dated 10.9.1997. Since the appeal itself was dismissed, no orders were passed on the stay application. This O.P was filed challenging Exts.P3 and P7 on various grounds.

4. The petitioner was prosecuted for the offence under clause 5A of the Kerala Rationing Order read with Ss.3 and 7 of the Essential Commodities Act. The said prosecution ended in his acquittal, as evident from Ext.P8 judgment, produced along with MJC 163/2007 in this case. The petitioner has amended the O.P., raising a new contention that once the criminal Court acquits him, he is entitled to get the vehicle back, in the light of S.6A and 6C of the. Earlier, the Government had filed a statement, resisting the prayers in the O.P.

5. Heard the learned counsel on both sides. The learned counsel for the petitioner relying on the decision of a learned single Judge of this Court in Unni v. State of Kerala (1983 KLT 11), submitted that on acquittal the petitioner is entitled to get the vehicle back. The said decision fully covers the case of the petitioner. But, the learned Government Pleader submitted that the said decision requires reconsideration. According to him, it does not lay down the correct legal position.

6. Going by the provisions of S.6A and 6C, the essential commodity seized can be confiscated by the District Collector. Apart from that, the person concerned can be prosecuted for the commission of the offence under S.7 of the. They are separate and independent proceedings, as evident from the scheme of the. But, a reading of S. 6A(3) and 6C(2) would show that if a person is simultaneously prosecuted and the prosecution ends in his acquittal, he is entitled to get back the confiscated goods. So, the learned Judge in the above decision held that if the goods are to be released on acquittal, there is no justification for not releasing the vehicle. If confiscation proceedings and criminal prosecution are separate and independent proceedings, it is not clear why it is provided that on acquittal the accused is entitled to get back the confiscated goods. It is a legal conundrum thrown up by the aforementioned statutory provisions, which may be resolved by the Parliament appropriately.

7. But, in this case we find that there was no material whatsoever, to show that the seized wheat was ration wheat. The only material before the District Collector was the report of the Police Officer to the effect that what is seized is ration wheat. But going by Ext.P8 judgment, it can be seen that absolutely no material was available in the report filed under S.173 of the Cr.P.C. before the criminal Court and other documents produced along with the same, to show that what was seized was ration wheat it was so found by the learned Magistrate. If that be so, there is no reason or justification for not relying on the observation of the learned Magistrate. From the observations of the learned Magistrate it can be seen that the police has not chosen to investigate and find out the source of the wheat seized and no material whatsoever was there to show that it was ration wheat. It follows that the confiscation order was passed by the District Collector blindly relying on the police report, which has been found by the criminal Court not to contain any incriminating material. So, the confiscation order passed by the District Collector blindly relying on the police report is vitiated. The Government also failed to consider independently whether there was any material to show that rationed article was being transported in the vehicle. So, the appellate order is also vitiated. In the result, Exts.P3 and P7 are quashed. It is ordered that the petitioner can keep the vehicle released by this Court as per the interim order dated 13.10.1998. The hank guarantee furnished by him shall not be invoked and if it is alive, the same shall be returned to the petitioner.

The Original Petition is disposed of as above.

Advocate List
Bench
  • HON'BLE MR. JUSTICE K. BALAKRISHNAN NAIR
  • HON'BLE MR. JUSTICE K.T. SANKARAN
Eq Citations
  • LQ/KerHC/2007/786
Head Note

Essential Commodities Act, 1955 — Ss.6A, 6C and 7 — Right of person acquitted in criminal case to get back his confiscated vehicle — Whether available — Held, if confiscation proceedings and criminal prosecution are separate and independent proceedings, it is not clear why it is provided that on acquittal the accused is entitled to get back the confiscated goods — It is a legal conundrum thrown up by the aforementioned statutory provisions, which may be resolved by Parliament appropriately — In the instant case, there was no material whatsoever, to show that the seized wheat was ration wheat — The only material before the District Collector was the report of the Police Officer to the effect that what is seized is ration wheat — But going by Ext.P8 judgment, it can be seen that absolutely no material was available in the report filed under S.173 of Cr.P.C. before the criminal Court and other documents produced along with the same, to show that what was seized was ration wheat — It was so found by the learned Magistrate — If that be so, there is no reason or justification for not relying on the observation of the learned Magistrate — From the observations of the learned Magistrate it can be seen that the police has not chosen to investigate and find out the source of the wheat seized and no material whatsoever was there to show that it was ration wheat — It follows that the confiscation order was passed by the District Collector blindly relying on the police report, which has been found by the criminal Court not to contain any incriminating material — So, the confiscation order passed by the District Collector blindly relying on the police report is vitiated — The Government also failed to consider independently whether there was any material to show that rationed article was being transported in the vehicle — In the result, Exts.P3 and P7 are quashed — It is ordered that the petitioner can keep the vehicle released by the High Court as per the interim order dated 13.10.1998 — The hank guarantee furnished by him shall not be invoked and if it is alive, the same shall be returned to the petitioner