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Rudolph Fernandes Vs. Deputy Commissioner, Mangalore - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. No. 16668 of 1983
Judge
Reported inAIR1984Kant106; 1984(1)KarLJ200
ActsEssential Commodities Act, 1955 - Sections 3 and 6-A
AppellantRudolph Fernandes
RespondentDeputy Commissioner, Mangalore
Appellant AdvocateB.V. Acharya, Adv.
Respondent AdvocateM.R. Achar, High Court Govt. Adv.
Excerpt:
.....jj] admission held, categorical admission cannot be resiled from, but in a given case it may be explained or clarified. - owner instead of paying a fine equivalent to the market price can as well think of purchasing a new or fresh vehicle......exercise of power of confiscation of a vehicle is that an option to pay a fine equivalent to the market price of the commodity sought to be transported has to be given to the owner as contemplated under the second proviso to section 6-a of the act introduced by, central act 92 of 1976 which reads thus:-'section 6-a of the principal act shall be re-numbered as sub-section (1) thereof and- (a) xx xx xx(i) xx xx xx (ii) after the proviso, the following proviso shall be inserted, namely:- provided further that in the case of any animal, vehicle, vessel or other conveyance used for the carriage of goods or passengers 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 at.....
Judgment:
ORDER

1. The point that requires consideration is the scope and ambit of restriction that can be imposed fox an interim custody/release of a vehicle used in carrying essential commodities pending enquiry for contravening the provisions of orders issued under Section 3 of the Essential Commodities Act (hereinafter referred to as the 'Act'). It raises that:-

2. Tempo (Matador mini lorry) bearing No. MNX 5532 carrying 44 bags of cement branded as 'imported cement' was intercepted and seized on the night of 22nd August, 83 by Bajpe Police, Dakshina Kannada for alleged contravention of an order issued under Section 3 of the-Act. Contention of the Petitioner is that the lorry was hired for transportation of cement and bona fide believed the transportation is under a valid permit. The validity of the interim order made on 1-9-1983 by the Deputy Commissioner, Dakshina Kannada ordering release of the lorry pending enquiry as against bank guarantee of Rs.1,00,000/- is challenged on the ground that the imposition of such condition is illegal and onerous, while Government Advocate justifies on the ground that it is in consonance with the provisions of the Act.

3. On production of commodity and the vehicle in which it was being transported the Deputy Commissioner after issuing show cause notice to persons interested is required to hold an enquiry as provided under S. 6-B of the Act. Section 6-A provides for confiscation of essential commodity, package, covering, animal, vehicle or other conveyance used in carrying such essential commodity. On enquiry if it is established that the transportation is in contravention of any of orders issued under Section 3 of the Act. Deputy Commissioner may order confiscation upon the facts and circumstances of each case including the vehicle.

4. The only rider imposed for exercise of power of confiscation of a vehicle is that an option to pay a fine equivalent to the market price of the commodity sought to be transported has to be given to the owner as contemplated under the second proviso to Section 6-A of the Act introduced by, Central Act 92 of 1976 which reads thus:-

'Section 6-A of the principal Act shall be re-numbered as sub-section (1) thereof and-

(a) xx xx xx(i) xx xx xx (ii) after the proviso, the following proviso shall be inserted, namely:-

Provided further that in the case of any animal, vehicle, vessel or other conveyance used for the carriage of goods or passengers 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 at the date of seizure of the essential commodity sought to be carried by such animal, vehicle, vessel or other conveyance. Analysis of this proviso leads to this- (a) before ordering confiscation option should be given to the owner; (b) fine proposed should not exceed the market price (c) market price should be as on the date of the seizure; and (d) market price is that of the commodity sought to be carried.

5. The upper limit of fine prescribed is the market value of the commodity as on the date of the seizure. The phrase 'at the date of the seizure' denotes Point of time. The absence of proper punctuation has given scope for controversy as to whether the market price referred to therein is that of the vehicle or of the commodity seized. It is true, punctuation is disregarded in construction of statutes. In this context, it is necessary to notice the observation of B. K. Mukherjea, J. in Aswin kumar Ghosh v. Arabinda Bose : [1953]4SCR1 which reads thus :-

'I need not deny punctuation may have its uses in some cases, but cannot entirely be regarded as a controlling element and cannot be allowed to control the plain meaning of the text.'

The irrelevance of the punctuation has two consequences as observed. at page 14 of Maxwell on the Interpretation of Statutes. Twelfth Edition-

'First, a provision in a statute may be read as though the punctuations which appear on the face of the Act were omitted.

'The obligation', said Harman L. J., is not to make rebates, as grammatically it should be if the comma were there, but to make changes of rebates, (if any).

Secondly, where it is necessary to give a provision a particular construction which it at variance with the way in which the section is punctuated, it may be read as though there were in fact punctuation where none appears on the face of the Act'.

5A. In the light of these principles, if the second part of the section is read with comma after the words 'market price' and comma after 'seizure', it will indomitably establish that the market price relates only to 'the essential commodity sought to be carried.' If intention was to recover market price of the vehicle as fine there was no necessity for the legislature to use so many words in the second part of the section and its intention to collect market price of the vehicle as fine could have been succinctly expressed by stating 'not exceeding its market price'. It is settled rule of construction that in order to ascertain the intention of the legislature, the constituent parts of a statute are to be taken together and each word, phrase, sentence has to be considered in the light of the object sought to be achieved by the Act. If the contention of the learned Government Advocate that the market price relates to that of a vehicle and not of essential commodity sought to be carried accepted, the rest of the words found in the later part of the section will become redundant nor can they be treated as surplusage.

6. The legislature never intended to impose a drastic penalty of confiscation for letting of a vehicle for hire bona fide believing that the transportation is covered under valid permit or in consonance with the orders issued under Section 3 of the Act. This proviso gives a concession to owner to avert confiscation by paying fine not exceeding the market price prevalent on the date of the seizure of the essential commodity. Provision for confiscation is provided with a view to prevent hoarding and clandestine removal or transportation of an essential commodity. To give an illustration whether a vehicle worth rupees lakhs be ordered to be confiscated for transportation of one quintal of rice? Having regard to the discretionary power conferred on the Deputy Commissioner, it is impossible to accept the plea that market price contemplated is that of the vehicle. If at the time of passing a final order an option is required to be given to pay a fine equivalent to the market price of the essential commodities sought to be transported to evade confiscation of the vehicle it is axiomatic that no onerous condition can be imposed for an interim release. On obtaining a bank guarantee or a security equivalent to market price of the community, vehicle can be ordered to be released- A condition imposed should not be impossible of performance, or more onerous than the one that could be imposed at the time of the final order.

7. If option is to pay a fine equivalent to the market price of the vehicle then there is no necessity to give such option. Owner instead of paying a fine equivalent to the market price can as well think of purchasing a new or fresh vehicle. Wording of section do not lend support to the contention of the learned Government Advocate and if accepted, it will lead to absurdity, hardship injustice.

8. In the instant case, the market value of cement seized on transportation is valued at Rs.2,500/- as per the F. I. R. marked as Annexure B. The Deputy Commissioner has ordered the release of the vehicle subject to furnishing of bank guarantee for a sum of Rs.1,00,000/-. An interim order cannot be more severe or onerous than the final order. Hence, the restriction imposed to furnish bank guarantee of Rs.1,00,000/- is unreasonable, unjust and impossible of compliance.

9. For the reasons stated above, this writ petition is allowed. Only that portion of the order dated 1-9-1983 marked as Annexure A imposing a condition to furnish bank guarantee to a tune of Rs.1,00,000/- is hereby quashed and in its place directed to release the vehicle accepting the bank guarantee to an extent of Rs.2500/- only. Rule made absolute.

10. Petition allowed.


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