Skip to content


Khemraj Jugraj Vs. the State of M.P. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMadhya Pradesh High Court
Decided On
Judge
Reported in1981CriLJ1479; 1981MPLJ638
AppellantKhemraj Jugraj
RespondentThe State of M.P.
Cases ReferredThakurdas v. State of M. P.
Excerpt:
.....disabling provision, as contained in section 6e which clearly lays down that the collector or the judicial authority, as the case may be, shall have, and any other court, tribunal or authority, shall not have jurisdiction to make orders with regard to the possession, delivery, disposal or distribution of such property (essential commodity) which has been seized in pursuance of an order made under section 6e ibid. i am, thus, clearly of the view that the orders with regard to confiscation are fully embraced within the ambit of term 'disposal',as used in section 6e of the act. 8. applicant's present revision, hence, is not maintainable, and is clearly barred in face of the debarring provision of section 6e of the essential commodities act. it is well settled that the mens rea is a..........raj-nandgaon under section 6a of the essential commodities act and as further confirmed by the judicial authority in appeal under section 6c ibid.2. on 7-2-80, food inspector shrivas-tava made a surprise inspection of the applicant's shop. he physically verified the actual stock and compared the same with the entries in the register of daily accounts for foodgrains maintained in form b-l prescribed under order m. p. foodgrains dealers licensing order, 1965. it was found that full and proper entries in that register had not been made and there was excess stock of 55 quintals of dhan which was not shown in the register. hence the same was seized. after issue of show cause notice in accordance with section 6b(1) of the essential commodities act (for short 'act'), and after giving.....
Judgment:
ORDER

M.D. Bhatt, J.

1. This revision has been preferred by Messrs Khemchand Jugraj, a dealer in foodgrains, against the Order of confiscation of 25 Quintals of Dhan (paddy), as passed by the Collector, Raj-nandgaon under Section 6A of the Essential Commodities Act and as further confirmed by the Judicial Authority in appeal under Section 6C ibid.

2. On 7-2-80, Food Inspector Shrivas-tava made a surprise inspection of the applicant's shop. He physically verified the actual stock and compared the same with the entries in the register of daily accounts for foodgrains maintained in Form B-l prescribed under order M. P. Foodgrains Dealers Licensing Order, 1965. It was found that full and proper entries in that register had not been made and there was excess stock of 55 Quintals of dhan which was not shown in the register. Hence the same was seized. After issue of show cause notice in accordance with Section 6B(1) of the Essential Commodities Act (for short 'Act'), and after giving opportunity to the applicant for making representation and after giving further opportunity of being heard in the matter, the Collector, Rajnandgaon, being not satisfied with the explanation in the matter of omission of entries regarding excess quantity of 55 Quintals of dhan, passed the order of confiscation of only 25 Quintals of dhan out of the total excess quantity of 55 quintals. Appeal was preferred against the said order before the Judicial Authority viz, the Sessions Judge, Rainandgaon. The Judicial Authority, agreeing with the reasonings and findings of the Collector, maintained his order of confiscation and consequently, dismissed the applicant's appeal. Hence now, the present revision.

3. The learned Counsel for the applicant-dealer has urged before me that the order of the Collector and so also of the Judicial Authority are both erroneous, inasmuch as, there is no lapse on his part, in the matter of proper maintenance of the B-l Register, since, entries of the whole dav were required to be made at the end of the day and not immediately at the time when the actual purchases might have been made. It is urged in this connection that there was no mens rea on the part of the applicant-dealer to contravene the provisions of the Essential Commodities Act and the M. P. Food-grains Dealers Licensing Order, 1965. Attention of the applicant's counsel having been drawn to Section 6E of the Essential Commodities Act, it has been vehemently argued by him that this Section 6E does not in any way, bar this Court's jurisdiction to entertain the revision; as filed. It is argued in this connection that the bar envisaged by Section 6E ibid, is intended for Civil Courts, but not for the High Court'. It is further argued that even if the bar is intended for the High Court, then too, Section 6E is not attracted to a case of 'confiscation,' inasmuch as, Section 6E as found to relate to orders 'with regard to the possession, delivery, disposal or distribution'.

4. I have considered the arguments pressed before me, I will, at first, take lip the question whether or not jurisdiction of the High Court is barred by virtue of Section 6E (newly inserted with effect from 2-9-76 by the Amendment Act No. 92 of 76) after the order of confiscation by the Collector and the further order by the Judicial Authority in this regard. Thakurdas v. State of M. P. AIR 1978 SC 1 : 1978 Cri LJ 1, cited by the applicant's learned Counsel, in support of his view that Judicial Authority, as mentioned in Section 6E of the Act, is amenable to the revisional jurisdiction of High Court, has no relevance for considering the question of bar as envisaged by the newly inserted Section 6E of the Act. This Supreme Court decision had mainly concerned itself with the question whether the appellate authority under Section 6E was or was not persona designation and it was held that he was not. Considering the facts of the particular case a laid before the Supreme Court, it was held that the Sessions Judge, who was appointed an Appellate Authority by the State Government under Section 6C of the Act, was the presiding officer of the sessions Court, and since the Sessions Court was constituted under the Criminal P. C. and since such Court, indisputably, was an inferior Court in relation to High Court, the High Court was entitled to entertain a revision application under Sections 435 and 439 of the Criminal P. C. 1898 (corresponding Sections 397 and 401 of the new. Code), against the Order passed by the Session's Judge as Judicial Authority in exercise of its powers under Section 6C of the Act. This decision of the Supreme Court is found to relate to a period when Section 6E was not there at all; and as such, the subsequently inserted Section 6E which relates to 'Bar of jurisdiction in certain cases', could not naturally be considered by the Supreme Court. Situation stands completely changed after the addition of S. fi-E in the Act; and hence now, the question of 'bar of jurisdiction would be required to be considered in the light of new provisions as envisaged by Section 6E ibid. Section 6E of the Essential Commodities Act runs as under:

6E Bar of jurisdiction in certain cases.Whenever any essential commodity is seized in pursuance of an order made under Section 3 in relation thereto, the Collector or, as the case may be, the judicial authority appointed under Section 6C shall have, and, notwithstanding anything to the contrary contained in any other law for the time being in force, any other Court, tribunal or authority shall not have jurisdiction to make orders with regard to the possession, delivery, disposal or distribution of such property.

The particular words 'notwithstanding anything to the contrary contained in any other law for the time being in force' as specifically employed in this new Section 6E, clearly connote, without any ambiguity, that this disabling provision supersedes and overrides any enabling provisions that may be there in any other law, be they, in the Code of Criminal Procedure, 1973 or in any other Act, in the matter of making orders with regard to the possession, delivery, disposal or distribution of such property (i. e. essential commodity), seized in pursuance of an order, made under Section 3 of the Act. Section 6E is a provision, enacted long after the enactment of the Criminal P. C, 1973. and as such, this provision of Section 6E has the overriding effect. Therefore, the provisions of Sections 397 and 401 of the Criminal P. C. 1973 (old provisions Sections 435 and 439) and so also other provisions of the Code, relating to 'disposal' of property would, no longer, be applicable in face of specific disabling provision, as contained in Section 6E which clearly lays down that the Collector or the Judicial Authority, as the case may be, shall have, and any other Court, Tribunal or Authority, shall not have jurisdiction to make orders with regard to the possession, delivery, disposal or distribution of such property (essential commodity) which has been seized in pursuance of an order made under Section 6E ibid.

5. Now, the further contention that the words 'any other Court' as used in the new Section 6E, do not relate to the 'High Court', but only relate to Courts of civil nature i. e. all the civil Courts, is obviously without any substance and also- without any basis. It cannot be gainsaid that in the hierarchy of the Courts, the High Court is also one and as such, is fully covered under the words 'any other Court'. It would, therefore, follow that the jurisdiction of the High Court also, is barred by virtue of Section 6E of the Act.

6. The further contention that Section 6E does not relate to orders 'with regard to confiscation' but only relates to orders with regard to the possession, delivery, disposal or distribution', is also without any merit. Section 6E has to be understood and appreciated in the light of foregoing provisions viz. Sections 6A to 6D which all relate to nothing else, but to confiscation of foodgrains, their disposal by sale or otherwise, procedure prescribed for confiscation and the procedure for appeal against the order of confiscation and disposal.

7. The applicant's learned Counsel has advanced the arguments that the terms 'possession, delivery, disposal or distribution' do not cover 'confiscation' and that 'confiscation' has altogether different connotation than what these particular words 'possession, delivery, disposal or distribution' imply. This argument too, on the face of it, appears to be fallacious. Fallacy would be apparent if one incidentally takes the clue from the meaning of the word 'disposal' which is found to be used in Section 452 of the Cr. P, C, 1973 relating to 'order for disposal of property at conclusion of trial'. Sub-section (1) of Section 452 of the Code is found to use the words 'the Court may make such order as it thinks fit, for the disposal, by destruction, confiscation or delivery...'. It would be seen that the term 'disposal' in Sub-section (1) of Section 452 of the Code has been used to cover and include 'destruction, confiscation or delivery' which re all modes of 'disposal'. Applying the same analogy to the use of the word 'disposal' in Section 6E of the Act, it obviously follows that the term 'disposal' as mentioned therein, refers to and includes 'confiscation', which is just one of the modes of disposal. I am, thus, clearly of the view that the orders with regard to confiscation are fully embraced within the ambit of term 'disposal', as used in Section 6E of the Act. The result, therefore, is that in the matter of order of confiscation of the essential commodity, except for the Collector and the Judicial Authority as the case may be, no other Court (not even the High Court), Tribunal or Authority, has jurisdiction to make any orders. It impliedly follows that, the orders of the Judicial Authority in this regard are final, not open to challenge any further, in any other Court, whatsoever, be it by way of revision or appeal or be it by way of any other separate, proceeding.

8. Applicant's present revision, hence, is not maintainable, and is clearly barred in face of the debarring provision of Section 6E of the Essential Commodities Act.

9. Even otherwise also, on merits too, the applicant has no case. It is well settled that the mens rea is a necessary element to be proved before confiscation could be ordered. In the instant case, the applicant is not found to have any bona fides in the matter of absence of proper entries in the stock register in Form B-l with regard to the excess quantity of dhan found in his shop.

10. Agreeing with the findings of the Collector, the Judicial Authority, in paras 8 to 10 of its appellate order, has already held, after detailed reasonings, that the applicant dealer was not actuated with bona fides in not maintaining the stock register in Form B-l. His mens rea is established beyond any shadow of doubt in the matter of his possession of excess quantity of 55 Quintals of dhan, for which there was absolutely no satisfactory explanation on his part. It may be observed that on the very date of the seizure of the whole stock of paddy by the Food Inspector on 7-2-1980, the applicant-dealers, in his earliest statement, recorded on that very date, had offered no explanation as to how this quantity of 55 Quintals of dhan was found in excess with him. In his statement, he has surprisingly stated that on that very day, right from the morning till 12 noon, he had purchased the total quantity of 120 bags i. e. 90 Quintals of dhan. If it were a fact and if no entries were made in the matter of this purchase, then, 90 Quintals of dhan should have been found to be in excess, but it was not so. It is obvious that his earliest explanation dated 7-2-80 was false and fictitious to the very core. Then again, in his subsequent explanation given in reply to show cause notice, he is found to have given a different explanation that at about 11 a. m. he had purchased 55 Quintals of dhan (i. e. excess quantity as found) from a certain agriculturist. No details could be given by him as to who was that agriculturist from whom he had purchased this excess quantity which he could not show in his stock register. It is patent that the applicant-dealer intentionally and deliberately had suppressed the true facts with ulterior motives. He was not so innocent, as he was trying to pose. In these circumstances, the order of confiscation is found to be well merited, calling for no interference.

11. It may incidentally be also observed that the finding of the Judicial Authority is not correct, to the effect, that the applicant-dealer was free to make all the entries in the stock register, maintained in Form B-l, at the close of the day and no at the very time of the respective purchases during the course of day. It is, no doubt, true that as per Clause 3 (ii) of the Licence in Form B under the M. P. Foodgrains Dealers Licensing Order, 1965, it is enjoined that 'the licensee shall complete his accounts for each day on the day to which they relate, unless prevented by reasonable cause, the burden of proving which, shall be upon him.' The words used in this clause 'shall com-plete': are very relevant. It is the completion of the accounts which the licensee is required to make for each day on the day to which they relate, giving thus freedom to the licensee to complete his accounts, at least at the close of the day. Now, this clause 3 (ii) has to be read and appreciated in the light of Clauses (a), (b) and (c) of the Note mentioned in Form B-l. The Note reads as under:

Note. (a) Each individual transaction of purchase exceeding 10 Quintals should be recorded, full name of the seller and his village being given in column (3). For purchases made in Ganj through a broker, the name of the broker only need be mentioned.

(b) Total of transaction, of purchases involving 10 Quintals or less, may be given as one entry at the end of each day in column (4), (5) or (6) as the case may be.

(c) Total of transactions of sales involving 10 Quintals or less should be given as the last entry at the end of each day in column (9), (10) or (11) as the case may be.

On scrutiny of this note, it would be clear that the licensee is free to make the entries in this register at the end of each day, only in respect of total transactions of purchases, or total transactions of sales, involving 10 quintals or less, which could be given, as one single entry, at the end of the each day in Col. No. (4), (5) or (6), for purchases) or Col. No. (9), 10 or (11) (for sales). But so far as the transactions of purchases and sales involving more than 10 Quintals were concerned, each individual transaction of such purchases was required to be made immediately in Col. No. 3 of the register in Form B-l, as appears to be the clear intention of Clause (a) of the Note, when appreciated in the light of subsequent Clauses (b) and (c) thereof. It could never be the intention of the licensing authority to give a free hand and unfettered discretion to the licensee to make entries one and all, in the stock register in Form B-l at any time when he liked, during the course of the day. If such a course were permissible, then, it would be open to the licensed dealer to always raise the defence, whensoever his shop may be inspected, that his register at that time was not complete, and since he was free to complete the entries by the end of the day, he would make the entries at the end of the day. In such a case, no licensing authority or Food Inspector, at the time of inspection, during the course of the day, could be able to foist the responsibility on the licensed dealer for contravention of the terms of the licence and the provisions of the M. P. Foodgrains Dealers Licensing Order, 1965 in the matter proper maintenance of stock register and other registers. Thus, disagreeing with the Judicial Authority, I am clearly of the view that the licenced dealer is mandatorily enjoined to make entries in the stock register in Form B-l in the matter of individual transactions of purchases and sales involving more than 10 Quintals at the very time, during the course of the day, When such transactions take place, and that, only such transactions as mentioned in Clauses (b) and (c) alone, of the Note mentioned under the Form B-l, were required to be made at the end of each day, so as to complete the whole entries of the day at the end of the each day.

12. In the result, thus, the revision, being primarily not entertainable, in face of the bar under Section 6E of the Essential Commodities Act and being also without any substance on merits, is dismissed. The Judicial Authority's Order, in the matter of confiscation, affirming the Collector's Order, stands maintained.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //