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Aggarwal Oil and General Mills Vs. Delhi Administration (The State) and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Miscellaneous (Main) Appeal No. 623 of 1981
Judge
Reported in21(1982)DLT466
ActsDelhi Edible Oil (Licensing and Control) Order, 1977; Constitution of India - Article 227
AppellantAggarwal Oil and General Mills
RespondentDelhi Administration (The State) and anr.
Advocates: D.B. Gupta and; I.U. Khan, Advs
Cases ReferredC. Moideen v. Sub Inspector of Police
Excerpt:
.....case to the. (3) the chief grievence in this revision petition is that this part of the order of judicial authority is bad in law. it clearly lays down that confiscation can be made if the collector is satisfied that there has been a contravention of the order (made under section 3 of the act). further, it envisages confiscation irrespective of whether a prosecution is instituted or not for contravention of such orders. it is a provision made in public interest because there is scaracity of essential commodities and delay in disposal of essential commodity seized will not be conducive to public good, rather it may harm public interest and defeat the entire purpose of the act, namely, to secure fair and equitable distribution of essential commodities. the same reasoning will hold good..........bond and the surety bond. however, he directed confiscation of the remaining quantity of 59 tins of soyabeen refined oil and 10 tins of til oil. it may be mentioned here that the plea of the petitioner before the collector was that 59 tins of soyabeen refined oil was imported oil and had been purchased by them from a local dealer m/s. tikkam chand brothers. they had placed on the record a certificate issued by m/s. tikkam chand brothers that the contents of the tins bearing label of soyabeen imported oil had been sold to the petitioner by them, but the same had been locally packed by them and they had affixed their own label of gopi brand. upon this evidence, the collector was not evidently satisfied that the said 59 tins contained imported soyabeen refined oil. (2) feeling.....
Judgment:

J.D. Jain, J.

(1) The Petitioner firm is holding alicense as a producer of edible oils granted under Clause 4 of. Delhi Edible Oil (Licensing and Control) Order, 1977 (hereinafter referred to as. the Licensing and Control Order), and, as such, it could sell or store edible oils produced by it in accordance with the provisions of the Licensing and Control Order. On November 26, 1980, staff of the Special Cell, Grime Branch, Delhi Police, Along with the Inspectors of Food and Supplies Department conducted a raid at the business/factory premises of the petitioner situated at C-228, Main Road, Brahmpuri, Delhi, and they found the following quantities of edible oils of different varieties stored therein :-

1.59 tins of 15.9 Kg. each of Sarson Oil Tara Brand. 2. 45 tins of 15.5 Kg. each of Cottonseed Refined Oil-Til Brand. 3. 59 ting of 15.5 Kg. each of Soyabeen Refined Oil-Gopi Brand. 4. 10 tins of 15.9 Kg. each of Til Oil-Swastik Brand.

Shri Mool Chand, a partner in the firm, who was present at the said premises on behalf of the petitioner could not produce any valid permit or document in support of possession of the aforesaid quantities of the edible oils. Since under provisions of the Licencing and Control Order no person can keep a stock in excess of five quintals of edible oil without obtaining a valid license as a dealer, a case under Section 7 of the Essential Commodities Act (in short 'the Act') was registered against the petitioner. Thereafter, the Collector, Food and Supplies, initiated proceedings under Section 6A of the Act for confiscation of the edible oil thus seized. He found, vide order dated March 17, 1981, that Cottonseed Oil not being edible oil was not covered by the provisions of the Licensing and Control Order. He further found that 59 tins of Saraon oil was the product of the petitioner's own factory. Accordingly, he directed release of the said quantities of Cottonseed Oil and Mustard Oil in favor of the petitioner subject to their executing an indemnity bond in the sum of Rs. 25,000.00 with one surety in the like amount to the satisfaction of the Inquiry Officer and the petitioners were also permitted to dispose of the said stock of oil in the normal course of their furnishing the requisite indemnity bond and the surety bond. However, he directed confiscation of the remaining quantity of 59 tins of Soyabeen Refined Oil and 10 tins of Til Oil. It may be mentioned here that the plea of the petitioner before the Collector was that 59 tins of Soyabeen Refined Oil was imported oil and had been purchased by them from a local dealer M/s. Tikkam Chand Brothers. They had placed on the record a certificate issued by M/s. Tikkam Chand Brothers that the contents of the tins bearing label of Soyabeen Imported Oil had been sold to the petitioner by them, but the same had been locally packed by them and they had affixed their own label of Gopi Brand. Upon this evidence, the Collector was not evidently satisfied that the said 59 tins contained imported Soyabeen Refined Oil.

(2) Feeling aggrieved by the said order the petitioner preferred an appeal to the Judicial Authority appointed under Section 60 of the Act) who happened to be an Additional Sessions Judge. The Judicial Authority, on the basis of the documents already filed by the petitioner before the Collector as also the voucher issued by M/s. Tikkam Chand Brothers in respect of imported Soyabeen Oil, came to the conclusion that the aforesaid 59 tins of Soyabeen Refined Oil contained imported edible oil, and, as such, the provisions of the Licensing and Control Order were not applicable and stocking of the imported Soyabeen Oil did not violate any provision of Licensing and Control Order. Thus, he directed the release of the said quantity of Soyabeen Refined Oil on usual terms. On the basis of this order, the Collector required the petitioner vide his order dated August 19,1981 to furnish an indemnity bond in the sum of Rs. 10,000.00 with one surety in the like amount to the satisfaction of the Investigation Officer of the case to the. effect that the dealer shall pay the price of the same to the State if ultimately the Court trying the Criminal Proceedings directs forfeiture of the said property to the State.

(3) The chief grievence in this revision petition is that this part of the order of Judicial Authority is bad in law. His line of argument is that having come to the conclusion that the contents of the 59 tins bearing label of 'Gopi Brand' were of imported Soyabeen Refined Oil there was no question of any further direction for furnishing any indemnity bond/surety bond. In other words, the release should have been absolutely unconditional i.e. without any strings. However, the learned counsel for the State has urged that the very purpose of requiring the petitioner to furnish an indemnity bond is to indemnify the State in case the petitioner is eventually convicted of an offence under Section 7 of the Act by the Criminal Court and the goods seized for contravening the provisions of Section 3 of the Act are directed to be forfeited.

(4) Faced with this situation, the learned counsel for the petitioner has canvassed with considerable ferver that once the Collector comes to the conclusion that there is no contravention of the Licensing and Control Order, the question of any prosecution under the Act does not arise inasmuch as the prosecution has to be launched at the instance of the Department concerned, and there is absolutely no justification in putting the petitioner to double jeopardy. Section 6A of the Act provides for confiscation of essential commodity seized in pursuance of an order made under Section 3 in relation thereto. It clearly lays down that confiscation can be made if the Collector is satisfied that there has been a contravention of the order (made under Section 3 of the Act). Further, it envisages confiscation irrespective of whether a prosecution is instituted or not for contravention of such orders. It is thus crystal clear that a proceeding for confiscation of the seized goods by the Collector has nothing to do with the prosecution or non-prosecution of the person concerned from whose custody the goods alleged to be kept in violation of the Licensing and Control Order have been seized. As a necessary corollary it would follow that any order made by the Collector under Section 6A of the Act will have no bearing whatsoever on the ultimate prosecution, if any, of the offender for an offence under Section 7 of the Act.

(5) The learned counsel for the petitioner has in order to fortify his argument placed reliance on Section 6C(2) of the Act which makes a provision for payment of price of essential commodity seized when an order under Section 6A of the Act is modified or annulled by judicial authority concerned in appeal or when in a prosecution instituted for the contravention of the order in respect of which a.n order of confiscation has been made under Section 6A of the Act the person concerned is acquitted and either case it is not possible for any reason to return the essential commodity seized. But strangely enough the learned counsel for the petitioner while being fair and can did enough to concede that in a case of confiscation of goods by the Collector but the prosecution ending in acquittal the confiscated goods will have to be restored or price thereof paid as contemplated by Section 6c(2) of the Act, does not concede the converse proposition viz. that in case there is release of the goods by the Collector there can still be prosecution of the offender.

(6) I have given my careful thought and consideration to the matter, but I have not been able to persuade myself to accept this proposition for the simple reason that on the plain language of Section 6A itself a proceeding there under is independent of whether or not a prosecution is instituted for the contravention of the Licensing and Control Order. Indeed the Legislature has conferred the power of forfeiture on the Collector by an express provision even though such an eventuality is contemplated under Section 7 of the Act in case the trial of the accused culminates in conviction. Evidently, thereforee, it would appear that the power exercisable under Section 6-A of the Act is summary in nature in the sense that it is to be exercised only for a limited purpose, namely, confiscation or otherwise of the seized goods. Section 6-A of the Act does not envisage a regular trial and it has nothing to do with the merits of a criminal case even though confiscation itself may have penal consequences. It is a provision made in public interest because there is scaracity of essential commodities and delay in disposal of essential commodity seized will not be conducive to public good, rather it may harm public interest and defeat the entire purpose of the Act, namely, to secure fair and equitable distribution of essential commodities.

(7) The learned counsel for the petitioner has then urged that even though the power exercisable by the Collector under Section 6-A may be said to be executive/administrative in nature, but once an appeal is preferred against the same and the matter is decided by the Judicial Authority, the proceedings partake of the nature of judicial proceedings and, as such, the order may be considered to be judicial one and of binding nature even against subsequent prosecution. Reliance in this context has been placed by him on C. Moideen v. Sub Inspector of Police, Calicut, (1972) M.L.J. 113. It was held therein as under:

'The disposal of the foodgrains is a right which is conferred upon the Collector. However, it is subject to the final decision by the judicial authority concerned. Once that authority had exercised its right to annul the confiscation, it is not open to the Magistrate who conducted the trial of the case to reopen to the confiscation order and again confiscate the foodgrains even if the accused is convicted for the contravention of the provisions of the order.'

With great respect, I am not persuaded to subscribe to the proposition laid so broadly by the learned Judge of the Kerala High Court. It is for the simple reason that under Section 7(1)(b) of the Act which is imperative in its language, any property in respect of which the order has been contravened shall be forfeited to the Government. It may be pertinent to notice here that Section 7(1) of the Act in its present form was substituted by Act 30 of 1974 with effect from June 22, 1974. It is thus clear that since this amendment the discretion of the Court in this behalf has been taken away and once the Court convicts a person of an offence under Section 7 of the Act, it has no option but to direct forfeiture of the goods in respect of which the order has been contravened. I am unable to comprehend how a Court can be divested of this power merely because the Collector hag taken a contrary view and has released the goods. The same reasoning will hold good even if an order is made by Judicial Authority because the order has nothing to do with the guilt or innocence of the accused person and the power is exercised by the Judicial Authority in a quasi judicial manner for a limited purpose. So, looking from any angle, there can be no room for doubt that prosecution can well be launched against the petitioner for an offence under Section 7 of the Act and the Court will have to deal both with the question of punishment and forfeiture of the property in respect of which an offence appears to have been committed. Section 7-D of the Act makes this position abundantly clear and leaves no room for any doubt. Of course, I do not mean to say that it must be launched, as it all depends on the material collected by the Investigating Agency and the nature of the offence which is made out, if any, against the petitioner. In this view of the matter, thereforee, the direction for furnishing indemnity bond/surety bond become quite intelligible and is absolutely necessary.

(8) In the view of the matter I have taken, the question of quashing the proceedings pending with the investigating agency does not arise. Indeed, under Section Ioa of the Act, every offence punishable under this Act has been made cognizable. Evidently, it was by virtue of this provision that the police took cognizance of the matter and registered a case formally as envisaged in Section 154 of the Code of Criminal Procedure for the purpose of investigation. Section 11 of the Act, further, lays down that cognizance of an offence punishable under the Act can be taken only on a report made by a public servant. A report under Section 173 of the Code of Criminal Procedure made by the police officer investigating into an offence will obviously satisfy the requirements of Section Ii for taking cognizance of an offence if so disclosed. Evidently, thereforee, it is for the investigating agency concerned to decide whether a report is to be made or not. It may take into consideration the orders already passed by the Collector as well as the Judicial Authority. If they still feel that there is a case, for instance, to urge that the 59 tins of Gopi Brand did not contain imported Soyabeen Refined Oil, as contended by the petitioner, they may be well-advised to launch a prosecution but if they are satisfied with the finding they may not like to do so. It is only in the event of a report being made that the Court will have to consider the whole question at a regular trial for deciding whether to proceed with the trial or not. Surely, no direction can be given by this Court at this stage, and the question of quashing the investigation proceedings, as such does not arise.

(9) Before taking leave of this petition, I may also dispose of an objection of a preliminary nature raised by the learned counsel for the State that in view of Section 6E, the order made by the Collector or the Judicial Authority, as the case may be, has attained finality and no other Court, Tribunal or Authority has jurisdiction to make any order with regard to possession, delivery, distribution or disposal of such property. No doubt, the order of the Judicial Authority in the instant case has become final so far as the provisions of the Act are concerned and the same cannot be challenged before any other Tribunal or Court. However, this provisions does not detract from or curtail the power of Superintendence and supervision of High Court under Article 227 of the Constitution of India nor does it affect the inherent powers of the High Court to pass necessary orders to rectify mani- fest errors to prevent abuse of the process of Court or otherwise to secure the ends of justice. The jurisdiction of the High Court under Article 227 of the Constitution of India is essentially meant to keep a subordinate Tribunal within the bounds of its authority and if the order is manifestly incorrect the High Court will not only be competent but fully justified in setting right a wrong. So, this objection of the learned counsel for the State is without any basis.

(10) As a result, this petition fails and is hereby dismissed.


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