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State of Kerala Vs. C.K. Assainar - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Case NumberCriminal Revn. Petn. No. 157 of 1968
Judge
Reported inAIR1969Ker151; 1969CriLJ731
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 5(1), 5(2), 6 and 523; Kerala Rice (Regulation of Movement) Order, 1966; Kerala Rice (Regulation of Movement) (Amendment) Order, 1968; Essential Commodities Act, 1955 - Sections 6A to 6D and 7; Essential Commodities (Amendment) Act, 1966
AppellantState of Kerala
RespondentC.K. Assainar
Appellant AdvocateState Prosecutor
Respondent Advocate V. Nagappan nair, Adv.
DispositionRevision allowed
Cases ReferredRamaswamy Gounder v. State of Kerala
Excerpt:
.....6a and 7 of essential commodities act, 1955 - lorry belonging to respondent confiscated by state - munsif-magistrate passed order directing collector to produce goods - state comes in revision against impugned order - clause 6 of order empowered certain officers of revenue department to seize goods in respect of which there was reason to believe that any provision was about to be contravened - by virtue of section 7 magistrate empowered to pass order of forfeiture even in case where he acquits accused - held, impugned order improper and invalid. - - the same expression, otherwise dealing with',occurs in subsection (2) as well; therefore, the view of the munsif-magistrate that section 523 of the code applies can hold good only if there are no provisions for disposal of property in..........to take or to authorise the taking of all measures necessary for securing the production of the rice seized along with the packages, etc. 'in a court and for their safe custody pending such production'. this was the original clause 6 in the kerala rice (regulation of movement) order as passed in 1966. this has been amended on 22nd february, 1968; and a new clause 6 has been substituted.under the new clause 6(1)(c) also the officers are empowered to seize the stock of rice, in respect of which they have reason to believe that any provision of the order has been or is being or is about to be contravened, along with the packages, coverings, etc. sub-clause (c) further provides that the officers should thereafter take all measures for securing the production of the rice seized along with.....
Judgment:
ORDER

T.C. Raghavan, J.

1. The respondent, the accused in a crime before Perintalmanna Police Station, applied before the Munsif-Magistrate, Pattambi for an order directing the Collector to produce before Court the nice seized from him. The Taluk Supply Officer filed objections claiming that the Collector was not bound to produce the rice before the Munsif-Magistrate. The Munsif-Magistrate overruled the objection and passed an order directing the Collector to produce the rice. The State of Kerala has filed the revision petition against that order.

2. A lorry belonging to the respondent carrying 100 bags of rice capsized on 3rd March, 1968, at about 5 p. m. The police reached the scene and seized the rice and the lorry. The respondent and the lorry were produced before the Munsif-Magistrate the next day; and the 100 bags ofrice were retained by the police to be produced before the Collector. The respondent was also charged under Section 279 of the Penal Code. The grounds on which the Munsif-Magistrate directed the Collector to produce the rice before him were that the case came within Section 523 of the Code of Criminal Procedure; and that under Section 6A of the Essential Commodities Act, the Collector had the right to have the rice produced before him only if he had the power to confiscate it. The Munsif-Magistrate held that since the case was now before him, the rice had to be produced before him.

3. The interpretation put upon Section 5(2) of the Code of Criminal Procedure by the Munsif-Magistrate does not appear to be correct. The Munsif-Magistrate seems to think that under Sub-section (2) of Section 5 a special enactment can regulate only the manner or place of investigating, inquiring into, trying or otherwise dealing with an offence: in his opinion, this will not include making provision for the disposal of the property involved in the offence. The Munsif-Magistrate says that 'trying' is only alternative with 'otherwise dealing with'. This is obviously incorrect. Under Section 5(1) of the Code of Criminal Procedure, all offences under the Indian Penal Code shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions of the Code. The expression 'otherwise dealt with' occurring in this sub-section evidently includes disposal of property under Chapter XLIII of the Code. The same expression, 'otherwise dealing with', occurs in Subsection (2) as well; and that expression can only have the same meaning as in Sub-section (1). Therefore, if a special statute makes provision for the disposal of the property involved in an offence under that statute, such provision must displace the relevant provisions of the Code. The Criminal Procedure Code is a general code laying down the procedure in criminal cases generally; and if by a special statute an offence is created and provision is also made for the disposal of the property involved in such offence, there cannot be any objection for that provision being applied to the property involved in that offence. Therefore, the view of the Munsif-Magistrate that Section 523 of the Code applies can hold good only if there are no provisions for disposal of property in the Essential Commodities Act and the Kerala Rice (Regulation of Movement) Order.

4. The Munsif-Magistrate has then considered Section 6A of the Essential Commodities Act and Clause 6 of the Kerala Rice (Regulation of Movement) Order. Under the Act orders can be passed by State Governments; and the Kerala State passed the Kerala Rice(Regulation of Movement) Order of 1966. Clause 6 of that Order empowered certain officers of the Revenue Department, the Civil Supplies Department, etc. to seize paddy and rice, in respect of which there was reason to believe that any provision of the Order had been or was being or was about to be contravened. In such cases the said officers were also empowered to seize the packages, coverings or receptacles in which such rice was found or the animals, vehicles, vessels or other conveyances used in carrying such rice. They were further empowered to take or to authorise the taking of all measures necessary for securing the production of the rice seized along with the packages, etc. 'in a Court and for their safe custody pending such production'. This was the original Clause 6 in the Kerala Rice (Regulation of Movement) Order as passed in 1966. This has been amended on 22nd February, 1968; and a new Clause 6 has been substituted.

Under the new Clause 6(1)(c) also the officers are empowered to seize the stock of rice, in respect of which they have reason to believe that any provision of the Order has been or is being or is about to be contravened, along with the packages, coverings, etc. Sub-clause (c) further provides that the officers should thereafter take all measures for securing the production of the rice seized along with the packages, coverings, receptacles, etc. before 'the appropriate Court and for their safe custody pending such production'. An Explanation is added to this sub-clause which states that 'appropriate Court' shall mean such Court as is specified in or under the Essential Commodities Act, in which proceedings would lie for contravention of the provisions of the Order, and shall also include the Collector of the District referred to in Section 6A of the Essential Commodities Act. Thus, the amended Clause 6 has constituted the Collector also an appropriate Court; and the officer seizing the rice on the belief that a provision of the Order has been contravened, may produce the rice seized before either of the appropriate Court, viz., the Court in which proceedings would lie and the District Collector. This amended clause does not appear to have been brought to the notice of the Munsif-Magistrate; and for that reason, his order also does not lay down the correct position.

5. It is then urged by the Counsel of the respondent that even after the amendment the Munsif-Magistrate has the power to direct the Collector to produce the rice before him. On the other hand, the Public Prosecutor argues that once the commodity seized can be produced before the Collector who is an appropriate Court and the Collector himself wants it to be produced before him,the Munsif-Magistrate, who is also an appropriate Court, need not direct the Collector to produce the rice before him. The new Clause 6 of the Kerala Rice (Regulation of Movement) Order was most probably enacted to meet a case like this. The rice, if produced before the Collector, will undoubtedly be better preserved and better disposed of. In such a case, why should the Munsif-Magistrate have a superior or a supervening authority to call upon the Collector to produce the rice before him? Again, Sections 6A to 6D of the Essential Commodities Act make elaborate provisions regarding confiscation by the Collector. Section 6A authorises the Collector to confiscate any essential commodity seized: Section 6B lays down the procedure before confiscation, like issue of show cause notice, etc.: and Section 6C(1) provides for appeals against orders of confiscation before a judicial authority constituted by the State Government. Sub-section (2) of Section 6C then provides that where an order of confiscation is modified or annulled by the Appellate Judicial Authority, or where in a prosecution instituted for the contravention of the order in respect of which an order of confiscation has been made under Section 6A the person is acquitted, and in either case where it is not possible for any reason to return the essential commodity seized, the person from whom the seizure was made shall be paid the price therefor as if the essential commodity had been sold to the Government, with reasonable interest calculated from the day of seizure. Provision is also made in the same sub-section for the manner in which the price of the essential commodity has to be fixed.

Lastly, Section 6D provides that the confiscation by the Collector is no bar for the infliction of any other punishment to which the person is liable under the Act. These provisions make it clear that the Collector has power to confiscate the essential commodity seized, whether there is a prosecution before a Magistrate or not; that, if there is a prosecution and it ends in acquittal, the Government will return the commodity seized; that, if for any reason the commodity cannot be returned in specie, its price with reasonable interest will be paid to the person from whom it was seized; that an order of confiscation by the Collector is appealable to a judicial authority constituted by the State Government; and that, if the Appellate Authority modifies or annuls the order of confiscation, then also the essential commodity will be returned or its price with reasonable interest will be paid to the person from whom the seizure was made. In view of these provisions in the Act, the Collector's retention of the commodity seized and produced before him is only subject tothe result of the prosecution before the Magistrate; and if the Magistrate after trial of the case comes to the conclusion that the commodity seized from the accused person should be returned to him and pass such an order, the Collector has to return it in specie, if possible, and its price, if the return of the commodity is not possible with reasonable interest as specified in Section 6C of the Essential Commodities Act. This provision is sufficient safeguard for the rights of an accused person who is brought before a Magistrate for an offence of contravening any of the provisions of the Kerala Rice (Regulation of Movement) Order. I do not think it is necessary that the Magistrate should have the power to call upon the Collector to produce the commodity seized by the officers of the Civil Supplies Department, Revenue Department, etc. and produced before the Collector. Of course, in a case where the commodity is not produced before the Collector, the Magistrate may dispose of it.

I may also point out that under Section 7 of the Essential Commodities Act, the Magistrate has the power to pass an order of forfeiture even in a case where he acquits the accused person vide Ramaswamy Gounder v. State of Kerala, Cri. R. P. No. 123 of 1968 (Ker); and only if no order of forfeiture is passed by the Magistrate, the Collector need return the commodity or pay its price. I feel that this is the best and the most harmonious interpretation of Section 6 of the Kerala Rice (Regulation of Movement) Order with Section 6A of the Essential Commodities Act.

6. In this view, the revision petition is allowed; and the order of the Munsif-Magistrate is set aside.


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