V. Bhaskaran Nambiar, J.
1. Contravention of the provisions of the Essential Commodities Act or any Orders issued pursuant thereto may entail confiscation of the essential commodity. Before final orders are passed, it may also be necessary to sell the commodity in public auction or at controlled rates when it is subject to speedy and natural decay or when it is otherwise expedient in public interest. When, confiscation, is finally awarded, does it not attach to the money represcnting the commodity or can it be said that there was no confiscation of the sale proceed and that the money has to be returned? The answer seems to be simple ; but the learned Counsel for the respondents submit on the basis of Abdul v. State of Kerala 1979 Ker LT 189 : 1979 Cri LJ NOC 65 that the sale proceeds have to be disbursed to the person from whom the cement was seized, notwithstanding confiscation of the commodity. This requires consideration and so to the facts.
2. The Police seized 49 bags of cement from the house of the first respondent Chakku. Confiscation proceedings were initiated under the Essential Commodities Act and notice was issued to him. He contended that 25 bags of cement were purchased by him on the strength of permits and 24 bags were purchased by one Narayanan, the second respondent, who in his turn entrusted the same to Chakku for safe custody. The Assistant Collector, authorised in this behalf, held that the entire cement seized was procured illegally and kept for sale violating Kerala Cement Distribution (Licensing and Regulation) Order, 1974. This order was passed on 18/1/1980. Meanwhile the cement had been sold in public auction and the sale proceeds were kept in revenue deposit. The Assistant Collector therefore directed dial the sale proceeds shall be confiscated.
3. The matter was taken in appeal to the District Judge, Trichur, Under Section 6-C of the Act. The District Judge relying on 1979 Ker LT 189 : 1979 Cri LJ NOC 65 allowed the appeal and directed the return of the sale proceeds to the person from whom the cement was seized. The State has filed this revision.
4. Confiscation of essential commodity is provided in Section 6-A of the Essential Commodities Act and the procedure for confiscating is contained in Section 6B. Section 6A(2) also provides that when the Collector is of the opinion that the essential commodity is subject to speedy and natural decay or it is otherwise expedient in the public interest to do so, he may (i) order the same to be sold at controlled price or (ii) where no such price is fixed, order the same to be sold by public auction.
5. Section 6A(3) specifies that the money so realised shall be paid to the owner thereof or the person from whom it is seized in three contingencies --
(a) when no order of confiscation is ultimately passed by the Collector ;
(b) when the person concerned is acquitted in a prosecution instituted for the contravention of the order ; and
(c) when the order passed on appeal against the confiscating order directs refund.
6. Thus the Act recognises the power of confiscation, allows the commodity to be converted into money and directs refund of the sale proceeds only in certain specified contingencies. When the order for confiscation is set aside, naturally the sale proceeds have to be returned. If the confiscation is not set aside, but the person concerned is acquitted by a criminal court, even then, the sale proceeds will have to be returned. But when confiscation is upheld and the person is also convicted, it looks strange that money will have to be returned on the sole ground that the sale proceeds are not liable for confiscation. A person guilty of contravening the provisions of Cement Control Order cannot thus retain either the goods confiscated or the money to which it is converted. Otherwise there would be the result that a person can with impunity violate the Essential Commodities Act and the Cement Control Order, allow the Cement to be sold in auction, and claim the return of the money whether the goods are confiscated or not. He can thus utilise the machinery of the Act to sell the article seized from him to claim the money so realised in spite of the fact that the goods and the money representing those goods are both tainted with illegality. This cannot be allowed.
7. The decision in 1979 Ker LT 189 : 1979 Cri LJ NOC 65, does not take up this extreme position and justify this stand. In that case, the provision of Section 6A did not arise for consideration. The learned Judge was only considering, whether Section 452 of the Cri PC (Section 517 of the old Code) will apply to prosecutions launched under the Essential Commodities Act and it was held that it will have no application. The decision cannot therefore apply to cases when an order of confiscation issued by the Collector is challenged before the District Judge in appeal. There is in that case no criminal prosecution and no application of Section 452 of the Code. Even on the reasoning of the learned Judge, the Essential Commodities Act prescribes the penalty and provides the relief. The right to refund of the sale proceeds of a confiscated commodity has therefore to be found in the very same statute. The refund can thus be ordered only Under Section 6A(3) of the Act.
8. The reasoning of the District Judge cannot, therefore, be sustained. However, it is brought to my notice that the accused have already been acquitted. If so, Under Section 6A(2) of the Essential Commodities Act, they are entitled to the refund of the amount in deposit representing the goods confiscated. The order of the Court below is thus sustained, but on different grounds.
Criminal Revision is thus dismissed.