B.J. Divan, C.J.
1. In this petition under Article 226 of the Constitution, the petitioner has challenged the order passed by the Collector of Bulsar confiscating truck No. GTY-3865 belonging to the petitioner, and he has also challenged the order of the Sessions Judge, Bulsar at Navsari, confirming the order of confiscation. He has further challenged the order of the Government of Gujarat in the Civil Supplies Department refusing to interfere with the order of confiscation. The order of the Collector of Bulsar is Annexure 'A' to the petition. This order of the Sessions Judge is Annexure 'B' to the petition and the order of the State Government is Annexure 'D' to the petition. The petitioner has also challenged the vires of Section 6A (1)(c) under which the Collector has got the power to confiscate the vehicle which is use 1 for the purpose of contravening any of the provisions of an order issued under Section 3 of the Essential Commodities Act.
2. The facts leading to this petition are as follows : The petitioner is the owner of the truck bearing No. GTY-3865. On February 14, 1976, in the early hours of morning at about 3-30 AM, this truck of the petitioner was intercepted by Police Sub Inspector, Umbergaon, on the national highway near village AtakPardi. This village is about forty kilometres inside the Gujarat State territory from the inter-State boundary between the States of Gujarat and Maharashtra. The case against the petitioner was that this truck was loaded with 79 bags of cabbage and below these bags of cabbage were 119 bags of 50 kilogram each packed with rice. These bags of rice goods, according to the police authorities, were being illegally transported to Maharashtra. The truck was being driven at the time by one Yasinkhan. The truck and the rice in 119 bags were both seized by the police under a Panchnama. On receiving report from the police, the Collector of Bulsar initiated action under the provisions of Section 6A of the Essential Commodities Act, hereinafter referred to as the Act. The petitioner contended before the Collector, when the appropriate notice under Section 6B was issued to him, that the rice which was found in the said truck was not meant for being carried outside the State of Gujarat. It was the case of the petitioner that the rice contained in the 119 bags was to be delivered at village Vankal in Bulsar Taluka of Bulsar District in the State of Gujarat It was the case of the petitioner that goods were consigned to one Jagubhai Khushalbhai of Vankal by Laxmanbhai Chhaganbhai of Bareja. The petitioner produced the bills in connection with this consignment and the petitioner contended that there was no intention to carry rice across the inter-State boundary and hence no question of the breach of the provisions of Clause 3 of the relevant order issued under Section 3 would ever arise. It was the case of the petitioner that village Vankal was a few miles to the east of the point where the truck was intercepted. It was found that Vankal village was situated on Bulsar Dharampur Road and was about five to seven miles to the east of the national highway. It was the case of the petitioner before the Collector that driver Yasinkhan had been instructed to carry the rice to village Vankal and to hand over the same to Jagubhai Khushaldas of Vankal village. It was the case of the petitioner that he had undertaken this contract of transporting lice from Laxmanbhai Chhaganbhai of Bareja for the sum of Rs. 357/-. Jagubhai and Laxmanbhai gave their statements supporting the petitioner and, according to their statements, the rice belonged to Laxmanbhai who had sent the same to Jagubhai Khushaldas and the bill was already sent to Jagubhai Khushaldas. The Collector of Bulsar relied upon the statement given by driver Yasinkhan before the police under Section 162 of the Criminal Procedure Code and issued an order of confiscation of the truck and the rice. This order of confiscation was made by the Collector on April 17, 1976. Against the order of confiscation, the petitioner filed an appeal to the Sessions Judge, Bulsar, under Section 6C of the Act. On August 10,1976, the learned Judge, by his judgment and order, dismissed the appeal and confirmed the order passed by the Collector confiscating the truck belonging to the petitioner. Thereafter, it appears that the petitioner, the driver of the truck and two others were prosecuted in connection with these 119 bags of rice before the learned Judicial Magistrate, First Class, Valsad, and the learned Magistrate acquitted the accused on April 16, 1977, that is, after the learned Sessions Judge, Valsad had dismissed the appeal against the order of confiscation. Thereafter, on December 23, 1977, the present application under Article 2, 6 of the Constitution was filed challenging the order of confiscation as confirmed by the learned Sessions Judge. After this Special Criminal Application was filed, it was amended and by the amendment, the petitioner has challenged the vires of the section.
3. Mr. K.J. Sethna for the petitioner has urged the following four contentions before us: (1) His first contention is that since under Section 6C(2) of the Act, once an accused is acquitted in connection with contravention of an order issued under Section 3 of the Act, the essential commodity or its equivalent is required to be returned to the accused. There is no reason why the truck which was seized because it was being used for the contravention of the order in connection with the essential commodity should not be returned or the value thereof should not be paid to the owner of the vehicle. (2) His second submission was that there was in fact no contravention of the order issued under Section 3 of the Act inasmuch as the truck was stopped at a point which was forty kilometres inside the Gujarat State and therefore there was locus poinilentiai for the driver of the truck. All that had happened in this case was that there was preparation to export rise out of the State of Gujarat but there was no attempt and since preparation to commit an offence of contravention of an order issued under Section 3 of the Act is not made punishable, there was no contravention whatsoever and hence the Collector's order was invalid. (3) The seizure of the truck and of the essential commodity, namely, the rice, could only be done under Clause 7 of the Gujarat and Dadra Nagar Haveli Rice (Export) and Paddy (Movement Control) Act, 1975, hereinafter referred to as the order under Section 3. His contention was that the seizure could only be for the purpose of securing the production of the vehicle in a Court and therefore the Collector could not pass the order of confiscation in respect of the goods so seized for the purpose of being produced in a Court of law and therefore the order of confiscation was bad. (4) His fourth and the last submission was that the power of confiscation under Section 6A(1)(c) is uncanaiised and hence is violative of Article 14 of the Constitution and ultra vires.
4. We will take up these submissions of Mr. Sethna seriatim in the order in which they have been set out hereinabove. In support of the first submission, Mr. Sethna relied upon a decision of a Single Judge of this Court in Ishwarbhai Rambhai Patel v. Sayamlal Ghosh and Ors. 19 G.L.R. 22P. In Ishvarbhai's case, or Brother D.P. Desai J. sitting singly dealt with this very question as to what was the effect of an acquittal in a prosecution under Section 7 of the Essential Commodities Act on the order of confiscation passed under Section 6A of the Act by the Collector in respect of a vehicle. It may be mentioned at this stage that Section 7 of the Act provides for the trial of an offence of contravening an order issued under Section 3 of the Act. The facts of the case in Ishwarbhai Rambhai's case were more or less similar to the facts of the case before us with one marked distinction. A truck bearing No. GTD-4207 was loaded with 90 bags of rice in Ahmedabad and was found proceeding towards Broach and beyond Broach it had crossed the Narmada Bridge. Before that, an information about it as well as some other truck in which rice was to be exported to Maharashtra had reached the Deputy Director, Civil Supplies, Gandhinagar. The Deputy Director and one Bachani left Ahmedabad in a car and at Narmada Bridge near Broach, they could find an entry about this truck loaded with foodgrains in the relevant records maintained at Broach. Having found that the truck had crossed the Narmada Bridge, the Deputy Director and Bachani followed the truck which was ultimately found going towards south, that is, towards Maharashtra border, but it was found near Ankleshwar, a short distance beyond Broach. The Deputy Director and Bachani followed the truck which was ultimately found going from Bardoli towards Ukai. On the way near Bajipura, the truck stopped. There the driver was questioned about its destination. It appears that after such questioning, the truck started its reverse journey from Bjjipura and came to Bardoli. The car in which the Deputy Director and Bachani were travelling had proceeded ahead in search of other trucks and on return they found that the truck was not parked at Bajipura. Therefore, they returned to Bardoli and found the truck in a garage at Bardoli. Search of the truck took place at Bardoli and 90 bags of rice were found loaded in the truck. Thus, the truck in question did not go beyond the limits of Gujarat. It was alleged against the persons concerned in that case that an attempt was made to contravene Clause 3 and Clause 4 of the Gujarat and Dadra and Nagar Haveli Rice (Export) and Paddy Movement (Control) Order which was issued under Section 3 of the Act. The said contravention was also in law made punishable under Section 7 of the Act and Ishwarbhai Rambhai, who was one of the six persons concerned with the alleged contravention, was prosecuted and the Collector of Surat, in exercise of his powers under Section 6A of the Act, gave notice to the petitioner to show cause why the truck in question should not be confiscated as the same was found taking rice out of the limits of Gujarat State in a surreptitious manner and thereby it was alleged that contravention of the aforesaid order was made. Ishwarbhai Rambhai showed cause in reply and the Collector, by his order dated September 10, 1976, ordered confiscation of the truck in question. The Sessions Judge to whom an appeal was preferred under Section 6C of the Act, dismissed the appeal but, in the meanwhile, that is, pending the appeal before the Sessions Judge, Ishwarbhai Rambhai was acquitted by the learned Judicial Magistrate, First Class, in respect of the contravention of the order issued under Section 3. On these facts, in the light of the provisions of Section 6C(2) of the Act, our learned Brother D. P. Desai J. held that though the vehicle used to carry the essential commodity is not an essential commodity, if the essential commodity or its price becomes returnable on an acquittal, there is no reason why the vehicle cannot be returned if the acquittal is on merits. Acquittal on merits means that in fact or in law no contravention of an order under Section 3 has taken place in respect of the goods carried. In such a case, the vehicle must be returned to its original owner and the law will readily imply this obligation of the Government arising out of an acquittal on merits. Our learned Brother also derived support for his conclusion from the decision of a Single Judge of the Allahabad High Court in Kishorilal v. Addl. Collector Kanpur : AIR1969All139
5. In order to understand this first submission of Mr. Sethna, it is necessary to refer shortly to the history of the different amendments made to the Essential Commodities Act, 1955. The Act as originally enacted had no provision for confiscation. It was only by the Amendment Act of 1966 (Essential Commodities (Amendment) Act, 1966) that Sections 6A to 6D were inserted in the Act. Section 6A provides for confiscation and as originally enacted in 1966, provided for confidation of an essential commodity and was in these terms and by virtues of this Essential Commodities (Second Amendment) Act, 1967 read as follows:
Where any essential commodity is seized in pursuance of an order made under Section 3 in relation thereto, this Collector of the district or the presidency town in which such essential commodity is seized, and whether or not a prosecution is instituted for the contravention of such order, the Collector may, if satisfied that there has been a contravention of the order, order of confiscation of the essential commodity so seized.
Section 6C provided for an appall against the order of confiscation and under Sub-section (2) of Section 6C, originally enacted in 1966, it was provided:
Where an order under Section 6A is modified or annulled by such 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 6-A, the person concerned is acquitted and in either case it is not possible for any reason to return the essential commodity seized, such person shall by paid the price therefore as if this essential commodity had been sold to the Government with reasonable interest calculated from the day of the seizure of this essential commodity.
We are not concerned with the rest of the provisions of Section 6C(2). It is to be noted at this stage that when Section 6A and 6C were first inserted, there was provision in Section 6A only for seizure of the essential commodity in respect of which contravention of the order issued under Section 3 was alleged, and under Section 6C(2), it was only the essential commodity or its monetary equivalent which was to be returned to this person concerned if he was acquitted in a regular judicial trial. As our learned Brother has rightly pointed out in Ishwarbhai Rambhai's case, by virtue of these provisions, the order passed by a quasi-judicial authority, normally, this Collector, was made subject to the order of a judicial authority.
6. The provisions of Section 6A were amended with effect from August 29, 1974 by the Essential Commodities (Amendment) Act, 1974, being Act 30 of 1974. By Section 4 of tills Amendment Act, to Section 6A of the Act, provision was made to empower the Collector to order confiscation of the essential commodity so seized or any package, covering, or receptacle in which such essential commodity was found and any animal, vehicle or other conveyance used for carrying such essential commodity. Though Section 6A way thus amended, enlarging the powers of the Collector to order conscriptions, namely by empowering him to order confiscation not only of the essential committee but also of the paclcig;, covering or receptacle in which the essential omnjiity wisfouid aid confiscation of even the vehicle used in carrying such esssatiil commodity, yet, the Legislature did not (sic) Section 6C(2) of the Act directing and making it obligatory on the authorities concerned to return the vehicle or its monetary equivalent to the owner of the vehicle in case he was acquitted in a trial under Section 7 of the Act. It may be noted tint under Section 6B of the Act, an opportunity was to be given to the owner of the vehicle to prove to the satisfaction of the Collector that the vehicle was used in carrying the essential commodity without the knowledge or connivance of the owner himself, his agent, if any, and the person in charge of the animal, vehicle, vessel or other conveyance and I hat each of them had taken all reasonable and necessary precautions against such use. But the Legislature,, as we have pointed out, did not amend Section 6C(2) to provide for the return of the vehicle or its monetary equivalent in the case of am acquittal by the Magistrate trying the case under Section 7 of the Act. It seems that so far as the owners of receptacles etc. and owners of vehicles etc. were concerned, they were left only with the remedy of an appeal U the Court or the judicial authority referred to in Section 6C(1). Barring the relief which could be given to them under sec 6C(1) by the judicial authority to whom an appeal against the order of confiscation was provided in Section 6C(1), no other relief was contemplated by the Legislature. It may be pointed out that, with effect from 2nd September 1976, the Essential Commodities Act, 1976, was amended by the Essential Commodities-Amendment) Act, 1976, being. Act 92 of 1976 Even by this Act, though, some provision by way of relief in the case of an order of confiscation of animal, vehicle, vessel or other conveyance is made, there is no provision in the amended, Section 6C(2) of the Act regarding return of the vehicle or monetary equivalent thereof to the owner of the vehicle, vessel, etc. A proviso is aided to Section 6A(1) to the following effect:
Provided further that in the case of any anginas, 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 this market price at the date of seizure of the essential commodity sought to be carried by such animal, vehicle, vessel or other conveyance.
It may be noted that though Section 9 of the Amendment Act of 1976 provided for certain retrospective effect, it did not provide for retrospective effect to the second proviso which it inserted in Section 6A(1) of the principal Act.
7. In our opinion, the historical development of the different amendments that we have traced so far clearly goes to show that the Legislature has deliberately omitted to make any provision for the return of the vehicle or vessel or receptacle if the person concerned is acquitted in a Court of law. The only requirement regarding confiscation of such goods is that now, after the amendment of 1976, an option has to be given at the time of passing the order of confiscation to the owner of the vehicle vessel, etc., to pay a file equivalent JD the value of the essential commodity, in respect of which the vehicle or vessel was used for the purpose of carriage and the file shall not exceed the market price at the date of seizure of the essential commodity that is to be carried in the vehicle, vessel, etc. But that further proviso to Section 6A(1) of the Act was not on the statute book when the truck in the instant case was seized by the police authorities on February 14, 1976 and when the confiscation order was passed by the Collector on April 17, 1976 and when the criminal appall w is dismissed by this Sessions Judge, Valsad on August 10, 1976. Therefore, we have to (sic) with this case on the situation as it prevailed bit (sic) 1974 and 1976. Our learned Brother D.P. Desai J. interpreting this provision in iawaharbhai Rambhai's case has proceeded on the footing of implication and he has held that the law will readily imply the obligation of the Government to return the truck or its monetary equivalent in the case of an acquittal by a Judicial Magistrate of the owner on merits. With respect to our learned Brother, we are unable to agree with this conclusion of his. In our opinion, the intention of the Legislature, at the time when it amended Section 6A(1) in 1974, enlarging the powers of the Collector of confiscation, namely, enlarging the powers from confiscation of the essential commodity to confiscation also of the receptacle etc. in which the essential commodity was found at the time of seizure and also of the vehicle, vessel, etc. in which the essential commodity was being carried at the time of seizure, by not amending Section 6C(2) of the Act, when it amended it in 1974, though it amended Section 6A(1), seems to be to see that those who were facilitating the contravention of the orders issued under Section 3 of the Act should not be in a position to repeat their actions over and over again, though it was found there was no actual export of the essential commodity outside the particular restricted zone. By virtue of Clause 3 of the Gujarat and Dadra Nagar Haveli Rice (Export) and Paddy (Movement Control) Order, 1975, no person could export or attempt to export or abet the export of rice except under and in accordance which a permit issued by the authorities stated in that clause, and 'export' means to take or cause to be taken, by any means whatsoever, from any place within the zone to a place outside it and 'zone' has been defined to mean the area comprising the State of Gujarat and the Union territory of Dadra and Nagar Haveli to which this order of 1975 was extended. It is, therefore, clear that, when the Legislature provided that in the case of an acquittal of an accused of the offence of exporting or attempting to export or abetting the export of rice without the necessary permit outside Gujarat in contravention of this order issued under Section 3 of the Essential Commodities Act, the essential commodity, namely, rice was to be returned to the parson acquitted, yet the receptacle in which the rice was found or the vehicle which was being used for the purpose of attempting expert was not directed to be returned. It was by a special provision of Section 5C(2) that, in the case of ai acquittal by the Court of a Judicial Magistrate, First Class, trying the case under Section 7 of the Act, the essential commodity which was ordered to be confiscated by the Collector, had to be returned or its money equivalent had to be returned to the owner of the essential commodity. It may be pointed out in this connection that under Section 7(1)(b), the Court trying a criminal case for contravention or violation of an order issued under Section 3 can pass orders of forfeiture regarding the property in respect of which the order has been contravened or such part thereof as to the Court may seem fit including any packages, coverings or receptacles in which the property is found and any animal, vehicle, vessel or other conveyance used in carrying the property. But this is a matter of judicial discretion to be exercised by the Court. It seems that when the Legislature amended Section 6A by giving powers of confiscation to the Collector in respect of receptacles etc. and vehicles etc., it brought powers of confiscation under Section 6A on par with the powers of forfeiture of the Court under Section 7. But, at the same time, the provisions of Section 6C(2) were not disturbed qua the return of essential commodity or its equivalent on an acquittal by a competent Court so far as confiscation orders were concerned. In view of this historical background and historical perspective, we are unable to agree with our learned Brother D.P. Desai J. when he held in Ishwarbhai Rambhai's case that under the implied powers under Section 6C(2) in case of an acquittal even the vehicle or the value thereof must be returned to the person acquitted in connection with the offence regarding that vehicle.
8. Mr. Sethna's next contention was that in fact no contravention of the order under Section 3 of the Act has taken place in this case inasmuch as the truck was stopped at a pint which was 40 kilometers inside the Gujarat State. In this connection, he has relied upon the decision of the Supreme Court in Makila Singh v. The State of Punjab : 1970CriLJ750 In that case, the facts were that a Sab Inspector of Food and Supplies Department stopped a truck at Samolkha Barrier. The truck at that time was driven by Makita Singh and Babu Singh was the cleaner of that truck. The truck carried 75 bags of paddy weighing about 140 maunds. Export of paddy from Punjab to Delhi was contrary to law at that time. The Sub Inspector took into possession the truck as also the bags of paddy. The consignment of paddy was booked from Malerkotla on October 18, 1961 by Qimat Rai on behalf of Messrs Sawan Ram Chiranji Lai. The consignee of the paddy were Messrs Devi Dayal Brij Lai of Delhi. According to driver Malkiat Singh, he was given the paddy by the transport company at Malerkotla for being transported to Delhi. The transport company also gave him a letter assuring him that it was an authority for transporting the paddy. But it later transpired that it was a personal letter from Qimat Rai to the commission agents at Delhi and that it was not a letter of authority. Babu Singh, the cleaner, admitted that he was sitting in the truck as a cleaner. The trial Court convicted all the accused persons. On appeal, the Additional Sessions Judge set aside the conviction of Sawan Ram Chiranji Lal i.e. person on whose behalf Qimat Rai was acting, and affirmed the conviction of Qimat Rai and of the driver and the cleaner. Thereafter, the driver and cleaner took the matter in revision to the High Court. The revision petition was dismissed by the High Court and thereafter the driver and the cleaner approached the Supreme Court in appeal. Qimat Rai, the man who had entrusted the consignment of paddy to the driver of the truck had not gone in revision to the High Court, nor had he appealed to the Supreme Court. It was on these facts that the Supreme Court held that there was locus poenitentiae for the driver because all that the driver has done was to prepare to take the paddy to Delhi in violation of law and it was possible that before crossing the border into Delhi, which border was 18 miles from the place where the truck was stopped, the driver could have stopped and it was open to the driver not to cross the border and to take the paddy back or to take it elsewhere. Therefore, the Supreme Court pointed out that the stage of preparation was not over and the stage of attempt as known to criminal law had not yet begin so far as the driver and the cleaner were concerned. In the instant case, we are not dealing with the driver or the cleaner but the owner of the truck who had given instructions to his driver to take the rice in question to Bombay. That is the material available on the record before us and that is pointed out by the learned Sessions Judge in his appellate order. Hence, it is obvious that so far as the petitioner before us is concerned, he had done everything in his power to see that the offence of exporting rice from Gujarat to Maharashtra should be committed but it was by reason of circumstances beyond his control that the actual offence was not committed. So far as the driver of the truck was concerned, it was at the stage of preparation undoubtedly but so far as the petitioner was concerned, the stage of attempt must certainly be held to have commenced. The petitioner before us is more or less in the same position as Qimat Rai of the case before the Supreme Court. In Malkiat Singh's case, Qimat Rai's conviction was not disturbed by the Supreme Court in any manner even in suit motu revisional jurisdiction, when the conviction of the driver and the cleaner were set aside. Under these circumstances, this contention based on the decision of the Supreme Court in Malkiat Singh's case cannot help the petitioner in the instant case and therefore, the second contention must be rejected.
9. The third contention of Mr. Sethna was based in Clause 7 of the Gujarat and Dadra Nagar Hiveli Rice (Export) and Paddy Movement Control Order, 1975. Under Clause 7, any police officer not below the rank of Head Constable or any officer of the Civil Supplies Department not below the rank of Supply Inspector or any Revenue Officer not below the rank of Aval Karkun and any other person authorised is this behalf by the State Government may, with a view to securing compliance with the order or to satisfying that this order has been complied with, seize or authorise seizure of any rire in respect of which he has reason to believe that any provision of this order has been, is being or is about to be contravened, along with the packages, coverings or receptacles, in which such rice is found or the animals, vehicles, vessels, boats or conveyances used in carrying rice 'for securing the production of the packages, civic (sic) receptacles, a limit, vehicles, vessels, boats or conveyances so seized in Court'. It is contended that since the seizure was for producing the vehicle in Court, it was not open to the Collector acting under Section 6A of the Act to confiscate the vehicle. Under Section 6A of the Act, as amended by the Amendment Act of 1974, after an essential commodity is seized in pursuance of the order made under Section 3 in relation thereto, it would be produced without any unreasonable delay before the Collector of the District and the Collector, if satisfied that there has been contravention of the order, may order confiscation of the commodity so seized. This same power of confiscation was extended by the Amendment Act of 1974 to any vehicle, or vessel etc. used for carrying such essential commodity. Therefore, even though the seizure was for the purpose of producing the essential commodity so seized or the receptacle etc. or the vehicle etc. before the Court, by virtue of the provisions of Section 6A as amended by the Amendment Act of 1974, it is open to the Collector to pass an order of confiscation in respect of the vehicle because the power of seizure and the power of confiscation operate in two separate areas altogether aid air two different provisions of the law altogether. Hence this contention of Mr. Asthma is also rejected.
It was lastly contended that the powers of seizure under Section 6A was an uncanallsed-power and therefore it was ultra virus. Now, when we turn to the language of Section 6A, it speaks of satisfaction of the Collector that there has been a contravention of the order passed under Section 3 and then only his power of confiscation can be exercised, not only as regards the essential commodity but also as regards the receptacle etc. or the vehicle etc. Further, there is an appeal provided for by Section 6C of the Act and looking to the fact that there must be a contravention of the order, it cannot be said that the power of confiscation under Section 6A is uncanalised. The Collector's attention has directly to be focused on the question whether there has been contravention of the order or not and hence it cannot be said that there is uncanalised power. Under these circumstances, the fourth contention of Mr. Sethna also fails and is rejected. Under these circumstances, all the points urged by Mr. Sethna fail. This Special Criminal Application therefore also fails and is dismissed with no order as to costs. Mr. Sethna has applied orally for leave to appeal to the Supreme Court under Article 134 of the Constitution. In our opinion, there is no substantial question of law in this case in view of the clear provisions of law and therefore, we are unable to certify that this is a fit case for appeal to the Supreme Court, The oral application is therefore rejected.