P.C. Borooah, J.
1. On March 31, 1980 an Inspector of Police attached to the Enforcement Branch conducted a raid on premises No. 2-1B, Chetla Road, Calcutta and seized, inter alia, High Speed: Diesel Oil, Lubricating Oil and two tanker lorries, bearing Nos. WBQ 4968 and WMK 2403 with 10,000 litres and 12,000 litres of High Speed Diesel in their respective tanks. Pursuant to such seizure, Section V-2, Case No. 88 dated March 31, 1980 under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 (hereinafter the Act) was started.
2. The two tanker lorries were registered in the name of one Satya Narayan. Shaw and since he was dead, his wife and legal heir Smt. Sundari Devi Shaw, applied to the Collector, 24 Parganas to whom the seizure had been reported for the return of the said forries. The Collector by an order dated June 6, 1980 passed in Misc. Case No. 41 of 1980 gave the petitioner the option of paying with-in forty five days of the order a fine totalling the market price of 22,000 litres of High Speed Diesel Oil seized in the two tankers, failing which the tankers were directed to be confiscated to the State. Against this order the present application has been filed by the petitioner with notice to the State.
3. Mr. Asoke Kumar Sen appearing with Mr. Balai Chandra Ray for the petitioner has submitted that the power of confiscation in regard to a vehicle or other conveyance used in carrying any essential commodity which had been seized in pursuance of an order made under Section 3 of the Act, was given to a Collector for the first time by Section 4 of the 1974 Amendment of the Act. The Repealing and Amending Act, 1978, which received the assent of the President on November 26, 1978, repealed Sections 2 to 12 and 14 of the Amending Act of 1974. As the tanker forries were seized after this Act came into force, the Collector could not have taken recourse to Section 6 of the General Clauses Act to justify his order of confiscation.
4. Mr. Sen further argued that movement of goods by road transport has increased considerably in recent years and in order to protect carriers, whose vehicles may be involved in offences under the Act without their knowledge or consent, Parliament took away the Collector's power of confiscation of vehicles by repealing Section 4 of the Amending Act of 1974.
5. Mr. Birendra Nath Mitra, the Public Prosecutor of this Court, has referred us to the 1976 Amendment of the Act, Section 4 of which re-numbered Section 6A of the principal Act as Sub-section (1) thereof and a second proviso was added, and this proviso gave an option to the owner of a seized vehicle to pay a fine in lieu of confiscation. Mr. Mitra argued that when Section 4 of the 1976 Amendment Act came into force, Section 4 of the earlier Amendment Act of 1974 became unnecessary, and therefore Parliament included the redundant sections of the 1974 Amending Act in the Repealing and Amending Act, 1978. As such, according to Mr. Mitra, Section 6A(1) and the second proviso which was added to the principal Act by the 1976 Amendment cannot be deemed to have been affected.
6. Till June 22, 1974 a Collector did not have the power to confiscate, inter alia, any vehicle or conveyance used in carrying an essential commodity which had been seized pursuant to an order made under Section 3 of the Act. Section 4 of the Essential Commodities (Amendment) Act, 1974 (Act 30 of 1974) for the first time gave the Collector such a power. This Act was further amended by the Essential Commodities (Amendment) Act, 1976 (Act 92 of 1976). Section 4 of this Act divided Section 6A of the principal Act in to Sub-sections (1) and (2) and apart from some changes introduced in Sub-section (1) a second proviso was added thereto which reads as follows: 'Provided further that in the case of any animal, 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 heu of its confiscation a fine not exceeding the market price at the date of seizure of the essential commodity sought to be carried by such animal, vehicle, vessel or other conveyance'.
7. On November 26, 1978 the Repealing and Amending Act, 1978 (Act 38 of 1978) came into force. Under Section 2 of this Act the enactments specified in the 1st Schedule stood repealed to the extent mentioned in the 4th column thereof. One of the Acts included in the schedule is the Essential Commodities (Amendment) Act, 1974 and the extent of the repeal as indicated in the 4th column is Sections 2 to 12 and 14.
8. The question which therefore arises for consideration is whether after the, coming into force of the Repealing and Amending Act, 1978 the entire Section 6A of the principal Act stood repealed With the changes made in Section 4 (6A) of the principal Act by Act 92 of 1976, Section 4 of Act 30 of 1974 became redundant. As such this section along with the other redundant sections of the 1974 Amendment Act were repealed by Act 38 of 1978. If it was the intention of Parliament to take away the Collector's power of seizure of a vehicle, the relevant provisions of Act 92 of 1976 would have found a place in the schedule of the Repealing and Amending Act, 1978. Moreover it could not have been the intention of Parliament to entirely take away the Collector's power of seizure of vehicles and thereby permit them to be utilised by their owners with impunity in the commission of offences under the Act.
9. An owner of a vehicle seized under. Section 6A of the Act need not have any apprehensions about its arbitrary confiscation. Firstly, from the use of the word 'may' before the words 'order confiscation' in Section 6A(1) of the Act it is clear that the Collector has a discretion regarding confiscation; Secondly, Section 6B of the Act saves from confiscation a vehicle, if its owner satisfies the Collector that it was being used without his knowledge or connivance.
10. We however set aside the order of the Collector dated June 6, 1980 as we do not agree with his reasons for passing the order. We send the matter back to him for re-consideration of the question of confiscation of the two tanker lorries on merits and in accordance with law keeping in view the principles enunciated in this judgment. The petitioner must also be given an opportunity of being heard.
11. The application is thus disposed of.
R.K. Sharma, J.