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Bharat Trading Co. and anr. Vs. State of Assam and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGuwahati High Court
Decided On
Judge
Reported in1984CriLJ106
AppellantBharat Trading Co. and anr.
RespondentState of Assam and ors.
Cases ReferredWest Bengal v. Anwar Ali
Excerpt:
- ordern. ibotombi singh, j.1. these two criminal revisions are directed against the order of the sessions judge, cachar, in criminal appeal no. 47(2) of 1982, arising out of the order of confiscation dt. june 10, 1982, passed by the collector, cachar, under section 6a of the essential commodities act, 1955(hereinafter called the act). criminal revision no- 188 of 1982 is filed by the firms m/s. bharat trading company and m/s. jain trading company, both of panpati, silchar town and criminal revision no. 207 of 1982 is filed by the state of assam.2. by an order dt. june 10, 1982, the collector. cachar. confiscated 7099 tins of refined rapeseed oil seized on 6-5-1982 from the stock of the two firms under section 6a of the act on being satisfied that there has been contravention of sub-clauses.....
Judgment:
ORDER

N. Ibotombi Singh, J.

1. These two Criminal Revisions are directed against the order of the Sessions Judge, Cachar, in Criminal Appeal No. 47(2) of 1982, arising out of the order of confiscation dt. June 10, 1982, passed by the Collector, Cachar, under Section 6A of the Essential Commodities Act, 1955(hereinafter called the Act). Criminal Revision No- 188 of 1982 is filed by the firms M/s. Bharat Trading Company and M/s. Jain Trading Company, both of Panpati, Silchar Town and Criminal Revision No. 207 of 1982 is filed by the State of Assam.

2. By an order dt. June 10, 1982, the Collector. Cachar. confiscated 7099 tins of refined rapeseed oil seized on 6-5-1982 from the stock of the two firms under Section 6A of the Act on being satisfied that there has been contravention of Sub-clauses (1) and (2) of Clause 8 of the Assam Pulses, Edible Oil Seeds and Edible Oil Dealers (Licensing and Control) Order, 1977(briefly called the Control Order). After affording the parties an opportunity of being heard as provided under Section 6B of the Act, the Collector, Cachar, passed the order of confiscation. The two firms aggrieved by the said order of confiscation under Section 6A preferred an appeal to the Sessions Judge, Cachar, as the judicial authority appointed under Section 6C. The Sessions Judge, Cachar, by his order passed on 29-7-1982 virtually held that there was no contravention of the Control Order, but in view of a police case being registered at the Silchar Police Station for prosecution under the Act for contravention of the Control Order, the. sale proceeds of rapeseed oil seized on 6-5-1982 were ordered to be deposited in the State Bank of India in the name of the Deputy Commissioner, Silchar, to be paid to the firms, in case the prosecution ends in their favour. It was further ordered that in case the prosecution succeeds, the sale proceeds would stand forfeited to the State Government. Both the parties, the two firms, and the State of Assam, being aggrieved by the order of the Sessions Judge, have filed revisions to this Court as stated above- The two firms challenge the latter part of the order while the State of Assam challenge the finding that there was no contravention of the provisions of the Control Order. These two revisions which were heard together are disposed of by this common judgment.

3. Two questions emerged for consideration in the revisions before me, viz, (i) whether the Sessions Judge, having recorded a finding that there was no contravention of the Control Order, has jurisdiction to pass the latter part of the order mentioned above, and (ii) whether the finding of the Sessions Judge that there was no contravention of the Control Order, is sustainable in law.

4. To appreciate the contentions of the parties it may be necessary to state a few facts which have a bearing on the questions.

5. M/s. Bharat Trading Co. have been carrying on business dealing in different foodstuffs since 1969 in their shop premises at Panpati, Silchar, M/s. Jain Trading Co., a sister concern of M/s. Bharat Trading Co. have also been carrying on business in different foodstuffs since 1978. The firms held separate licence issued under the Control Order made by the Governor of Assam under Section 3 of the Act. The two firms got refined rapeseed oil, partly from the State Trading Corporation (briefly S. T. C.) and partly from other sources, that is, importers of such refined rapeseed oils. The firms are also nominees of the Deputy Commissioner, Cachar, to act as wholesale dealers in respect of the refined rapeseed oil procured from the S. T. C meant for public distribution system, On 6-5-82 at about 1-30 P. M., the Inspector of Food and Supply Department accompanied by Sri S. K. Deb, Executive Magistrate, made a surprise visit of the shop premises of the firms at Panpati, three other godowns located at Panpati, and two other godowns located at Bilpar, checked their books of account and made physical verification of stock of refined rapeseed oil. In the stock, he found 4045 tins of refined rapeseed oil from S. T. C. source and 3054 tins from other source, total 7099 tins. There was shortage of 4446 tins of refined rapesseed oil from S. T. C. source and an excess, of 2583 tins of refined rapeseed oil from other source. He seized the entire stock of 7099 tins of refined rapeseed oil for the alleged contravention of the provisions of the Control Order and of the conditions of licence. A report of the seizure was made to the Collector, Cachar, on that very day. On 6-5-82 a written report was also made to the Officer-in-charge of the police station, Silchar, about the seizure of the refined rapeseed oil for prosecution according to law. A case being Silchar Police Station Case No. 472(5) of 1982 was registered on the basis of the report-On receipt of the report, the Collector, Cachar, started a proceeding for confiscation of the seized essential commodity under Section 6A of the Act. He issued show cause notice to the firms in compliance with the provision of Section 6B. The parties filed a joint reply to the show cause notice. As shown in their reply, it is the case of the petitioners that M/s Bharat Trading Co. have as many as nine godowns in different parts of Silchar town to stock their foodstuffs including refined rapeseed oil, one such godown being situated at Sadiyal Eice Mill. Due to non-availability of suitable godown at Silchar, the sister concern M/s Jain Trading Co. have been storing their stock of foodstuffs including refined rapeseed oil in the godowns of M/s. Bharat Trading Co. on payment of charges to the knowledge of the District Authority. From the very inception, they have been maintaining accounts showing their stock position of refined rapeseed oil on each and every day, as required under the Control Order, and have been submitting fortnightly returns in the prescribed form to the appropriate authority regularly and in time. It was stated that the authority concerned verified their accounts and the stock from time to time and found them correct. In token thereof, the officials put their initials in the books of account. At the time of checking on 6-5-82, the whole time godown clerk of M/s. Bharat Trading Co., who was conversant with the stock position, was absent, and so, it could not be pointed out to the officer that a stock of 1863 tins of refined rapeseed oil was in the godown at Sadiyal Rice Mill. The licensing authority had knowledge of their godown at Sadiyal Rice Mill. Information in writing was given to the authority of the storage of the foodstuffs including refined rapeseed oil at Sadiyal Rice Mill. Soon after return of the godown clerk, they tried to meet the Deputy Commissioner, Cachar, to apprise him of the stock of 1863 tins of refined rapeseed oil in the godown at Sadiyal Rice Mill, but they could not meet him as he was away to Hailakandi. The petitioners, however, met Sri S. C Deb, Executive Magistrate, on the same day at about 5.30 P. M. and informed him about the stock of 1863 tins at Sadiyal Rice Mill godown. On the same day at about 7-30 P. M. when the Deputy Commissioner returned to Silchar, they informed him about the stock at Sadiyal Rice Mill godown pointing out that it had not been checked and taken into account. On learning that a police case has been registered at the Silchar Police Station, they made a report in writing to the Police Officer in charge of Silchar Police Station about the storage of 1863 tins of refined rapeseed oils in the godown at Sadiyal Rice Mill. Along with the reply, a chart showing the stock position of refined rapeseed oil closing as on 5-5-82 and opening as on 6-5-82 was enclosed. According to them, refined rapeseed oil is one of the varieties of edible oils and their stock position as on 6-5-82 was as follows:

M/s. Bharat Trading Co. Total Stock(Petitioner No. 1)Refined rapeseed oilprocured from STC. 515 tinsRefined rapeseed oilprocured from othersource 471 tinsTotal - 986 tins - 986 tins.M/s. Tain Trading Co.(Petitioner No. 2)Refined rapeseed oilprocured from STC- 7976 tins - 7976 tinsTotal - 7976 tins 8962 tins

According to the petitioners, they maintained registers of daily account of foodstuffs including edible oil variety-wise in form 'D' and submitted returns in form 'C', in accordance with the provisions of the Control Order. The stock at Sadiyal Rice Mill godown which was left unverified on that day, if taken into account, would show, that there was no shortage of stock of refined rapeseed oil. The Collector did not accept their explanation and passed order of confiscation of 7099 tins of refined rapeseed oil so seized on 6-5-82.

6. The following were the charges :

(1) That as nominees of the undersigned to deal in imported edible oils, reserved for public distribution system, you kept the stock mixed up for both the firms along with that of indigenous varieties meant for free trade with the intention of misleading the authorities;

(2) That there was a shortage of 4446 tins of refined rapeseed oil meant for PDS which gives reasonable doubt that you are engaged in the black marketing of the commodity;

(3) That you have contravened the provisions of the Assam Pulses Edible Oil Seeds and Edible Oil Dealers (Licensing and Control) Order, 1977 by not maintaining the accounts of the stock of edible oil in the proper form, and manner and also not by submitting the returns as required in proper form and manner within stipulated time which is required of you as a licensee under the said Control Order.

7. In respect of the charge 1, the Collector recorded the finding that the firms did not maintain accounts separately for the refined rapeseed oil procured from S. T. C. and other source. However, such manner of keeping account has been made from the very beginning without objection being made by the Department, there was no ground for confiscation on this ground. In regard tq the other subhead of the charge for maintenance of joint stocks, it was held that they kept joint stocks in an indistinguishable manner, which constituted a ground for action under Section 6A of the Act. The Collector also has not accepted the explanation of the petitioners about the stock position of the refined rapeseed oil and came to the finding that there was shortage of 4446 tins. Charge No. 2 was as such held proved. Charge No. 3 was split up to two parts: (a) they have not maintained proper accounts and (b) they have not maintained accounts and submitted returns in proper forms. Charge in Clause (a) was held proved. The parties were held not to have maintained proper and correct accounts about the stock of the refined rapeseed oil procured from S. T. C., inasmuch as the stock of the refined rapeseed oil procured from S. T. C was not correctly reflected in the, accounts, constituting thereby a violation of Clause 3 of the licence. In regard to the second part of the charge, he held that the parties admitted that they failed returns in an incorrect form even earlier, but the Authority never objected to it. It was, therefore, held that non-submission of return in the proper form did not constitute a ground for confiscation. In the result, on being satisfied that there has been a contravention of the Control Order, the Collector passed the order of confiscation aforementioned.

8. Being aggrieved by the order of confiscation, the firms preferred appeal to the Sessions Judge, Cachar, Silchar, as the judicial authority appointed under Section 60. The Sessions Judge disagreed with the findings of the Collector and held virtually that there was no contra vention of the Control Order. He held that what was required was the maintenance of the daily accounts in Form D and filing of fortnightly returns in Form C, showing the n,ames of the different commodities varietywise and not brandwise- In his view, since it was not required to name the edible oil brand-wise, whether the refined rapeseed oil was one procured from S. T. C. or from other sources, maintenance of accounts and the filing of returns, were held to be in conformity with the provisions of the Control Order and the forms prescribed thereunder. He also recorded the finding that the Department could not substantiate the case for confiscation because of the following reasons:- (a) 1863 tins of refined rapeseed oil in the godown of Sadiyal Rice Mill were not taken into account, (b) the Department failed to bring on record even a single instance for sale of a tin of S. T. C. rapeseed oil in black market, and (c) the Department has not adduced any evidence to show that refined rapeseed oil of S. T. C. brand was in any way superior to and different from the one procured from other sources. In that view of the matter, there was no shortage of stocks of the refined rapeseed oil. nor was there ,any non-compliance with the provisions of the Control Order or of conditions of the licence. As such, he held that there was no contravention of the Control Order. He, however, held that as a police case has already been registered at the Silchar Police Station for prosecution under the Act, the proceeding under Section 6A of the Act and the criminal proceeding under Section 7 of the Act, though separate and independent, were held to be unseparable. Accordingly, he passed the latter part of the order, which is the subject matter of Criminal Revision No. 188 of 1982 filed by the firms.

9. On the first question, counsel for the State of Assam made a twofold submission: First, this Court has no jurisdiction to entertain revision under Section 397 read with Section 401 of Cr. P. C. 1973, against the order of the judicial authority appointed under Section 6C in view of Section 6E, which bars the jurisdiction of 'any court' in certain cases, though the High Court has jurisdiction under Article 227 of the Constitution. Reliance was placed in support of the contention on a decision of Madhya Pradesh High Court in Khemraj, Jugaraj v. State of M. P. 1981 Cri LJ 1479 and secondly, such an order could be passed Under Section 6E and is valid. It is subject to the final verdict of the criminal prosecution, as the sale proceeds would automatically be paid to them when the persons concerned were acquitted in the prosecution, under Clause (c) of Sub-section (3) of Section 6A, or Sub-section (2) of Section 6C, as the case may be, Counsel for the firms vehemently contended that Section 6E only bars the jurisdiction of any court, tribunal or authority only during the pendency of the confiscation proceeding before the Collector under Section 6A or of appeal before the judicial authority appointed under Section 6C After insertion of Section 10E by Act 36 of 1967, making every offence under the Act cognizable, there arose a conflict of jurisdiction between the criminal court and the Collector or the judicial authority for possession, delivery or disposal of the commodity seized, in pursuance of an order made under Section 3 of the Act. To resolve such a conflict, Section 6E has been inserted. Section 6E does not bar the jurisdiction of this Court against the final order, and such order is open to the revisional jurisdiction of this Court under Section 397 read with Section 401 of the Code. In regard to the latter part of the order, it was submitted that the confiscation proceeding under, the Act being quite independent of the criminal prosecution instituted under the Act, the impugned order is contrary to the provision of Clause (b) of Sub-section (3) or Sub-section (2) of Section 6C, since the Sessions Judge has given a finding that there was no contravention of the provision of the Control Order. In such a situation, the judicial authority has no jurisdiction to invoke Section 6E and pass such an order to avoid legal consequences that would follow from the provisions of the Act, when no confiscation order is ultimately passed under Section 6A, or confiscation order is modified or annulled in appeal under Section 6C.

10. To decide as to which of the contentions is correct, it will be useful to refer to the history of the legislation relating to the insertion of the provisions from Section 6A to Section 6E by Amendment made from time to time. The answers to the two points involved in the first question, which are inter- linked, depend on the determination of scope and ambit of Section 6E.

11. Sections 6A to 6D underwent several changes. By the Essential Commodities (Amendment) Act, 1966 Act 25 of 1966 which came into force on 3-9-66, Section 6A to Section 6D were inserted to the principal Act. Section 6A, as it stood then, provides that where ,any foodgrains, edible oilseeds or edible oils are seized in pursuance of an order made under Section 3 in relation thereto, they may be produced, without unreasonable delay, before the Collector of the District or the Presidency-town in which such food-grains, edible oilseeds or edible oils, are seized and whether or not a prosecution is instituted for contravention of such order, the Collector, if satisfied that there has been a contravention of the order, may order, for confiscation of the food-grans, edible oilseeds or edible oils. The proviso added thereto is not relevant for the case before us. By the Essential Commodities (Second Amendment) Act, 1967(Act 36 of 1967), which came into force on 30-12-67 further amendment of Sections 6A, 6B, 6C and 6D was made. A new Section 10E was inserted making every offence punishable under the Act 'cognizable and bailable', notwithstanding anything contained in the Code of Criminal Procedure, 1898. This section has been given retrospective effect from 16-9-67 by Section 11 of the Amending Act 36 of 1967. By Act 30 of 1974, Section 7 of the Act was also amended. A new Clause (b) was inserted in Sub-section (1) making it obligatory upon the Court to forfeit the property in respect of which an offence has been committed punishable under Section 7. By Act 92 of 1976, which came into force with effect' from 2-9-76, further amendment was made in Sections 6A, 6B and 6C. Section 6E was newly added by which exclusive jurisdiction is vested in the Collector or, as the case may be, the judicial authority appointed under Section 6C, in certain cases, notwithstanding anything to the contrary in any other law for the time being in force. Material changes have also been effected in Sections 6A, 6B, 6C and Sub-sections (2) and (3) to Section 6A have been newly added. Section 6E reads as:

6-E. Bar of jurisdiction in certain cases.- Whenever any essential commodity is seized in pursuance of an order made under Section 3 in relation there to, the Collector or, as the case may be, the judicial authority appointed under Section 6C shall have, and, notwithstanding anything to the contrary contained in any other law for the time being in force, any other court, tribunal or authority shall not have, jurisdiction to make orders with regard to the possession, delivery, disposal or distribution of any property.

(Underlining mine)

12. Section 6A, as it stood before amendment by Act 36 of 1976, provides that the essential commodity seized in pursuance of the order made under Section 3, may be produced, without unreasonable delay, before the Collector of the District, But seizure of such an essential commodity is to be made only by the officer specified in Clause 11 of the Control Order, The provisions of Section 100 of Cr. P. C, 1973, relating to search and seizure, shall, as far as may be, apply to such searches or seizure under the Control Order. By Sub-section (2) of Section 6A, power has been conferred on the Collector to make order for possession, and disposal of the seized commodity in the manner provided in Sub-clauses (i), (ii) or proviso thereto, pending disposal of the confiscation proceeding. The judicial authority, which has co-extensive power with that of the Collector, may also make similar order with regard to such seized commodity under Sub-section (2) 'ibid', pending disposal of appeal before it. After insertion of Section 10E by Act 36 of 1967 by making every offence punishable under the Act cognizable, simultaneously a police officer making an investigation into an offence under the Act. when he has reasonable ground for believing that anything necessary for the purposes of the investigation, may search for anything in any place, and seize such thing connected with such offence under Section 165 of the Code of Criminal Procedure. In such a search and seizure of the property, the provisions of Section 100 of the Code are to be complied with, and a copy of the report of the search and seizure shall forthwith be sent to the nearest Magistrate competent to take cognizance of the offence. His authority to seize such essential commodity in the course of the investigation is derived from the Cr. P. C. 1973, and not from Clause 11 of the Control Order. Before amendment Act 36 of 1967, it may be noticed that a police officer could not search a premises of a dealer seize essential commodity, unless he was so authorised in this behalf by the State Government under Clause 11 of the Control Order for the contravention of the Control Order under Section 451 of the Cr. P. C., the Court may make such order as it thinks fit for proper custody of such property pending the conclusion of the inquiry or trial, and if the property is such subject to speedy and natural decay, or if it is otherwise expedient so to do, the court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of. There arises thus a conflict of jurisdiction between the Collector or, as the case may be, judicial authority appointed under Section 6C and the criminal court about possession and disposal of the essential commodity seized for contravention of the Control Order. It is to resolve such a conflict of jurisdiction and to promote the purpose of the object of legislation and its underlying policy as envisaged in Section 3 of the Act, that Section 6E has been inserted.

13. A statute is a logical whole, each provision of which is integral part thereof, and it is therefore, logically proper and indeed imperative to construe one part in the light of the provisions of the other parts. On reading Section 6E in the light of the preceding Sections 6A to 6D, it would reveal that Section 6E, by which exclusive jurisdiction is vested in the Collector or, as the case may be, the judicial authority appointed under Section 6C in certain cases operates only during the pendency of the confiscation proceeding under. Section 6A, or of appeal before the judicial authority under Sub-section (1) of Section 6C. The object of the Act is to maintain supplies of any essential commodity and secure their equitable distribution and availability at fair prices. Sub-section (2) of Section 6A has been inserted to achieve the object above. This avowed object will be defeated, unless an exclusive jurisdiction is conferred on the Collector, the judicial authority in the matter of possession, delivery, disposal and distribution of any commodity seized in pursuance of an order made under Section 3 of the Act. Sub-section (2) of Section 6A confers powers on the Collector to dispose of seized commodity in the manner contemplated in clauses (i), (ii) and proviso made thereto while the confiscation proceeding under Section 6A is pending or in case of judicial authority while appeal is pending. Any order that may be made under clauses (i) and (ii) would result in possession, delivery, disposal or distribution of such property seized within the meaning of Section 6E. Proviso to Sub-section (2) of Section 6A provides for sale through fair price shops at prices fixed by the Central Government or by the State Government, as the case may be, for equitable distribution and availability ,at fair price in the case of foodgrains. It is an order for distribution of the seized essential commodity as contemplated in Section 6E- Judicial authority during the pendency of the appeal before it, similarly may make interim order with regard to the seized commodity in a manner specified in Sub-section (2) of Section 6A. Any order made under Sub-section (2) of Section 6A thus embraces the kind of order that may be made with regard to possession, delivery, disposal or distribution of the seized commodity mentioned within the meaning of Section 6E. In my opinion, Section 6E dehors Sub-section (2) of Section 6A or Section 6C(1) read with Sub-section (2) of Section 6A, cannot be resorted to by the Collector or, as the case may be, the judicial authority appointed under Section 6C, to make an order with regard to possession, delivery, disposal or distribution of such seized commodity.

14. To confer an exclusive jurisdiction in certain cases on the judicial authority also under Section 6E is quite significant. It lends support to the conclusion that Section 6E operates only during the pendency of the confiscation proceeding under Section 6E or appeal before the judicial authority under Sub-section (1) of Section 6C. There is no provision for appeal to the judicial authority against any other order except against the order of confiscation made under Section 6A by the Collector. No occasion, therefore, can arise for the judicial authority to pass an order with regard to the possession, delivery or disposal of seized commodity unless such an order is made, pending disposal of the appeal before it in its appellate jurisdiction. The provisions of Sections 6A, 6C and 6E are to be harmoniously construed as to achieve the object for which the Sub-section (2) of Section 6A has been inserted. The Supreme Court in N. T. Veluswami Thevar v. G. Raja Nainar : AIR1959SC422 , observed at p. 427:

It is indeed true that if on its construction, a statute leads to anomalous results, the courts have to option but to give effect to it and leave it to the Legislature to amend and alter the law. But when on a construction of a statute, two views are possible, one which results in an anomaly and the other, not, it is our duty to adopt the latter and not the former, seeking consolation in the thought that the law bristles with anomalies.

15. Any anomaly will disappear, and law will be found to be simple and logical, if Section 6E of the Act is interpreted in the manner indicated above. In my opinion, Collector or the judicial authority has no jurisdiction to pass order independent of Sub-section (2) of Section 6A. See also Maxwell on The Interpretation of Statute, 12th edition, at p. 47: 'Every clause of a statute is to be construed with reference to the context and other clauses of the Act, so as, as far as possible, to make consistent enactment of the whole statute' I may refer to the well known general rule of construction applicable to all statutes alike, which is spoken of as construction as- 'Ex Visceribus Actus' discussed at page 98 of Craies on Statute Law, 6th edition.

16. The disenabling provision of Section 6E which has the overriding effect on the provisions of Section 397 and Section 401 of the Code operates in a limited field and during the pendency of the confiscation proceeding under Section 6A or appeal before the judicial authority under Section 6E as already discussed-Where a final order is passed in a confiscation proceeding or in appeal, such an order is open to challenge to this Court by way of revision under Section 397 read with Section 401 of the Code, With great respect, I am unable to agree with the views of the Madhya Pradesh High Court in M/s. Khemraj Jugaraj 1981 CM LJ 1479 (supra). The bar of jurisdiction in certain cases envisaged in Section 6E does not take away the power of revision of the High Court to rectify the manifest illegality or impropriety appearing on the face of the record. The principle laid down by Supreme Court in Thakur Das v. State of M. P. : 1978CriLJ1 , that such an order is amenable to the revisional jurisdiction of the High Court under Section 397 read with Section 401 of the Code still holds good, despite insertion of Section 6E in the Act.

17. In both the cases, the provision of Article 227 has also been invoked. Assuming for a moment that no revision lies under Section 397 read with Section 401 of the Code, it is admitted by the learned Counsel of both the parties that the power of superintendence of the High Court over all courts and tribunal is not taken away by Section 6E. The High Court can exercise its supervisory jurisdiction under Article 227 of the Constitution and examine the legality or otherwise of the impugned order. The preliminary objection about non-maintainability raised by the counsel for the State is rejected.

18. I now turn to the determination of the question as to whether the latter part of the order of the Sessions Judge is sustainable in law. The contention of the counsel for the State on this question is fallacious and not tenable in law. There can be no two opinions that mere investigation into a cognizable offence punishable under Section 7 of the Act cannot be regarded as institution of a prosecution for the contravention of the control order. At the time when the Sessions Judge passed the impugned order, the case was under investigation. Charge sheet was laid only on 23-8-82 before the Chief Judicial Magistrate, Silchar, after according sanction on 2-8-82 to prosecute the accused by the Collector as the licensing authority, in compliance with Clause 12 of the Control Order. Admittedly no prosecution was instituted for the contravention of the Control Order on the date when the Sessions Judge passed the impugned order. The Sessions Judge has no jurisdiction to take into consideration the police case, which was only at the stage of investigation. The order is patently illegal.

19. Even if it is taken for granted that investigation by the police constitutes institution of criminal prosecution for the contravention of the Control Order, it does not assist the counsel for the State in his contention. Section 6A expressly provides that the Collector may make order of confiscation of the essential commodities seized in pursuance of the order made under Section 3, whether or not a prosecution is instituted for the contravention of such order. Section 6D provides that the award of any confiscation under the Act by the Collector shall not prevent the infliction of any punishment to which the person affected thereby is liable under the Act. Reading them together, it is manifestly clear that the confiscation proceeding and the criminal prosecution are quite independent and separate proceedings. Sub-section (3) of Section 6A provides that where any essential commodity is sold by the Collector under Sub-section (1) of Section 6A, the sale proceeds thereof, after deduction of the expenses of any such sale or auction or other incidental expenses relating thereof, shall be paid to the owner or the person from whom it is seized- (a) where no order of confiscation is ultimately passed by the Collector, or (b) where an order passed on appeal under Sub-section (1) of Section 6C so requires.

Similarly Sub-section (2) of Section 6C provides that where an order under Section 6A is modified or annulled by the judicial authority in appeal, and it is not possible for any reason to return the essential commodities seized, the person concerned shall, except as provided by Sub-section (3) of Section 6A, be paid the price thereof as if the essential commodities had been sold to the Government with reasonable interest calculated from the day of the seizure of the essential commodities; ,and such price shall be determined in a manner provided under Sub-clauses (i), (ii) and (iii) Thus, where an order made under Section 6A is modified or annulled by the Judicial authority, it is the mandate of the law under Sub-section (2) of Section 6C that the essential commodity seized shall be returned in specie or its sale proceeds paid to the owner or to the person from whom it was seized. It is crystal clear that it is not open to the Sessions Judge to pass the latter part of the order after he has concluded that there was no contravention of the control order.

20. Clause (c) of Sub-section (3) of Section 6A or the part of the provision in Sub-section (2) of Section 6C which deals with the case where the person concerned is acquitted in the prosecution, on which counsel for the State placed much reliance, does not assist him. To invoke any of these provisions, two conditions must be satisfied viz, (i) that there exists an order of confiscation made under Section 6A and (ii) that the person concerned is acquitted in the prosecution for the contravention of the control order. As the order of confiscation made under Section 6A has been annulled by the judicial authority on appeal in the instant case, none of the provisions can also be relied on to support the latter part of the order.

21. Clause on Statute Law, 7th En. at page 226 says:- 'where a statute confers jurisdiction upon a Tribunal of limited authority and statutory original, the conditions, and qualifications annexed to the grant must be strictly complied with'. Power conferred by an Act of Parliament must be exercised strictly and not extended, nor such power is to be curtailed. Counsel for the State could not show any authority in support of the contention that the latter part of the order of Sessions Judge is within the contemplation of law. I am satisfied that the judicial authority has no jurisdiction to pass any order to nullify the consequences of Sub-section (2) of Section 6C. Even though a Court is satisfied that the legislature did not contemplate the particular consequences of enactment, it is bound to give effect to its clear language. The Supreme Court in Martin Burn Limited v. Corporation of Calcutta : [1966]1SCR543 , observed (at p. 535) .

A result flowing from the statutory provision is never an evil. A Court has no power to ignore that it considers a distress resulting from its operation. A statute of course to be given effect to whether a Court likes the result or not.

22. The provision of Sub-section (2) of Section 6C discussed above clinches the issue, and it furnishes a complete answer to the contention of the counsel for the State. I hold therefore that the latter part of the order is contrary to the provision of Sub-section (2) of Section 6C, and as such it is illegal and without jurisdiction.

23. The question as to whether the finding of the judicial authority reversing that of the Collector that there was no contravention of the Control Order is sustainable in law, may next be considered.

24. The High Court cannot lightly interfere with the order of the Sessions Judge passed in appeal under Section 6C setting aside the confiscation, in exercise of the revisional jurisdiction under Section 397 read with Section 401 of the Code, without making out the well known recognised grounds for interfering in exercise of the revisional jurisdiction. The Sessions Judge as the appellate authority, after examining the relevant factors bearing on the confiscation held that there was no contravention of the provisions of the control order or of the conditions of the licence. The fact that this Court may take an opinion different from that of the Sessions Judge cannot be a ground to interfere with such finding of the Sessions Judge.

25. In the case, on hand, the finding of the Sessions Judge in favour of the two firms is supported by materials on record. His finding cannot be said to be erroneous. In Clause 2 of the Control Order the expressions 'Dealer', 'Edible Oils' and 'firms' are defined. Sub-clause (f) of Clause 2 defines 'dealer' means 'a person engaged in the business of purchase, sale or storage for sale of any pulses, edible oilseeds or edible oils, whether or not in conjunction with any other business and includes his representatives or agents'. Under Cl- (g) 'edible oils' means 'any oil used for human consumption including hydrogenated vegetable oils, and under Clause (h) 'Form' means 'a form set forth in the Schedule of the Control Order.'

26. The edible oils as defined in Clause 2(g) clearly indicate that all the varieties of oils used for human consumption are included in the said definition. There are a number of varieties of edible oils, such as, coconut oil, cotton seed oil, groundnut oil, besides refined rapeseed oil, which are used for human consumption. Under Sub-clause (2) of Clause 8 of the Control Order, it is obligatory on the part of a dealer to maintain the daily accounts of pulses, edible oilseeds and edible oils varietywise in form 'D' and furnish returns in form 'C'. Admittedly refined rapeseed oil is one variety only out of many varieties of edible oils used for human consumption including hydrogenated vegetable oil. In the Form 'C' and Form 'D', refined rapeseed oil is to be shown as a variety of elible oils, irrespective of the source, whether it is procured from S. T. C. or from other sources. Maintenance of daily accounts in Form D and fortnightly return in Form C are as such in accordance with Sub-clauses (1) and (2) of Clause 8 of the Control Order. The Sessions Judge has rightly concluded that there was compliance of provision of the Control Order.

27. The Collector while dealing with charge No. 1 took the view that there was violation of undertaking on the part of the dealers in regard to some quantity of refined rapeseed oil received from the S. T. C. and that breach of the undertaking amounted to contravention of direction contemplated by Clause 7 of the licence in Form D. It is true that Clause (cc) of Section 2 of the Act, 'order' includes 'a direction' issued therein. 'A direction' within the meaning of this clause postulates that it must be one issued under the Control Order and necessarily such direction must be in writing. There is no material to show that such a direction was issued as to saddle the petitioners with the liability for contravention of direction as envisaged in Clause 7 of the licence in Form D. In any event, any undertaking given by the dealer in respect of the specified commodity does not amount to a direction contemplated by Clause 7 of the Control Order. The Collector has erred in law to hold that there was breach of the direction within the meaning of Clause (cc) of Section 2 of the Act.

28. In regard to the alleged shortage refined rapeseed oil, the charge is not conclusively proved, as the stock in Sadiyal Rice Mill was not taken into account at the time of verification of the stock. It appears that it was to the knowledge of the Department that the two firms have common godowns as found by the Sessions Judge at Sadiyal Rice Mill and other godowns. If the stocks of the two firms were mixed in an indistinguishable manner as held by the Collector, it would not have been possible for the Sub-Inspector of Supplies to verify the stocks of the two firms. But the stocks were physically verified on 6-5-82. That ,apart, no provision of the Control Order has been pointed out before me that keeping of the stock in common godown is prohibited, ,and that such an act would constitute a contravention of the Control Order on their part. No direction in writing under the Control Order has been produced prohibiting keeping of the commodities in common godowns. What is to be looked into is whether the dealer has acted in contravention of the provisions of the Control Order or any condition of the license by their failure to maintain accounts and returns as provided under the law. There were 7099 tins of refined rapeseed oil in the stock of the firms. If the stock of 1860 tins of refined rapeseed oil in Sadiyal Rice Mill godown which was not checked and verified on 6-5-82, is taken into account, the total stock comes to 8962 tins of refined rapeseed oil. It appears that there is no shortage of refined rapeseed oil in the stock.

29. The principle which is applicable for a criminal trial for punishment under Section 7 of the Act is also applicable to a proceeding for confiscation under Section 6A of the Act. In both the proceedings, it must be established that there has been contravention of the order made under Section 3 of the Act. Further, in proceeding under Section 6A, it must be established further that the commodities in question have been seized in pursuance of the order made under the Control Order. It is well settled principle of interpretation that word occurring in the same Act is usually to be given the same meaning unless a different intention is expressed by the provisions of the Act-The word 'contravention' has to be interpreted in Sections 6A and 7 to mean that the provision of any order made under Section 3 of the Act has been contravened intentionally. On the other hand, if it is found that the contravention was not intentional and the person concerned had taken all reasonable care, then even for proceeding under Section 6A of the Act, it has to be interpreted that there has been no contravention so as to visit the dealer with the consequences of confiscating the articles seized.

30. From the inception of their business, the firms have been maintaining their accounts in Form D and furnished returns in Form C, without demur from the authority, though their accounts and returns have not shown separately refined rapeseed oil, whether procured from S. T. C. or other source. They did so in the honest belief that the provisions of the Control Order do not cast a duty on them to maintain accounts separately and file returns as such according to the nature of the source. Confiscation proceeding under Section 6A is quasi criminal. Confiscation of seized commodity in such, a proceeding is penal in nature. Penalty will not ordinarily be imposed unless the party obliged either acted deliberately in defiance of law or was guilty of conduct contumacious or dishonest or acted in conscious disregard of the statutory obligation. Penalty will also not be imposed merely it is lawful to do so. See (i) Hindustan Steel Ltd. v. State of Orissa AIR 1979 SC 253 and (ii) The Commr. of Income Tax, West Bengal v. Anwar Ali : [1970]76ITR696(SC) .

31. It is difficult to hold, on the facts and circumstances of the case, that there has been any contravention of the Control Order. The finding of the Sessions Judge, in so far as it relates to annulling the order of confiscation under Section 6A is upheld. But the latter part of his order regarding sale proceeds of the seized commodity is set aside. It is ordered that the sale proceeds kept in deposit in the State Bank of India in the name of the Collector be returned forthwith to the two firms without waiting for the results of the prosecution under Section 7 of the Act in the Criminal Court.

32. In the result, Criminal Revision No. 188 of 1982 filed by the two firms is allowed and Criminal Revision No. 207 of 1982 filed by the State of Assam is rejected.


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