IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 28TH APRIL 2009 / 8TH VAISAKHA 1931 Crl.MC.No. 1282 of 2009() ------------------------- CMP.1010/2009 of JUDL.MAGISTRATE OF FIRST CLASS-II, ALUVA .................... PETITIONER: --------------- SEBY KURIAN, AGED 38, 51/106, VAREKULAM HOUSE, CHENGAL, KALADY P.O., ERNAKULAM DISTRICT. BY ADV. SRI.VARGHESE C.KURIAKOSE RESPONDENTS: --------------- 1. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE SUB INSPECTOR OF POLICE, ANGAMALLY POLICE STATION, ANGAMALLY. BY PUBLIC PROSECUTOR MR.AMJAD ALI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 28/04/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No.1282 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 28th April, 2009 ORDER Petition is filed under Section 482 of the Cr.P.C. Petitioner is a transporting contractor of petroleum products of Bharat Petroleum Corporation. A tanker vehicle under his registered ownership while transporting petroleum products from Cochin Refinery to Kozhikode was taken into custody by police on allegation that theft of the product transported on its way was committed by its driver with two others. The vehicle was seized by the police and a crime was registered. Petitioner had moved an application before the Judicial First Class Magistrate Court II, Aluva having jurisdiction over the crime investigated by the police, seeking interim custody of the vehicle. The learned Magistrate dismissed the application by Annexure 6 order holding that the competent authority to pass orders on the vehicle is the District Collector since confiscation proceedings over the vehicle under the Essential Commodities Act are on the anvil, and the criminal court cannot pass any order over the subject matter involved in such proceeding. Petitioner has therefore approached this court for release of the vehicle contending that confiscation proceedings under the Essential Commodities Act are Crl.M.C.No.1282/09 - 2 - inapplicable to the facts involved and, further, the inspection of the vehicle by the Inspector of the Legal Metrology on the requsition of the police would also show that there was no shortage of the product transported in the vehicle indicating falsity of the crime registered by the police. 2. I heard the learned counsel for the petitioner and also the learned Public Prosecutor. The release of the vehicle at this stage is opposed by the learned Public Prosecutor, and the case diary has been produced for my perusal. The materials so far collected by the investigating agency, prima facie, disclose pilferage of the petroleum products transported in the tanker lorry of the petitioner and, further, also that the accused had illegally collected and stored other petroleum products as well. steps are also seen taken to proceed under Section 6A of the Essential Commodities Act by the Competent Authority for confiscation of the vehicle. Inviting my attention to relevant provisions of the Essential Commodities Act, more particularly Section 3(2)(d) and the penal provision under that Act, Section 7(2), the learned counsel for the petitioner contended that in respect of the transportation of the product, there has been no violation under the Act and that even if the transported good is an essential commodity, the vehicle and the products are not liable to Crl.M.C.No.1282/09 - 3 - be confiscated. It was also submitted by the counsel relying on Annexure 4 with reference to Annexure 5, there is only an increase in weight of the vehicle by 100 kg. after the product was loaded in the tanker from the Cochin Refinery and that circumstance would clearly demonstrate there was no pilferage of the product transported in the vehicle. I am not impressed by the submissions made by the learned counsel. Section 3(2) of the Essential Commodities Act has to be read with Section 3(1) which empower the Government to pass orders for regulating and prohibiting the production, supply and distribution, and trade and commerce of essential commodities, for maintaining or increasing supplies of such commodities or for securing their equitable distribution and availability at fair prices. Section 3(2) of the Act providing for passing of 'Orders' on the matters specified therein in relation to essential commodities no way restricts the power of the Government to pass 'Orders' under Section 3(1) of the Act as the opening sentence of Section 3(2) indicates the regulations to be made therein are without prejudice to the generality of the powers conferred by sub-section (1) of Section 3 of the Act. So much so, it is futile to contend on the basis of Section 3(2)(d) that the 'Order', if any, under the Act can be issued only in relation to transportation of essential commodities. Crl.M.C.No.1282/09 - 4 - 3. The petroleum products, no doubt, is an essential commodity coming under the Essential Commodities Act and Petroleum Laws. The Petroleum Act, Rules, Regulations and Notifications govern petroleum products of distinct and different types. The material transported in the tanker is stated to be the LSHS. I have not been enlightened as to which 'Order' under Section 3(1) of the Essential Commodities Act govern the petroleum product transported in the tanker. But, that is not a ground entitling the owner of the lorry to seek interim custody of the vehicle where the materials, prima facie, disclose pilferage of the transported petroleum goods. What is the specific Order applicable to the goods transported in the vehicle, which is undoubtedly an essential commodity, need be pointed out to the Magistrate or the District Collector, as the case may be, for entering a correct decision in the case. 4. Gross weight of the tanker has increased when the Inspector got the tanker weighed pursuant to the requisition of the police five days after its seizure by police itself is a circumstance discrediting the value of that certificate. Anyway, this is a matter that has to be examined by the investigating agency, and I do not want to express any opinion in that matter especially when the investigation of the crime is still continuing. The District Collector, the competent Crl.M.C.No.1282/09 - 5 - authority, it is submitted by the Public Prosecutor, is seized of the report filed by the police requesting for initiating appropriate proceedings under Section 6 of the Essential Commodities Act for confiscation of the tanker and the products transported in that vehicle, and, naturally, in such proceeding, opportunity as contemplated by law will be extended to the petitioner to show cause why the vehicle should not be confiscated for alleged violation of the provisions of the Act, Rules and Orders passed therein. 5. I do not find any impropriety in the order passed by the learned Magistrate in the facts of the case declining the request of the petitioner for release of the tanker lorry on interim custody to the petitioner. The investigating agency has taken steps for initiating proceedings under Section 6A of the Essential Commodities Act in respect of the vehicle by filing a report before the competent authority, the District Collector. It is open to the petitioner to seek the release of the vehicle in interim custody before that authority placing all relevant materials for his entitlement for such custody once notice is given in the proceedings under the Essential Commodities Act by the District Collector. In case, no notice is given within two weeks from the date of this order, the petitioner can approach the District Collector for release of the vehicle on interim Crl.M.C.No.1282/09 - 6 - custody moving an application for such relief. If any such application is moved by the petitioner after a period of two weeks but within a period of six weeks, the same shall be considered and disposed by the District Collector, on its merits and in accordance with law, as expeditiously as possible. Subject to the above observations, petition is dismissed. srd S.S. SATHEESACHANDRAN, JUDGE