IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 27TH MAY 2011 / 6TH JYAISHTA 1933 Crl.MC.No. 4390 of 2010() ------------------------- CRMP.1637/2010 of ADDL.CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM .................... PETITIONER(S): ------------------------- C.M. PAUL, AGED 59, S/O. MICHAEL, CHERIYIL HOUSE, CHEMBUMUKKU SOUTH, VAZHAKKALA VILLAGE, KAKKANADU WEST. BY ADVS. SRI.VARGHESE C.KURIAKOSE, SRI.T.A.ABDUL RASHEED. RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE SUB INSPECTOR OF POLICE, UDAYAMPEROOR POLICE STATION, UDAYAMPEROOR. R1 & R2 BY PUBLIC PROSECUTOR SRI. MANU THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 27/05/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.4390 of 2010 -------------------------------------- Dated this the 27th day of May, 2011. ORDER This Criminal Miscellaneous Case is in challenge of order passed by learned Additional Chief Judicial Magistrate, Ernakulam on Crl.M.P.No.1637 of 2010 in Crime No.1339 of 2010 of Udayamperoor Police Station. Petitioner is the owner of a tanker lorry which has permit to carry furness oil. It is alleged that second respondent seized that vehicle on the allegation that accused 1 to 3 committed offences punishable under Section 6 of the Kerala Motor Spirit and High Speed Diesel Oil Maintenance and Regulation of Supplies Orders, 1797 (for short, “the Orders”)read with Sections 3 and 7(1)(a)(ii) of the Essential Commodities Act (for short, “the Act”). Petitioner filed application for interim custody of the vehicle. Learned Additional Chief Judicial Magistrate dismissed that application vide Annexure-3, order dated October 27, 2010. That order is under challenge. Learned counsel submits that the view taken by the learned Additional Chief Judicial Magistrate is not correct and that it is within the power of the criminal court to grant interim custody of the vehicle. According to the learned counsel the provisions of the Act has no application since the offence alleged is under the Orders and seizure of the vehicle is also in accordance with the said Orders. Learned Public Prosecutor submitted that the Police has already forwarded a report to the District Collector, Ernakulam to initiate proceeding for Crl.MC No.4390/2010 2 confiscation of the vehicle (in accordance with Section 6A of the Act). 2. The offences attributed to accused are under Section 6 of the Orders read with Sections 3 and 7 (1)(a)(ii) of the Act. Allegation is that accused were found transferring furness oil from the tank installed on the vehicle. It is contended by learned counsel that Section 6A of the Act relating to confiscation has no application since the provision applicable is the provisions of the Orders referred to above and passed by the State Government. But, it is seen that the Ministry of Commerce, Government of India has by Order dated July 30, 1966 (S.O.No.2314), in exercise of power conferred on it under Section 5 of the Act directed that powers conferred on it by Sub-section (1) of Section 3 of the Act to make Orders to provide for matters specified in Clause (c) of Sub- section (2) thereof shall in relation to all commodities other than foodstuffs and fertilisers (whether inorganic, organic or mixed) be exercisable also by a State Government or in relation to a Union Territory, by the Administrator thereof subject to conditions stated therein. It is by virtue of said power that the State Government has enacted the 'Orders' referred above. 3. Learned counsel has a contention that there is no power of delegation conferred on the Central Government. But, that argument cannot stand on two grounds; firstly, Section 5 of the Act confers power of delegation and; secondly, the Order dated June 18, 1966 (referred supra) was passed by the Ministry of Commerce attached to the Central Government. 4. Section 6A provides for confiscation of the essential commodity as well as any package, covering or receptacle in which such Crl.MC No.4390/2010 3 essential commodity is found and any animal, vehicle, vessel or other conveyance used in carrying such essential commodity. Section 6E ousts the jurisdiction of courts in the matter of grant of possession of the essential commodity, package, covering, receptacle, vehicle, etc. 5. Learned counsel has placed reliance on the decision of this Court in Salu v. Assistant Controller (2005 (3) KLT 520) and of the Supreme Court in State of M.P. and others v. Rameshwar Rathod (1990 (2) KLJ 775). In the decision of this Court, while dealing with the provisions of the Standards of Weights and Measures (Enforcement) Act, 1985 in paragraph 10 it was held that the said Act does not contain any independent provision for confiscation. That is not the position so far as the present case is concerned. Section 6A of the Act confers independent power on the appropriate authority to initiate confiscation proceedings. The Supreme Court in State of M.P. and others v. Rameshwar Rathod (supra) has held that normally under the Code, the criminal court has the power (to grant interim custody) and that ouster of that power can only be inferred if that is the irresistible conclusion flowing from necessary implication of the new Act. In that case the incident occurred on December 10, 1974. Section 6E was introduced in the Act by Act 42 of 1986 w.e.f. September 9, 1986. Referring to the said provision the Supreme Court said in Shamba Dayal Agarwala v. State of W.B. ((1990) 3 SCC 549): “It is obvious on a plain reading of this provision that the same was brought on the statute book with a Crl.MC No.4390/2010 4 view to debarring the courts from making any order with regard to the possession, delivery, disposal or distribution of any essential commodity seized under an order made under Sec.3 of the Act.” In paragraph 6, it is also observed that Section 6E was first enacted to debar courts from making any order with regard to the possession, delivery, disposal or distribution of any essential commodity seized under Section 3 thereto and that by the substituted Section 6E as it presently stands, the scope of the provision has been enlarged by extending the bar of jurisdiction of the court, Tribunal or other authority to release, etc. of package, covering or receptacles, animals, vehicles, vessels or other conveyances also. The decision in Shamba Dayal Agarwala v. State of W.B. (supra) has been referred to in paragraph 39 of State of W.B. and others v. Sujit Kumar Rana (AIR 2004 SC 1851). The decision of the Supreme Court relied by the learned counsel concerned a case which occurred when Section 6E was not in the statute book. In view of the decision in Shambha Dayal Agarwala's case, learned Additional Chief Judicial Magistrate had no jurisdiction to grant interim custody of the vehicle. I do not find reason to interfere with the order under challenge. 6. Learned counsel submitted that so far no intimation has been given by the District Collector regarding any confiscation proceeding and that the vehicle is remaining idle and getting damaged and lost. Learned Public Prosecutor submitted that the Police has already given report to the District Collector. Having regard to the concern expressed by the learned counsel and Crl.MC No.4390/2010 5 bearing in mind that if the vehicle is kept idle it will get rusted, damaged and lost, the District Collector is directed to initiate appropriate proceedings if any, as early as possible. It is made clear that it is open to the petitioner to file application for release of the vehicle if he is otherwise entitled to do so before the District Collector and that if any such application is preferred the District Collector shall consider the same untrammelled by any observation contained in this order or, the dismissal of the application preferred by the petitioner before the learned Additional Chief Judicial Magistrate, Ernakulam and pass appropriate orders as early as possible. With the above observation this Criminal Miscellaneous Case is dismissed. Petitioner may give a copy of this order to the District Collector concerned. THOMAS P.JOSEPH, Judge. cks