IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 25TH AUGUST 2009 / 3RD BHADRA 1931 Crl.MC.No. 2433 of 2009() ------------------------- CMP.5217/2009 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, ATTINGAL .................... CRIME NO.528 OF 2009 OF ATTINGAL POLICE STATION PETITIONER(S): --------------- RASIK, S/O.SAINULABDHEEN, PROPRIETOR, KOTTALA TRADERS, SHOPPING COMPLEX, MARIYAM, KOTTAYAM TALUK, KOTTAYAM DISTRICT. BY ADV. SRI.M.V.BOSE SRI.VINOD MADHAVAN SMT.NISHA BOSE RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE CIRCLE INSPECTOR OF POLICE, ATTINGAL. ADDL.3.THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM IS IMPLEADED AS ADDL. R3 AS PER ORDER DATED 6-8-2009 IN CRL.M.A.No.4358/2009 PUBLIC PROSECUTOR SRI.B.JAYASOORYA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------- Crl. M.C. No. 2433 of 2009 ------------------------------------ Dated this the 25th day of August, 2009 O R D E R Lorry bearing Registration No.KL01-5-Z-7737 was seized by the police along with food grains while being transported in it. Crime No.528/2009 for the offence under Section 3 read with Section 7(1)(a)(1) of Essential Commodities Act, 1955 (hereinafter referred to as the Act) was registered. The petitioner claiming to be the Registered owner filed C.M.P. No.5217/2009 under Section 451 of the Code of Criminal Procedure, to grant interim custody of the vehicle. Under Annexure 1 the learned Magistrate finding that under Section 6E, there is bar of jurisdiction when confiscation proceeding were initiated under the Act, dismissed the petition. This petition is filed challenging that order. 2. The learned counsel for the petitioner submitted that though Section 6E of the Act bars the jurisdiction of the court, as is clear from the said section, the bar would operative only if confiscation proceedings as provided under Section 6A is initiated. As provided under Section 6B of the Act, a notice in Crl. M.C. No. 2433/2009 2 writing is to be issued informing the grounds on which it is proposed to confiscate the essential commodity package, covering,receptacle, animal vehicle, vessel or other conveyance to initiate proceedings for confiscation. Admittedly no show cause notice was so far issued to the Registered owner of the vehicle. Therefore the bar under Section 6C will not apply as it would operate only on initiation of confiscation proceedings. 3. The learned counsel for the petitioner argued that though under Section 7(1)(c), a vehicle can be forfeited, it can only be after conviction. When Section 7(1)(c) provides that forfeiture of the lorry after conviction, the Magistrate has jurisdiction to grant interim custody of the vehicle till the conviction. Hence dismissal of the application as barred under Section 6C of the Act is illegal. The learned counsel for the petitioner relied on the decision of the Supreme Court in State of Madhya Pradesh and Others Vs. Rameshwar Rathod [(1990)4 Supreme Court Cases 21] contending that under the Code of Criminal Procedure, criminal courts have the jurisdiction and ouster of jurisdiction can only be inferred if that is the irresistible Crl. M.C. No. 2433/2009 3 conclusion flowing from necessary implication of the Act and so the Court has jurisdiction. Their lordship held: It was next contended by the respondent before the High Court that the criminal court was empowered under Section 7 of the Act to confiscate the vehicle after due and proper inquiry and therefore the proceedings by the District Collector under Section 6A and Section 6B of the Act should be quashed. Reliance was placed on several decisions and authorities. Our attention was drawn to the decision of the Mysore High Court in the case of State Vs. Abdul Rasheed, Bharat Mahey Vs. State of U.P. as well as the decision of the learned Single Judge in State of M.P. Vs. Basant Kumar. On a consideration of the relevant authorities, the High Court came to the conclusion that the criminal court had jurisdiction to deal with the matter. Mr. Deshpande sought to argue that in view of the enactment of the provisions of Crl. M.C. No. 2433/2009 4 Section 6A as well as Section 7 of the Act, it cannot be held that the criminal court continued to retain jurisdiction. He submitted that in view of the enactment of these provisions, it would be useless to hold that the criminal court continued to retain jurisdiction, otherwise the very purpose of enacting Section 6A read with Section 7 would be defeated. We are, however, unable to accept this contention because normally under the Criminal Procedure Code, the criminal courts of the country have the jurisdiction and the ouster of the ordinary criminal court in respect of a crime can only be inferred if that is the irresistible conclusion flowing from necessary implication of the new Act. In view of the language used and in the context in which this language has been used, we are of the opinion that the High Court was right in coming to the conclusion that the criminal court retained jurisdiction and was not completely ousted of the jurisdiction. In that view of the matter, the High Court Crl. M.C. No. 2433/2009 5 was therefore right in passing the order under consideration and in the facts and circumstances of the case to return the vehicle to the respondent on furnishing the security. 4. In the light of the settled legal position, the finding in Annexure I order that the learned Magistrate has no jurisdiction is unsustainable and can only be quashed. 5. The learned Public Prosecutor on instructions submitted that though the vehicle was produced before the District Collector for confiscation, for want of the details of the Registered owner, show cause notice as provided under Section 6B was not issued and Regional Transport Officer is requested to furnish the details of the Registered owner and on receipt of the details, show cause notice will be issued and in such circumstances learned Magistrate was justified in not granting interim custody of the vehicle. 6. Section 6A of the Act provides for confiscation of essential commodities including any animal, vessel or other conveyance used in carrying the essential commodity. The Crl. M.C. No. 2433/2009 6 confiscation provided under Section 6A is not depending on the result of the criminal prosecution for the offence under the Act. Section 7 enables the Magistrate, after conviction, to forfeit the vehicle, even if confiscation proceedings were not initiated by the authorities as provided under Section 6A. Therefore, in view of Section 7(1)(c), as declared by Apex court in Rameshwar Rathod’s case (Supra) it cannot be said that criminal court ceased to have any jurisdiction over the vehicle seized and produced before the court. But even if the court retains the jurisdiction over the vehicle, forfeiture as provided under Section 7(1)(c) could be made only on conviction and that too it is warranted as it is not so far confiscated under Section 6A of the Act. If prior to the conviction, in exercise of the power under Section 6A, the vehicle after complying with the formalities provided under Section 6B it was confiscated, Magistrate may not have any necessity to forfeit the vehicle as provided under Section 7(1)(c). If that be, in a case where confiscation proceedings is initiated under Section 6A by issuing show cause notice as provided under Section 6B, Section 6E of the Act bars the jurisdiction of the Crl. M.C. No. 2433/2009 7 Magistrate to grant interim custody. In that case, Magistrate cannot grant interim custody of the vehicle and if at all the party has to approach the authorities empowered to confiscate the commodity or the vehicle as provided under Section 6A of the Act. 7. But when it is admitted by the learned Public Prosecutor that even though the vehicle was produced before the District Collector for confiscation under Section 6A of the Act, apart from addressing the Regional transport officer for furnishing the details of the registered owner of the vehicle and the confiscation proceedings were not initiated by issuing show cause notice as provided under Section 6B the Magistrate has jurisdiction to grant interim custody. As the vehicle was originally produced before the Magistrate, learned Magistrate, under Section 451 of the Code of Criminal Procedure has jurisdiction to grant interim custody of the vehicle. The learned Magistrate did not grant interim custody on the sole ground that confiscation proceedings were initiated, Annexure 1 order can only be quashed. Crl. M.C. No. 2433/2009 8 8. Petitioner has not produced the registration certificate of the vehicle before this Court. Annexure 1 order also does not show that the registration certificate was produced before the Magistrate. In such circumstances, C.M.P. No.5217/2009 is to be remitted to the Magistrate to consider whether petitioner is a registered owner. If the petitioner is a registered owner, Magistrate has to grant interim custody of the vehicle on sufficient conditions. Petition is allowed. Annexure 1 order is quashed. C.M.P No.5217/2009 in Crime No.528/2009 is remanded to Judicial First Class Magistrate-I, Attingal for fresh disposal. Learned Magistrate has to consider whether petitioner is the registered owner of the vehicle and if registered owner, Magistrate may grant interim custody of the vehicle on furnishing bank guarantee for the value of the vehicle or other sufficient security to the satisfaction of the learned Magistrate for the said amount. M. SASIDHARAN NAMBIAR JUDGE scm