-1- S.B. CRIMINAL REVISION PETITION NO.738/2008 (Ganesh Kumar Vs. The State of Rajasthan) DATE OF ORDER : 18.08.2008 HON'BLE MR. JUSTICE DEO NARAYAN THANVI Mr. Sandeep Mehta, Mr. Vineet Jain for the petitioner. Mr. Vishnu Kachhawaha, Public Prosecutor. Heard learned counsel for the parties. This revision petition is directed against the order dated 25.6.2008 passed by the learned Sessions Judge, Jaisalmer, whereby, he confirmed the order dated 17.3.2008 passed by the District Collector, Jaisalmer with regard to confiscation of the price of wheat, weighing 1012 quintals, amounting to Rs.8,59,858/-, which was seized in four trucks belonging to appellants Bhikhe Khan, Usman Khan, Valli Mohd., Amaz Khan and Kishna Ram, who were the appellants in Criminal Appeal No.08/2008 before the learned Sessions Judge. The impugned order was also passed in the Criminal Appeal No.09/2008, which was filed by the present petitioner Ganesh Kumar, who is the owner of the wheat. The only contention of learned counsel for the petitioner is -2- that still the case is pending trial under the Essential Commodities Act, 1955 (hereinafter referred to as the Act) before the learned Chief Judicial Magistrate, Jaisalmer as Cr. Case No.24/2006, State Vs. Shivdan etc. and the next date is 22.09.2008, where, it will be finally decided, as to who are guilty under the Act. According to the learned counsel for the petitioner, despite filing of challan on 30.11.2005, the District Collector, Jaisalmer has passed the order under Section 6(A) of the Act for confiscation of the auction amount without giving any notice to the present petitioner. Learned Public Prosecutor also admits that the case is still pending before the learned Chief Judicial Magistrate, Jaisalmer under the Act and the District Collector has power to confiscate the auction amount of any essential commodities under Section 6(A) of the Act. Without expressing any opinion on the merits of the case, no order can be passed behind a person, whose interest is involved. Admittedly, petitioner was not served with a notice before passing order for confiscation and he was the owner of the wheat and whether he has illegally transported or sold the same, such matter is to be finally decided by the concerned court, and till the decision is made, the order of confiscation -3- cannot be said to be in accordance with law. Proviso to Section 6(A) of the Act also says that when action is pending under the provisions of this Act, the order of confiscation cannot be made. However, by virtue of sub-section (2) of Section 6(A) of the Act, if the Collector is of the opinion that the essential commodity is subject to speedy and natural decay or it is otherwise expedient in the public interest so to do, he may order the same to be sold at the controlled price, if any, fixed for such essential commodity under this Act or under any other law for the time being in force; or where no such price is fixed, order the same to be sold by public auction. The auction price shall be subject to the provisions contained in sub-section (3) of the Act, which says under clause (c) that where in a prosecution instituted for the contravention of the order in respect of which an order of confiscation has been made under this section, the person concerned is acquitted, be paid to the owner thereof or the person from whom it is seized. Here in the present case, the order of the District Collector, Jaisalmer is per se illegal. Firstly, the prosecution was pending and secondly, no notice was issued to the petitioner, who said to be the owner of the wheat, which the Collector himself admits. Consequently, this revision petition is allowed. The order -4- dated 17.3.2008 passed by the District Collector, Jaisalmer as well as the order dated 25.6.2008 passed by the learned Sessions Judge, Jaisalmer are contrary to the provisions of Section 6(A) of the Act and both are aside. However, it is directed that the wheat price will remain with the State Government till the final disposal of the prosecution. (DEO NARAYAN THANVI), J. ms rathore