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2018 Supreme(Chh) 130
IN THE HIGH COURT OF CHHATTISGARH, BILASPUR
GOUTAM BHADURI, J.
Sunil Kumar Jaiswal S/o Vedprakash Jaiswal & Ors. - Petitioners
Versus
State of Chhattisgarh through Police Station Ratanpur, Chhattisgarh - Respondent
CRMP Nos. 1213, 1475 of 2017
Decided On : 07-03-2018
For the Applicant :Mr. Saleem Kazi, Advocate.
For the State :Mr. Adhiraj Surana, Dy.Govt. Advocate.
Headnote:
Essential Commodities Act - Sections 3 & 7 - Petroleum Act, 1934 - section 23 - Code of Criminal Procedure,1860 – Section 41(1-4) – Indian Penal Code,1860 - Section 379 - Fair Price Shops - Offence of Murder - Application was filed Section 457 of Cr.P.C by petitioner on the ground that he is owner of said Truck and the entire livelihood is dependent upon the said vehicle, therefore, the truck may be released in his favor said application for custody of vehicle was dismissed by Magistrate First Class Kota and having preferred a revision against such order revision was also dismissed by holding that the Court do not have any jurisdiction to grant of vehicle - Held, this Court, this Court is in respectful disagreement with the principles of law laid down by this Court earlier - This judgment comes into conflict with ratio of judgment reported in Cr. M.P. State decided by this Court as earlier judgment has laid down that Judicial Magistrate or any Judicial Authority shall not have jurisdiction with regard to custody of the vehicle u/s 457 of Cr.P.C. dispose of the vehicle seized under Essential Commodities Act - In view of foregoing discussion this Court is in disagreement with the view taken in judgment/order passed by the coordinate Bench of this Court in - Therefore let the matter be placed before Honble Chief Justice as provided in Rule 32 (2)(ii) of High Court of Chhattisgarh Rules, 2007 for being referred to a larger Bench of Judges to decide following questions of law - Petitions are allowed.
1. Since the question of law involved in both the petitions are one and the same, they are being decided by this common order.
2. Cr. M.P. No. 1213 of 2017 is filed against the order dated 17th July, 2017 passed in Criminal Revision No.90/2017 by the 5th Additional Sessions Judge, Bilaspur. The said order has affirmed the order of the Judicial Magistrate dated 08.06.2017 whereby the application preferred by the petitioner Sunil Kumar Jaiswal for custody of the vehicle was dismissed.
3. Likewise Cr. M.P. No.1475/2017 is preferred against the order dated 07th October, 2017 passed by the 4th Additional Sessions Judge, Bilaspur, in Criminal Revision No.180/2017 which was filed against the order dated 05.07.2017 passed by the Court of JMFC Kota wherein the application filed u/s 457 of Cr.P.C., was rejected.
4. The facts of Cr. M.P. No. 1213 are that a Truck bearing Regn.No.C.G.04-JC/4238 was seized by the Police Station Ratanpur in Crime No.159/2017 for the offence punishable u/s 41(1-4) of the Code of Criminal Procedure read with section 379 of IPC and Sections 3 & 7 of the Essential Commodities Act and section 23 of the Petroleum Act, 1934 and is kept in police station. Subsequently an application was filed u/s 457 of Cr.P.C., by petitioner Sunil Kumar Jaiswal on the ground that he is owner of the said Truck and the entire livelihood is dependent upon the said vehicle, therefore, the truck may be released in his favour. The said application for custody of the vehicle was dismissed by the Judicial Magistrate First Class, Kota and having preferred a revision against such order, the revision was also dismissed by holding that the Court do not have any jurisdiction to grant Suprudnama of the vehicle u/s 6(E) of the Essential Commodities Act. Therefore, the Cr.M.P.No.1213/2017 is preferred.
5. Likewise the facts of Cr.M.P.1475/2017 are that on 28.6.2017 certain information was received that a Truck bearing No. M.P.06-HC/0667 was carrying the food grains which was meant for the distribution to the Fair Price Shops and the same were being sold out to other persons who were not entitled to receive the same. Thereafter, the police has seized the truck from the godown of Ashwini Sahu at village Lakram with sacks of wheat and thereafter the police has registered the offence u/s 3 & 7 of the Essential Commodities Act, 1955 (hereinafter referred to Act, 1955) and section 407 read with section 34 of IPC against the driver of truck Manohar Sharma and the owner of the godown Ashwin Sahu. Subsequently, the applicant herein namely Amit Dubey has filed an application u/s 457 of Cr.P.C., before the JMFC, Kota for handing over the vehicle on interim custody. The said application was rejected on the ground that the confiscation is proposed by the Collector thereby the bar is created under section 6-E of the Essential Commodities Act 1955 and the Court has no jurisdiction to entertain the application seeking custody of the vehicle. The said order having been challenged before the Revisional Court, the revisional court also affirmed the order of the JMFC. Hence, this petition.
6. The order would reveal that the rejection for delivery of the vehicles on Suprudnama is primarily on the ground that Section 6E of the Essential Commodities Act creates a bar as it takes away the jurisdiction of the Courts to grant the custody of the vehicle. The rejection of custody of vehicle was predominantly on the ground by reference of an order passed by the Bench of this Court in Cr. M.P. No. 1068 of 2014 (Vishnu Prasad Vaishnav Vs. State of C.G.,) decided on 17.12.2014 wherein it was held that section 6E of the Essential Commodities Act takes away the jurisdiction to grant the vehicle on Suprudnama, therefore, the respective prayers were rejected.
7. Learned counsel for the petitioner would submit that in the instant case, the confiscation proceedings has not commenced, therefore, the bar of Section 6-E of the Essential Commodities Act, 1955 would not apply. It is furt
