http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 16  

PETITIONER: MAHESH KUMAR CHAUHAN @ BANTI

       Vs.

RESPONDENT: UNION OF INDIA AND ORS.

DATE OF JUDGMENT02/05/1990

BENCH: PANDIAN, S.R. (J) BENCH: PANDIAN, S.R. (J) REDDY, K. JAYACHANDRA (J)

CITATION:  1990 AIR 1455            1990 SCR  (2) 979  1990 SCC  (3) 148        JT 1990 (2)   592  1990 SCALE  (1)863  CITATOR INFO :  R          1992 SC 139  (6)

ACT:     Preventive  Detention: Conservation of Foreign  Exchange and  Prevention of Smuggling Activities Act,  1974:  Section 3(1)--Detention Order--Representation of detenu--Expeditious disposal  of--Necessity for--Explanation of delay by  appro- priate    authority--Need   for--Undue    and    unexplained delay--Whether  violative of Article 22(5) of the  Constitu- tion.

HEADNOTE:     The  appellant  filed a writ petition  before  the  High Court  challenging  the detention order passed  against  him under  Section 3(1) of the Conservation of Foreign  Exchange and  Prevention of Smuggling Activities Act, 1974,  alleging that his representation was dealt with in a cavalier manner, resulting in undue delay in its disposal.     Refuting  the allegation, it was contended on behalf  of the   respondents  that  the  representation,  received   on 23.8.89,  was  forwarded  to the  sponsoring  authority  for comments  on 25.8.89 and the comments were received only  on 11.9.89, and orders rejecting the representation were issued on  19.9.89, after obtaining the orders of  the  appropriate authorities. The High Court rejected the petition as  devoid of any merit.     In the appeal before this Court, on behalf of the appel- lant  it  was contended that the offices  of  the  detaining authority and the sponsoring authority were within the  same city  and there was absolutely no explanation for the  delay on  the  part  of the sponsoring authority  in  sending  the comments  till  11.9.89,  though  the  representation  dated 18.8.89 was sent for comments to the said authority even  on 25.8.89, thus vitiating the order of detention, and that  in view of the inordinate and unexplained delay in  considering and disposing of the representation, the continued detention of the appellant was impermissible and unconstitutional,  as being violative of the mandatory provisions of Article 22(5) of the Constitution of India. Allowing the appeal, this Court, 980

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 16  

   HELD: 1.1 A representation of a detenu whose liberty  is in  peril and deprived should be considered and disposed  of as expeditiously as possible; otherwise the continued deten- tion  will render itself impermissible and invalid as  being violative  of  the constitutional  obligation  enshrined  in Article  22(5)  of  the Constitution and  if  any  delay  is occurred  in  the disposal of a representation,  such  delay should  be  explained by the appropriate  authority  to  the satisfaction of the Court. [985A-B]     Rama Dhondu Borade v.V.K. Saraf, Commissioner of  Police JUDGMENT: Bengal, [1969] II Supreme Court Weekly Reports 529;  Jayana- rayan Sukul v. State of West Bengal, [1979] 1 SCC 219; Shaik Hanif&  Ors. v. State of W. B., [1974] 1 SCC 637;  Raisuddin v.  State  of  U.P., [1983] 4 SCC 537  and  Frances  Coralic Muffin v.W.C. Khambra and Ors., [1980] 2 SCC 275, relied on.     1.2 Inspite of the weighty pronouncements, of this Court making the legal position clear, it is still disquieting  to note that on many occasion the appropriate authorities cause considerable delay in considering and disposing of represen- tations and also exhibit culpable indifference in explaining such  delay. In case the appropriate authority is unable  to explain personally the delay at various stages, then it will be desirable---indeed appropriate--for the concerned author- ity  or authorities at whose hands the delay has occured  to individually explain such delay. [985C-D]     1.3 The Court, in the absence of any explanation, cannot wink  at or skip over or ignore such an infringement of  the constitutional  mandate  and uphold an  order  of  detention merely  on the ground that the enormity of allegations  made in the grounds of detention is of very serious nature, as in the present case. [985D-El     Prabhu Dayal Deorah v. The District Magistrate, Kamrup & Ors., [1974] 1 SCC 103, relied on.     In  the instant case, except merely mentioning that  the representation  was  forwarded to the  concerned  sponsoring authority  on 25.8.89 and the comments from  the  sponsoring authority were received by the Department on 11.9.89,  there is  absolutely  no explanation as to why such  a  delay  had occured. This undue and unexplained delay is in violation of the constitutional obligation enshrined in Article 22(5)  of the  Constitution  of  India rendering  the  order  invalid. [986B-C] 981     Rama Dhondu Borade v.V.K. Saraf, Commissioner of  Police & Ors., [1989] 3 SCC 173, relied on.

&     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 302 of 1990.     From the Judgment and Order dated 29.1.1990 of the Delhi High Court in Crl. Writ Petition No. 657 of 1989. Harjinder Singh and R.N. Joshi for the Appellant.     N.S. Hegde, Additional Solicitor General and Udai  Lalit for the Respondents. The Judgment of the Court was delivered by S. RATNAVEL PANDIAN, J. Leave granted. This appeal is directed by the detenu, Mahesh Kumar  Chauhan Banti  questioning the correctness of the judgment  made  in Criminal Writ Petition No. 657/89 by the High Court of Delhi dismissing  the petition as devoid of any merit.  The  above Writ  Petition out of which this present appeal  has  arisen was filed by the appellant, Mahesh Kumar Chauhan against the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 16  

order  of detention dated 13.7.1989 clamped upon him by  the first  respondent, Union of India in exercise of the  powers conferred  by  Section 3(1) of the Conservation  of  Foreign Exchange  and Prevention of Smuggling Activities  Act,  1974 (hereinafter  referred to as the ’Act’) with a view to  pre- venting  the detenu from engaging in transporting  and  con- cealing smuggled goods and dealing in smuggled goods  other- wise than by engaging in keeping smuggled goods.     The  entire  facts of the case are well set out  in  the grounds of detention and, therefore, we think that it is not necessary to reiterate the same.     Mr. Harjinder Singh, learned counsel appearing on behalf of  the  appellant raised a variety of contentions,  one  of which  being  that there is an  inordinate  and  unexplained delay in considering and disposing of the representation  of the detenu dated 18.8.89 and as such the continued detention of  the appellant is impermissible and  unconstitutional  as being violative of the mandatory provisions of Article 22(5) of the Constitution of India. 982     In the counter affidavit filed on behalf of the respond- ent  before  the  High Court, the  declarant  namely,  Joint Secretary, Department of Revenue, Ministry of Finance  while refuting the allegation of the appellant that his  represen- tation  has been dealt with in ’cavalier manner’ has  stated that  the  petitioner has made his representation  on  21.8. 1989  and not on 18.8.1989 as alleged by the  appellant  and that  it  was received in the office of  his  Department  on 23.8.89 and the same was forwarded to the concerned sponsor- ing  authority on 25.8.1989. The Sponsoring  Authority  sent his comments only on 11.9.1989. Thereafter, the  representa- tion along with the comments was processed and put up before the  Ministry of State for Revenue, who considered  and  re- jected the same on 15.9.1989 subject to the approval of  the Finance Minister. On 18.9.89 the file was received back from the Finance Minister’s office and the memorandum was  issued on 19.9.89 rejecting the representation. Mr. Harjinder Singh submitted  that the offices of the detaining  authority  and the sponsoring authority are within the metropolis of  Delhi and  that there is absolutely no explanation for  the  delay occasioned on the part of the sponsoring authority in  send- ing  his comments till 11.9.1989 though  the  representation was  sent  for  comments  to  the  said  authority  even  on 25.8.1989  and that this considerable delay at the hands  of the  sponsoring authority stands unexplained  vitiating  the order of detention.     In  support  of  the above contention,  he  placed  much reliance on the decision of this Court in Rama Dhondu Borade v.V.K.  Saraf, Commissioner of Police & Ors., [1989]  3  SCC 173  to which one of us (Ratnavel Pandian, J.) was a  party. In  the above cited decision, this Court after referring  to the dictum laid down in Smt. Shalini Soni v. Union of India, [1980]  4  SCC 544 and some other decisions  of  this  Court dealing  with the similar questions of delayed  disposal  of representation,  has laid down the following proposition  of law: "The detenu has an independent constitutional right to  make his  representation under Article 22(5) of the  Constitution of India. Correspondingly, there is a constitutional mandate commanding  the concerned authority to whom the detenu  for- wards his representation questioning the correctness of  the detention  order  clamped upon him and  requesting  for  his release, to consider the said representation within reasona- ble  dispatch  and to dispose the same as  expeditiously  as possible. This constitutional requirement must be  satisfied

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 16  

with  respect but if this constitutional imperative  is  ob- served in breach, it would 983 amount to negation of the constitutional obligation  render- ing  the continued detention constitutionally  impermissible and  illegal, since such a breach would defeat the  verycon- cept  of liberty--the highly cherished right--which  is  en- shrined in Article 21 of the Constitution."     However,  in the same decision, it has been pointed  out "What  is reasonable dispatch depends on the facts and  cir- cumstances  of  each case and no hard and fast rule  can  be laid in that regard."     We hasten to say in this connection that inspite of  the fact this Court in a series of decisions has repeatedly  and consistently  laid down the rule in precise and clear  terms that  all  the  procedural safeguards  prescribed  in  under Article 22(5) of the Constitution of India should be scrupu- lously  and strictly observed one of which as  ingrained  in our system of judicial interpretation, being that the detenu shall be afforded an earliest opportunity of making a repre- sentation  against  the validity of the order  of  detention clamped  upon him and that representation should be  consid- ered and disposed of as expeditiously as possible-     How  far  this Court has seriously viewed  the  culpable suppine indifference, callousness and recalcitrant  attitude on the part of the appropriate authorities who while dealing with the representations at various stages and disposing  of the same cause considerable delay is prismatically reflected with enhanced intensity through a plethora of pronouncements of this apex Court. We may appositely refer to a few.     Shelat,  J.  in Khairul Haque v. State of  West  Bengal, Writ Petition No. 246 of 1969 decided on 10.9.69 reported in 1969 II Supreme Court Weekly Reports 529 after referring two earlier  decisions in Sk Abdul Karim and Others v. State  of West  Bengal,  [1960] 1 SCC 433 and Durga Show and  Ors.  v. State of West Bengal; [ 1970] 3 SCC 696 has observed thus: "The fact that Art. 22(5) enjoins upon the detaining author- ity to afford to the detenu the earliest opportunity to make a representation must implicitly mean that such  representa- tion  must,  when  made, be considered and  disposed  of  as expeditiously as possible, otherwise, it is obvious that the obligation to furnish the earliest opportunity to make a representation loses both its purpose and meaning".                                                      (emphasis supplied) 984     A Constitution Bench of this Court in Jayanarayan  Sukul v.  State  of  West Bengal, [ 1979] 1 SCC 2  19  has  highly depricated the conduct of appropriate authorities in  unduly and unreasonably delaying the consideration and disposal  of a representation and stated as follows: "The  reason for immediate consideration of the  representa- tion is too obvious to be stressed. The personal liberty  of a  person is at stake. Any delay would not only be an  irre- sponsible  act on the pan of the appropriate  authority  but also unconstitutional because the Constitution enshrines the fundamental  right  of a detenu to have  his  representation considered  and it is imperative that when the liberty of  a person  is in peril immediate action should be taken by  the relevant authorities." (emphasis ,supplied) ’     Sarkaria,  J. in Shaik nanif & Ors. v. State of  W.  B., [1974] 1 SCC 637 has expressed as follows: "It is the duty of the Court to see that the efficacy of the limited,  yet  crucial, safeguards provided in  the  law  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 16  

preventive  detention  is not lost  in  mechanical  routine, dull’  casualness and chill indifference on the part of  the authorities entrusted with their application. In  Raisuddin  v. State of U.P., [ 1983] 4 SCC  537,  it  is pointed out, "   ..........   if on such examination, it  is  found  that there was any remissness, indifference or avoidable delay on the  part  of the detaining authority/State.  Government  in dealing with the representation, the Court will  undoubtedly treat  it as a factor vitiating the continued  detention  of the detenu  ..........  "     Chinnappa  Reddy, J. in Frances Coralie Muffin  v.  W.C. Khambra and Others, [ 1980] 2 SCC 275 has expressed his view saying: "   ..........   No  allowance can be  made  for  lathgargic indifference. No allowance can be made for needless procras- tination." We do not like to swell this judgment by recapitulating  all the pronouncements of this Court on this point. 985     Now  the unchallengeable legal proposition that  emerges from a host of decisions, a few of which we have referred to above. is that a representation of a detenu whose liberty is in  peril and deprived should be considered and disposed  of as expeditiously as possible; otherwise the continued deten- tion  will render itself impermissible and invalid as  being violative  of  the constitutional  obligation  enshrined  in Article  22(5) of the Constitution and if any delay  is  oc- cured in the disposal of a representation, such delay should be  explained by the appropriate authority to the  satisfac- tion of the Court.     Inspite  of  the weighty pronouncements, of  this  Court making  the legal position clear, it is still disquiting  to note  that  on many occasions  the  appropriate  authorities cause  considerable  delay in considering and  disposing  of representations  and also exhibit culpable  indifference  in explaining such delay. We feel that in case the  appropriate authority  is  unable  to explain personally  the  delay  at various stages, then it will be desirable--indeed  appropri- ate--for  the  concerned authority or authorities  at  whose hands  the delay has occurred to individually  explain  such delay.     The  next  question is should or can the  Court  in  the absence  of any explanation wink at or skip over  or  ignore such  an  infringement  of the  constitutional  mandate  and uphold  an order of detention merely on the ground that  the enormity of allegations made in the grounds of detention  is of  very serious nature as in the present case?  Our  answer would be ’Not at all’.     In  this connection, it will be relevant to make  refer- ence  to the view expressed by Mathew, J. speaking  for  the majority in Prabhu Dayal Deorah v. The District  Magistrate, Kamrup and Others, [1974] 1 SCC 103 which is as follows: "We  say  and we think it is necessary to repeat,  that  the gravity of the evil to the community resulting from  antiso- cial  activities  can never furnish an adequate  reason  for invading  the personal liberty of a citizen, except  in  ac- cordance with the procedure established by the  Constitution and the laws. The history of personal liberty is largely the history  of insistence on observance of procedure.  And  ob- servance  of procedure has been the bastion  against  wanton assaults  on  personal  liberty over the  years.  Under  our Constitution,  the only guarantee of personal liberty for  a person is that he shall not be deprived of it except in 986

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 16  

accordance with the procedure established by law."     Reverting to the facts of the present case as  submitted by  the learned counsel, except merely mentioning  that  the representation  was  forwarded to the  concerned  sponsoring authority on 25.8.1989 and the comments from the  sponsoring authority was received by the Department on 11.9.1989, there is  absolutely  no explanation as to why such  a  delay  had occurred.  Therefore, in the light of the  proposition  laid down in Rama Dhondu Borade’s case (albeit), we have no other option  except to allow this appeal on the ground that  this undue and unexplained delay is in violation of the constitu- tional obligation enshrined in Article 22(5) of the  Consti- tution of India rendering the impugned order invalid.     For the foregoing reasons, we set aside the order of the High Court, allow the appeal and direct the detenu to be set at  liberty forthwith, unless his detention is required  for some other cause. N.P.V.                                          Appeal   al- lowed. 987 SHAMBHU DAYAL AGARWALA V. STATE OF WEST BENGAL AND ANR. MAY 3, 1990 [S. RANGANATHAN AND A.M. AHMADI, JJ.]     Essential  Commodities Act, 1955: Sections 3, 6A to  6C, 6E  and 7(1) (b)--Seizure of essential commodity under  sec- tion  6A--Breach of order under section 3--Prosecution  pro- ceedings pending--Bar on courts to make an order with regard to the possession, delivery, disposal, release or  distribu- tion  of  such commodity except  the  Collector-Whether  the Collector empowered to release the seized goods to owner  or to the person from whom the commodity is seized?     On  September, 20. 1987 the officers of the  Enforcement Branch raided  the factory premises of the Appellant engaged in the manufacture of Mustard Oil. 562 bags of mustard seeds and 262 tins of oil were seized for alleged violation of the conditions of licence as well as orders issued under section 3  of the Act. An F.I.R. was lodged with the police  and  as required under section 6A, the report of the seizure of  the goods was also made to the Collector followed by filing of a Chargesheet  before the Special Judge. The petitioner  moved the High Court by a writ Petition for quashing the  proceed- ings. The learned single Judge of the High Court disposed of the  Writ  Petition reserving liberty to the  Petitioner  to move  the  concerned  Collector for release  of  the  seized goods. The Petitioner accordingly moved an application under section  6E  before the concerned Additional  Collector  for release  of  the  seized goods. The  Collector  dropped  the confiscation  proceedings  and ordered the  release  of  the seized goods to the Petitioner. Against this order the State Government preferred a Revision to the High Court. The  High Court  allowed the Revision and set aside the order  of  re- lease  of the seized goods passed by the  Collector  holding that under the provisions of section 6A read with section 6E of the Act, the Collector had no power to release the seized goods. Aggrieved by this order the Petitioner has come up in appeal by special leave to this Court. Dismissing the appeal. this Court.      HELD:  The  Scheme of sections 6A. 6B and 6C  makes  it clear  that after the essential commodity is seized and  the same is inspected by the concerned Collector, the latter has to decide after complying with the 988 procedure  set out in section 6B, whether or not to  confis-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 16  

cate the essential commodity. Since the procedure delineated in  section  6B is time consuming, the  Collector  has  been given  special  power  to sell the  essential  commodity  as stated in sub-section (2) of section 6A if it is subject  to speedy and natural decay or it is expedient in public inter- est so to do. If the Collector decides not to confiscate the commodity and if no prosecution is launched or  contemplated the commodity has to be returned to the owner or person from whom  it was seized. If in the meantime it is sold in  exer- cise of power under sub-section (2) of Section 6A, the price of  Commodity has to be paid as provided by sub-section  (3) of section 6A. [998C-E]     Sub-section  (2) of section 6C uses the prefix  ’return’ followed  by the words ’the essential commodity seized’  and not  the word ’release’. It seems that having regard to  the scheme of the Act, the object and purpose of the statute and the  mischief it seeks to guard against, the word  ’release’ is  used in the limited sense of release for sale, etc.,  so that  the  same becomes available to  the  consumer  public. There could be no question of releasing the commodity in the sense  of returning it to the owner or person from  whom  it was seized even before the proceeding for confiscation stood completed  and before the termination of the prosecution  in the acquittal of the offender. [998F-H] &     CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No.  3 10 of 1990.     From  the  Judgment and Order dated 11.5.  1988  of  the Calcutta High Court in Crl. Rvn. No. 402 of 1988. P.P. Rao, R.K. Gupta and P.C. Kapur for the Appellant.     Kapil Sibbal, Additional Solicitor General, G. Venkatesh Rao,  D.K.  Sinha, J.R. Das, H.K. Puri and A. Paul  for  the Respondents. The Judgment of the Court was delivered by AHMADI, J. Special leave granted.     The short question which arises for our determination is whether  the  Collector to whom a report of seizure  of  any essential  commodity is made under section 6A of the  Essen- tial  Commodities Act, 1955 (hereinafter called ’the  Act’), is  empowered by virtue of section 6E of the Act to  release the goods seized in pursuance of an order made 989 under  section 3 in relation thereto during the pendency  of the  proceedings  before the Special Court?  The  facts,  in brief, are as Under:     The  petitioner  being  engaged in  the  manufacture  of mustard oil at his factory at 1, Canal Road, Police  Station Behala,  Calcutta-53,  was required to maintain a  stock  of mustard seed at his factory premises. A contingent of  offi- cers of the District Enforcement Branch led by the  Investi- gating  Officer  Gopal Mosat, the  complainant,  raided  the factory premises of the petitioner on the morning of Sunday, September  20, 1987, in the absence of the  petitioner.  The said  raid continued till the early hours of  September  21, 1987. During the said raid 562 bags of Mustard Seeds and 267 tins  of  Mustard Oil, weighing about 39.92  quintals,  were seized  for  purported infraction of the conditions  of  the licence as well as the orders issued under section 3 of  the Act. The Investigating Officer filed a written complaint  in that  behalf at the Behala Police Station which came  to  be treated  as the First Information Report. The report of  the seizure of the essential commodity was made to the concerned Collector as required by section 6A of the Act for  initiat- ing  confiscation  proceedings.  On September  27^  1987,  a charge-sheet was filed before the learned Special Judge.  It

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 16  

may  be mentioned that before the submission of the  charge- sheet  a Writ Petition was filed in the High  Court  wherein certain  interim  orders  were made with which  we  are  not concerned. Suffice it to say that the said Writ Petition was disposed  of by a learned Single Judge of the High Court  on February  2,  1988, reserving liberty to the  petitioner  to apply  for  release  of the seized goods  to  the  Collector before  whom  the  confiscation  proceedings  were  pending. Thereupon, the petitioner preferred an application on Febru- ary 9, 1988 under section 6E of the Act before the Addition- al Collector for release of the seized commodities. On March 11, 1988 the said officer dropped the confiscation  proceed- ings,  albeit without prejudice to the  prosecution  pending before  the Special Judge, and directed the release  of  the seized  commodities. Feeling aggrieved by the said order  of release, the State Government invoked the revisional  juris- diction  of the High Court. The said Criminal  Revision  No. 402  of 1988 was allowed by the High Court on May 11,  1988. The  High Court set aside the impugned order of  release  of the  seized goods holding that under the provisions of  sec- tion  6A read with section 6E of the Act, the Collector  had no power to order release of the seized commodity. The  High Court approached the question thus: "Under Section 6A of the Act the Collector has under certain circumstances been given power to confiscate the 990 goods.  By Section 6A the Collector has not been  given  any power to release the goods. Section 6E is to be read in  the perspective  of the provision of Section 6A of the  Act  be- cause of the phrase "pending confiscation" under Section  6A used in Section 6E. If the Collector has not been given  any power to release the goods under Section 6A, it can never be assumed that by Section 6E which gives some interim power to the Collector with reference to the proceeding under Section 6A,  the Collector has been given any power to  release  the goods  after finding that the goods cannot  be  confiscated. Under Section 6A the Collector may order confiscation of the essential  commodities so seized. He has not been given  any power to release the goods."     Mr.   P.P.   Rao,   the   learned   counsel   for    the petitioner/appellant contended that on the Collector  having dropped the confiscation proceedings it was incumbent on him to pass the consequential order of release under section  6E of  the Act. According to him since the jurisdiction of  the Court  to make orders with regard to the possession,  deliv- ery,  disposal,  release or distribution of  such  essential commodity is specifically and expressly barred by section 6E of  the Act, the Collector alone has jurisdiction  to  order release  of the seized goods. The words  ’pending  confisca- tion’  employed  in section 6E of the Act go with  the  word ’seize’  and  are, therefore, descriptive of  the  essential commodity  and are not intended to limit the powers  of  the Collector,  argued  counsel. He, therefore,  submitted  that section  6E confers wide powers on the Collector to  release the goods at any stage of the proceedings and the High Court was  not justified in placing a narrow construction  on  the language of the said provision. On the other hand Mr.  Kapil Sibal,  the learned Additional Solicitor General while  sup- porting  the impugned order of the High Court,  argued  that the power to release conferred by section 6E on the  Collec- tor refers to release in favour of a third party and not the party from whom the essential commodity was seized.  Accord- ing  to  him  if the construction placed on  section  6E  on behalf  of  the petitioner is accepted it would  defeat  the very purpose of the Act. He. therefore, submitted that  this

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 16  

was not a fit case to interfere with the order passed by the Division Bench of the High Court.      In order to appreciate the rival view-points we may  at the  outset examine the scheme of the Act. The Act,  as  the Preamble reveals, was enacted to provide, in the interest of the  general public, for the control of  production,  supply and distribution of, and trade and commerce in 991 certain  commodities. It extends to the whole of India.  The dictionary  of  the Act is contained in section  2.  Section 2(ia) defines ’Code’ to mean the Code of Criminal Procedure, 1973. Section 2(f) says that words and expressions used  but not  defined in the Act and defined in the Code  shall  have the meanings assigned to them in the Code. Section 3  empow- ers  the  Central Government to provide  for  regulating  or prohibiting  the  production,  supply  and  distribution  of essential  commodity and trade and commerce therein  if  the same  is  considered necessary or expedient inter  alia  for maintaining or increasing supplies of any essential commodi- ty  or for securing their equitable distribution and  avail- ability  at fair prices. Sub-section (2) of section  3  out- lines  what an order made under sub-section (1) thereof  may provide.  Besides regulating by licences, permits or  other- wise the manufacture or production of any essential commodi- ty or the storage, transport, distribution, disposal, acqui- sition,  use,  consumption, etc., thereof,  the  order  may, inter alia, provide for controlling the prices at which  the essential  commodity  may  be bought or sold  and  may  also require any person holding in stock any essential  commodity to  sell the whole or a specified part of the quantity  held in  stock  or produced or received by him or  likely  to  be produced  or received by him to the Central Government or  a State  Government or to an officer or agent of such  Govern- ment, etc. Sub-section (3) of section 3 provides for  deter- mination of the price to be paid to the person from whom the essential  commodity  is so purchased. Section 6  lays  down that  an order passed under section 3 will have effect  not- withstanding  anything inconsistent therewith  contained  in any  other  enactment or instrument. Then comes  section  6A which provides for the confiscation of essential  commodity. Subsection  (1) of this section may be reproduced for  ready reference: "6A--Where any essential commodity is seized in pursuance of an  order made under section 3 in relation thereto it  shall be reported without any unreasonable delay to the  Collector of the district in which such essential commodity is  seized and  the Collector may, if he thinks it expedient so to  do, inspect  or cause to be inspected such essential  commodity, whether or not the prosecution is instituted for the contra- vention  of such order and the Collector, if satisfied  that there  has  been  a contravention of the  order,  may  order confiscation of-- (a) the essential commodities so seized; (b) any package, covering or receptacle in which such essen- tial commodity is found; and 992 (c) any animal, vehicle, vessel, or other conveyance used in carrying such essential commodity ;" Sub-section  (2) of the said section empowers the  Collector to  sell any essential commodity, if the same is subject  to speedy and natural decay or it is otherwise expedient so  to do  in  public interest, at the controlled  price,  if  any, fixed  therefore  or by public auction if no such  price  is fixed. If the Central or the State Government has fixed  the retail  sale price of such commodity under the Act or  under

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 16  

any other law, the Collector is empowered to order its  sale through  fair price shops at the price so fixed. Section  6B posits  that no order of confiscation of any essential  com- modity  or conveyance, etc., shall be made unless the  owner or the person from whom it is seized has been served with  a notice informing him of the grounds on which it is  proposed to confiscate the same and he has been given reasonable time to make a representation in writing against the grounds  set out in the notice and has been given a reasonable opportuni- ty of being heard. This section incorporates the  principles of  natural justice to ensure that the owner of person  from whom  the  essential  commodity is seized  has  the  fullest opportunity  to  satisfy  the Collector  against  passing  a confiscation  order under Section 6A. An appeal is  provided by section 6C against the order of confiscation passed under section 6A. Section 6D clarifies that an award of  confisca- tion  under the Act by the Collector shall not  prevent  the infliction  of any punishment to which the concerned  person is  liable under the Act. We then come to Section  6E  which was  inserted in the Act in place of the existing  provision by Act No. 42 of 1986 with effect from 9th September,  1986. Since the incident in question relates to a date  subsequent to  9th  September, 1986, it is unnecessary  to  notice  the earlier provision. Section 6E which confers exclusive juris- diction  on the Collector and in the State  Government  con- cerned  under  section  6C to pass  certain  orders  pending confiscation reads as under: "Whenever any essential commodity is seized in pursuance  of an  order made under Section 3 in relation thereto,  or  any package,  coveting  or receptacle in  which  such  essential commodity is found, or any animal, vehicle, vessel Dr  other conveyance  used  in carrying such  essential  commodity  is seized  pending confiscation under Section 6-A, the  Collec- tor, or, as the case may be, the State Government  concerned under Section 6-C shall have, and, notwithstanding  anything to  the  contrary contained in any other law  for  the  time being in force, any court, tribunal or other authority 993 shall  not have, jurisdiction to make orders with regard  to the possession, delivery, disposal, release or  distribution of such essential commodity, package, coveting,  receptacle, animal, vehicle, vessel or other conveyance". It is obvious on a plain reading of this provision that  the same  was brought on the statute book with a view to  debar- ring  the  courts from making any order with regard  to  the possession, delivery, disposal or distribution of any essen- tial commodity seized under an order made under section 3 of the Act. Section 7 prescribed the penalties for the  contra- vention  of any order made under section 3 and provides  for the forfeiture of the essential commodity to the  Government and  for  the  forfeiture of any animal,  vehicle  or  other conveyance used in carrying the said essential commodity, if the  court so orders. Section 10A makes every offence  under the  Act cognizable and non-bailable,  notwithstanding  any- thing  contained  in the Code. Section 11 provides  that  no Court shall take cognizance of any offence punishable  under the  Act  except  on a report made by a  public  servant  as defined  by section 21, I.P.C., or any person  aggrieved  or any  recognised consumer association. Section  12A  empowers the  State Government to constitute by notification as  many Special  Courts as may be necessary and Section 12AA,  which begins with a non-obstante clause--notwithstanding  anything contained  in the Code--provides mat all offences under  the Act  shall be triable only by the Special Court  constituted for  the  area in which the offence was  committed.  Section

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 16  

12AC makes the provisions of the Code (including the  provi- sions  as to bail and bonds) applicable to  the  proceedings before  the Special Courts as if it is a Court  of  Sessions unless the Act provides otherwise.     The  above resume of the relevant provisions of the  Act makes  it  clear that once an order is made by  the  Central Government under section 3 for regulating or prohibiting the production, supply and distribution of any essential commod- ity it shall have effect notwithstanding anything inconsist- ent  therewith contained in any other enactment  or  instru- ment.  Any  person  who contravenes any  order  made  unless section 3 becomes liable to penal action under section 7 and the property in respect of which the order has been  contra- vened becomes liable to forfeiture. Notwithstanding anything contained in the Code, the offence punishable under the  Act for the contravention of an order under section 3 is cogniz- able and non-bailable and may be tried by the Special  Court constituted for the area in which the offence was committed. Thus  the breach of an order made under section  3  attracts penal  consequences, i.e., imprisonment and fine,  and  also renders the 994 property  seized  liable to forfeiture. This is  one  conse- quence of the breach of an order made under section 3 of the Act.  The  Act  also provides, section 6A,  that  where  any essential commodity has been seized in pursuance of an order made  under section 3 in relation thereto, a report  of  the seizure  must be sent to the Collector without  unreasonable delay,  on  receipt whereof the Collector  may  inspect  the seized property .and on being satisfied about the contraven- tion of the order made under section 3 may order the confis- cation of such essential commodity and any package, covering or  receptacle wherein such essential commodity is found  as well as any animal, vehicle or conveyance used for  carrying such  essential  commodity. If the  essential  commodity  is liable  to speedy decay, the Collector is empowered to  sell it at the controlled price, if any, or by public auction  or through  fair price shops if the retail sale price for  such commodity is fixed. The price so realised minus the expenses incurred for effecting the sale has to be paid to the  owner of  the essential commodity or the person from whom  it  was seized  (a)  where no order of  confiscation  is  ultimately passed  by the Collector, or (b) where the  appellate  order passed under Section 6C so requires or (c) where in a prose- cution under the Act the person concerned is finally acquit- ted.  An  order  of confiscation made  after  following  the requirements  of section 6B does not prevent the  infliction of punishment under the other provisions (sections 7 to  10) of  the  Act. Thus confiscation of the  essential  commodity etc., is not in lieu of punishment but can be in addition to the  penal  consequences. It is in this background  that  we must examine the controversy before us.     Section 6A empowers confiscation of the seized essential commodity, the package, covering and receptacle in which the essential  commodity  was found and the animal,  vehicle  or other  conveyance  in  which such  essential  commodity  was carried. The words ’may order confiscation’ convey that  the power  is discretionary and not obligatory. Sub-section  (2) thereof  confers a special power to deal with any  essential commodity which, in the opinion of the Collector, is subject to speedy and natural decay or it is otherwise expedient  in public  interest to be disposed of in the  manner  indicated therein.  Section  6A, therefore, merely  confers  power  of confiscation and not the power of release, disposal, distri- bution,  etc.,  except to the limited  extent  permitted  by

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 16  

sub-section  (2)  thereof. Of course the second  proviso  to sub-section (1) of Section 6A permits the grant of an option to  pay,  in lieu of confiscation of  any  animal,  vehicle, vessel or other conveyance, a fine equal to its market price at  the  date of seizure. Section 6E was  first  enacted  to debar  courts from making any order with regard to the  pos- session, delivery, disposal or distribution of any essential commo- 995 dity seized in pursuance of an order made under section 3 in relation  thereto.  By  the substituted  section  6E  as  it presently  stands  the scope of the provision has  been  en- larged  by extending the bar of jurisdiction of  the  Court, tribunal  or other authority to the release, etc., of  pack- ages, coverings or receptacles as well as animals, vehicles, vessels or other conveyances also. It provides that whenever any  essential  commodity is seized under an order  made  in exercise of power conferred by section 3 in relation thereto no  court, tribunal or other authority shall have  jurisdic- tion to make any order with regard to the possession, deliv- ery,  disposal,  release or distribution of  such  essential commodity save and except the Collector pending confiscation under  section 6A, or the State Government  concerned  under section  6C.  The  question then is whether  this  power  of release which is conferred on the Collector pending  confis- cation is wide enough to permit the release of the essential commodity  to  the owner or to the person from whom  it  was seized,  notwithstanding  the pendency  of  prosecution  for breach of an order made under section 3 in relation thereto?     The Act was enacted to safeguard public interest. It was thought  necessary in the interest of the general public  to control  the  production, supply and  distribution  of,  and trade and commerce in, certain commodities through  legisla- tion.  With  that  in view, powers  to  control  production, supply,  distribution,  etc., came to be  conferred  on  the Central  Government by section 3 of the Act. As pointed  out earlier, in order to deter persons dealing in such essential commodities  from contravening any order made under  section 3,  the law envisages two independent  proceedings,  namely, (i)  confiscation  under  section 6A  and  (ii)  prosecution leading  to punishment provided by section 7 of the Act.  In order  to ensure that the steady supplies of essential  com- modities  to the members of the general public is  not  dis- rupted,  provision is made in sub-section (2) of section  6A that  the  Collector may, if it is expedient and  in  public interest  so  to do, sell the seized commodity at  the  con- trolled price or by public auction if no such price is fixed or through the public distribution system if the retail sale price is fixed for the said commodity. Similar powers can be exercised if the commodity is subject to speedy and  natural decay.  The obvious purpose of conferring this power on  the Collector without waiting for the completion of the  confis- cation  proceedings  is to maintain the smooth  supplies  of essential commodities to the consumer public, avoid  artifi- cial shortages, maintain the price line and secure equitable distribution  thereof  through fair price shops. If  such  a power was not confined and if the seized commodity could not be  dealt with till the completion of the confiscation  pro- ceedings, it would defeat the very object and purpose 996 for  which  the Act was enacted. By the conferment  of  this power a duty is cast on the Collector to see that  essential commodities are not locked up in proceedings under the  Act; artificial  scarcity  is not created to hike  up  prices;  a close  watch is kept on the supplies to the general  public;

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 16  

when  necessary in public interest the stock of seized  com- modities  is released to combat short supply and in  general to ensure the availability of essential commodities at  fair prices to the general public. To ensure that this  objective of maintaining supplies and securing equitable  distribution of  essential commodities is not defeated,  the  legislature has entrusted the task to the Collector in its entirety  and has  ruled out interference by courts, tribunals  and  other authorities  by placing an embargo on their jurisdiction  in this behalf by section 6E of the Act. While conferring  wide powers  as above on the Collector, the legislature has  also protected  the  dealer’s interest by providing that  in  the event  it  is  ultimately found that he was  not  guilty  of contravention of any order made under section 3, he shall be paid the price realised with reasonable interest. But if the prosecution  ends in a conviction, section  7(1)(b)  enjoins that the property in respect of which the order was  contra- vened ’shah be forfeited’ to the Government. The language of this clause is clearly mandatory and leaves no option to the Court but to order forfeiture. This becomes clear if we read this clause in juxtaposition with clause (c) which confers a discretion on the Court to order forfeiture of any  packing, coveting or receptacle in which the essential commodity  was found or any animal, vehicle, vessel or any other conveyance which  was  used to carry the same. If the property  is  re- turned to the owner or the person from whom it was seized in exercise  of  power  under section 6E, it  is  difficult  to understand  how  the Court would implement  the  mandate  of clause  (b) of sub-section (1) of section 7 of the Act.  But the  learned counsel for the appellant argued that  even  in cases  where  the Collector sells  the  essential  commodity under  sub-section (2) of section 6A and retains  the  price thereof, the essential commodity ceases to be available  for forfeiture under clause (b) of section 7(1) of the Act.  He, therefore,  submitted  that the Act  itself  contemplates  a situation  which renders clause (b) of section  7(1)  otiose where the essential commodity is disposed of by the  Collec- tor  under  sub-section (2) of section 6A of  the  Act.  He, therefore,  saw  no harm in releasing the commodity  to  the owner  or the person from whose possession it was seized  on condition that such person deposits the market price of  the commodity  on the date of seizure or gives a bank  guarantee for the said sum. In this connection reference was also made to  the provision in sub-section (5) of Section 452  of  the Code  which  inter alia provides that  the  term  ’property’ shall include, ’in the case of property regarding which an 997 offence  appears  to  have been  committed,  not  only  such property  as has been originally in the possession or  under the control of any party, but also any property into or  for which  the  same may have been converted or  exchanged,  and anything  acquired  by such conversion or  exchange  whether immediately or otherwise’. This definition can be invoked in view  of section 2(f) of the Act which is  not  inconsistent with any provision of the Act. But this submission overlooks the  fact  that the power conferred by  sub-section  (2)  of section  6A to sell the essential commodity has to be  exer- cised  in public interest for maintaining the  supplies  and for  securing  the equitable distribution of  the  essential commodity.  If  the essential commodity is returned  to  the person from whom it was seized or to the owner thereof,  the very objective of the Act would be defeated and the  purpose of seizure would be frustrated The seizure has to be effect- ed  not  for the sake of earning revenue,  i.e.  the  market price of the commodity at the date of seizure, which may  be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 16  

ultimately  forfeited, but to prevent hoarding of  essential commodities,  avoid artificial shortages, maintain a  steady supply to the community and ensure equitable distribution at fair  and  reasonable  prices. If the  seized  commodity  is returned by merely securing its value, this objective of the act will be wholly defeated. That is why section 6A does not empower  the Collector to give an option to pay, in lieu  of confiscation of the essential commodity, a fine not  exceed- ing  the market value of the commodity at the date  of  sei- zure, as in the case of any animal, vehicle, vessel or other conveyance seized along with the essential commodity. Only a limited  power of sale of the commodity in the  manner  pre- scribed  by sub-section (2) of section 6A is  granted.  This shows that the legislature did not intend to confer a  power on  the Collector to return the essential commodity  to  the owner  or  the person from whose possession it  was  seized. That is for the obvious reason that it would run counter  to the very object and purpose of the enactment.     And  now to the structural setting and context in  which the  word ’release’ is used in section 6E.  While  debarring courts,  tribunals  and other  authorities  from  exercising power  in  relation to the seized commodity, power  is  con- ferred  on the Collector or the State  Government  concerned under section 6C, to make orders with regard to the  posses- sion,  delivery, disposal, release or distribution  of  such commodity, etc. This power can be exercised pending  confis- cation. The power conferred by this section is  unqualified. The  word  ’release’ is preceded by the  words  ’possession, delivery  and disposal’ and followed by the word  ’distribu- tion’-  The setting and context in which the word  ’release’ is  used makes it clear that it is not used in the sense  of ’return’. In the first place as pointed out earlier it would completely defeat the 998 purpose  and  object of the Act if the  essential  commodity seized  for suspected contravention of the order made  under section  3 is returned to the owner or person from  whom  it was  seized  even before the confiscation  proceedings  were completed.  Such  an  intention cannot be  ascribed  to  the legislature.  Secondly, it is not possible to  believe  that the  legislature would confer unqualified  and  unrestricted power to return the essential commodity to the owner or  the person from whose possession it was seized before a decision whether  or  not  to confiscate the same is  taken.  As  the section  stands,  if the interpretation put by  the  learned counsel for the appellant is accepted, it would be permissi- ble  to  the Collector to return or  restore  the  commodity without  imposing any condition, pending  confiscation  pro- ceedings. We are unable to persuade ourselves to accept  the interpretation placed by Mr. Rao on the word ’release’.  The scheme  of sections 6A, 6B and 6C makes it clear that  after the essential commodity is seized and the same is  inspected by the concerned Collector, the latter has to decide,  after complying with the procedure set out in section 6B,  whether or  not  to confiscate the essential  commodity.  Since  the procedure  delineated in section 6B is time  consuming,  the Collector has been given special power to sell the essential commodity  as stated in sub-section (2) of section 6A if  it is subject to speedy and natural decay or it is expedient in public  interest so to do. If the Collector decides  not  to confiscate  the commodity and if no prosecution is  launched or  contemplated  the commodity has to be  returned  to  the owner or person from whom it was seized. If in the  meantime it  is  sold in exercise of power under sub-section  (2)  of section  6A,  the price of the commodity has to be  paid  as

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 16  

provided by sub-section (3) of section 6A. If the  Collector has ordered confiscation but the order is reversed in appeal under section 6C and no prosecution is pending,  sub-section (2)  of  section  6C enjoins that  the  essential  commodity should  be ’returned’ and if that is not possible its  price together  with reasonable interest. It is pertinent to  note that  sub-section (2) of section 6C uses the  words  ’return the  essential commodity seized’ and not the  word  ’release the  essential commodity seized’. It seem to us that  having regard  to the scheme of the Act, the object and purpose  of the  statute and the mischief it seeks to guard against  the word  ’release’ is used in the limited sense of release  for sale,  etc., so that the same becomes available to the  con- sumer  public. There could be no question of  releasing  the commodity  in  the  sense of returning it to  the  owner  or person  from whom it was seized even before  the  proceeding for confiscation stood completed and before the  termination of the prosecution in_ the acquittal of the offender. Such a view would render clause (b) of section 7(1) totally nugato- ry.  It seems to us that section 6E is intended to  serve  a dual 999 purpose, namely (i) to prevent interference by courts, etc., and  (ii) to effectuate the sale of the essential  commodity under sub-section (2) and the return of the animal, vehicle, etc., under the second proviso to sub-section(1) of  section 6A. In that sense section 6E is complementary in nature.  We are, therefore, of the opinion that the High Court was right in the ultimate conclusion it reached.     Counsel  for  the appellant next pointed out  that  this Court  had passed an interim order on December 8,  1988  for sale  of the seized commodity and for handing over the  sale proceeds  to the appellant on the latter furnishing  a  bank guarantee  to  the  satisfaction of the  Special  Judge,  24 Paraganas  (South), Alipore. Despite this order  the  seized commodity  had  not  been disposed of  Mr.  Rao,  therefore, contended  that this Court should not assist the  respondent State which had defied and thwarted the order of this Court. It  is true that the seized commodity has not been  disposed of  to-date.  But it appears from the  subsequent  order  of February  13, 1989 as amended by the order of  February  15, 1989, that the only direction given to the Special Judge was to dispose of the pending prosecution within two months.  It was further directed that the Special Judge will pass appro- priate  consequential  orders regarding the release  of  the seized  goods.  It, therefore, becomes clear that  when  the subsequent  orders were passed on February 13 and 15,  1989, the  appellant  did  not insist on the sale  of  the  seized commodity  as per the order of December 8, 1988. The  matter came  up for hearing on subsequent occasions also but at  no time  did the appellant press for the implementation of  the said order of December 8, 1988. Even after the Special Judge recorded an acquittal and directed return of the goods,  the appellant did not seek implementation of the said order. Nor did the appellant move the High Court for the implementation of the said order in the appeal pending against the order of acquittal.  It  is, therefore, too late in the  day  now  to contend  that as the order of December 8, 1988 has  remained unimplemented  we should refuse to grant any relief  to  the respondent State.      For  the reasons stated above we see no merit  in  this appeal and dismiss the same with costs. R.N    .J.                                            Appeal dismissed. 1000

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 16