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SMT. SHASHI GARG versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Smt. Shashi Garg v. State Of U.P. And Others - CRIMINAL MISC. WRIT PETITION No. 9396 of 2006 [2007] RD-AH 2188 (9 February 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO. 45

CRIMINAL MISC. WRIT PETITION NO. 9396 OF 2006

Smt. Shashi Garg........................................Petitioner.

                                        Versus

State of U.P. and others..........................Respondents.

Hon. Mrs. Poonam Srivastav, J.

Heard Sri Devendra Dahma learned counsel for the petitioner and learned A.G.A. for the State.

The orders impugned in the instant writ petition are dated 19.6.2006 passed by the Additional Chief Judicial Magistrate, court no.1, Mathura and 22.7.2006 passed by the Special Judge, Mathura.

The petitioner claims herself as the owner of vehicle Max Pickup registered in her name vide registration no. U.P. 85 P-9212.  The vehicle was hired by Vijay Singh. He is a fair price shop dealer. The vehicle was used in carrying essential commodities.  On 8.6.2006 when essential commodities were being transported by the aforesaid fair price shop dealer, the Supply Inspector, Tehsil Maat, District Mathura, seized the vehicle along with goods at the time of routine check up.  The vehicle along with goods were taken by the police at Police Station Raya, District Mathura. The First Information Report was registered at case crime no. 157 of 2006 under Section 3/7 E.C. Act against Vijay Singh, fair price shop dealer. The petitioner has not been arrayed as an accused. However, the accused was granted bail by the competent court. It is asserted in paragraph no. 9 of the writ petition that no proceedings under Section 6-A of Essential Commodities Act (hereinafter referred to as the Act) has been initiated.  An application was moved for release of the vehicle Max Pickup U.P. 85 P-9212 by the petitioner on 12.6.2006 in the court of Additional Chief Judicial Magistrate, court no.1, Mathura. Another application was moved on 15.6.2006 stating that no proceedings under Section 6-A of E.C. Act has been initiated before the Collector/District Magistrate, Mathura. No notice has been issued under Section 6-B of the Act. Copies of two applications have been brought on record. The applications were rejected vide order dated               19.6. 2006 on the ground that confiscation proceedings before the concerned District Magistrate is pending and, therefore, no ground for release of the vehicle is made out. This order was challenged in a criminal revision. The revisional court dismissed the revision vide order dated 22.7.2006.

Submission on behalf of the petitioner is that the vehicle is standing unattended since 8.6.2006 and in the garb of the proceedings under Section 6-A of the Act, the vehicle has not been released. Learned counsel for the petitioner has very categorically stated in paragraph no. 9, 11 and 18 of the writ petition that no proceedings for confiscation has been initiated whatsoever. These assertions made, have been denied in paragraph nos. 5 and 6  of the counter affidavit but no detail has been given regarding the stage of proceedings or any documentary evidence has been brought on record in support of the said contention.

After hearing counsels for the respective parties at length and going through the record, it is evident that no documentary evidence has been brought before this Court or any reply was filed to the application dated 15.6.2006 preferred before the Additional Chief Judicial Magistrate, court no. 1, Mathura stating unequivocally that no proceedings under Section 6-A of the Act is pending before any competent authority. In the circumstances, there is nothing on record to substantiate the contention of the State regarding initiation, continuation or pendency of confiscation proceedings. Besides, assuming that the confiscation proceedings are going on even then this Court is fully competent to pass appropriate orders for release of the vehicle in exercise of writ jurisdiction. It cannot be said that where the proceedings initiated on the basis of the First Information Report against the dealer of fair price shop is allowed to continue endlessly, owner of the vehicle, who is nowhere connected with the crime, but for the fact, committed a mistake to lend her vehicle to the accused, cannot be said to be remediless.  The provisions under Article 226 of the Constitution of India can always be availed in such circumstances. In the case of Jugal Kishore and others Vs. State of U.P. and another 1994 ACJ (XXII) page 1030,  it was ruled by a Division Bench of this Court that the Magistrate has jurisdiction to release the vehicle in a pending trial or any other proceedings under Section 451 Cr.P.C.  Assuming that jurisdiction is not with the Magistrate to release the goods or vehicle even then the Division Bench in the case of  Jugal Kishore (supra) ruled that the vehicle can temporarily be released in favour of the authorized person. The exercise of release and inquiry has to be completed within reasonable period of time. The authorized person has to satisfy himself whether the owner of the vehicle seized, has committed any offence or not?  In the circumstances, admittedly proceedings under provisions of E.C. Act is pending before the Special Judge against the fair price dealer. The petitioner is admittedly not an accused in the criminal case, and it is also evident that the vehicle belonging to the petitioner, is standing at the police station unattended since month of June, 2006.

There is yet another decision, that has to be taken into consideration before refusing its release by the courts below. In the case of Sunderbhai Ambalal Desai Vs. State of Gujarat A.I.R. 2003 S.C. page 638, the Apex Court held that powers under Section 451 Cr.P.C. should be exercised expeditiously and judiciously.  It would serve various purposes, namely; (i) Owner of the article would not suffer because of its remaining unused or by its misappropriation; (ii) Court or police would not be required to keep the article in safe custody; (iii) If the proper Panchanama before handing over the possession of the article is prepared, which can be used in evidence instead of its production before the court during the trial, it will serve the ends of justice. If necessary, evidence could also be recorded describing the nature of the property in detail; (iv) This jurisdiction of the court to record the evidence should be exercised promptly so that there may not be further chance of tampering with the articles.

In view of what has been submitted above, I quash the orders dated 19.6.2006 passed by the Additional Chief Judicial Magistrate, court no.1, Mathura and 22.7.2006 passed by the Special Judge, Mathura with a direction to the Magistrate to pass afresh orders for release of the vehicle in exercise of power under Section 451 Cr.P.C.  A report be called from concerned Collector within a period of ten days to ascertain as to whether the proceedings under Section 6-A of the Act regarding the vehicle in question is initiated or not? If it is brought to the notice of the Magistrate that no such proceedings have been initiated till date, he shall proceed to pass appropriate orders for release of the vehicle Max Pickup U.P. 85 P-9212 after taking adequate security to his satisfaction and also an undertaking that the vehicle will not be transferred to any third person during pendency of the proceedings. In the event, proceedings under Section 6A E.C. Act is initiated then the competent authority shall take appropriate steps within the prescribed period and the directions to the Magistrate are equally applicable to the authority concerned as well. In case the Magistrate feels it necessary, evidence be recorded, photographs be taken and memo be prepared duly signed by the respective party, thereafter the vehicle be released in favour of the petitioner. The S.H.O. of Police Station Raya, District Mathura shall ensure compliance of the order of the Magistrate within a period of one week from the date, order of release is passed by the Magistrate. The entire exercise has to be completed within a period of three weeks from the date a certified copy of this order is produced before the Magistrate along with the application. It is made clear that the time frame provided by this Court, shall be strictly adhered to without any further delay.

With the aforesaid directions, the writ petition is finally disposed of.

Dt. 9.2.2007

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