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Shailendra Verma v. State Of U.P. - APPLICATION U/s 482 No. 15783 of 2005 [2005] RD-AH 5732 (14 November 2005)


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                                                                    COURT NO.54.


Shailendra Verma............................ Applicant.


State of U.P. ..........................Opposite party.

Hon. Mrs. Poonam Srivastava, J.

Heard learned counsel for the applicant and learned A.G.A. for the State.

The order dated 12.8.2005 passed by the Chief Judicial Magistrate, Deoria in criminal case no. 559 of 2005, State Vs. Shailendra Verma arising out of case crime no. 890 of 2005 is challenged. A copy of which has been annexed as annexure no.9 to the affidavit filed in support of this application. The applicant is proprietor of M/s Devrahi Udyog, Garunpar, District Deoria and has a licence of rice Mill for milling of paddy.  The trade tax department has complete information regarding the godown.  A Xerox copy of the intimation dated 4.7.2005 given to the department of trade tax is annexed as annexure no.1 to the affidavit filed in support of this application. The registration certificate issued by the trade tax department is annexed as annexure no.2 to the affidavit filed in support of this application.  A licence has also been issued by the Mandi Samiti, which is valid up till 30.6.2006 for whole sale trading of rice. A copy of which is annexed as annexure no.3 to the affidavit filed in support of this application.  On 30.6.2005, the godown of the applicant as well as two godowns of Nand Lal Gupta were raided by the concerned officials.  A composite recovery memo was prepared, which is annexed as annexure no.4.  The goods seized from the godown no.2 belong to the present applicant.  An F.I.R. was registered under Section 3/7 Essential Commodities Act. A copy of the same has been brought on record. The goods recovered are sought to be released.  The applicant approached the District Magistrate Deoria, thereafter district authorities reopened the godown on 10.7.2005.  A copy of the supplementary recovery memo dated 10.7.2005 is annexed as annexure no.7. The proceeding under Section 6 A Essential Commodities Act is continuing on the basis of a notice issued on 27.7.2005.

In pursuance of the aforesaid notice, the applicant appeared in the court of District Magistrate, Deoria and gave his reply to the show cause and the matter is still pending. Counsel for the applicant submits that the State Government has issued a G.O. dated 30.9.2004, which provides that delivery of levy rice will only be taken from 1.10.2004 to 30.6.2005. A copy of which is annexed as annexure no.8. An application was moved before the Chief Judicial Magistrate, Deoria under Sections 451, 457 Cr.P.C. for release of the food grains seized under the proceeding but the application was rejected vide order dated 12.8.2005 on the ground that provisions of para 6 (4) of Public Distribution System Control Order, 2001 of the Government of India has been violated and, therefore, provisions of E.C. Act are squarely applicable, hence the application was rejected. Para 6 of the Control Order 2001 issued by the Government of India has been quoted in para no.18 of the affidavit and on its basis, it is argued that the applicant is neither engaged in distribution of the Essential Commodities nor he is issued any licence under the Control Order.  He is only a miller and trader.   The two separate applications were moved for release of the cement, wheat and other for release of rice, both applications were decided by a common order.  The application was rejected on the ground that since confiscation proceeding under Essential Commodities Act is continuing, therefore, seized goods cannot be released.

The submission on behalf of the applicant is that he is prepared to furnish security in lieu of goods (rice, wheat and cement) as the articles are likely to be damaged, no safety measure has been taken to preserve and store the seized food grains and there is no precaution taken to avoid damage of the goods.  The applicant has unequivocally given an undertaking that in the event, goods seized vide recovery memo shown in godown no.2-250 bags of cement, rice 339 bags (SBT), wheat 311 bags (SBT) are released, he is prepared to deposit the cost towards security so that no loss may be caused either to the applicant or the Government. The Apex Court in the case of Sunderbhai Ambalal Desai Vs. State of Gujarat, A.I.R. 2003, Supreme Court, 638, has ruled that the power under Section 451 Cr.P.C. should be exercised expeditiously and judiciously so that it would serve fruitful purpose. It is correct that if no appropriate measure is taken for safety of the rice seized, the chances of damage of the goods is very likely and in the circumstances, great loss would be caused.

In view of the principle laid down by the Apex Court in the case of Sunderbhai Ambalal Desai (Supra), the Chief Judicial Magistrate, Deoria is directed to release the 250 bags of cement, rice 339 bags (SBT), wheat 311 bags (SBT) in favour of the applicant subject to deposit of sureties in lieu of the entire cost of the articles other than cash or bank guarantee, which shall be kept in custody of the court and in the event, the proceedings end in favour of the applicant, the same can be returned to him. However, in the event, the court below comes to a conclusion that the confiscation is to be made, then amount deposited by the applicant will be dealt in the manner provided by the Code taking into consideration all the facts and circumstances necessary at the relevant time.

With these observations, this application is finally disposed off.

Dt. 14.11.2005



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