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Prahlad v. State of U.P. and another - WEALTH TAX APPEAL DEFECTIVE No. 51648 of 2002 [2005] RD-AH 6061 (21 November 2005)


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Court No. 37

Civil Misc. Writ Petition No. 51648 Of 2002

Prahlad.....................Vs................State of U.P. and another

Hon'ble R.K.Agrawal, J.

Hon'ble (Mrs.) Saroj Bala, J.

By means of the present writ petition, filed under Article 226 of the Constitution of India, the petitioner seeks a writ, order or direction in the nature of Certiorari quashing the order dated 30.10.2002, passed by the District Magistrate, Hamirpur, respondent No. 2 in case No. 3 of 1992 under Section 6-A of the Essential Commodities Act. The petitioner further seeks a writ of Mandamus commanding the respondents to release the price of 100 bags ''Mater' deposited in treasury within a month.

Briefly stated the facts giving rise to the present petition are as follows :-

Certain irregularities, having been found on 28.12.1991, resulting in the seizure of 100 bags of ''Mater', the petitioner was charge-sheeted with the registration of Crime No. 532 of 1991 under Section 3/7 of the Essential Commodities Act (hereinafter referred to as the ''Act'). Later on crime case No. 532 of 1991 was registered as Special Case No. 8 of 1992, wherein the petitioner appeared before the Court of Special Judge (E.C.Act), Hamirpur and faced the trial. In the meantime as the confiscated goods whereof perishable in nature, the goods were auction sold and the amount released was got deposited by the District Authorities in the Government Treasury. According to the petitioner, during the pendency of the Trial, the District Government Counsel (Criminal), upon instructions received by him from the Government of U.P., moved an application on 22.01.2002 before the Special Judge (E.C.Act), Hamirpur seeking leave of the court to withdraw the case.  Learned Special Judge (E.C.Act), Hamirpur vide order dated 4th April, 2002 allowed the State to withdraw the application. The learned Judge also acquitted the accused persons.

The operative portion of the order dated 4th April, 2002 passed by the learned Special Judge is reproduced below:-

"Considering the facts and circumstances of the case and ground mentioned in the application 147 Kha the application 147Kha is liable to be allowed. 147 Kha is allowed and state counsel is permitted to withdraw the case and accused persons are acquitted and their sureties are hereby discussed.

File be consigned to R.R."

After his acquittal, the petitioner moved an application on 12.09.2002 before the Collector, Hamirpur seeking refund/release of the money received and deposited in the treasury on account of auction sale of 100 bags of confiscated ''Mater'. The said application has been rejected by the Collector, Hamirpur vide order dated 30.10.2002, which is under challenge in the present writ petition.

We have heard Shri Ram Kishor Gupta, learned counsel for the petitioner and Shri R.K. Awasthi, learned standing counsel for the respondents.

From the record, we find that the writ petition was entertained by this court on 6th January, 2003, wherein the learned standing counsel was granted 3 weeks time to file counter affidavit. Even after more than 3-1/2 years, when the counter affidavit was not being filed, this court vide order dated 17.10.2005 granted a last opportunity to the standing counsel to file counter affidavit. The court vide order dated 17.10.2005 had allowed one month and no more time to the learned standing counsel to file the counter affidavit, even after the expiry of the aforesaid period counter affidavit has not been filed so far. As about more than 2 years and 10 months have passed, we are not inclined to grant any further time to the respondents to file counter affidavit and we are proceeding on the basis of the averments made in the writ petition and the documents filed along with it.

The learned counsel for the petitioner submitted that as the petitioner has been acquitted by the learned Special Judge, Hamirpur vide order dated 4.4.2002, in view of the provisions of Section 6-A (3) (C) of the Act, the petitioner is entitled to be paid the entire sale proceeds after deduction of incidental expenses relating thereto.

Shri Awasthi, learned standing counsel, on the other hand, submitted that the power to withdraw the prosecution is provided under Section 321 of the Code of Criminal Procedure, 1973 and the petitioner could not have been acquitted, in case charges have not been framed. He could not have only been discharged. However, from the facts of record, we find that the criminal case was registered sometimes in the year, 1992 and the application for withdrawal had been filed in the year, 2002. It cannot be believed that for more than 10 years, charges have not been framed by the Special Judge (E.C.Act), Hamirpir, against the petitioner. The learned Special Judge, while allowing the prosecution application to withdraw, had mentioned that the accused persons are acquitted, meaning thereby that the charges must have been framed, otherwise there was no question of an order of acquittal, being passed against the accused persons.

As the petitioner has been acquitted in case No. 8 of 1992, the provisions of Clause c of sub-section 3 of Section 6-A of the Act is fully attracted in the present case, and therefore, he is entitled to be paid the entire amount of sale proceeds, after deducting the incidental expenses incurred in respect of the auction sale.

Thus the view to the contrary of the learned Collector, Hamirpur is wholly incorrect and contrary to law.

In view of the foregoing discussions, the order dated 30.10.2002 passed by the Collector, Hamirpur cannot be sustained and is hereby set aside. He is directed to pay the entire sale proceeds, after deducting the incidental expenses within 30 days from the date a certified copy of this order is filed before the said Authority.

In the result, the writ petition succeeds and is allowed.

Dated: 21.11.2005/T.Sinha.


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