JUDGMENT
D.P. Sengupta, J.
1. In the present application the petitioner has prayed for quashing of proceeding being Special Court Case No. 11/98 under Section 7(1)(a)(ii) of the Essential Commodities Act pending in the Court of the learned Judge, Special Court (E.G.) Act, Jalpaiguri.
2. Joygaon P.S. Case No. 37 dated 24.4.98 under Section 7(1)(a)(ii) of the E.G. Act was registered on an allegation that a truck loaded with 120 quintals of rice was seized by police at Bhutan border. On demand the driver could not produce any valid challan for the possession and transportation of the said rice. No permit under Form ‘D’ as required by paras 8 and 9(1) of the W.B. Rice and Paddy Control Order, 1997 could be produced and as such the aforesaid case was registered for violation of paragraphs 8 and 9(1) of the West Bengal Rice and Paddy (Control) Order 1997.
3. It is the contention of the learned advocate appearing for the petitioner that rice was never procured from the State of West Bengal nor it was being exported or transmitted from the State of West Bengal. So the provision of the Control Order as aforesaid is not at all applicable in the present case. According to the petitioner’s learned advocate, only to reach the destination, i.e., Bhutan from the place of the consignor, i.e. Uttar Pradesh, the route through the State of West Bengal was being used and on the way the truck was intercepted by the police.
4. Challenging such illegal seizure the petitioner preferred an application under Article 226 of the Constitution of India, which was disposed of by this Court on 15.7.98. This Court directed the petitioner to apply before the learned Collector before whom the confiscation proceeding was pending, for release of the seized rice. The Collector (E.G. Act) Was directed to consider such application and on being satisfied that the seized rice was procured from outside the State of West Bengal would direct release of the same in favour of the petitioner.
5. It is submitted by the petitioner’s learned advocate that thereafter an application was filed before the learned Collector (E.G. Act) by the present petitioner and the learned Collector under the E.G. Act, Jalpaiguri passed an order directing release of the seized truck and rice in favour of the petitioner. But it may be mentioned here that no such copy of the order passed by the learned Collector (E.G. Act) has neither been annexed to this application nor was it produced before this Court at the time of hearing of this application.
6. It is the contention of the learned advocate of the petitioner that since the learned Collector under the E.C. Act, on being satisfied that the rice was procured from outside the State of West Bengal, released the seized rice in favour of the petitioner pursuant to an order passed by this Court in writ jurisdiction, the criminal proceeding which is pending before the learned Judge, Special Court (E.C. Act), should not be allowed to continue and the same is liable to be quashed.
7. Now, the point which is to be decided by this Court is whether the decision arrived at by the learned Collector (E.C. Act) in a proceeding under Section 6A of the E.C. Act, is binding upon the learned Judge, Special Court, E.C. Act, before whom the criminal prosecution is pending.
8. The learned advocate for the petitioner relies on a judgment of the Hon’ble Apex Court (Uttam Chand and Ors. v. Income Tax Officer etc.). In the said Judgment it was held by the Hon’ble Apex Court that in case the Departmental Authorities on a particular set of facts come to a conclusion that there is no case, it cannot initiate prosecution on the same set of facts and evidence and if at all it happens such proceedings would be a fit case for quashing.
9. Next judgment relied upon by the learned advocate of the petitioner is reported in 1985 Cr LJ 681 (Ramesh Kumar v. The State). In the said judgment it was held by the learned single Judge of Delhi High Court that where the departmental authorities, whose task is to ensure strict compliance with the provision of Licencing and Control Orders, are satisfied that there is no contravention of the provisions of the relevant order, it would be unjust and unfair to prosecute the so-called offender on a criminal charge under Section 7 of the Act.
10. I have gone through the judgment referred to above, but I humbly disagree with the view of the learned single Judge of Delhi High Court. Essential Commodities Act envisages two independent proceedings-one is the confiscation proceeding before the Collector under the E.G. Act and the other is criminal proceeding before the learned Judge Special Court. Confiscation proceeding is unconnected with the criminal proceeding. Even if the Collector decides not to confiscate, he can drop the proceeding, but it shall have no effect on criminal proceeding beginning from the stage of taking cognizance of the offence.
11. We should not forget that immediately after the seizure is made and the case is registered with the police, the investigating agency makes a prayer before the learned Collector (E.G. Act) for initiating a proceeding for confiscation of goods. If the goods are perishable in nature, the Investigating Officer can also make a prayer before the Collector for an order of interim sale of such perishable goods under Section 6A(2) of the E.G. Act. Such confiscation proceeding is initiated immediately after the seizure of essential commodities and if the Collector decides not to confiscate the goods and drops the confiscation proceeding and if such an order of the Collector is treated to be a final order of adjudication and a binding upon the Criminal Court, that will be virtually taking away the statutory right of the police authority to investigate into a cognizable offence. So, in my considered view, even if the Collector decides not to confiscate the goods and to drop the proceeding, he should leave the matter to the jurisdiction of the Criminal Court.
12. Section 6A read with Section 7 of the E.G. Act makes it clear that finality of an order of confiscation is dependent on the order passed by a Criminal Court in a, judicial proceeding initiated for contravention of any order issued under the E.G. Act. If the accused is acquitted, the order of confiscation does not achieve its finality and the offender gets back the value of the property confiscated. In case the accused is convicted in the criminal proceeding, the order of confiscation earlier passed by the learned Collector, gets affirmed by the order of conviction and sentence passed by a competent Criminal Court, which also passes an order of forfeiture of the articles (or value thereof), which was earlier confiscated by the Collector (E.C. Act) in the confiscation proceeding. Considering all these aspects it cannot be said that the finding arrived at by the Collector (E.C. Act) in a confiscation proceedings, shall act as a binding upon the Criminal Court. It can never be said that simply because the Collector did not choose to confiscate the seized articles, the criminal proceeding should not be allowed to continue and should be quashed.
13. In my considered view the learned Special Judge, being a judicial authority, has to exercise his judicial discretion in dealing with/trying an offender under the provision of Section 7 of the E.C. Act. The law never contemplates that a judicial authority should surrender its discretion in the matter to the statutory authority exercising power under Section 6A of the E.C. Act. However, it can be said that any such finding arrived at by the Collector in a confiscation proceeding, can be taken into consideration by the criminal Court while trying such offence under Section 7 of the E.C. Act. The two jurisdictions, in my view, is entirely different. The Collector may choose to confiscate or not to confiscate. But he cannot convict an accused even if he finds that there is any contravention and violation of any Control Order by the accused.
14. So, merely because the Collector has chosen not to confiscate the articles, it cannot take away the jurisdiction of the Criminal Court to try the offence under Essential Commodities Act.
15. In deciding the present case I find support from a judgment of the Hon’ble Supreme Court reported in AIR 1984 SC 1963 (P. Jayapan v. S.K. Perumal, First Income Tax Officer, Tuticorin), wherein it was held as follows:
“In the criminal case all ingredients of the offence in question have to be established in order to secure the conviction of the accused. The Criminal Court no doubt has to give due regard to the result of any proceedings under the Act (Income Tax Act) having a bearing on the question in issue and in an appropriate case it may drop the proceedings in the light of an order passed under the Act. It does not, however, mean that the result of a proceeding under the Act would be binding the Criminal Court. The Criminal Court has to Judge the case independently on the evidence placed before it.”
16. It would also be pertinent to refer to a decision of Patna High Court reported in 1990 Cr LJ 1997 (Lal Babu Tewari and Anr. v. State of Bihar). In the said judgment it was held that dropping of a confiscation proceeding by the Collector under Section 6A of the E.G. Act has no effect on the criminal proceedings. I wholly concur with the said view. The Collector under the aforesaid provision can make an order of confiscation under Section 6A of the Act “if he is satisfied” that there has been a contravention of any order. Here he is an adjudicating authority for a “limited purpose”. But, as already indicated above an order passed by such authority cannot act as a binding upon any Criminal Court.
17. I again repeat that all the aforesaid discussions have been made by this Court although the petitioner has not annexed to this application nor furnished before this Court any order passed by the learned Collector (E.C. Act) and as such this Court is not in a position to discuss about what was the finding arrived at by the Collector in his order.
18. The learned advocate of the petitioner next argues that since paragraphs 9 and 10 of the West Bengal Rice and Paddy (Control) Order, 1997 have been declared ultra vires the Constitution of India by this Court in the judgment reported in 1999 Cal Cr LR (Cal) 331 [Veejoy International (India) v. State and Ors.], the present proceeding should not be allowed to continue and the same is liable to be quashed. From a reading of the said judgment it appears that in the said case the petitioner, a partnership, used to carry on business in export of “non-basemati rice”. It possessed importer and exporter quota and the certificates issued by the Agricultural and Processed Food Products Export Development Authority. While exporting such rice it met with obstruction for which he filed writ petition praying for directions and orders declaring paragraphs 9 and 10 of West Bengal Rice and Paddy (Control) Order, 1997 as ultra vires and void and for setting aside those provisions. Writ petition was dismissed by the learned single Judge upholding the vires of the said order. Thereafter appeal was preferred. The point for consideration before the Division Bench was whether paras 9 and 10 of the said Control Order were ultra vires and void. In the said judgment it was held by the Division Bench of this Court as follows:
“What could not be done by way of legislation, cannot evidently be done in terms of subordinate legislation. As the provisions contained in Clauses 9 and 10 of the Control Order are unconstitutional, the concurrence received from the Central Government cannot also save the said subordinate legislation. Only in a case where a legislation has been made by the State in exercise of its power conferred upon it under any of the entries made in List-III of the Constitution of India and in the event it obtains sanction of the President of India, the said Act shall prevail over the Central Act in terms of Clause 2 of Article 254 of the Constitution of India. Such is not the position here.”
19. The appeals were allowed and the judgment of the trial Court was set aside. The respondent authorities were directed to release all vehicles or goods seized. It was however made clear in the said judgment in paragraph 79 that in the event on an information received by the authorities of the State of West Bengal, any irregularity comes to their notice, they may take appropriate action against them. They may also insist that before movement of goods takes place, the exporters should inform the appropriate authorities so that the vehicle in question may be checked by the appropriate authorities.
20. The present case is for violation of paragraphs 8 and 9 of the Control Order of 1997. From a reading of the said judgment it becomes clear that paragraph 8 of the said Control Order remained untouched by the Division Bench in its judgment. Paragraph 8 of the Control Order of 1997 reads as follows:
“Regulation of transport of rice and paddy to certain areas.–No person shall transport or attempt to transport or abet the transport of rice or paddy to any place in the international border area from any other places outside that area except under and in accordance with a permit issued by the Director or by the Controller in Form “F”:
Provided that nothing contained in this paragraph shall apply to the transport of rice or paddy-
a. on Government account, or
b. by the Food Corporation of India, or
c. under and in accordance with military credit note, or
d. not exceeding fifty kilograms, by a bona fide resident of the international border area for his own consumption.
e. to the territories of the kingdom of Bhutan or other country outside India where there is an agreement between the Government of India and these countries regarding free trade and commerce.”
21. In the present case whether there is any violation of paragraph 8 of the Order of 1997 or not, can only be decided by the trial Court after recording evidence in the trial. Whether such transportation of rice is in violation of paragraph 8 or whether it comes under the proviso to paragraph 8 of Control Order are all disputed question of facts and the same cannot be decided by this Court at this stage.
22. The next two judgments referred to by the learned advocate of the petitioner is not applicable in the present case. In (Nagawwa v. Veeranna Shivalingappa and Ors.) the Hon’ble Supreme Court laid down the circumstances in which the process issued against the Magistrate can be quashed. The present case does not come within the ambit of those circumstances, because at least a prima facie case under Section 8 of the Control Order of 1997 has been made out and the prosecution should be given an opportunity to prove its case by adducing evidence.
23. The next judgment referred to by the learned advocate of the petitioner is reported in AIR 1998 SC 128 (Pepsi Foods Ltd. and Anr. v. Special Judicial Magistrate and Ors.). In the said judgment it was held by the Hon’ble Supreme Court that although the Magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless, that does not mean that the accused cannot approach the High Court under Section 482 of the Code of Criminal Procedure or Article 227 of the Constitution of India to have the proceeding quashed when the complaint does not make out any case against him.
24. In my considered view the aforesaid two judgments have no manner of application in the present case. The principles laid down by the Hon’ble Supreme Court are well settled principles of law. But the facts and circumstances of the present case are quite different from the cases referred to above. In the present case at least a prima facie case has been made out by the prosecution for violation of para 8 of West Bengal Rice and Paddy (Control) Order, 1997 and in my considered view, the prosecution should be given an opportunity to prove its case by adducing evidence. In my view it will not be proper for this Court to quash the proceeding at this stage simply on the grounds as agitated by the petitioner in this application.
25. No order sheet of the Court below has been annexed to this application. Learned advocate also cannot enlighten this Court about the present stage of the proceeding in the Court below. However, since this is a very old proceeding of 1998, I direct the learned Judge, Special Court (E.G. Act) Jalpaiguri to see that the proceeding is expedited and the same is concluded with utmost expedition without granting any unnecessary adjournments to either of the parties.
It is also made clear that the learned trial Judge shall dispose of the proceeding independently without being influenced in any way by any observation made by this Court in the present judgment.
Present revisional application accordingly fails and the same is dismissed.
C.R.R. No. 804 of 2002
With
C.R.R. No. 805 of 2002
Sri Rakesh Garg @ Rakesh Kumar Garg
versus
The State of West Bengal
Since similar point is involved in the present two revisional applications as aforesaid, the judgment delivered by this Court in C.R.R. No. 806 of 2002 shall also govern the said two revisional applications and those are also accordingly dismissed.
The learned trial Judge shall proceed with the trial as has been directed hereinabove.