M.M. Aliyar v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **MONDAY, THE 30TH DAY OF MAY 2016/9TH JYAISHTA, 1938** **WP(C).No. 30905 of 2003 (D) ----------------------------** ## **PETITIONER(S):** ## **-------------** **M.M. ALIYAR, KERALA TRADERS, M.C. ROAD PEZHAKKAPILLY, MUVATTUPUZHA** ## **BY ADV. SRI.K.I.MAYANKUTTY MATHER** ## **RESPONDENT(S):** **--------------** ## **1. STATE OF KERALA** **REPRESENTED BY SECRETARY TO GOVERNMENT FOOD & CIVIL SUPPLIES (D) DEPARTMENT, SECRETARIAT, TRIVANDRUM.** ## **2. THE DISTRICT COLLECTOR, KOTTAYAM.** ## **3. TALUK SUPPLY OFFICER, CHANGANASSERRY.** **BY GOVERNMENT PLEADER SRI C.K. JAYAKUMAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **bp** **WP(C).No. 30905 of 2003 (D)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :** - **P1: COPY OF THE ORDER OF THE R2.** **P2: COPY OF THE REFER REPORT SUBMITTED BY THE CIRCLE INSPECTOR, CHANGANACHERRY.** **P3: COPY OF THE ORDER OF THE R1.** **RESPONDENT'S EXHIBITS : NIL.** **//TRUE COPY//** **P.S. TO JUDGE** **bp** ## **A.MUHAMED MUSTAQUE, J.** ~~~~~~~~~~~~~~~~~~~~~~~~~ ## **W.P.(C).No.30905/2003** ~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 30[th] Day of May, 2016 ## **J U D G M E N T** The petitioner challenges the decision under the Essential Commodities Act as confirmed by the Government. The petitioner is an authorised wholesale dealer in foodgrains. The police party seized a lorry bearing registration No.KL-I/5513 transporting 110 bags of raw rice alleging the articles to be rationed articles at Changanacherry, based on a telephone call received by the Changanacherry police. The seized rice was ordered to be distributed through the Civil Supplies Department and the vehicle was released to the petitioner on executing an indemnity bond. The petitioner refers to an investigation report produced as Ext.P2. This report ## **`W.P.(C).No.30905/2003`** ## **-:2:-** indicates that the seizure was a mistake of fact and no offence is made out against the petitioner under the Essential Commodities Act. 2. The petitioner relied upon the judgment of this Court in **Unni v. State of Kerala [1983 KHC 4=1983 KLT 11],** wherein this Court held as follows: “7. The District Judge is certainly correct in his observation that S.6C(2) does pot deal with the vehicle at all nor do S 6A(3). The learned Judge is also correct in bis observation that as there was no prosecution against the petitioner, he cannot take advantage of S.6C (2). But taking due note of S.6A (3) and the scheme of the Act in general in regard to the disposal of property as is clear from S.6A(3) and S 6C(2). it is clear that the Legislature would have certainly intended that where there is an order of acquittal, the owner of the vehicle who was not even directly connected with the alleged contravention of ## **`W.P.(C).No.30905/2003`** ## **-:3:-** any order under the Act should get back his vehicle. Under S 6A(3) of the Act where an essential commodity is sold, the sale proceeds thereof after deduction of the expenses of any such sale or auction or other incidental expenses relating thereto shall be paid to the owner thereof or the person from whom it was seized, where in a prosecution instituted for the contravention of the order in respect of which an order of confiscation bad been made under the Section, the person concerned is acquitted. This makes it implicit that the essential commodity if not already sold shall be given back to the owner or to the person from whom it was so seized on the acquittal of the person concerned in the criminal case. It is therefore apparent from the statutory provision that the vehicle in which such essential commodity was carried should be given back to the owner in such circumstances in spite of an order of confiscation earlier made. Otherwise it will look rather absurd. Any other ## **`W.P.(C).No.30905/2003`** ## **-:4:-** interpretation of the statutory provision would be illogical and unjust.” The above judgment shows that once a person is acquitted in a criminal case, the sale proceeds from the sale of the essential commodity shall be restored to the owner or the person thereof from whom it was seized, after deducting the expenses of any such sale. 3. The petitioner also relied upon a judgment of the Division Bench of this Court in **John v State of Kerala [2007 KHC 3983=2007 (4) KLT 38],** wherein it was observed as follows: “6. Going by the provisions of Ss. 6A and 6C, the essential commodity seized can be confiscated by the District Collector. Apart from that, the person concerned can be prosecuted for the commission of the offence under S.7 of the Act. They are separate and independent proceedings, as evident from the scheme of the Act. But, ## **`W.P.(C).No.30905/2003`** ## **-:5:-** a reading of Ss.6A(3) and 6C(2) would show that if a person is simultaneously prosecuted and the prosecution ends in his acquittal, he is entitled to get back the confiscated goods. So, the learned Judge in the above decision held that if the goods are to be released on acquittal, there is no justification for not releasing the vehicle. If confiscation proceedings and criminal prosecution are separate and independent proceedings, it is not clear why it is provided that on acquittal the accused is entitled to get back the confiscated goods. It is a legal conundrum thrown up by the aforementioned statutory provisions, which may be resolved by the Parliament appropriately.” 4. In the light of the legal position as above, this Court is of the view that the petitioner is entitled to succeed. Therefore, the impugned orders of confiscation are set aside. Consequently, there ## **`W.P.(C).No.30905/2003`** ## **-:6:-** shall be a direction to the second respondent to release the sale proceeds after deducting expenses, if any, of such sale to the petitioner. Needful shall be done within a period of two months. The writ petition is disposed of as above. No costs. **Sd/A.MUHAMED MUSTAQUE, JUDGE** ms