STATE OF BIHAR & ANR.versusARVIND KUMAR & ANR.

                     [2012] 7 S.C.R. 117


                  STATE OF BIHAR & ANR.                             A
                               v.
                  ARVIND KUMAR & ANR.
          (Criminal Appeal Nos. 1075-76 of 2012)

                        JULY 23, 2012
                                                                    B
 [DR. B.S. CHAUHAN AND SWATANTER KUMAR, JJ.]

      Essential Commodities Act, 1955 - ss. 3, 6-A, 7 and 10
- Seizure of wheat - From the premises of respondent - No
one came forward to claim the seized material - FIR u/ss. 7         C
and 10 of the Act and ulss. 4211424 IPC - Writ petition seeking
quashing of FIR and in the alternative order for release of
wheat - High Court directing release of wheat - Respondents'
application for release of wheat dismissed by CJM on the
ground that they failed to prove their ownership over the seized    D
material - Respondents' Petition against the order of CJM
allowed by High Court - On appeal, held: The question of
ownership over the seized goods being a question of fact
could not have been gone into by High Court in its revisional
or extra-ordinary jurisdiction - High Court dealt with the matter   E
in complete disregard uf the legislation - A court cannot issue
a direction contrary to Jaw nor can it direct an authority to act
in contravention of the statutory provisions - Penal Code, 1860
- ss. 4211424 /PC - Public Distribution System (Control) Order,
2001 - Clause 6(a) - Jurisdiction.                                  F

     Upon receiving secret information, officials raided the
flour mill of the respondents and found wheat being off-
loaded from a truck. Appellants seized 5923 bags of
wheat. The seized material made it apparent that there
had been diversion of grains of Food Corporation of India,          G
for the purpose of black marketing. No one came forward
to claim the seized material. FIR was lodged u/ss. 7 and
10 of Essential Commodities Act, 1955 and u/ss. 421/424
IPC against the respondents.
                              117                                   H
    118       SUPREME COURT REPORTS          [2012] 7 S.C.R.


A      Respondents filed a writ petition lor quashing of FIR
  and in the alternative for release of the confiscated
  goods. High Court allowed the petition directing release
  of the confiscated goods observing that continuing
  seizure of the confiscated articles like wheat for a long
B time might not be justified. When the respondents made
  an application before Chief Judicial Magistrate for release
  of the wheat, the same was dismissed on the ground that
  they failed to produce any document to show their
  ownership over the seized material. Respondents then
c again approached the High Court filing an application
  against the order of CJM, and the same was allowed.
  Therefore the instant appeal was filed against both the
  orders of the High Court.

          Allowing the appeals, the Court
D
       HELD: 1. The Essential Commodities Act was
  enacted to safeguard public interest, considering it
  necessary in the interests of the general public to control
  the production, supply and distribution of, trade and
E commerce in, certain commodities through the
  legislation. It was in light of the aforesaid public policy
  that Section 3 of the Act empowers the Government to
  issue notifications and once a notification is issued, it
  further enables the competent authority to confiscate the
F goods under Section 6-A and prosecution leading to the
  punishment provided u/s. 7 of the Act. The Collector has
  been empowered u/s. 6-A, if it is so found to be expedient,
  to sell the seized commodity which is subject to natural
  decay, at a controlled price or by public auction or to
G dispose off them through the Public Distribution System
  to avoid artificial shortages, maintain price line and
  secure equitable distribution thereof through fair price
  shops as it is in the interest of the general public. [Para
  6) (124-A-E]

H         2. The High Court has not even taken a prima facie
STATE OF BIHAR & ANR. v. ARVIND KUMAR & ANR. 119


 view that the State Government has not issued any order/       A
 notification u/s. 3 of the Act though the FIR made a
 reference to clause 6(a) of the Public Distribution System
 (Control) Order, 2001 issued u/s. 3. Respondent also
 referred to the said Control Order 2001 in the writ petition
 filed by them. More so, the question of ownership of the       B
 goods seized is a question of fact which ought not to
 have been gone into by the High Court in its revisional
 or extra-ordinary jurisdiction. Further, there is nothing on
 record on the basis of which the issue of ownership was
·decided by the High Court. There was no cogent material        c
 on record before the High Court on the basis of which
 direction to release the goods so seized could be issued.
 The High Court has dealt with the issue in the most casual
 and caviler manner, without any application of mind
 showing complete disregard of the legislature enacting         0
 the said provisions for general welfare. [Paras 7 and 8)
 [124-E-H; 125-A]

     Shambhu Dayal Agarwala v. State of West Bengal and
Anr. (1990) 3 SCC 549: 1990 (2) SCR 987; Oma Ram v.
State of Rajasthan and Ors. (2008) 5 SCC 502: 2008 (6) SCR      E
747 - relied on.

     3. The petition was filed before the High Court for
quashing of the FIR and alternatively for releasing the
seized items and the High Court without giving any              F
reason whatsoever disposed of the petition observing
that continuing seizure of the seized items for a long time
may not be justified as the seized good was wheat. This
was the only reason given by the High Court without any
consideration of the averments made on behalf of the            G
parties and further, without considering the requirement
of the statutory provisions. [Para 10) [126-8-D)

    4. In the subsequent order dealing with the
ownership of the wheat, the High Court has only taken
note of the fact that as the respondents herein were            H
    120     SUPREME COURT REPORTS             [2012] 7 S.C.R.

A prepared to furnish adequate/sufficient security to the
  satisfaction of the court below, for release of the wheat
  in question, the wheat could have been released by the
  CJM. There was no justification for the High Court to
  issue directions for released of such material merely
B because applicant could furnish the security. Any
  stranger or third party may give sufficient security and
  get the seized goods released in his favour. Such a
  course is not permissible even while deciding an
  application u/s. 451/457 Cr.P.C. A person having no title/
c ownership over the seized material may get the same
  released on furnishing security and then sell it in black
  market and earn profits several times greater than the
  amount of security furnished by him. The order of release
  which defeats the very purpose for which the Act was
  enacted, should not have been passed. [Para 11] [126-E-
0
  H; 127-A-B]

      5. The High Court has totally ignored the fact that
  any order passed u/s. 6-A is appealable u/s. 6-C of the Act.
  Therefore, to consider such an application for release of
E the said goods was totally unwarranted at least at that
  stage. [Para 12] [127-C]

       6. Generally, no court has the competence to issue
  a direction contrary to law and nor can the court direct
F an authority to act in contravention of statutory
  provisions. The courts are meant to enforce the rule of
  law and not to pass the orders or directions which are
  contrary to what has been injected by law. [Para 13) (127-
  D-E]

G        Manish Goel v. Rohini Goel AIR 2010 SC 1099: 2010
    (2) SCR 414; Vice Chancellor, University of Allahabad and
    Ors. v. Dr. Anand Prakash Mishra and Ors. (1997) 10 SCC
    264:1996 (10) Suppl. SCR 175; Karnataka State Road
    Transport Corporation v. Ashrafulla Khan and Ors. AIR 2002
H SC 629: 2002 (1) SCR 194 - relied on.
STATE OF BIHAR & ANR. v. ARVIND KUMAR & ANR. 121


     7. The impugned orders passed by High Court are           A
set aside and the case is remanded back to the High
Court to consider afresh after examining all the factual
and legal issues involved in the said case. [Para 14] [127-
F-G]
                                                               B
                     Case Law Reference:

    1990 (2) SCR 987         Relied on            Para 9

    2008 (6) SCR 747         Relied on            Para 9

    2010 (2) SCR 414         Relied on            Para 13      c
    1996 (10) Suppl. SCR 175      Relied on      Para 13
    2002 (1) SCR 194         Relied on            Para 13

    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal           o
Nos. 1075-1076 of 2012.

    From the Judgment & Order dated 15.03.2011 of the High
Court of Patna in Cr. WJC No. 215 of 2011 and final Judgment
& Order dated 29.04.2011 in Cr. Misc. No. 14629 of 2011.
                                                               E
    Gopal Singh, Manish Kumar for the Appellants.

     Nagendra Rai, Gaurav Agrawal, Shankar Narayanan for
the Respondents.

    The Judgment of the Court was delivered by                 F

    DR. 8.S. CHAUHAN, J.

    Leave granted.

     1. These appeals have been preferred against the          G
impugned judgments and orders dated 15.3.2011 in Cr.WJC
No. 215 of 2011 and dated 29.4.2011 in Crl. Misc. No. 14629
of 2011 of the Patna High Court, by which a huge quantity of
wheat seized by the appellant from the premises of the
respondents under the provisions of Essential Commodities      H
    122      SUPREME COURT REPORTS                [2012] 7 S.C.R.


A Act, 1955 (hereinafter referred to as 'EC Act') has been
  released.

         2. Facts and circumstances giving rise to these appeals
    are that:
B       A. On 15.2.2011, a secret information was received by the
  department of the appellants in respect of illegal storage of
  subsidized food grains of Public Distribution Scheme by the
  respondents which led to the raid upon the premises of M/s
  Harsh Tejas Nutrition Pvt. Ltd., (Flour Mill of the respondents)
C situate at Patna, New Bypass Road near Petrol Pump. The
  Sub-Divisional Officer, Patna City and other officers from the
  local police raided the premises of the said flour mill and found
  off loading of wheat from Truck bearing registration No. BHI
  1899. The driver and other workers fled away. It was found that
D the grains bags had the seal of Food Corporation of India,
  (hereinafter called 'FCI'), U.P. Government Food Department,
  Food and Supply Department, Haryana; ai1d Government of
  Punjab. The seized material made it apparent that there had
  been diversion of FCI grains for the purpose of black marketing.
E Appellants seized 5923 bags filled with more than 2991
  quintals wheat.

         B. None from the company where the raid was conducted
    came forward to claim the seized material or to justify the
    storage of same. Thus, the FIR bearing case No. 15/2011
F   dated 18.2.2011 was lodged under Sections 7 and 10 of the
    EC Act in addition to the appropriate Sections 421/424 of the
    Indian Penal Code, 1860 (hereinafter called 'IPC') in respect
    of the said seizure.

G        C. The respondents herein preferred Criminal Writ Petition
    No. 215/2011 for quashing confiscation proceedings and/or
    release of the confiscated goods.

      D. The High Court allowed the said writ petition within a
H very short span vide order dated 15.3.2011 and subject to
STATE OF BIHAR & ANR. v. ARVIND KUMAR & ANR. 123
            [DR. B.S. CHAUHAN, J.]

certain procedural compliances observed that continuing                A
seizure of the seized articles for a long time may not be justified
and therefore the High Court issued direction for release of the
said wheat.

     E. The respondent approached the Chief Judicial                   8
Magistrate, Patna, for releasing the wheat in pursuance of the
order passed by the High Court on 15.3.2011 by moving an
application. The learned CJM dismissed the application of the
respondent on 7.4.2011 on the ground that he could not
produce any document which may show their ownership to the             C
said seized material.

     F. The respondent again approached the High Court by
filing Criminal Miscellaneous No. 14692/2011 which had been
allowed vide order dated 29.4.2011.
                                                                       D
     Hence, these appeals.

     3. Mr. Gopal Singh, learned counsel appearing for the
State of Bihar has submitted that the orders had been passed
by the High Court in a mechanical manner in utter disregard of
the statutory provisions of the EC Act, particularly, the provisions   E
of Sections 6-A and 6-E. Therefore, the impugned judgments
and orders dated 15.3.2011 and 29.4.2011 are liable to be set
aside.

     4. On the contrary, Mr. Nagendra Rai, learned senior              F
counsel appearing for the respondents has vehemently
opposed the appeals contending that Sections 6-A and 6-E
apply only where the goods are seized in pursuance of an order
issued under Section 3 of the EC Act. In the instant case, no
order had ever been issued under Section 3, therefore, the said        G
provisions are not attracted. Respondents were able to show
their ownership in respect of the seized materials. The High
Court in the impugned judgments made it clear that release of
the wheat was only an interim measure subject to the final
decision in the case. Therefore, no interference is warranted
                                                                       H
    124       SUPREME COURT REPORTS                [2012] 7 S.C.R.

A   by the court, the appeals are liable to be dismissed.

         5. We have considered the rival submissions made by
    learned counsel for the parties and perused the record.

       6. The EC Act was enacted to safeguard the public interest
B considering it necessary in the interests of the general public
  to control the production, supply and distribution of, trade and
  commerce in, certain commodities through the legislation. It
  was in the light of the aforesaid public policy that Section 3 of
  the EC Act empowered the Government to issue notifications
C and once a notification is issued, it enables the competent
  authority to confiscate the goods under Section 6-A and
  prosecution leading to punishment provided under Section 7
  of the EC Act. The Collector has been empowered under
  Section 6-A, if it is found to be expedient to sell the seized
D commodity which is subject to natural decay, at a controlled
  price or by public auction or dispose of through Public
  Distribution System to avoid artificial shortages, maintain the
  price line and secure equitable distribution thereof through fair
  price shops as it is in the interest of the general public.
E
        7. Admittedly, the High Court has not even taken a prima
  facie view that the State Government had not issued twice any
  order/notification under Section 3 of EC Act though the FIR
  made reference to clause 6(a) of the Public Distribution System
  (Control) Order, 2001 issued under Section 3 of the EC Act.
F Respondent also referred to the said Control Order 2001 in
  Para 3 of the Crl.W.J.C. No. 215 of 2011 filed by them. More
  so, the question of ownership of the goods seized is a question
  of fact which ought not to have been gone into by the High Court
  in its revisional or extra-ordinary jurisdiction. Further, there is
G nothing on record on the basis of which the issue of ownership
  has been decided by the High Court. There was no cogent
  material on record before the High Court on the basis of which
  direction to release the goods so seized could be issued.

H         8. We are at pains to observe that the High Court has dealt
                                                                        I
STATE OF BIHAR & ANR. v. ARVIND KUMAR & ANR. 125
            [DR. B.S. CHAUHAN, J.]
with the issue in most casual and caviler manner without any        A
application of mind showing complete disregard of the
legislature enacting the provisions for general welfare.

     9. This Court while dealing with a similar issue in
Shambhu Dayal Agarwala v. State of West Bengal & Anr.,              8
(1990) 3 sec 549, held that whenever any essential
commodity is seized, pending confiscation under Section 6-A,
the Collector has no power to order release of the commodity
in favour of the owner. Having regard to the scheme of the Act,
the object and purpose of the statute and the mischief it seeks     C
to guard, it was further held that the word "release" in Section
6-E is used in the limited sense of release for sale etc. so that
the same becomes available to the consumer public. The court
held as under:

    " ... No unqualified and unrestricted power has been            D
    conferred on the Collector of releasing the commodity in
    the sense of returning it to the owner or person from whom
    it was seized even before the proceeding for confiscation
    stood completed and before the termination of the
    prosecution in the acquittal of the offender. Such a view       E
    would render Clause (b) of Section 7(1) totally nugatory
    and would completely defeat the purpose and object of the
    Act. The view that the Act itself contemplates a situation
    which would render Section 7(1 )(b) otiose where the
    essential commodity is disposed of by the Collector under       F
    Section 6-A(2) is misconceived. Section 6-A does not
    empower the Collector to give an option to pay, in lieu of
    confiscation of essential commodity, a fine not exceeding
    the market value of the commodity on the date of seizure,
    as in the case of any animal, vehicle, vessel or other          G
    conveyance seized along with the essential commodity.
    Only a limited power of sale of the commodity in the
    manner prescribed by Section 6-A(2) is granted. The
    power conferred by Section 6-A(2) to sell the essential
    commodity has to be exercised in public interest for            H
    126       SUPREME COURT REPORTS                 [2012] 7 S.C.R.


A         maintaining the supplies and for securing the equitable
          distribution of the essential commodity."

      The said judgment was followed and approved by this
  Court after explaining the scope of the statutory provisions in
B Oma Ram v. State of Rajasthan & Ors., (2008) 5 SCC 502.

        10. What we found shocking in the instant case is that the
  petition was filed before the High Court for quashing of the FIR
  and alternatively for releasing the seized items and the High
  Court without giving any reason whatsoever disposed of the
C petition observing as under:

          "Considering the submissions of the parties, in the opinion
          of the court, continuing the seizure of the seized items for
          a long time may not be justified at least the seizure of the
D         wheat."

         This is the only reason given by the High Court without
    even considering what were the averments on behalf of the
    parties and without considering the requirement of the statutory
    provisions.
E
       11. In the subsequent order dealing with the ownership of
  the wheat the High Court has only taken note of the fact that as
  the respondents herein were prepared to furnish adequate/
  sufficient security to the satisfaction of the court below for
F release of the wheat in question, the wheat could have been
  released by the CJM. In case the learned CJM came to the
  conclusion after appreciating the evidence on record that the
  respondents/applicants were not in a position to show any
  document which may show their ownership to the wheat, there
G was no justification for the High Court to issue directions for
  release of such material merely because applicant could furnish
  the security.

      If it is so, any stranger or third party may give sufficient
  security and get the seized goods release in his favour. Such
H a course is not permissible even while deciding the application
STATE OF BIHAR & ANR. v. ARVIND KUMAR & ANR. 127
            [DR. B.S. CHAUHAN, J.]
under Section 451/457 of the Code of Criminal Procedure,              A
1973. A person having no title/ownership over the seized
material may get the same released on furnishing security and
sell it in black market and earn profit several times more than
the amount of security furnished by him. We fail to understand
as how such an order of release which defeat the very purpose         B
for which the EC Act was enacted, could be passed.

      12. The High Court has totally ignored the fact that any
order passed under Section 6-A is appealable under Section
6-C of the EC Act. Therefore, to consider such an application         C
for release of the goods was totally unwarranted at least at that
stage.

     13. In Manish Goel v. Rohini Goel, AIR 2010 SC 1099,
this Court has held that generally, no Court has competence to
issue a direction contrary to law nor the Court can direct an         D
authority to act in contravention of the statutory provisions. The
courts are meant to enforce the rule of law and not to pass the
orders or directions which are contrary to what has been
injected by law. (See also: Vice Chancellor, University of
Allahabad & Ors. v. Or. Anand Prakash Mishra & Ors., (1997)           E
10 SCC 264; and Karnataka State Road Transport
Corporation v. Ashrafulla Khan & Ors., AIR 2002 SC 629).

     14. Learned counsel for the parties are not in a position
to reveal the status of the criminal proceedings initiated against
                                                                      F
the respondents. In such a fact-situation, as has been
suggested by learned counsel for the parties we set aside the
aforesaid judgments and orders dated 15.3.2011 and
29.4.2011 and remand the case back to the High Court to
consider afresh after examining all factual and legal issues
involved in the case. Till the disposal of the case afresh, interim   G
order passed by this Court on 31.10.2011 shall remain
operative.

     The appeals stand disposed of accordingly.
                                                                      H
K.K.T.                                         Appeals allowed.