# Chandra Rekha v. State of U.P. & Ors

- **Citation:** (2023) 8 ILRA 1160
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-01
- **Case number:** Matters Under Article 227 No. 3275 of 2023
- **Bench:** Karunesh Singh Pawar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chandra-rekha-v-state-of-u-p-ors-50512
- **Pages:** 7

## Headnote

Civil Law - Essential Commodities Act,
1955 - Section 6A - Where a vehicle is seized
under of the (U.P. Amendment), it is mandatory
for the Collector to give the owner of the seized
conveyance an option to pay a fine not
exceeding the market value of the vehicle in lieu
of confiscation. Failure to offer such an option
vitiates
the
confiscation
order.
Both
the
confiscation order passed by the District
Magistrate and the appellate order were
quashed for having been passed in violation of
the mandatory second proviso to Section 6A.
8 All. Chandra Rekha Vs. State of U.P. & Ors.
1161
The petitioner was allowed to get the vehicle
released on deposit of Rs. 3,00,000/ - as fine,
balancing equities as the vehicle was lying idle
and causing hardship.

Case Law Discussed:

Deputy
Commissioner,
Dakshina
Kannada
District Vs Rudolph Fernandes, (2000) 3 SCC
306

## Text

1160 INDIAN LAW REPORTS ALLAHABAD SERIES
17.11.2007 and has also paid stamp duty
on the instrument in question under the
direction of the Hon'ble Court during the
pendency of the writ petition, the amount
already paid towards the stamp duty is
non-refundable in view of the specific
condition of the remission of stamp duty."

8. Learned Additional Chief Standing
Counsel also relied upon the proviso- (d) of
the gazette notification dated 17.11.2007
and submitted that any stamp duty which
had been paid on any instrument before the
coming of the notification dated 17.11.2007
by the petitioner on its own, shall not be
refunded.

9. Having heard learned counsel for
the parties, we are of the view that after the
gazette notification dated 17.11.2007 was
published in the official gazette, the stamp
duty had to be charged as per the gazette
notification and the gazette notification
very
categorically
states
that
any
transaction, which had taken place after
13.02.2003 on any investment made by any
private developer on any large public
project of the State of U.P. having an
investment of Rs. 750 crores or more, no
stamp under the Stamp Act, 1899 would be
chargeable.

10. The petitioner definitely had invested
more than Rs. 750 crores as is clear from
the
communication
of
the
State
Government dated 28.11.2007 which has
also been reproduced in this judgement.
Under such circumstances, we are of the
view that notices which were issued against
the petitioner on 13.8.2004 cannot be
sustained in the eye of law and, therefore,
are being quashed. The Government Order
which had given the State the authority to
charge stamp duty dated 30.8.2003 vis-avis the petitioner is also quashed. The
impugned order dated 13.10.2006, which
was passed in pursuance of the notices
dated 13.8.2004 also stands quashed.

11. Needless to say that all
consequential recovery certificates also
stand quashed. All deposits, made by the
petitioner in pursuance of the interim order
dated 23.2.2007, shall be returned to the
petitioner and the bank guarantees shall
stand discharged.

12. For all the reasons stated above,
the writ petition stands allowed.
----------
(2023) 8 ILRA 1160
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.08.2023

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Matters Under Article 227 No. 3275 of 2023

Chandra Rekha ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Nadeem
Murtaza,
Suryansh
Singh
Suryavanshi, Wali Nawaz Khan

Counsel for the Respondents:
G.A.

Civil Law - Essential Commodities Act,
1955 - Section 6A - Where a vehicle is seized
under of the (U.P. Amendment), it is mandatory
for the Collector to give the owner of the seized
conveyance an option to pay a fine not
exceeding the market value of the vehicle in lieu
of confiscation. Failure to offer such an option
vitiates
the
confiscation
order.
Both
the
confiscation order passed by the District
Magistrate and the appellate order were
quashed for having been passed in violation of
the mandatory second proviso to Section 6A.
8 All. Chandra Rekha Vs. State of U.P. & Ors.
1161
The petitioner was allowed to get the vehicle
released on deposit of Rs. 3,00,000/ - as fine,
balancing equities as the vehicle was lying idle
and causing hardship.

Case Law Discussed:

Deputy
Commissioner,
Dakshina
Kannada
District Vs Rudolph Fernandes, (2000) 3 SCC
306

(Delivered by Hon'ble Karunesh Singh
Pawar, J.)

1. Heard learned counsel for the
petitioner and Shri Alok Tiwari, learned
A.G.A. for respondent no. 1, 3 and 4 and
has filed affidavit on their behalf which is
taken on record.

Learned A.G.A. has also filed a
personal affidavit on behalf of respondent
no. 2 informant of the case which is taken
on record.

2. Learned counsel for the petitioner
submits that the petitioner is the sole
proprietor
of
M/s
Glorious
Khushi
Enterprises and the Tanker vehicle No.
UP70JT8187 is registered in the name of
the said firm. It is alleged in the recovery
memo that on a tip received by the
informant, vehicle of the petitioner i.e.
tanker bearing No. UP70 JT 8187 was
intercepted and driver of the tanker namely
Ramesh and Azhar Ali were apprehended.
They confessed their crime and further
alleged that co-accused Ankit Sahu, Vakil
Ahmad, Mukesh, Avinash and Rahul
Kumar Rawat were also involved in the
illicit sale-purchase of ATF who were
coming behind in a Creta Car bearing No.
UP78 GW 1792. The Creta Car was also
intercepted and all the accused persons
were arrested. The accused confessed that
they steal ATF from airport and sell it in
the open market after filling it in tanker. On
inspecting the tanker bearing No. UP70 JT
8187, it was found that 8500 liters of ATF
was filled in it which is in contravention of
Aviation Turbine Fuel (Regulation and
Marketing) Order 2001 and is an offence
under Essential Commodities Act 1955.
The vehicles were taken into custody and
the co-accused persons were also arrested.

The
recovery
memo
dated
07.06.2022 was prepared and consequently
after permission of District Magistrate,
Lucknow, a case was registered as case
crime No. 186/2022, under Section 6A of
Essential Commodities Act 1955 P.S.
Banthara, District Lucknow against the
above seven named accused persons.

The investigating officer after
recording the statement of the accused
persons
under
Section
161
Cr.P.C.
submitted charge sheet against seven
named accused persons in the F.I.R. A
separate charge sheet has also been
submitted against the petitioner and one
another namely Fakir Mohammad (owner
of creta car).

The
court
of
Additional
Collector/Additional District Magistrate
(Civil Supplies), Lucknow passed an order
dated
04.01.2022
under
Essential
Commodities Act 1955 confiscating the
tanker of the petitioner and also the creta
car belonging to owner of creta car.

3. Learned counsel for the petitioner
further submits that the petitioner being the
sole proprietor of the firm M/s Glorious
Khushi Enterprises is the actual owner of
the vehicle. Tax invoice of the vehicle and
registration details of the tanker vehicle are
on record. The petitioner purchased a
tanker vehicle after getting it financed from
1162 INDIAN LAW REPORTS ALLAHABAD SERIES
SBI and is regularly paying the monthly
installment.
Bank
statement
of
M/s
Glorious Khushi Enterprises is on record.
The vehicle is also ensured from New India
Assurance Company on 02.03.2023 at the
current value of Rs. 25,20,000/-. The
insurance papers of the vehicle are also on
record.

4. Learned counsel for the petitioner
further submits that the petitioner is not
named in the F.I.R. Confessional statement of
the accused in the police custody has no
evidentiary value. No statement of any of the
accused under Section 164 Cr.P.C. has been
recorded before the magistrate. The petitioner
moved an application for release of the
vehicle, however, his release application has
been rejected in a mechanical manner and the
Appellate Court while rejecting the appeal
has also overlooked the express provision of
Section 6A of Essential Commodities Act,
1955 (UP Amendment) whereby it is
incumbent upon the District Collector to give
an option to pay a fine in lieu of confiscation
not exceeding market price at the date of
seizure of the essential commodity sought to
be carried.

In support of his contention,
learned counsel for the petitioner has relied
on the judgment of the Supreme Court in
"Deputy
Commissioner,
Dakshina
Kannada District Vs. Rudolph Fernandes,
reported in (2000) 3 SCC 306".

5. Learned counsel for the petitioner
further submits that the petitioner was not
named in the F.I.R. The petitioner was not
having any knowledge regarding the
alleged offence committed by her driver.
The offence was committed without the
knowledge and connivance of the petitioner
and in absence of any knowledge or
connivance of the offence, the petitioner
cannot be deprived of her livelihood by
means of confiscating tanker vehicle of the
petitioner and such act is in violation of
Article 19(1) (g) of the Constitution of
India.

6. Learned counsel for the petitioner
further submits that the petitioner has been
charge sheeted only under Section 3/7 of
Essential Commodities Act 1955 and no
charge sheet has been filed under Section
120B IPC, therefore, prima facie it is not
the case of the State that there was any
connivance of the petitioner with the other
accused
persons
for
committing
the
offence. The charge sheet appears to have
been filed against the petitioner only
because of the fact that the vehicle of the
petitioner was used in commission of the
offence by the co-accused persons.

7. Learned A.G.A. has opposed the
petition submitting that the petitioner has
been charge sheeted. Separate charge
sheets have been brought by the learned
A.G.A. which have been perused by this
Court.

Learned counsel for the State has
submitted that since charge sheet has been
filed, the cognizance may have been taken
at the appropriate stage and therefore, it
will be appropriate for the petitioner to
move an application under Section 451
Cr.P.C. for custody and disposal of the
assets/property which in this case is alleged
tanker vehicle.

8. Learned counsel for the petitioner
has submitted that vehicle has been seized
under Essential Commodities Act, 1955
which is a Special Act and section 5 of the
Cr.P.C. also contains a non obstante clause
and therefore, there is no impediment for
this Court in considering this option.
8 All. Chandra Rekha Vs. State of U.P. & Ors.
1163

9. Having heard learned counsel for
the parties, perusal of the record, so far as
the issue of jurisdiction is concerned, I find
force in the submission of learned counsel
for the petitioner that the vehicle has been
seized under the Special Act which in this
case is Essential Commodity Act and in
view of Section 5 of Cr.P.C., I am of the
view that there is no impediment in
entertaining the petition for the custody of
the vehicle which has been confiscated
under Essential Commodity Act, 1955.
Definition of conveyance is provided under
Section 6(A) of the Essential Commodities
Act, 1955 (UP Amendment) which is
extracted below:-

"6-A. (1) Where any essential
commodity is seized in pursuance of an
order made under Section 3 in relation
thereto a report to this effect shall, without
any unreasonable delay, be sent to the
Collector of the district in which the seizure
is made, and the Collector may, if he thinks
it expedient so to do, inspect or cause to be
inspected such essential commodity and
whether or not a prosecution is Instituted
for the contravention of such order. the
Collector, if satisfied that there has been
contravention of the order. may order
confiscation of,-

(a) the essential commodity so
seized:

(b) any package, covering or
receptacle in which essential commodity is
found: and

c) any animal, vehicle, vessel or
other conveyance used in carrying such
essential commodity:

Provided that, without prejudice
to any action that may be taken under any
other provision of this Act. no foodgrains
or edible oilseeds seized in pursuance of an
order made under Section 3 In relation
thereto from a producer shall, if the seized
foodgrains or edible oilseeds have been
produced by him, be confiscated under this
section.

Provided further that where any
animal, vessel or other conveyance is used
for the carriage of goods or passengers for
hire, the owner of such animal. vehicle,
vessel or other conveyance shall be given
an option to pay in lieu of its confiscation a
fine not exceeding the market price at the
date of seizure of the essential commodity
sought to be carried

(2) Where the Collector on
receiving a report or on inspection of any
essential commodity under sub-section (1)
is of the opinion that such essential
commodity is subject to speedy and natural
decay or that it is otherwise expedient in
the public interest so to do, he may order
the same to be sold at the controlled price,
if any, fixed under any law for the time
being in force, or where no such price is
fixed. by auction:

Provided that, in the case of
foodgrains, where there is no controlled
price, the Collector may order the
foodgrains seized to be sold through fair
price shops at the price fixed by the Central
Government, or the State Government, as
the case may be. for the sale of such
foodgrains to the public through these
shops:

Provided also that whenever it is
practicable so to do having regard to the
nature of the essential commodity he shall
take and preserve sample of the same
before its sale or auction.
1164 INDIAN LAW REPORTS ALLAHABAD SERIES

(3)
Where
any
essential
commodity is sold as aforesaid, the saleproceeds, thereof after deduction of the
expenses of the sale or auction, as the case
may be, shall,-

(a)
where
no
order
of
confiscation is ultimately passed by the
Collector: or

(b) where an order passed on
appeal under sub-clause [1] of Section 6-C
so requires: or

(c) in the case of prosecution being
instituted for the contravention of the order in
respect of which an order of confiscation has
been made under this section, where the
person concerned is acquired, be paid to the
owner thereof or the person from whom it is
seized:

Provided that in the case of
foodgrains sold through fair price shops in
accordance with the first proviso to subsection (2) the owner shall be paid for the
foodgrains so sold the price fixed by the State
Government, for retail sale of such foodgrains
through such shops less all expenses of sale or
auction under sub-section (2)."

Section 6A (1)(c) empowers the
collector to confiscate the vehicle or other
conveyance
used
in
carrying
essential
commodity. The second proviso to Section 6A
further castes a mandatory duty upon the
collector to give an option to the owner of
such vehicle which has been confiscated to
pay a fine in lieu of its confiscation not
exceeding the market price on the date of
seizure of the essential commodity. The above
proviso is mandatory.

Perusal of the impugned order
passed by the District Magistrate reveals
that although reference of Section 6A of
Essential Commodity Act, 1955 has been
given in the order, however, it is admitted
case of prosecution that no option under
Section 6(A) of Essential Commodities Act
1955 has been given to the owner of the
vehicle to pay a fine. The appellate order
appears to have been passed in a
mechanical manner ignoring the fact that
specific ground has been taken by the
appellant that in Second Proviso to Section
6(A) of Essential Commodity Act, 1955
there is an option to pay a fine. The
impugned order has been passed by the
District Collector by overlooking the
Second Proviso to Section 6(A) of
Essential Commodity Act, 1955, still the
Appellate Court proceeded to decide the
appeal in a mechanical and cursory manner
without giving any finding to the specific
ground raised by the petitioner/appellant
before the Appellate Court.

The proviso is clear. It was
incumbent upon the District Collector as
well as to the Appellate Authority to
provide/give an option to the petitioner
who is the owner of the tanker vehicle No.
UP70-JT-8187 in lieu of his confiscation to
pay a fine below the market price of the
vehicle.

The Supreme Court in the case of
Deputy Commissioner (supra) inn para 9
has held that owner of the vehicle is to be
given an option to pay a fine in lieu of the
confiscation
of
the
conveyance
not
exceeding the market price of the of the
conveyance. Para 9 of the said judgment is
extracted below:-

9. The Court observed that
though the language of the aforesaid
proviso is clear, the idea sought to be
conveyed under the proviso to Section 6A(1) of the Act appears to be the same. In
8 All. Chandra Rekha Vs. State of U.P. & Ors.
1165
our view, the analogy drawn by the High
Court is erroneous because the proviso
specifically mentions that where any such
conveyance is used as a means of transport
in the smuggling of goods, the owner of any
conveyance is to be given an option to pay
in
lieu
of
the
confiscation
of
the
conveyance, a fine not exceeding the
market price of the goods which are sought
to be smuggled. The explanation provides
that the market price means market price at
the date when the goods are seized. As
against this, Section 6-A second proviso
does not refer to payment of fine not
exceeding the market price of the essential
commodity but apparent reference is to a
fine not exceeding the market price of the
vehicle sought to be confiscated. This
appears to be obvious because in a case
where the market price of the seized
essential commodity is more than the price
of the conveyance then the owner of the
conveyance would not come forward to
take it back if he is asked to pay something
more than its market price. Similarly, when
the market price of the seized vehicle is
much
more
than
of
the
essential
commodity, it cannot be said that instead of
confiscation it should be released at a price
which is less than its market price. Further
it is required to be noted that under Section
6-B(2) no order confiscating the vehicle or
other conveyance can be passed if the
owner proves to the satisfaction of the
competent authority that it was used in
carrying the essential commodity without
his knowledge or connivance.

10. In view of the above discussions,
the petition is allowed. The impugned
judgment and order dated 01.06.2023
passed by the Court of District and
Sessions Judge, Lukcnow as well as the
impugned order dated 04.11.2022 passed
by the Additional District Magistrate (Civil
Supplies), Lucknow in case No. 186/2022,
under
Section
6(A)
of
Essential
Commodities Act 1955, contained in
Annexure No. 1 and Annexure No. 2 to the
petition are quashed.

11. So far as payment of fine is
concerned, this Court has taken note of the
fact that ATF 8500 liters as per FIR was
approximately
amounting
to
Rs.
10,45,000/- and as per order dated
10.05.2013, it is evident that the said seized
ATF was auctioned and the amount has
been deposited in the treasury. As per
insurance receipt, the vehicle has been
valued at Rs. 25,20,000/-, considering the
amount already received by the State out of
the sale of ATF oil, the vehicle is lying idle
in the concerned police station since
07.06.2022; more than one year has passed
and there is no earning to the petitioner
from the said vehicle, coupled with the fact
that the petitioner are also paying heavy
installments which is evident from perusal
of the statement of the firm belonging to
SBI Bank which is on record as Annexure
No. 8 to the petition, in order to balance the
equities, it is provided that the petitioner
shall deposit a sum of Rs. 3,00,000/- as fine
before opposite party no. 3 under Section
6(A) of Essential Commodities Act, 1955.
Upon deposit of the said amount, opposite
party no. 3 shall release the vehicle of the
petitioner bearing No. UP70 JT 8187
forthwith.

12. The vehicle of the petitioner shall
be released subject to the undertaking given
by the petitioner that as long as the trial
under the Essential Commodities Act 1955
is pending, she shall not alienate the
vehicle or create any third party interest
and shall produce the vehicle as and when
required by the Court.
----------
1166 INDIAN LAW REPORTS ALLAHABAD SERIES
(2023) 8 ILRA 1166
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 08.08.2023

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Application U/S 482. No. 839 of 2020

Prof. Vipin Saxena ...Applicant
Versus
C.B.I./A.C.B. Lko & Anr. ...Opposite Parties

Counsel for the Applicant:
Pranjal Krishna, Shivam Pandey

Counsel for the Opposite Parties:
A.S.G., Anurag Kumar Singh, Dr. V.K. Singh

Criminal Law - Prevention of Corruption
Act, 1988 - Sections 7, 13(1)(d) , 13(2) &
19 - Indian Penal Code, 1860 - Section
120-B - Code of Criminal Procedure, 1973
- Sections 161, 164 - Sanction order -
Validity - Sanction was accorded by Board
for prosecution of petitioner in its 62nd
meeting, keeping in view of opinion of
majority of members of Board - Confirmed
by Board in its 63rd meeting - Sanction
order approved by Board and irregularity,
if any, for reason of want of quorum in
62nd meeting, cured in 63rd meeting,
much
prior
when
trial
Court
took
cognizance of offence. (Para 2, 35)

Challenged sanction order after recording
of
examination
in
chief
and
cross
examination of PW-1 - No bar against
petitioner challenging order of sanction
after
recording
of
Statement
of
Sanctioning
Authority,
delay
in
challenging
sanction
order
indicates
petitioner didn't suffer any failure of
justice from sanction order passed by
Vice-Chancellor. (Para 36)

Contents of sanction order similar to
contents of draft order, not indicative of
non-application of mind, no need to use
different
contents
in
sanction
order,
unless sanctioning authority not agreeable
with contents of draft order - Procedure
adopted is in accordance with provisions
contained in Section 12 (3) of University
Act, 1994 (Para 40, 41)

Application dismissed. (E-14)

List of Cases cited:

1. R. S. Nayak Vs A. R. Antulay, (1984) 2 SCC
183, (Para 23)

2. Nanjappa Vs St. of Karn., (2015) 14 SCC 186

3. CBI Vs Ashok Kumar Aggarwal, (2014) 14
SCC 295, (Para 19, 58, 59)

4. St. (Inspector of Police) Vs Surya Sankaram
Karri, (2006) 7 SCC 172

5. St. of Goa v. Babu Thomas, (2005) 8 SCC
130, (Para 12)

6. Nanjappa Vs St. of Karn., (2015) 14 SCC 186

7. St. of Bihar Vs Rajmangal Ram, (2014) 11
SCC 388
(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri. Pranjal Krishna, the
learned counsel for the petitioner, Sri
Anurag Kumar Singh, the learned counsel
representing the respondent no. 1 - C.B.I.
and Dr. V. K. Singh, the learned counsel
for the respondent no. 2 - Babasaheb
Bhimrao Ambedkar University, Lucknow.

2. By means of the instant application
filed under Section 482 Cr.P.C, the
petitioner has challenged validity of the
order dated 28.05.2019 passed by the
Learned Special Judge, Anti-Corruption,
C.B.I (West), Lucknow in Criminal Case
No. 545 of 2017, whereby the application
dated 07.03.2019 filed by the petitioner
challenging the prosecution sanction order