# Munna Singh v. State of U.P. & Anr

- **Citation:** (2021) 4 ILRA 137
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/munna-singh-v-state-of-u-p-anr-44320
- **Pages:** 11

## Headnote

(A) Civil Law - The Essential Commodities
Act,
1955
-
Sections
3/7,
6A

-
138 INDIAN LAW REPORTS ALLAHABAD SERIES
Confiscation
of
essential
commodity,
Section 6-B - Issue of show cause notice
before confiscation of foodgrains, etc.,
Section 6-C - Appeal , Section 6BB -
Review, Code of Criminal Procedure, 1973
- Section 451, Section 452 or Section 457 -
Article 300-A of the Constitution - Every
citizen has a right to his property.

Collector ordering confiscation of the petitioner's
tractor along with its trolley, under Section 6-A
of the Act of 1955, with an option to pay in lieu
of confiscation and take back the tractor -
Appeal under section 6C - dismissed by
Additional Sessions Judge and affirming an
order of collector - hence petition.

HELD:- The impugned order passed by the
Collector
and
the
Judge
in
appeal
are
conspicuously silent about the identity of the
person too, who seized the vehicle carrying the
stock of controlled rice. In the clear opinion of
this Court, upon findings of the kind recorded by
the Authorities below, confiscation of the
petitioner's tractor cannot be ordered. The
learned Sessions Judge, while affirming the
Collector's order, has not at all bestowed
consideration to the infirmities, procedural and
substantive, vitiating the order of confiscation.
The order passed by the Additional Sessions
Judge is also bad on the same score, as the
Collector's. It goes without saying that if in the
criminal case instituted on the basis of the same
facts arising from the FIR relating to Case Crime
No. 413 of 2016, under Section 3/7 of the Act of
1955, the petitioner is convicted at the trial, it
would be open to the learned Judge to pass
appropriate orders regarding confiscation of the
tractor-trolley in question, subject, of course, to
his discretion, in the exercise of powers under
Section 7(1)(c) of the Act of 1955.(Para - 14,17)

Petition allowed. (E-6)

List of Cases cited:-

## Text

4 All. Munna Singh Vs. State of U.P. & Anr.
137
render such transfer void. The provisions of
the Section only render such transfers
subservient to the rights of the parties to a
litigation. The transferees acquiring any
immovable property during litigation over
it, are held to be bound, by application of
the doctrine of lis pendens and by the
decree passed in the suit even though they
may not have been impleaded in it. "The
whole object of the doctrine of lis pendens
is to subject parties to the litigation, as well
as others who seek to acquire rights in
immovable property, which are the subject
matter of litigation, to the power and
jurisdiction of the Court so as to prevent
the object of a pending action from being
defeated." The Supreme Court further
observed in Paragraphs 55 and 56 that a
transferee pendente lite can be added as a
party to the suit lest the transferee suffered
prejudice on account of the transferor
losing interest in the litigation post such
transfer. Sometimes a transferor pendente
lite may not even defend the title properly
as he has no interest in the same or may
collude with the plaintiff in which case the
interest of the purchaser pendente lite will
be ignored. To avoid such situations,
transferee pendente lite can be added as a
party defendant to the suit provided his
interest
is
substantial
and
not
just
peripheral. This is particularly so where the
transferee pendente lite acquires the interest
in the entire estate that forms the subject
matter of the dispute.

11. It is evident from a careful
consideration of latest judgments of the
Supreme Court dealing with Section 52 of
Transfer of Property Act that the Supreme
Court has emphasized that a transferee
pendente lite is not void ab initio. It only
makes such transfer subject to the rights of
the parties finally determined.

12. In the facts and circumstances
of the case, the Court is of the opinion that
the order impugned, which is under
challenge,
does
not
want
for
any
interference by this Court.

13. The petition is devoid of merit is
liable to be dismissed. Since the misc.
appeal is pending a further direction is
given to the court below to decide the
aforesaid appeal in accordance with law
most expeditiously and positively within a
period of six months from the date of
production of certified copy of this order
but after after giving opportunity to the
parties concerned and without granting
unnecessary adjournments to either of the
parties.

14. Accordingly, present petition is
dismissed.
----------
(2021)04ILR A137
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.03.2017

BEFORE

THE HON'BLE J.J. MUNIR, J.

Matter Under Article 227 No. 6423 of 2019 (Crl)

Munna Singh ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Sanjive Kumar Gupta, Sri Jai Prakash
Singh-I

Counsel for the Respondents:
A.G.A.

(A) Civil Law - The Essential Commodities
Act,
1955
-
Sections
3/7,
6A

-
138 INDIAN LAW REPORTS ALLAHABAD SERIES
Confiscation
of
essential
commodity,
Section 6-B - Issue of show cause notice
before confiscation of foodgrains, etc.,
Section 6-C - Appeal , Section 6BB -
Review, Code of Criminal Procedure, 1973
- Section 451, Section 452 or Section 457 -
Article 300-A of the Constitution - Every
citizen has a right to his property.

Collector ordering confiscation of the petitioner's
tractor along with its trolley, under Section 6-A
of the Act of 1955, with an option to pay in lieu
of confiscation and take back the tractor -
Appeal under section 6C - dismissed by
Additional Sessions Judge and affirming an
order of collector - hence petition.

HELD:- The impugned order passed by the
Collector
and
the
Judge
in
appeal
are
conspicuously silent about the identity of the
person too, who seized the vehicle carrying the
stock of controlled rice. In the clear opinion of
this Court, upon findings of the kind recorded by
the Authorities below, confiscation of the
petitioner's tractor cannot be ordered. The
learned Sessions Judge, while affirming the
Collector's order, has not at all bestowed
consideration to the infirmities, procedural and
substantive, vitiating the order of confiscation.
The order passed by the Additional Sessions
Judge is also bad on the same score, as the
Collector's. It goes without saying that if in the
criminal case instituted on the basis of the same
facts arising from the FIR relating to Case Crime
No. 413 of 2016, under Section 3/7 of the Act of
1955, the petitioner is convicted at the trial, it
would be open to the learned Judge to pass
appropriate orders regarding confiscation of the
tractor-trolley in question, subject, of course, to
his discretion, in the exercise of powers under
Section 7(1)(c) of the Act of 1955.(Para - 14,17)

Petition allowed. (E-6)

List of Cases cited:-

1. M/s. Shri Laxmi Trading Co.& anr. Vs The
Additional District Magistrate (Civil Supplies
Section), Rourkela & anr., 1989 SCC Online Ori
316

(Delivered by Hon'ble J.J. Munir, J.)

This petition under Article 227 of the
Constitution seeks to question an order of
Mr. Ehsanullah Khan, the then Additional
Sessions Judge, Court No. 3, Shahjahanpur
dated 05.09.2017, passed in Criminal
Appeal No. 38 of 2017, under Section 6-C
of The Essential Commodities Act, 19551,
dismissing the said appeal and affirming an
order of Mr. Narendra Kumar Singh, the
then Collector, Shahjahanpur, ordering
confiscation of the petitioner's tractor along
with its trolley, under Section 6-A of the
Act of 1955, with an option to pay in lieu
of confiscation.

2. The facts that give rise to the
present petition are these :

According
to
the
State,
on
11.09.2016 at 11 O' Clock in the night, a
tractor of Sonalika make, blue in colour,
bearing Registration No. UP 27 Y 1676,
along with a trolley, was carrying 41 bags
full of rice. The tractor belonged to the
petitioner, Munna Singh. The tractor was
being followed by a Maruti Van, bearing
Registration No. UP 27 AB 6557, which
had, for its occupants, Jagdish Singh and
Surendra Singh. It is said that these two
men were owners of the bulk of rice being
carried on the tractor trolley. This tractor
was apprehended by one Vishram Singh,
and information was sent to Police Station -
Paraur, District - Shahjahanpur. A police
party arrived and took away the tractor, its
trolley and the consignment of rice to the
police station. Information was also given
over telephone to the Sub-Divisional
Magistrate,
Jalalabad.
Thereafter,
the
Supply Inspector, together with the Naib
Tehsildar, came over to Village Khajuri
and recorded the statement of the tractor
owner,
Munna
Singh.
Munna
Singh
apparently acknowledged the ownership of
the tractor. It was revealed that one
4 All. Munna Singh Vs. State of U.P. & Anr.
139
Rajnish, a native of the village, who runs a
grocer's shop, had hired the tractor and the
trolley, that was apprehended with the
consignment of rice. Jagdish Singh, on the
other hand, was ascertained to be a Fair
Price Shop dealer. The Supply Inspector
and the Naib Tehsildar undertook a joint
inspection of Jagdish Singh's Fair Price
Shop located in Village Dari. Jagdish Singh
was not found there. His wife laid the shop
open, where the two officials found seven
bags of wheat, three bags of rice and 20
kilograms
of
loose
sugar.
These
commodities were not shown in the stock
register.

3. On discovery of the aforesaid facts, a
case was registered against Jagdish Singh and
Surendra Singh on the basis of a First
Information Report2 lodged by Rameshwar
Dayal, Supply Inspector, Jalalabad, as Case
Crime No. 413 of 2016, under Section 3/7 of
the Essential Commodities Act, 1955, Police
Station - Paraur, District - Shahjahanpur. Post
registration of the crime, the Station House
Officer, Police Station - Paraur, moved the
Collector under Section 6-A of the Act of 1955,
asking that the petitioner's Tractor and the
Maruti Van, bearing Registration No. UP 27
AB 6557, be confiscated in favour of the State,
on ground that these were involved in carrying
an essential commodity i.e. controlled rice, in
contravention of control orders issued under the
Act of 1955. The aforesaid report to the
Collector was made by the Station House
Officer, Police Station - Paraur vide Memo No.
9/16
dated
16.12.2016.
The
Collector,
Shahjahanpur issued a notice dated 26.04.2017
to the petitioner, amongst others, requiring him
to
show
cause
against
the
proposed
confiscation.

4. The petitioner submitted his
objections to the show cause, being
objections dated 03.05.2017. He said in
those objections that his vehicle has been
shown involved in the crime falsely. It was
urged that the petitioner had no criminal
history, involving the vehicle or otherwise,
and that he was not a previous convict. The
tractor, together with the trolley, was
financed by a certain Magma Finance
Limited, and that the petitioner had to pay
Equated Monthly Installments that he had
been regularly paying up to the month of
July, 2016. He said that the schedule of
repayment would also go awry, once his
tractor had been seized. The tractor was
also insured by Magma HDI General
Insurance Company, but due to seizure of
the tractor, the petitioner would not be able
to pay the due premia. The tractor was
particularly important to the petitioner in
his agricultural operations for tilling and
harvesting. It was specifically said in
Paragraph No. 5 of the objection that his
tractor had no connection, whatsoever, to
the
consignment
of
rice,
that
was
apprehended on 11.09.2016 at 11 O' Clock
in the night. He referred to a certain G.D.
Entry No. 23 dated 20.09.2016, that bore
no reference to the recovery or the recovery
memo about the petitioner's tractor and
trolley. It was also said that the Supply
Inspector and the Investigating Officer had
taken his signatures on blank papers, which
were utilized to record statements falsely
attributed to him. It was emphasized that
there was no evidence about recovery of
the incriminating essential commodity from
the petitioner's tractor and trolley. It was,
amongst others, particularly said in the
objections that the failure to draw a
recovery memo was a red pointer to the
ante-timed action that was taken, and was a
fact that could not be ignored. The
petitioner's tractor was taken away much
later by the Police from his house, where it
140 INDIAN LAW REPORTS ALLAHABAD SERIES
was parked. It is said in Paragraph No. 11
of the objections that 41 bags of controlled
rice were seized from some other trader
that have been connected to Jagdish and the
other co-accused, including the petitioner.
It was also said that in order to prevent the
tractor from rotting at the police station, it
was but appropriate that it may be given
into the petitioner's custody, as he was the
registered owner thereof. It was undertaken
that the petitioner would not transfer or
alter or damage the tractor in question and
produce
it,
as
and
when
required
physically.

5. The District Magistrate, after
considering the petitioner's objections vide
order
dated
05.06.2017,
ordered
confiscation of his tractor in favour of the
State. The Collector further ordered that the
petitioner had an option to pay a sum of Rs.
4,61,700/- in lieu of confiscation and take
back the tractor. The petitioner challenged
the Collector's order, by an appeal under
Section 6C of the Act of 1955 carried to the
learned District Judge. The appeal was
numbered on the file of the learned District
Judge as Criminal Appeal No. 38 of 2017.
It was assigned to the learned Additional
Sessions Judge, Court No. 3, Shahjahanpur.
The appeal was heard and dismissed by the
learned Additional Sessions Judge by
means of the impugned judgment and order
dated 05.09.2017.

6. Aggrieved, this revision has been
preferred.

7. Heard Mr. Jai Prakash Singh,
learned counsel for the petitioner and the
learned A.G.A. appearing on behalf of the
State.

8. The Authorities below have relied
upon the report submitted by the Police to
accept for a fact that the petitioner's tractor
and trolley was carrying 41 bags of rice,
that were taken away from the Public
Distribution System surreptitiously by
Jagdish Singh, a Fair Price Shop Dealer.
The vehicle was apprehended, while it was
ferrying the controlled commodity to a
grocer's shop. The Collector has also
accepted for a fact that the Maruti Van that
was trailing the tractor carrying the
consignment of rice, had, for its occupants,
Jagdish Singh, the Fair Price Shop dealer
and another Surendra Singh. The Collector
concluded that the Maruti Van was being
used to keep vigil over movement of the
tractor trolley. The presence of the Fair
Price Shop dealer has been regarded by the
Collector as an added circumstance to show
the
incriminatory
character
of
the
consignment carried in the tractor trolley. It
has also been held that the petitioner failed
to show that his vehicle was used in the
offending operation, despite due care and
caution observed by him. Ex hypothesi, the
tractor and the trolley in question owned by
the petitioner was held carrying the
consignment of a controlled commodity
unauthorisedly, and in contravention of the
control order. The Collector has ordered
confiscation of the petitioner's tractor and
the trolley, in exercise of powers under
Section 6A(1)(c) of the Act of 1955. The
learned Judge has broadly written findings
of affirmation with not much of a notable
addition to the content of the reasoning,
except the finesse of better diction coming
to him from his forensic training, which the
Collector did not have.

9. Before this Court, the learned
Counsel for the petitioner has placed much
reliance on a release application dated
04.01.2017, that was moved before the
Collector, asking for release of the tractor
in question, urging a case more or less on
4 All. Munna Singh Vs. State of U.P. & Anr.
141
the lines set out in the objections filed in
response to the show-cause notice under
Section 6A(1) of the Act of 1955.
Interestingly, it is averred in Paragraph No.
7 of the writ petition that vide order dated
05.06.2017, the Collector had released the
tractor in favour of the petitioner, with a
direction to deposit cash in the sum of Rs.
4,61,700/-.
Learned
counsel
for
the
petitioner has virtually urged before this
Court that the condition circumscribing the
release with the requirement of a cash
deposit of Rs. 4,61,700/- was too onerous
to be imposed upon the registered owner of
a vehicle. Learned counsel has relied on the
provision of Section 452(2) of the Code of
Criminal Procedure, 19733 to say that the
delivery of property, subject matter of a
crime, to any person entitled to its
possession,
can
be
ordered
by
the
Magistrate to be given to that person, upon
executing a bond, with or without sureties
to the satisfaction of the Court. On the
equities of the case, it is urged by learned
counsel for the petitioner that the petitioner
is a poor farmer, aged about 60 years. He is
ready to execute a bond, along with sureties
to the satisfaction of the Collector. In fact,
there is a recital to the last mentioned effect
made in Paragraph No. 11 of the writ
petition.

10. Much emphasis is placed by the
learned counsel on the fact that he is the
registered owner of the tractor, and is,
therefore, entitled to its possession, pending
outcome of the criminal case. Though no
counter
affidavit
has
been
filed
in
opposition
to
the
writ
petition,
the
impugned orders, for all their worth, set
against the petitioner's case in the writ
petition, impugning them, are to be judged
valid or vitiated. To the understanding of
this Court, the petitioner's case for release
of his tractor, pending decision of the
criminal case based on the FIR, by resort to
proceedings under Section 452 of the Code
or for that matter, Section 451 or Section
457, is based on a gross misconception.
The petitioner's tractor is not being held as
case property, pending decision of the Trial
Court, in the criminal case that has
originated from Crime No. 413 of 2006,
under Section 3/7 of the Act of 1955,
Police
Station
-
Paraur,
District
-
Shahjahanpur. The petitioner's tractor has,
in fact, been confiscated in favour of the
State by the Collector, in proceedings under
Section 6-A(1) and is now State property.
What the petitioner thinks as an onerous
condition for the release of his tractor
imposed by the Collector, asking him to
deposit a sum of Rs. 4,61,700/- is no
condition for release. That is, in fact, an
option given by the Collector to the
petitioner,
being
the
owner
of
the
confiscated tractor and trolley, to pay its
market price in lieu of confiscation. The
nature of the order passed by the Collector
and its consequences have been completely
misunderstood by the petitioner, which is
vivid from his pleadings in Paragraph No. 7
of the writ petition, that read :

That on 05.06.2017 the learned
respondent No. 2 has released the Tractor
in favour of the petitioner with the direction
to deposit Cash amount of Rs. 4,61,700/-.

11. This Court is seized of the matter
in a jurisdiction that is essentially equitable.
Therefore, even if the petitioner has
assailed the orders impugned on the basis
of a flawed understanding about the nature
of the proceedings relating to those orders,
this Court considers it imperative to
examine the validity of those orders on the
parameters of the Statute under which these
142 INDIAN LAW REPORTS ALLAHABAD SERIES
have been made. This course this Court all
the more chooses, because the orders
impugned are purely confiscatory, and
therefore, have to be strictly examined to
ensure that these have been made in
accordance with the Statute. Section 6A(1)
of the Act of 1955 is extracted below :

6A Confiscation of essential
commodity:-[(1)] Where any 10 [essential
commodity is seized] in pursuance of an
order made under section 3 in relation
thereto, 11 [a report of such seizure shall,
without unreasonable delay, be made to]
the Collector of the district or the
Presidency town in which such 10
[essential
commodity
is
seized]
and
whether or not a prosecution is instituted
for the contravention of such order, the
Collector 12 [may, if he thinks it expedient
so to do, direct the essential commodity so
seized to be produced for inspection before
him, and if he is satisfied] that there has
been a contravention of the order 13 [may
order confiscation of-

(a) the essential commodity so
seized;

(b) any package, covering or
receptacle
in
which
such
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 which may be taken under any
other provision of this Act, no foodgrains
or edible oilseeds 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 in the case
of any animal, vehicle, vessel or other
conveyance 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
by such animal, vehicle, vessel or other
conveyance.

12. Section 6-B of the Act of 1955
reads :

6B. Issue of show cause notice
before confiscation of foodgrains, etc.-
(1) No order confiscating any essential
commodity,
package,
covering
or
receptacle, animal, vehicle, vessel or
other conveyance shall be made under
section 6A unless the owner of such
essential commodity, package, covering,
receptacle, animal, vehicle, vessel or
other conveyance or the person from
whom it is seized-

(a) is given a notice in writing
informing him of the grounds on which it is
proposed
to
confiscate
the
essential
commodity
package,
covering
or
receptacle, animal, vehicle, vessel or other
conveyance;

(b) is given an opportunity of
making a presentation in writing within
such reasonable time as may be specified in
the
notice
against
the
grounds
of
confiscation; and

(c)
is
given
a
reasonable
opportunity of being heard in the matter.
4 All. Munna Singh Vs. State of U.P. & Anr.
143

(2) Without prejudice to the
provisions of sub-section (1), no order
confiscating any animal, vehicle, vessel or
other conveyance shall be made under
section 6A if the owner of the animal,
vehicle, vessel or other conveyance proves
to the satisfaction of the Collector that it
was
used
in
carrying
the
essential
commodity without the knowledge or
connivance of the owner himself, his agent,
if any, and the person in charge of the
animal, vehicle, vessel or other conveyance
and that each of them had taken all
reasonable
and
necessary
precautions
against such use.

(3) No order confiscating any
essential commodity package, covering,
receptacle, animal, vehicle, vessel or other
conveyance shall be invalid merely by
reason of any defect or irregularity in the
notice, given under clause (a) of subsection (l), if, in giving such notice, the
provisions of that clause have been
substantially complied with.

STATE AMENDMENT

Uttar Pradesh.--After section
6B, insert the following section, namely:--

"6BB. Review.--(1) Where the
Collector is satisfied that an order of
confiscation
or
an
order
refusing
confiscation made under section 6A suffers
from a mistake apparent on the face of the
record (including any mistake of law) he
may within one month of such order issue
notice to the owner of the essential
commodity, package, covering, receptacle,
animal,
vehicle,
vessel
or
other
conveyance, or, as the case may be, the
person from whom it was seized, to show
cause why that order should not be
reviewed, and after giving him a
reasonable opportunity of being heard, pass
such order on review as he thinks fit.

(2) The provisions of sections 6C
and 6D shall apply in relation to an order
passed originally under Section 6A."

13. It is evident that proceedings for
confiscation of a vehicle used in the
transportation of an essential commodity in
breach of a Control Order, taken under
Section 6-A of the Act of 1955 are quite
independent
and
different
from
a
prosecution before the Court trying the
offence founded on the same contravention
under Section 7 of the Act under reference.
Here, this Court, for the present, is not
concerned with the jurisdiction of the Court
trying the offence to order confiscation of
the vehicle carrying a commodity in
contravention of an order issued under the
Act of 1955. The Collector has chosen to
initiate proceedings under Section 6-A,
which have been taken to their logical
conclusion,
ending
in
an
order
of
confiscation. The power vested in the
Collector to confiscate a vehicle, alleged to
be involved in carrying an essential
commodity in violation of a control order,
makes it imperative for the Collector to
serve a notice in writing upon the owner of
the vehicle or the person from whom it has
been seized, informing him of the grounds
on which the Authority proposes to
confiscate the vehicle. Clause (b) of subSection (1) requires the provision of an
opportunity to the owner of the vehicle or
the person from whom it is seized, to make
a representation in writing, within a
reasonable time, to be indicated in the
notice against the proposed confiscation.
The last procedural requirement under
Section 6-B is carried in Clause (c) of sub-
144 INDIAN LAW REPORTS ALLAHABAD SERIES
Section (1), which mandates that a
reasonable opportunity of being heard in
the matter be afforded. Broadly, these
conditions have been fulfilled by the
Collector
before
passing
the
order
impugned. But, what sub-Section (2) of
Section 6-B of the Act of 1955 requires is
virtually the existence of mens rea of the
specific kind postulated by the Statute
before an order of confiscation can be
validly made. Sub-Section (2) of Section 6B requires that no order of confiscation of a
vehicle can be made under Section 6-A, if
the owner of the vehicle proves to the
satisfaction of the Collector that the vehicle
used in transportation of the offending
commodity was so employed without his
knowledge or connivance, or that of his
agent or any person in-charge of the vehicle
and
further
that
all
reasonable
and
necessary
precautions
against
such
offending use had been taken. This clause
seems to put the entire burden on the owner
of the vehicle about showing the absence of
mens rea. But the way it has come to be
interpreted, mens rea is an essential
prerequisite for the passing of an order of
confiscation under Section 6-A. The
Collector is required to enter a specific
finding about it. In this connection,
reference may be made to the decision of a
Division Bench of Orissa High Court in
M/s. Shri Laxmi Trading Co. and
Another v. The Additional District
Magistrate
(Civil
Supplies
Section),
Rourkela and Another4. In Shri Laxmi
Trading Co. (supra) it was held :

16. Coming now to the second
question as to whether "mens rea" is an
essential precondition for passing an order
of confiscation under S. 6-A of the
Essential Commodities Act, Mr. Patnaik,
the, learned counsel for the petitioners,
contends that confiscation is undoubtedly
penal in nature and, therefore, to attract the
said provision, it must be established that
the violation was intentional and was made
with criminal intention. In the case of
Madhav Keshav v. State of Maharashtra,
1977 Cri LJ 1800, a Bench of the Bombay
High Court considered the question of
requirement of mens rea under S. 6-A of
the Essential Commodities Act. It was held
by their Lordships:--

"If this is the law, which is
already laid down, so far as S. 7 is
concerned, and if the provisions of S. 6-A
are in pari materia with the provisions of S.
7, we see no reason why the element of
mens rea should not form part of the breach
of the rules alleged under S. 6-A. The act
which constitutes the basis of prosecution
as well as the basis of an Order, an
adjudication and confiscation being the
same, it cannot have a different content
under S. 6-A and S. 7 of the same Act...."

17. In the case of Mewalal
Kapildeo Prasad v. State of Bihar, 1978 Cri
LJ 873, a Bench of the Patna High Court
also considered the same question and
held:--

"....Therefore, for confiscation as
well as for conviction it must be established
that the person concerned has contravened
any order made under S. 3. It is a wellsettled rule of interpretation that a word
occurring in the same Act is usually to be
given the same meaning unless a different
intention is expressed by the provisions of
the Act. As such, the word ''contravention'
has to be interpreted in S. 6-A and in S. 7 to
mean that the provision of any order
framed under S. 3 of the Act has been
contravened intentionally. On the other
hand, if it is found that the contravention
was unintentional and the person concerned
4 All. Munna Singh Vs. State of U.P. & Anr.
145
had taken all reasonable care and was
carrying on the business in a bona fide
manner, then, in my view, even for S. 6-A
of the Act, it has to be interpreted that in
the eye of law there has been no
contravention so as to visit the dealer with
the consequences of confiscating the
articles which had been seized...."

18. A learned single Judge of the
Allahabad High Court in the case of Ashok
Kumar v. State of U.P., 1984 All LJ 876,
also considered the question of mens rea
vis-a-vis
S.
6-A
of
the
Essential
Commodities Act and held:--

"In order to attract the operation
of S. 6-A, Essential Commodities Act,
aforesaid, it had to be established that there
was commission of offence under S. 3, read
with S. 4 of the said Act and Order. Unless
it is found that the accused had mens rea at
the time of commission of the said offence,
S. 6-A of the aforesaid Act could not come
into play as was held in Nathulal v.State of
Madhya Pradesh reported in AIR 1966 SC
43 : (1966 Cri LJ 71...."

19. A learned single Judge of the
Delhi High Court in the case of Delhi
Administration v. Munshi Ram Ram
Niwas, 1985 Cri LJ 1230, also held:--

"The provisions of S. 6-A are in
pari materia with the provisions of S. 7. An
intentional contravention of an order made
under S. 3 of E.C. Act has to be
established. Mens rea or bona fide of a
dealer is a necessary element of the
proceedings under S. 6-A of E.C. Act. The
preponderance of judicial opinion is that
mens rea is a necessary ingredient in the
proceedings
for
enforcing
the
penal
provision incorporated in S. 6-A of E.C.
Act which empowers the Collector to
order confiscation....."

20. The Madhya Pradesh High
Court also took the same view in the case
of Khemraj Jugraj v. State of Madhya
Pradesh, 1981 Cri LJ 1479.

21. In view of the plethora of
decisions, referred to supra, it must be held
that mens rea is an essential ingredient to
attract the provisions of S. 6-A of the
Essential Commodities Act. The submission
of Mr. Patra, the learned Additional
Government Advocate, appearing for the
State, that S. 10-C of the Essential
Commodities Act presumes mens rea is not
of much significance. No doubt, S. 10-C
raises a presumption that culpable mental
state exists, but it is a rebuttable presumption
and it will be open for the accused to prove
that he had no such mental state with respect
to the act charged. In our opinion, S. 10-C
itself indicates that mens rea is a necessary
element to attract the provisions of the Act,
but by virtue of legal fiction, a presumption
arises which can be rebutted by an accused.
Admittedly, neither the Collector while
passing the original order, nor the State
Government while disposing of the appeal
has considered the question of presence or
absence of mens rea of the petitioner and
whether in the facts and circumstances of the
case, petitioner has been able to rebut the
presumption arising out of S. 10-C of the Act.
On the other hand, the facts of the case reveal
that the petitioner has been submitting returns
as an "importer" on a bona fide belief that the
provision relating to "importer" in the State
Order still continues. ......

14. In the present case, what appears
from a perusal of the impugned order
passed by the Collector and the available
146 INDIAN LAW REPORTS ALLAHABAD SERIES
records, is that it has not even been
mentioned anywhere as to who was the
person driving the tractor and the trolley
carrying the alleged essential commodity,
when it was seized. The impugned order
passed by the Collector and the Judge in
appeal are conspicuously silent about the
identity of the person too, who seized the
vehicle carrying the stock of controlled
rice. A perusal of the FIR, however, shows
that it was apprehended by a certain
Vishram Singh, who informed the police
about the apprehension. In the FIR also,
which carries the statement of Vishram
Singh, all that is said is that the tractor
belonged to the petitioner. It is not said
who was driving the tractor or had control
over it. The petitioner, in his objections
submitted to the Collector, said that the
tractor, along with the trolley, was picked
up from his home by the Police and was
never apprehended in the manner alleged
by the Authorities or in the notice giving
rise to the confiscation proceedings. It has
particularly been mentioned in Paragraph
No. 5 of the objections that the G.D. entry
relating to seizure of the stock of rice made
at the police station vide G.D. No. 23 at
15:40 hours does not bear any reference to
the tractor trolley or a memo of recovery
relating to seizure of the tractor trolley.
With all these objections taken, and the
gaping flaw in the State's report about the
conspicuous absence of the tractor driver's
name anywhere, ought to have moved the
Collector into asking the State to furnish
these details and establish on the basis of
records that the petitioner's tractor was at
all involved. Quite apart, the Collector had
to record a finding, if he reached
conclusion on the basis of material before
him, that the petitioner's tractor was indeed
involved, that the petitioner knew that it
was carrying an essential commodity in
violation of a Control Order. Much about
this angle of mens rea would depend upon
who was driving the tractor. If it was a
person other than the petitioner, a finding
would have to be recorded that the person
who was driving the tractor had the
necessary mens rea, which he shared with
the petitioner. The impugned order passed
by the Collector does not carry any of these
decisive findings; it does not even mention
the essential fact as to who was driving the
tractor at the relevant time, and the nature
of his connection to the petitioner. It is
logically on the edifice of these facts that a
finding about mens rea would be built.

15. The Collector was also required,
amongst others, by all standards of fairness,
to return a finding on the petitioner's
specific objection, that there was no entry
about the seizure of his tractor in G.D. No.
23 or to a recovery memo relating to his
tractor, the said G.D. entry being one
relating to the seizure of an essential
commodity
allegedly
carried
on
the
petitioner's tractor-trolley.

16. The absence of all these findings
render the order impugned, passed by the
Collector, one in violation of Section 6A(1) read with Section 6-B of the Act of
1955. An order of confiscation has very
serious civil consequences for the person
whose property is confiscated. Every
citizen has a right to his property,
guaranteed by Article 300-A of the
Constitution and the deprivation of that
right can come about strictly in accordance
with
law;
not
otherwise.
Both
the
Authorities below, in the clear opinion of
this Court, have proceeded on what are
sketchy and vague findings, so far as
involvement of the petitioner's tractor in
carting an offending essential commodity is
concerned. In the clear opinion of this
Court, upon findings of the kind recorded
4 All. Madhuri Shrivastav & Anr. Vs. Sri Praveen Kumar Shrivastav & Ors.
147
by the Authorities below, confiscation of
the petitioner's tractor cannot be ordered.
The
learned
Sessions
Judge,
while
affirming the Collector's order, has not at
all
bestowed
consideration
to
the
infirmities, procedural and substantive,
vitiating the order of confiscation. The
order passed by the Additional Sessions
Judge is also bad on the same score, as the
Collector's. It goes without saying that if in
the criminal case instituted on the basis of
the same facts arising from the FIR relating
to Case Crime No. 413 of 2016, under
Section 3/7 of the Act of 1955, Police
Station - Paraur, District - Shahjahanpur,
the petitioner is convicted at the trial, it
would be open to the learned Judge to pass
appropriate orders regarding confiscation
of the tractor-trolley in question, subject, of
course, to his discretion, in the exercise of
powers under Section 7(1)(c) of the Act of
1955.

17. In the result, this writ petition
succeeds
and
stands
allowed.
The
impugned order dated 05.06.2017, passed
by the District Magistrate, Shahjahanpur,
and the order dated 05.09.2017 passed by
the Additional Sessions Judge, Court No. 3,
Shahajahanpur, in Criminal Appeal No. 38
of 2017, are hereby set aside.

18. Let the petitioner's tractor, bearing
Registration No. UP 27 Y 1676, of
Sonalika make, blue in colour, be returned
to him forthwith, upon the petitioner
executing a personal bond in the sum of Rs.
1 lac and undertaking to produce the
tractor-trolley before the Trial Court, if and
when required, and not to change its coat,
colour or appearance, or damage or destroy
it, or transfer it to a third party. However, if
the trial is not pending, no such bond is
required to be furnished before release. In
the event the confiscated tractor has
been auctioned, its price equivalent to the
sum determined by the Collector vide order
dated 05.06.2017 payable by the petitioner
in lieu of confiscation, that is to say, Rs.
4,61,700/- shall be paid to the petitioner by
the State, forthwith.
----------
(2021)04ILR A147
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.03.2021

BEFORE

THE HON'BLE PRAKASH PADIA, J.

Matter Under Article 227 No. 6794 of 2019

Madhuri Shrivastav & Anr. ...Petitioners
Versus
Sri Praveen Kumar Shrivastav & Ors.
 ...Respondents

Counsel for the Petitioners:
Sri V.R. Tiwari

Counsel for the Respondents:
Sri Praveen Kumar Srivastava (In Person),
Dhruv Narayan Mishra

(A) Civil Law - Code of Civil Procedure
,1908 - Order XXIX Rule 2A - Hindu
Marriage Act, 1995 - Section 9 , Section13
and Section 26, Section 28-A - Hindu
Minority and Guardianship Act, 1956 -
Section 6 (a) - Natural guardians of a
Hindu minor - where a boy and a girl are
major and they are living with their free
will, then, nobody including their parents,
has authority to interfere with their living
- any interim order passed during the
pendency of the case will merged with the
final judgment. (Para - 17,25)

Petitioner no.1 along-with her daughter filed the
present petition - prayer to quash the entire
proceeding of Case under Section 28-A of the