# Rajesh Kumar Yadav v. State of U.P. & Ors. Opp. Parties

- **Citation:** (2021) 1 ILRA 1065
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-20
- **Case number:** Crl. Misc. Appl. u/s 482 No. 15174 of 2020
- **Bench:** Subhash Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajesh-kumar-yadav-v-state-of-u-p-ors-opp-parties-46751
- **Pages:** 11

## Headnote

1066 INDIAN LAW REPORTS ALLAHABAD SERIES
A. Criminal Law - Application u/s 482 -
Application for release of seized vehicle -
Essential Commodities Act: Section 3/7, 6-A,
6-E; Code of Criminal Procedure: 5, Section
451 to 457 - The provisions of special
statute will prevail over general provisions
of the Code of Criminal Procedure in case of
any conflict. (Para 10, 13)

There is no dispute that The Essential
Commodities Act, 1955 is a Special Act,
therefore, in view of S. 5 of Cr.P.C., the general
provisions of Cr.P.C. will not affect any special
statute or any local law for the time being in
force. In other words, where special provisions
have been provided for any particular thing
under special law, the general provision of
Cr.P.C. to that extent will not be applicable.
(Para 10)

B. The Essential Commodities Act: Section
6E - bar to the jurisdiction of criminal
Court - U/s 6A The Essential Commodities Act,
there is specific provisions of confiscation of
essential commodities, etc. The provision of
opportunity of show cause before confiscation of
food grains, etc. u/s 6B as well as right of
appeal by a person aggrieved against the order
of confiscation are also there u/s 6C of the said
Act. The provisions contained under Section 6E
of The Essential Commodities Act, clearly bar
the jurisdiction of the criminal Court with regard
to possession delivery, disposal, release or
distribution of essential commodity, package,
covering, receptacle, animal, vehicle, vessel or
other
conveyance
during
pendency
of
confiscation proceedings. (Para 11)

So long as the confiscation proceedings u/s 6A
of The Essential Commodities Act are pending,
release
of
vehicle,
etc
and
essential
commodities involved in the commission of an
offence under Section 3/7 of The Essential
Commodities Act is not maintainable in view of
statutory bar contained u/s 6E of The Essential
Commodities Act. (Para 17)

C. Jurisdiction of High Court - The High
Court has no jurisdiction to release the
vehicle
u/s
482
Cr.P.C.,
when
a
confiscation proceeding is pending before
the designated authority. (Para 14)
D. Power and Jurisdiction of Magistrate
u/s 451, CrPC - The jurisdiction u/s 451, CrPC
is not available to the Magistrate, once the
authorized Officer initiated the confiscation
proceedings on account of clear bar of
jurisdiction in certain cases under the Act. (Para
18)

There is no doubt that an application u/s
451 Cr.P.C., for release of vehicle seized
under Essential Commodity Act, during
pendency
of
confiscation
proceedings
before the collector under Section 6A of
The Act is not maintainable before the
Magistrate. (Para 19)

In the present case, the learned Magistrate has
considered and followed the legal position as
expounded by the Hon'ble Apex Court and
concluded that during pendency of confiscation
proceedings before Collector u/s 6A of Essential
Commodities Act, Magistrate has no jurisdiction
t

## Text

1 All. Rajesh Kumar Yadav Vs. State of U.P. & Ors.
1065
to establish that on the material before the
Magistrate any case for summoning of the
applicant was not made out prima facie.

31. This Court finds that the
revisional
court
has
set
aside
the
summoning order dated 08.08.2019 passed
by the Magistrate under Sections 504 and
506 I.P.C., as it found that there was
sufficient material available on record to
show that the accused had cheated the
complainant and the trial court had
committed illegality in only summoning the
accused under Section 504 and 506 I.P.C.
and in not summoning the accused under
Section 420 I.P.C. also. The learned
revisional
court
directed
the
learned
Magistrate to pass summoning order afresh
in accordance with the directions given in
the revisional judgments.

32. In view of this judgment, as
discussed above this Court finds that the
direction given by the revisional court to
pass fresh orders cannot be faulted with in
as much as the summoning order dated
08.08.2019 passed under Sections 504 and
506 I.P.C. could not be supplemented by
the Magistrate but he was required to pass
fresh orders under all the applicable
sections. The summoning order to the
extent the accused was summoned under
Sections 504 & 506 I.P.C. has not been set
aside by the revisional court on merit. This
Court also finds that the said order dated
8.08.2019 as challenged in the present
petition does not suffer from any illegality
to the extent of summoning of the accused
under Sections 504 and 506 I.P.C. on the
grounds of challenge made by the learned
counsel for the applicant.

33. However, as the order dated
08.08.2019 has already been set aside with
direction to pass fresh orders, prayer of the
applicant to set aside the order dated
08.08.2019 cannot be granted. It is
observed that the grounds of challenge
made to the said order have no substance.
So far as the revisional order dated
05.03.2020 is concerned no illegality could
be pointed out by the learned counsel for
the applicant. This Court is also of the
considered view that the revisional court
after having found that there was material
for summoning the accused applicant under
Section 420 I.P.C. as well has rightly
remitted the matter to the Magistrate for
passing fresh orders. The order dated
05.03.2020 passed by the Sessions Judge
Maharajgan is therefore maintained with
direction to the learned Magistrate to pass
fresh orders in pursuance of the judgment
of the revisional court in accordance with
the directions given there under, in
accordance with law.

34. This 482 petition having no merit
is
dismissed
with
the
aforesaid
observations.
----------
(2021)01ILR A1065
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.01.2021

BEFORE

THE HON'BLE SUBHASH CHANDRA
SHARMA, J.

Crl. Misc. Appl. u/s 482 No. 15174 of 2020

Rajesh Kumar Yadav ...Applicant
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Applicant:
Sri Ravi Ratn Kumar Sinha

Counsel for the Opp. Parties:
A.G.A.
1066 INDIAN LAW REPORTS ALLAHABAD SERIES
A. Criminal Law - Application u/s 482 -
Application for release of seized vehicle -
Essential Commodities Act: Section 3/7, 6-A,
6-E; Code of Criminal Procedure: 5, Section
451 to 457 - The provisions of special
statute will prevail over general provisions
of the Code of Criminal Procedure in case of
any conflict. (Para 10, 13)

There is no dispute that The Essential
Commodities Act, 1955 is a Special Act,
therefore, in view of S. 5 of Cr.P.C., the general
provisions of Cr.P.C. will not affect any special
statute or any local law for the time being in
force. In other words, where special provisions
have been provided for any particular thing
under special law, the general provision of
Cr.P.C. to that extent will not be applicable.
(Para 10)

B. The Essential Commodities Act: Section
6E - bar to the jurisdiction of criminal
Court - U/s 6A The Essential Commodities Act,
there is specific provisions of confiscation of
essential commodities, etc. The provision of
opportunity of show cause before confiscation of
food grains, etc. u/s 6B as well as right of
appeal by a person aggrieved against the order
of confiscation are also there u/s 6C of the said
Act. The provisions contained under Section 6E
of The Essential Commodities Act, clearly bar
the jurisdiction of the criminal Court with regard
to possession delivery, disposal, release or
distribution of essential commodity, package,
covering, receptacle, animal, vehicle, vessel or
other
conveyance
during
pendency
of
confiscation proceedings. (Para 11)

So long as the confiscation proceedings u/s 6A
of The Essential Commodities Act are pending,
release
of
vehicle,
etc
and
essential
commodities involved in the commission of an
offence under Section 3/7 of The Essential
Commodities Act is not maintainable in view of
statutory bar contained u/s 6E of The Essential
Commodities Act. (Para 17)

C. Jurisdiction of High Court - The High
Court has no jurisdiction to release the
vehicle
u/s
482
Cr.P.C.,
when
a
confiscation proceeding is pending before
the designated authority. (Para 14)
D. Power and Jurisdiction of Magistrate
u/s 451, CrPC - The jurisdiction u/s 451, CrPC
is not available to the Magistrate, once the
authorized Officer initiated the confiscation
proceedings on account of clear bar of
jurisdiction in certain cases under the Act. (Para
18)

There is no doubt that an application u/s
451 Cr.P.C., for release of vehicle seized
under Essential Commodity Act, during
pendency
of
confiscation
proceedings
before the collector under Section 6A of
The Act is not maintainable before the
Magistrate. (Para 19)

In the present case, the learned Magistrate has
considered and followed the legal position as
expounded by the Hon'ble Apex Court and
concluded that during pendency of confiscation
proceedings before Collector u/s 6A of Essential
Commodities Act, Magistrate has no jurisdiction
to entertain the application for release of
vehicle, is correct and proper in the eye of law.
(Para 23)

Application dismissed. (E-3)

Precedent followed:

1. Suresh Nanda Vs C.B.I., (2008) (3) SCC 174
(Para 13)

2. Manju Kumari & anr. Vs St. of Bih. & ors.,
(2006) Cr.L.J 3014 (Para 13)

3. Rajendra Vs St. of Mah. & anr., Criminal Writ
Petition No. 846 of 2016 decided on 10.10.2016
(Para 13)

4. Divisional Forest Officer & oth. Vs G.V.
Sudhakar Rao & ors., (1985) (4) SCC 573 (Para
14)

5. Shambhu Dayal Agarwal Vs St. of W.B. &
anr., (1990) 3 SCC 549 (Para 15)

6. Oma Ram Vs St. of Raj. & ors., AIR 2008 SC
(Supp.) 1844 (Para 16)

7. State of Bih. & anr. Vs Arvind Kumar & anr.,
(2012) 12 SCC 395 (Para 17)
1 All. Rajesh Kumar Yadav Vs. State of U.P. & Ors.
1067
8. State of M.P. & ors. Vs Uday Singh & ors.,
(2019) SCC Online SC 420 (Para 18)

9. Vishnu Prasad Vaishnav Vs St. of Chatt.,
Cr.M.P.
No.
1068
of
2014
decided
on
17.12.2014 (Para 23)

Precedent distinguished:

1. Kailash Prasad Yadav Vs St. of Jhar., 2007
LawSuit (SC) 540 (Para 20)

2. Sunderbhai Ambalal Desai Vs St. of Guj.,
2003 (3) JIC 615 (Para 21)

Present application has been filed to set
aside order dated 25.08.2020, passed by
Chief Judicial Magistrate, Chandauli u/s
3/7 Essential Commodities Act, 1955,
whereby the application for release of
seized vehicle has been rejected.

(Delivered by Hon'ble Subhash Chandra Sharma, J.)

1. Heard Shri Ravi Ratan Kumar
Sinha, learned counsel for the applicant,
learned A.G.A. for the State and perused
the record.

2. This application u/s 482 Cr.P.C.
has been filed by the applicant Rajesh
Kumar Yadav with a prayer to set-aside the
impugned order dated 25.08.2020 passed
by Chief Judicial Magistrate, Chandauli on
the release application in Case No. Nil of
2020 (Rajesh Kumar Yadav Vs. State of
U.P.) arising out of Crime No. 68 of 2020,
under Section 3/7 Essential Commodities
Act, 1955, Police Station Alinagar, District
Chandauli, whereby the application for
release of seized vehicle has been rejected.

3. Factual Matrix of the case is as
under.

Applicant
Rajesh
Kumar
Yadav
moved an application for release of vehicle
(tanker) bearing no. U.P.62 B.T.1335
alleging himself to be its registered owner.
On 01.04.2020, Inspector Police Station
Alinagar, District Chandauli reported that
near Sareshar village Vijay Yadav r/o
Domanpur, P.S. & District Bhadohi with
three gallons each having capacity of 20
liters and one pipe to be used for extracting
oil from the tanker, was found present and
from the tanker theft of oil was attempted.
All the upper lids of tanker were opened.
Supply Inspector Rajeev Kumar along with
his staff went to Police Station Alinagar
and inspected the tanker, it was found that
the
tanker
contained
20,000
(twenty
thousand) liters diesel. Locks of all
chambers were found opened, which was
illegal. The tanker was registered in favour
of Rajesh Kumar Yadav r/o Junwani Road,
Bhilai Road, Chhattisgarh. Driver of the
tanker was not present. Vijay Shankar
Yadav stated that he was brother of owner
of the tanker. The driver of tanker drove it
from Indian Oil to Shiv Enterprises, Rae
Bareli on 31.3.2020 at 3 O'clock, having
20,000 (twenty thousand) liters of diesel.
He parked the tanker near Sareshar Village
and went to his home. On 1.4.2020 in the
morning, police saw the opened seal and
made query with him, it was found that
20,000 (twenty thousand) liters diesel was
being black-marketed by Vijay Shankar
Yadav. As a result, tanker bearing no.
U.P.62BT1335 containing 20,000 (twenty
thousand) liters diesel and two empty
gallons of twenty liters capacity and one
other gallon filled with twenty liters diesel
alongwith oil extracting pipe was seized
and thereafter First Information Report
under Section 3/7 Essential Commodities
Act was lodged as Crime No. 68 of 2020,
Police Station Alinagar, District Chandauli.

4. The owner of vehicle/ applicant
Rajesh Kumar Yadav moved an application
before learned Chief Judicial Magistrate,
1068 INDIAN LAW REPORTS ALLAHABAD SERIES
Chandauli for release of vehicle which was
rejected. As a result Criminal Revision No.
21 of 2020 was preferred before the court
of Ist Additional Sessions Judge, Chandauli
which was allowed and order passed by
learned Chief Judicial Magistrate dated
6.6.2020
was
set-aside.
Matter
was
returned back to the learned Chief Judicial
Magistrate for passing order afresh in the
light of observations made by the learned
Ist Additional Sessions Judge.

5. Again applicant moved an
application
before
the
learned
Chief
Judicial Magistrate, Chandauli for release
of the seized vehicle in the light of the
order passed by the learned Additional
Sessions Judged which was again rejected
by learned Chief Judicial Magistrate on
25.8.2020
on
the
ground
of
nonmaintainability of the application on
account
of
confiscation
proceedings
pending before the court of District
Magistrate, Chandauli under Section 6A of
Essential
Commodities
Act.
Being
aggrieved with this order this Criminal
Misc. Application u/s 482 Cr.P.C. has been
preferred before this Court.

6. Learned counsel for the applicant
submits that applicant is a businessman and
has a tanker bearing no. UP62BT1335 for
doing transportation work. On 4.1.2020 his
tanker was not involved in any Essential
commodities Act but the Inspector, incharge,
Alinagar
for
taking
bribe
implicated the applicant's tanker containing
20,000 (twenty thousand) liters diesel in a
false
case.
Learned
Chief
Judicial
Magistrate,
Chandauli
rejected
the
application
of
the
applicant
without
considering
the
real
facts
and
circumstances of the case on 6.6.2020
against which he filed revision which was
allowed by Ist Additional Sessions Judge
and matter was remanded back for
reconsideration but again learned Chief
Judicial
Magistrate
has
rejected
the
application without application of mind
which is against the eye of law. He
misinterpreted the order dated 13.8.2020
passed by the Additional Session Judge,
Chandauli. Applicant's vehicle is detained
in the concerned police station and
condition of the aforesaid vehicle is being
damaged as it is not functioning, therefore,
requested to set-aside the order dated
25.8.2020 passed by learned Chief Judicial
Magistrate on the release application in
Case No. Nil of 2020 and to direct the court
concerned to release the applicant's vehicle.

7. Learned A.G.A. opposed the prayer
for release of vehicle and submitted that
vehicle has been seized in a case under
Section 3/7 Essential Commodities Act.
Confiscation
proceedings
are
pending
before the court of District Magistrate,
Chandauli under Section 6-A of Essential
Commodities Act. In this situation, the
court of Chief Judicial Magistrate has no
jurisdiction to entertain the application for
release under Section 451 to 457 Cr.P.C. as
has been provided under Section 6-E of
Essential
Commodities
Act.
Learned
Magistrate has passed the impugned order
having taken into consideration the relevant
provisions of law and legal position as
propounded by the Apex Court as well as
this Court regarding release of vehicle.
There is no illegality in the impugned order
but it is based on the sound principles of
law. So, this application is devoid of merit.

8. Considering the submissions made
by learned counsel for the parties, the issue
for consideration before this Court is "
whether an application under Section 451
Cr.P.C. for release of seized vehicle is
maintainable
during
pendency
of
1 All. Rajesh Kumar Yadav Vs. State of U.P. & Ors.
1069
confiscation
proceedings
before
the
collector under Section 6A of The Essential
Commodities Act, 1955?"

9. Before delving into the issue, it
would be useful to quote the relevant
provisions of The Essential Commodities
Act, 1955 with regard to confiscation of
seized essential commodities including
vehicles as well as relevant provisions of
Cr.P.C., which are as under:-

"6A.
Confiscation
of
Essential
Commodity

Where any essential Commodity is
seized in pursuance of an order made under
Sec. 3 in relation thereto a report of such
seizure shall, without unreasonable delay,
be made to the Collector of the district or
the
Presidency-town
in
which
such
essential commodity is seized and whether
or not a prosecution is instituted for the
contravention of such order, the Collector
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 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 food grains or
edible oilseeds in pursuance of an order
made under Sec. 3 in relation thereto from
a producer shall, if the seized food grains 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.

Where the Collector, on receiving a
report of seizure or on inspection of any
essential commodity under sub-section (1),
is of the opinion that the essential
commodity is subject to speedy and natural
decay or it is otherwise expedient in the
public interest so to do, he may, -

(i) order the same to be sold at the
controlled price, if any, fixed for such
essential commodity under this Act or
under any other law for the time being in
force; or

(ii) where no such price is fixed order
the same to be sold by public auction :

Provided that in the case of any such
essential commodity the retail sale price
whereof has been fixed by the Central
Government or a State Government under
this Act or under any other law for the time
being in force, the Collector may. for its
equitable distribution and availability at fair
prices, order the same to be sold through
fair price shops at the price so fixed.

(3) Where any essential commodity is
sold, as aforesaid, the sale proceeds thereof,
after deduction of the expenses of any such
sate or auction or other incidental expenses
relating thereto, shall, -

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

(b) where an order passed on appeal
under sub-section (1) of Sec. 6-C so
requires, or

(c) where in a prosecution instituted
for the contravention of the order in respect
1070 INDIAN LAW REPORTS ALLAHABAD SERIES
of which an order of confiscation has been
made under this section, the person
concerned is acquitted, be paid to the
owner or the person from whom it is
seized.

6B. Issue of Show-Cause Notice
before
Confiscation
of
Essential
Commodity.

No order confiscating any essential
commodity
package,
covering,
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,
receptacle. animal, vehicle, vessel or
other conveyance ;

(b) is given an opportunity of
making a representation 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.

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.

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 (1), if, in giving such notice, the
provisions of that clause have been
substantially complied with.

6C Appeal.

(1) Any person aggrieved by an
order of confiscation under section 6A
may, within one month from the date of
the communication to him of such order,
appeal to any judicial authority appointed
by the State Government concerned and
the judicial authority shall, after giving
an opportunity to the appellant to be
heard, pass such order as it may think fit,
confirming, modifying or annulling the
order appealed against.

(2) Where an order under section 6A
is modified or annulled by such judicial
authority, or where in a prosecution
instituted for the contravention of the
order in respect of which an order of
confiscation has been made under section
6A, the person concerned is acquitted,
and in either case it is not possible for
any reason to return the essential
commodity seized such persons shall,
except as provided by sub-section (3) of
section 6A, be paid] the price therefore as
if the essential commodity, had been sold
to the Government with reasonable
interest calculated from the day of the
seizure of the essential commodity and
such price shall be determined―

(i) in the case of food grains, edible
oilseeds or edible oils, in accordance with
1 All. Rajesh Kumar Yadav Vs. State of U.P. & Ors.
1071
the provisions of sub-section (3B) of
section 3;

(ii)
in
the
case
of
sugar,
in
accordance
with
the
provisions
of
subsection (3C) of section 3 ; and

(iii) in the case of any other essential
commodity, in accordance with the
provisions of sub-section (3) of section 3.

6E. Bar of Jurisdiction in Certain
Cases.

Whenever any essential commodity is
seized in pursuance of an order made under
Sec. 3 in relation thereto, or any package,
covering or receptacle in which such
essential commodity is found, or any
animal, vehicle, vessel or other conveyance
used in carrying such essential commodity
is seized pending confiscation under Sec. 6A, the Collector, or, as the case may be, the
State Government concerned under section
6C
shall
have.
and,
notwithstanding
anything to the contrary contained in any
other law for the time being in force, any
Court, Tribunal or other authority shall not
have, jurisdiction to make orders with
regard to the possession, delivery, disposal,
release or distribution of such essential
commodity, package, covering, receptacle,
animal,
vehicle,
vessel
or
other
conveyance.

Section 5 Cr.P.C.

Saving-

"Nothing contained in this Code shall,
in the absence of a specific provision to the
contrary, affect any special or local law for
the time being in force, or any special
jurisdiction or power conferred, or any
special form of procedure prescribed, by
any other law for the time being in force."

Section 451 CrPC

Order for custody and disposal of
property pending trial in certain cases.
When any property is produced before any
Criminal Court during any inquiry or trial,
the Court may make such order as it thinks
fit for the proper custody of such property
pending the conclusion of the inquiry or
trial, and, if the property is subject to
speedy and natural decay, or if it is
otherwise expedient so to do, the Court
may, after recording such evidence as it
thinks necessary, order it to be sold or
otherwise disposed of. Explanation.- For
the purposes of this section," property"
includes

(a) property of any kind or document
which is produced before the Court or
which is in its custody,

(b) any property regarding which an
offence appears to have been committed or
which appears to have been used for the
commission of any offence.

Section 457 Cr.P.C.

Procedure by police upon seizure of
property.

(1) Whenever the seizure of property
by any police officer is reported to a
Magistrate under the provisions of this
Code, and such property is not produced
before a Criminal Court during an inquiry
or trial, the Magistrate may make such
order as he thinks fit respecting the disposal
of such property or the delivery of such
property to the person entitled to the
possession thereof, or if such person cannot
be ascertained, respecting the custody and
production of such property.

(2) If the person so entitled is known,
the Magistrate may order the property to be
delivered to him on such conditions (if any)
as the Magistrate thinks fit and if such
person is unknown, the Magistrate may
detain it and shall, in such case, issue a
1072 INDIAN LAW REPORTS ALLAHABAD SERIES
proclamation specifying the articles of
which such property consists, and requiring
any person who may have a claim thereto,
to appear before him and establish his
claim within six months from the date of
such proclamation.

10. There is no dispute that The
Essential Commodities Act, 1955 is a
Special Act, therefore, in view of Section 5
of Cr.P.C, the general provisions of Cr.P.C.
will not affect any special statute or any
local law for the time being in force. In
other words, where special provisions have
been provided for any particular thing
under special law, the general provision of
Cr.P.C. to that extent will not be applicable.
The provisions of special statute will
prevail over general provisions of the Code
of Criminal Procedure in case of any
conflict.

11. It is also not disputed that under
Section 6A The Essential Commodities
Act, there is specific provisions of
confiscation of essential commodities, etc.
The provision of opportunity of show cause
before confiscation of food grains, etc.
under Section 6B as well as right of appeal
by a person aggrieved against the order of
confiscation are also there under Section
6C of the said Act. The provisions
contained under Section 6E of The
Essential Commodities Act, clearly bar the
jurisdiction of the criminal Court with
regard to possession delivery, disposal,
release
or
distribution
of
essential
commodity, package, covering, receptacle,
animal, vehicle, vessel or other conveyance
during
pendency
of
confiscation
proceedings.

12.

Considering
the
aforesaid
provisions, it is clear that the legislature has
purposely inserted the said provisions of
confiscation
under
The
Essential
Commodities Act and saving clause under
Section 5 of the Cr.P.C. with a laudable
object. The authority concerned under The
Essential Commodities Act has been
granted a wide discretion and power with
regard
to
confiscation
of
essential
commodities, etc. The object of inserting
Section 5 of Cr.P.C. is to give effect the
provisions of special Act/local laws in case
of any conflict.

13. The Hon'ble Apex Court in the
case of Suresh Nanda vs. C.B.I, 2008 (3)
SCC 174, has held that the provision of
Special Act prevail over the general
provisions
of
the
code
of
criminal
procedure. The aforesaid dictum of the
Hon'ble Apex Court has been further relied
upon by Patna High Court in the case of
Manju Kumari and another vs State of
Bihar and others, 2006 Cr.L.J 3014 as
well as Bombay High Court in Rajendra vs.
State
of
Maharashtra
and
another,
(Criminal Writ Petition No. 846 of 2016
decided on 10.10.2016).

14. The Hon'ble Apex Court in case of
Divisional Forest Officer and other Vs.
G.V. Sudhakar Rao and others 1985 (4)
SCC 573 has held that the High Court has
no jurisdiction to release the vehicle under
Section 482 Cr.P.C., when a confiscation
proceeding
is
pending
before
the
designated authority.

15. The law with regard to release of
essential commodities and seized vehicle
etc. during pendency of confiscation
proceedings under Section 6A of The
Essential
Commodity
Act
has
been
explained by the Hon'ble Apex Court in
case of Shambhu Dayal Agarwala Vs.
State of West Bengal and another (1990)
3 SCC 549 in para 7.
1 All. Rajesh Kumar Yadav Vs. State of U.P. & Ors.
1073

Section 6A empowers confiscation of
the
seized
essential
commodity,
the
package, covering and receptacle in which
the essential commodity was found and the
animal, vehicle or other conveyance in
which such essential commodity was
carried. The words 'may order confiscation'
convey that the power is discretionary and
not obligatory. Sub-section (2) thereof
confers a special power to deal with any
essential commodity which, in the opinion
of the Collector, is subject to speedy and
natural decay or it is otherwise expedient
in public interest to be disposed of in the
manner indicated therein. Section 6A,
therefore,
merely
confers
power
of
confiscation and not the power of release,
disposal, distribution, etc., except to the
limited extent permitted by Sub-section (2)
thereof. Of course the second proviso to
Sub-section (1) of Section 6A permits the
grant of an option to pay, in lieu of
confiscation of any animal, vehicle, vessel
or other conveyance, a fine equal to its
market price at the date of seizure. Section
6E was first enacted to debar courts from
making any order with regard to the
possession,
delivery,
disposal
or
distribution of any essential commodity
seized in pursuance of an order made
under Section 3 in relation thereto. By the
substituted Section 6E as it presently stands
the scope of the provision has been
enlarged
by
extending
the
bar
of
jurisdiction of the Court, tribunal or other
authority to the release, etc., of packages,
coverings or receptacles as well as
animals,
vehicles,
vessels
or
other
conveyances
also.
It
provides
that
whenever any essential commodity is seized
under an order made in exercise of power
conferred by Section 3 in relation thereto
no court, tribunal or other authority shall
have jurisdiction to make any order with
regard to the possession, delivery, disposal,
release or distribution of such essential
commodity save and except the Collector
pending confiscation under Section 6A, or
the State Government concerned under
Section 6C.

16. In the Case of Oma Ram Vs.
State of Rajasthan and others AIR 2008
SC(Supp.) 1844 their lordships observed in
Para 13.

Certain provisions of the Essential
Commodities Act, 1955 have relevance.
Section 6A deals with confiscation of food
grains, edible oil seeds and edible oils.
Section 6B deals with issue of show cause
notice before confiscation of food grains
etc. Section 6E deals with bar of
jurisdiction in certain cases. Section 6E has
been substituted to provide that except
Collector or State Government, all other
authorities, judicial or otherwise, would be
debarred from making any order with
regard to the possession, delivery, disposal
or distribution of any essential commodity,
seized in pursuance of an order made
under Section 3. Thus a Magistrate has no
jurisdiction to grant relief against seizure
under Section 457 Cr.P.C.

17. In State of Bihar and another
Vs. Arvind Kumar and another (2012)
12 SCC 395, wherein the Hon'ble Apex
Court has again considered the view taken
in the cases of Shambhu Dayal Agarwala &
Oma Ram and held that so long as the
confiscation proceedings under Section 6A
of The Essential Commodities Act are
pending, release of vehicle, etc and
essential commodities involved in the
commission of an offence under Section
3/7 of The Essential Commodities Act is
not maintainable in view of statutory bar
contained under Section 6E of The
Essential Commodities Act.
1074 INDIAN LAW REPORTS ALLAHABAD SERIES

18. Recently, the Hon'ble Apex Court
in the case of State of M.P. and others Vs.
Uday Singh and others 2019 SCC Online
SC 420 has considered the power and
jurisdiction of the Magistrate under Section
451
Cr.P.C.
during
pendency
of
confiscation proceedings under the Forest
Act and held that the jurisdiction under
Section 451 of the Code of Criminal
Procedure
is
not
available
to
the
Magistrate, once the authorized Officer
initiated the confiscation proceedings on
account of clear bar of jurisdiction in
certain cases under the Act.

19. After the aforesaid analysis in the
light of dictum of the Hon'ble Apex Court,
there is no doubt that an application under
Section 451 Cr.P.C., for release of vehicle
seized under Essential Commodity Act,
during
pendency
of
confiscation
proceedings before the collector under
Section 6A of The Act is not maintainable
before the Magistrate.

20. Learned counsel for the applicant
has specifically relied on the judgment
propounded by the Hon'ble Apex Court in
the case of Kailash Prasad Yadav Vs.
State
of
Jharkhand
2007
LawSuit(SC)540 in which the issue of
jurisdiction of the Magistrate under Section
6E of Essential Commodities Act was not
in question but appeal under Section 6C
was preferred before the Additional Session
Judge against the confiscation order made
by the Deputy Commissioner which was
dismissed by the Additional Session Judge,
that order was under challenge before the
Hon'ble Court and was set aside.

21. Another case of Sunderbhai
Ambalal Desai vs State Of Gujarat,
2003(3)JIC615 has also been relied on by
learned counsel but the question involved
in that case was not related to provisions of
Essential Commodities Act but it was
specifically related to the provisions of
Section 451/457 Cr.PC. Hon'ble Court had
no any occasion to examine the affect of
Section 6E of the Essential Commodities
Act on the power of Magistrate to release
seized vehicle in view of Section 5 of Code
of Criminal Procedure.

22. A careful scrutiny of the decision
of their Lordships in Sundarbhai Ambalal
Desai (supra) clearly indicates that the
decision is an authority about the general
law regarding release of vehicles seized in
connection with any criminal case, but the
same does not answer the issue whether in
a case where there are special provisions
under a local or special Act, like the
Essential Commodities Act, relating to
seizure and confiscation of vehicles, the
powers under Section 451 or for that matter
under Section 457, would still be available
with the Magistrate pending confiscation
proceedings under the special or the local
law. In fact, the decision of their Lordships
in Sundarbhai Ambalal Desai (supra) arose
in the context of a challenge to an order of
police remand for the petitioners granted to
the
prosecuting
agency,
where
the
petitioners were police personnel involved
in offences punishable under Sections 429,
420, 465, 468, 477A and 114 IPC. The
allegations against them were that while
working at different police stations, they
had committed offences over a period of
time involving replacement of valuable
articles retained as case property by other
spurious
articles,
misappropriation
of
money also seized in connection with
cases, unauthorized auction of property
seized and kept at the police station,
pending investigation or trial. In short, the
offences that engaged the attention of their
Lordships were all offence to which the
1 All. Salamat Ansari & Ors. Vs. State of U.P. & Ors.
1075
Code, including the provisions of Sections
451
and
457
wholesomely
applied,
therefore, Sunderbhai Ambalal Desai can
at best be said to be an authority on the
general law regarding release of vehicle
seized in connection with any criminal
case.

23. From the perusal of impugned order
dated 25.08.2020 passed by learned Chief
Judicial Magistrate, it transpires that learned
Magistrate has considered and followed the
legal position as expounded by the Hon'ble
Apex Court in the Case of Shambhu Dayal
Agarwala, Oma Ram and followed in the
case of Vishnu Prasad Vaishnav Vs. State of
Chattisgarh Cr.M.P. No. 1068 of 2014
decided on 17.12.2014 and concluded that
during pendency of confiscation proceedings
before Collector under Section 6A of
Essential Commodities Act, Magistrate has
no jurisdiction to entertain the application for
release of vehicle, is correct and proper in the
eye of law.

24. In view of above, there is no any
manifest error of law or perversity in the
impugned order passed by learned Chief
Judicial Magistrate, therefore, it does not
warrant any interference by this Court.

25. The present application u/s 482
Cr.P.C. being devoid of merits is hereby
dismissed accordingly.
----------
(2021)01ILR A1075
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.11.2020

BEFORE

THE HON'BLE PANKAJ NAQVI, J.
THE HON'BLE VIVEK AGARWAL, J.

Crl. Misc. W.P. No. 11367 of 2020
Salamat Ansari & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Rakesh Kumar Mishra

Counsel for the Respondents:
A.G.A., Sri Ritesh Kumar Singh

Criminal Law-Couple have attained age of
majority-contracted marriage and living
together-no
offence
made
out-F.I.R.
quashed.

W.P. allowed. (E-7)

List of Cases cited:-

1. Shafin Jahan Vs Asokan K.M (2018) 16 SCC
368

2. Shakti Vahini Vs U.O.I. (2018) 7 SCC 192

3. NandaKumar Vs St. of Ker., (2018) 16 SCC
602

4. KS Puttaswamy Vs U.O.I. (2017) 10 SCC 1

5. Smt Noor Jahan Begum @ Anjali Mishra &
anr. Vs St. of U.P. & oth., Writ C No. 57068 of
2014 (distinguished)

6.Priyanshi @ Km. Shamren & ors. Vs St. of U.P.
&
anr.,
Writ
C
No.
14288
of
2020
(distinguished)

(Delivered by Hon'ble Pankaj Naqvi, J.)

Heard Sri Rakesh Kumar Mishra,
learned counsel for the petitioners, Sri
Ritesh Kumar Singh, learned counsel for
the informant and Sri Deepak Mishra, the
learned A.G.A.

Learned AGA and the learned counsel
for the informant do not propose to file any
counter affidavit. With the consent of all,
the petition is being heard and finally
decided under the rules of the Court.