- (1.) S. R. Bhargava, J. On 28. 5. 90 Station Officer, P. S. Urwa Bazar, Gorakhapur, lodged First Information Report against Firm M/s. Girja Shanker Daya Shanker, Daya Shanker, Girja Shanker, Anil Kumar and Ram Kesh on the basis of Recovery Memo prepared by him, for offence under Section 3/7 of the Essential Commodities Act. Allegations of the recovery report showed that Firm M/s Girja Shanker Daya Shanker is dealer of non- levy cement, Stationofficer received information that the door of the premises of the Firm was closed from outside but inside the premises bags of cement were being emptied and refilled for reducing their weight. On this information the Station Officer raided the premises of the Firm and found the premises locked from outside. When the door was got opened loader Ram Kesh was found emptying the bags and refilling them for reducing the contents. The raiding party seized 133 bags of cement.
(2.) AN application for release of these bags of cement was moved before the Special Judge (E. C. Act ). The learned Special Judge did not record any finding whether the case relates to non-levy cement and whether any offence under the Essential Commodities Act appears to have been committed or not. The learned Special Judge noted that seizure has been reported to the District Magistrate. He treated the application as not maintainable and dismissed the same. Against that ANil Kumar preferred Criminal Revision No. 1107 of 1990 in this Court. That revision was finally heard and disposed of on 31st July, 1990. This Court observed : Obviously, release was claimed under Section 457 Cr. P. C. the cement seized by the police was reported to the Special Judge he has jurisdiction to pass ap propriate order regarding release. It is obvious that the seizure was made in connection with offence alleged to have been committed under Section 3/7 of the E. C. Act. If cement is non-levy and no offence under E. C. Act has been committed provisions of Essential Commodities Act would not apply and the Special Judge will have jurisdiction to release cement under Section 457 Cr. P. C. " Since this Court was not possessed of the First Information Report of the case revision was allowed and case was remanded to the Special Judge for fresh disposal according to aforementioned observations within 10 days from production of certified copy of the order of the Court. When the case went back to the Special Judge he was not inclined to go into the question whether the cement is non-levy. He did not also enter into the question whether any offence under the Essential Commodities Act appears to have been committed or not. He concluded that his jurisdiction is barred by Section 6-E of the Essential Commodities Act. Hence, he dismissed the application for release again.
(3.) THIS time with the revision petition revisionist filed certified copy of the First Information Report which leaves no doubt that the whole case relates to non-levy cement and there is no averment that the dealer in non-levy cement was found clandestinely dealing with the levy cement. THIS time this Court has the advantage of the lower court record also. In the case of Om Prakash Agarwal v. State of U. P and others, 1985 EFR 152 a Division Bench of this Court clearly laid down that although non-levy cement is an essential commodity yet is stood released from Cement Control Order and the U. P. Cement Control Order, 1973 cannot be applied to non-levy cement. The law laid down by the Division Bench has been continuously followed by this Court, for example (In cases of M/s Bajrang Cement and others v. District Magistrate, Fatehpur, 1989 EFR 257, Rajendra Kumar and another v. State of U. P, 1988 EFR 101 and Sanjav Kumar and others v. State of U. P. and others, 1988 EFR 9. In the case oikamaljeet Singh v. State. 1987 EFR 465. this Court laid down that mere pendency of confiscation proceedings cannot oust jurisdiction of the court under Code of Criminal Procedure to release seized property under Section 457 Cr. P. C. This view stands reinforced by the case of State of Madhya Pradesh and others v. Rameshwar Rathore, 1990 (27) ACC 480 (SC ).;