S.K. Dhaon, J. - (1.) IN these petitions a common question is involved .They were argued together at the admission stage and in both of them we had dictated a similar operative portion of the order with a promise to give reason later on. We are doing so now.
(2.) THE question is as to which authority or Court will have jurisdiction to release the commodity seized in pursuance of an order made under section 3 of the Essential Commodities Act, 1955 (hereinafter referred to as the Act) if confiscation proceedings have not commenced under section 6 -A of the Act. In both the petitions the seizure took place in pursuance of the provisions of the U.P. Scheduled Commodities (Licensing and Restriction on Hoarding) Order, 1989. In view of the judgment of the Supreme Court in the case of Shambhoo Dayal Agarwal v. State of West Bengal : (1990) 3 SCC 549 : 1990 AWC 829, once confiscation proceeding has commenced neither any Court nor the Collector in proceedings under section 6 -E of the Act can direct the return of the commodity seized during the pendency of the proceedings. Section 12 -A of the Act provides for the constitution of Special Courts and section 12 -A A enjoins that all offences under the Act shall be triable only by the Special Court -constituted for the areas in which the offence has been committed or where there are more special Courts than one for such area, by such one of them as may be specified in this behalf by the High Court. Thus, it is clear that an offence under section 3 read with section 7 of the Act is triable by the Special Court alone.' Section 12 -AC provides that save as otherwise provided in the Act, the provisions of the Code, (Code means the Code of Criminal Procedure, 1973) (including the provisions as to bail and that bonds) shall apply to the, proceeding before a Special Court and for the purposes of the said provisions Special Court shall be deemed to be a Court of sessions and the person con -ducting a prosecution before a special Court, shall be deemed to be a Public Prosecutor. Section 11 of the Act talks of the taking of Cognizance by a Special Court. Once a. cognizance of an offence has been taken by a Special Court and proceedings for confiscation under section 6 -A have not commenced, there can be no difficulty in taking the view that a special Court alone will have the jurisdiction to deal with an application for release or return of the seized goods. The difficulty, however, arises in a situation where neither any confiscation proceedings have commenced nor has the cognizance been taken of the offence by the Special Court. Section 6 -A of the Act provides, inter alia, that where any essential commodity is seized a report of such seizure shall, without unreasonable delay be made to the collector of the district in which such essential commodity is seized and whether or not a prosecution is instituted for the contravention of such Control order issued under section 3, 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. It is thus evident that the Collector has to make up his mind as soon as possible as to whether the confiscations proceedings should or should not commence. He is also to apply his mind as to whether the commodity sized deserves to be sold off under Section 6 -A(2) pending confiscation proceedings. He has neither been given any express nor any implied powers to order the return of the commodity seized even if no confiscation proceedings have commenced. Of course, the scheme of section 6A, on the face of it, disclose that an immediate action has to be taken for an action is enjoined to be taken under section 6 -A(2) in public interest and it is implicit that such an action should be taken without any loss of time.
(3.) SECTION 457 of the Code of Criminal Procedure provides inter alia, that whenever the seizure of the property by any police officer is reported to. a Magistrate under the provisions of the Code, and such property is not produced before a Criminal Court during an enquiry 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. We have already indicated that the scheme of the Act is that the Special Court alone can take cognizance of the offences. No inquiry for an offence under sections 3/7 of the Act is contemplated. Only a trial is contemplated. For attracting Section 457 the first requirement is that the seizure of property is reported by a police officer and the second is that the report is to be, made to a Magistrate under the provisions of the Code. We have, therefore, to find out a provision in the Code which enjoins that a police officer should report the seizure of an essential commodity to a Magistrate. Section 157 enjoins, inter alia, that an officer in charge of a police station shall forthwith send a report of the commission of an offence to a Magistrate empowered to take cognizance of such an offence upon a police report. Thus, it is clear that under Section 157 the report is required to be sent to a Magistrate empowered to take cognizance of an offence. We have already indicated that the Magistrate is debarred from taking cognizance of an offence alleged to have been committed under section 3/7 of the Act. Therefore, Section 457 cannot come into play.;