1. All these applications are filed by the State and they involve a common question of law. I have heard the learned A.P.P for the State of Maharashtra and Mr. H.A Solkar for the respondent in some of these petitions.

2. The question is whether the Special Judge appointed under the Essential Commodities Act has powers to pass interim orders in respect of release of property involved in the commission of offences under the Essential Commodities Act.

3. To appreciate this question, facts of CRA No. 123 of 1996 are reproduced:

4. On 12-3-1996, the CB Control, CID, Mumbai received some definite information that the respondents along with others is illegally carrying out mixing of Naphtha with MTO and Pantene i.e petroleum products and sell the said adulterated mixture as petrol in India at various places. One of such consignment of Naphtha was to be transported in the night between 12-3-1996 and 13-3-1996. Therefore, a close watch was kept on the tankers which were to carry Naphtha. One of such tanker spotted at Ghatkopar and was followed by the raiding party. Ultimately, the tanker stopped near the company of the respondents in mid night and thereafter raid was carried out. It was found that five tankers were standing within the compound of the company and there were about 27 tankers around the company's property. Some of which were loaded with Naphtha, MTO, Pantene, etc. In the compound where the tankers were standing, work of mixing of petroleum products with Naphtha was going on. Therefore, all these tankers, petroleum products, documents, cash etc. were seized and an offence was registered against the respondents.

5. The respondents thereafter applied to the Special Judge, Mumbai, for releasing their tankers and the Judge while allowing their applications by his order dated 29-3-1996 imposed the following conditions:—

(i) The applicant/accused shall furnish an Indemnity bond in the sum of Rs. 5 lakhs each for each of those 8 tankers in favour of the Commissioner of Police, Greater Bombay on the requisite stamp papers on usual terms and conditions within 7 days after the disposal of the seized Naphtha and other material by the Competent Authority.

(ii) This bond shall be attested by the Sr, P.I.C.B Control (Food) and shall be signed by two witnesses.

(iii) The applicant-accused shall also execute a PR bond in the like amount of Rs. 5 lakhs each for each of the 8 tankers in terms of this order within 7 days from the disposal of the seized Naphtha and other articles by the Competent Authority.

(iv) Upon the applicant/accused duly complying with clauses 1 to 3 hereinabove and upon the police properly verifying about the ownership of each of those 8 seized tankers, the police shall do hand over the interim custody of those 8 empty tankers to the applicant/accused forthwith in accordance with the procedure prescribed by law.

(v) Misc. Application No. 287/1996 stands disposed of accordingly. Certified copy expedited.

6. The aforesaid order is reproduced from CRA 123 of 1996 and in other matters similar orders pertaining to the property were passed. It was contended by the learned A.P.P that the Special Judge did not give any reasons for releasing the property on the bond of the accused, that there was no application of judicial mind and the order came to be passed in a routine manner without considering the gravity and seriousness and implications of the offence. It was also contended that the Special Judge did not take into consideration the Maharashtra Amendment to section 6-A of the Essential Commodities Act, 1955 and the provisions of the Essential Commodities Act which take away the power of the Special Court to deal with the property, so seized.

7. On the other hand it was contended by Mr. Solkar that so far as property in respect of the offence was Committed, the Special Court, as a Criminal Court had powers to deal was the property and pass suitable orders regarding the custody of the property pending trial. He contended that the Special Court was prima facie convinced that release of the property in favour of the respondents was just and proper and therefore no reasonings was required. In any case according to him not giving reasonings in such interlocutory orders did not effect the validity of the order. Secondly, further according to him the provisions of the Essential Commodities Act did not take away the powers of the Special Court and lastly according to him there was nothing with the prosecution to prima facie prove that the accused-respondent had committed any offence and that the offence was in respect of Petrolling Products Distribution Order, 1972 and particularly clause 3 of the said Order. He contended that under the Petrolling Products Distribution Order, 1972, no provision for any offence or is breach was made and consequently accused could not be said to have committed any offence under the said Order of 1972.

8. So far as the order of the Special Court is concerned, admittedly it is an order without any reasoning. The accused filed their application for return of the articles seized by the police during investigation and even after hearing the counsel for the accused and the Special P.P the Special Judge (S.R Mehra) did not give any reasons for return of the articles. All the impugned orders are short, cryptic and without any reasonings and no aspect or angle of the matter is considered by the Special Court.

9. That apart, crucial question is whether the Special Court has any powers regarding disposal of the property seized or taken in charge under the E.C Act and whether the order of the trial Court is required to be interfered with on this ground. The learned A.P.P drew my attention to Section 6-E of the E.C Act introduced by amendment of 8th September, 1986. The section is quoted as under:

“6E. Bar of jurisdiction in certain cases. — Whenever any essential commodity is seized in pursuance of an order made under section 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 section 6-A, the Collector, or, as the case may be, the State Government concerned under section 6-C shall have, and, notwithstanding anything to the contrary containing 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.”

10. The learned APP on the basis of the aforesaid section contended that this section has taken away the powers of any Court including criminal Court or the special Court to pass orders in respect of possession, delivery, disposal, release or distribution of essential commodity, package, covering, receptacle, animal, vehicle, vessel or other conveyance. He pointed out that even if the special Court is constituted under this Act by virtue of section 12 A, that Court have no powers to deal with the aforesaid aspect, namely, passing of orders regarding disposal etc. of the property and even the provisions of Criminal Procedure Code cannot be invoked by the Special Court in that regard. The counsel for the respondent tried to contend that since the Special Court is primarily a criminal Court before whom the accused were produced in the instant case, the special Court gets power to pass order in respect of the property.

11. Special Courts are constituted under section 12-A of the E.C Act, 1955 and the relevant section states that the State Government may for the purpose of proving speedy trial of the offences under this Act “…………. constitute special Court……….” Section 12-AA is in respect of offences triable by special Courts and the powers of the special Court regarding those offences as per which the trial of the offences under this Act is to be held by special Court. Sub-section (b) of 12-AA gives powers to the Magistrate for authorising detention of person in custody and of granting bail in certain circumstances. The special Court is empowered to deal with the accused or arrested persons under section 167 of the Criminal Procedure Code. Under sub-section (e) the special Court is empowered to take cognizance of offences without the accused being committed to it for trial. Sub-section (f) provides that offences shall be tried in summarily and sub-sections (2), (3) and (4) makes a provision regarding trial of other offences in connection with the main offence and powers of the special Court recording evidence and sub-section (4) deals with High Court powers regarding bail. This Section 12-AA therefore does not speak of any powers of the special Court in respect of the property seized by the authorities under other provisions of this Act. Section 12-AC is regarding application of Criminal Procedure Code to proceedings before the special Court and it provides as under:— Save as otherwise provided in this act the provisions of the code (including the provisions of bail and bond) shall apply to the proceedings before the special Court and for the purposes of the said provisions the Special Court shall be deemed to be a Court of sessions and the person conducting the prosecution before the special Court shall be deemed to be a public prosecutor.

12. Relying upon the provision of section 12-AC it was contended by Mr. Solkar for the respondents that since the provisions of the code have been made applicable to the special Courts, the special Court gets all the powers to deal with the property seized under the provisions of this Act and therefore there was no illegality or infirmity in the impugned order.

13. It is difficult to accept this contention, firstly, because section 12-AC starts with the words “Save as otherwise provided in this Act” which means that if some other provision is made in this Act regarding the powers of the special Court or regarding applicability of the Criminal Procedure Code or its non-applicability, then those provisions will override and Criminal Procedure Code will be of no help in that regard. Such a saving provision is there in Section 6-E which specifically lays down that “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.” This provisions is clear in itself leaving no scope for doubt and it clearly takes away all the powers granted to all the Courts or to any Court under any law for the time being in force. This provision clearly shows that neither the special Court constituted under the E.C Act nor the Sessions Court working under the Criminal Procedure Code nor the special Court exercising powers under the Criminal Procedure Code as provided under section 12-AC can have any powers of jurisdiction to pass order regarding the property seized under the provisions of E.C Act. The contentions of Mr. Solkar are therefore required to be rejected and the submissions made by the learned A.P.P are required to be accepted that the special Court has no power whatsoever to pass orders in respect of property. Section 6-E refers to seizure of essential commodity under section 3 or seizure of any package, covering, receptacle, in which the commodity was found or any animal, vehicle, vessel or other conveyance used in carrying such commodity. Section 3 is in respect of powers to control, production, supply, distribution etc. of essential commodities and it empowers the Central Government to provide for regulating or prohibiting the production, supply and distribution of essential commodity. Therefore if a commodity is an essential commodity under section 3 and if the essential commodity is seized along with the package covering or receptacle in which it was kept or any animal, vehicle or vessel or other conveyance which was used for carrying such a commodity then it is only the Collector and the State Government has powers to pass orders regarding disposal of delivery, possession etc. of the essential commodity, packing or the vehicle and no Courts, tribunal or other authority has any jurisdiction in that regard. It is therefore clear that the special Court lack jurisdiction to pass any orders of any nature whatsoever regarding essential commodity or the vehicle, packing, etc. Therefore, on this count also the impugned order is liable to be quashed.

14. It was also further contended by Mr. Solkar that Section 6-E which creates a bar in the powers of any Court, tribunal or other authority comes into play only in respect of commodity about which confiscation proceedings under section 6-A are pending and therefore according to him in the instant case confiscation proceedings were not pending regarding all the property involved in all the applications and as such prayer under Section 6-E would not apply.

15. This contention of Mr. Solkar cannot be accepted because Section 6-E is in respect of two contingencies i.e seizure of essential commodity in pursuance of an order under section 3 or seizure of such commodity, vehicle, vessel etc. pending confiscation under section 6-A. The provisions of sections 3 and 6-A are altogether different. Section 3 gives power of control, production, supply, distribution etc. of essential commodities to the Central Government; whereas section 6-A is in respect of confiscation of seized commodities. Seizure of essential commodity with package, covering or vehicle under section 3 is therefore different from the confiscation under section 6-A and it is further clarified in section 6-A itself which provides that “Where any essential commodity is seized in pursuance of an order made under section 3, a report to that effect shall be sent to the Collector and he may thereafter order confiscation of the said commodity, package or the vehicle.”

16. In view of this, the arguments of Mr. Solkar that Section 6-E is only in respect of confiscation proceedings cannot be accepted.

17. In CRA No. 123 of 1996 the impugned order is in respect of 8 tankers, in CRA 124 of 1996 the impugned order is in respect of 21 tankers, in CRA 125 of 1996 impugned order is in respect of cash currency notes of Rs. 30,485/- and books of account and business documents, in CRA 41 of 1997 the impugned order is in respect of bullock cart tanker, in CRA No. 262 of 1996 the impugned order is in respect of motor tanker No. MCT-2240 and in CRA No. 261 of 1996 the impugned order is in respect of motor tanker No. MCU 67. Considering the seizure of such a magnitude, Mr. Solkar contended at any rate seizure of all the tankers was not at all justified and he drew my attention to the FIR or complaint lodged by Manohar Aabasaheb Patankar, who was PSI of Crime Branch as on 14-3-1996. As per this FIR tanker No. MH04-P 1134 and four tankers were found in the premises of the company, namely, Poly Organic Pvt. Ltd., and Saroj Petrochem Industries Pvt. Ltd.

18. Regarding all this seizure, I questioned the learned Additional Public Prosecutor as to whether there is any direct connection between the seizure of 22 empty tankers (covered by CRA No. 124/96) with the offences involved. The learned A.P.P contended that as per the FIR, all these tankers including 8 covered by CRA No. 123 of 1996 and 22 recovered in CRA No. 124/96 were standing in queue in the premises for the adulteration of Naphtha and other chemicals and therefore they are directly involved in the offence. So far as cash, business documents and accounts books is covered by CRA 125/96 is concerned, the learned A.P.P contended that cash and account books had direct nexus with the illegal activity and they cannot be allowed to be released under any circumstances.

19. I have perused the FIR, copy of which is annexed in CRA No. 123/1996. I however do not find any case on merits regarding the empty 22 tankers covered in CRA No. 124/1996. Merely because those 22 tankers were standing in queue is not sufficient to raise a presumption that they were standing there only for the purpose of get in filled the mixture of Naphtha or adulterated petrol or petroleum like substance, illegally produced. So far as cash and account books are concerned, there appears to be a prima facie case in respect of cash, documents and account books because it is only the documents and account books which can reveal the modus-operandi and give proof to the prosecution in respect of the offences alleged. Therefore, for all these reasons, I pass the following order:

20. Criminal Revision application Nos. 123/96, 125/96, 41/97, 261/96 and 262/1996 are allowed. Rule made absolute in all the applications. Impugned order is quashed. Respondents to surrender all the property in these applications before the Investigating Agency within two weeks from the date of this order.

21. Criminal Revision Application No. 124/96 is rejected. Rule discharged. The order of the trial Court releasing the property is maintained but only for the reasons stated in the Judgment.

Order accordingly.