P.K. Misra, C.J., Shiva Kirti Singh and Anjana Prakash, JJ.
1. Heard learned Counsel for the parties.
2. These two matters - Cr.Misc. Nos. 17707 and 17417 of 1995 - are placed before the Full Bench under the following circumstances: Cr.Misc. No. 17417 has teen filed under Section 482 of the Code of Criminal Procedure (the Code, for brevity) for quashing Special Case No. 10 of 1992 pending before the Special Judge, Saharsa under Section 7 of the Essential Commodities Act (the Act, in short). Cr.Misc. No. 17707 of 1995 has been similarly filed by another petitioner for quashing Special Case No. 26 of 1983 arising out of Kadamkuan (Kankarbagh) P.S Case No. 93 of 1993, wherein there is an allegation of violation of Section 7 of the Act read with the, Bihar Essential Articles (Display of Stocks and Prices) Order, 1977.
3. In both the cases, the main contention which was raised was to the effect that separate proceedings for confiscation under Section 6-A of the Act had been initiated and the order of confiscation passed was subsequently quashed by the appellate authority in exercise of the power under Section 6-C of the Act and, therefore, continuance of the criminal cases under Section 7 of the Act would be an abuse of the process of the Court and, therefore, should be quashed in exercise of Section 482 of the Code. Both the matters were referred to a Division Bench, in view of several conflicting decisions of the single Judges. The Division Bench rendered divided opinion. One learned Judge took the view that in view of the dropping of the confiscation proceeding by virtue of the order passed by the appellate authority, continuance of criminal case would be an abuse of the process of Court and should be quashed. Whereas, the other learned Judge took the contrary view. In normal course, the matter should have been placed before a third Judge for resolving the dispute. However, keeping in view the fact that no specific order for reference before a third Judge has been made by the Division Bench at that stage and keeping in view the importance of the question of law involved, it was thought fit by the Chief Justice to place the matters before a Full Bench.
4. Narayan Roy J., as His Lordship then was, relying upon certain decisions arising under the Income-tax Act took the view that since the confiscation proceeding had been dropped by virtue of the order passed by the appellate authority, the prosecution under Section 7 should be quashed. M.L. Visa J., on the other hand, took a contrary view and observed that merely because the confiscation proceeding is dropped, the prosecution launched under Section 7 of the Act need not be dropped. Visa J. by referring to the decisions rendered under the Income-tax Act, clearly pointed out that the provisions were dissimilar and, therefore, there is no necessity to drop the criminal case merely because confiscation proceeding has been dropped.
5. We have carefully gone through the opinion rendered by the respective learned Judges and we are afraid, we are unable to uphold the views expressed by Narayan Roy J. The said view was primarily based upon some decisions of the Supreme Court or of the Patna High Court relating to quashing of proceedings under the Income-tax Act. But, as rightly pointed out by Visa J. the provisions contained in the Income-tax Act being dissimilar, the ratio of the said decision would not have been extended to the prosecution under Section 7 of the Act.
6. Confiscation under Section 6-A of the Act is dependent upon various circumstances. Under the Act, there is specific provision in the shape of Section 6-C(2) that in case there is any acquittal, the confiscation order would not be operative and the concerned person is either entitled to get back the property which is confiscated or if the same has been sold, the value thereof. Since we are in entire agreement with the views expressed by Visa J. it is not necessary to recount the very same reasoning. We are of the opinion that merely because the confiscation proceeding has been dropped either by the original authority or by the appellate authority, the criminal case under Section 7 need not be quashed automatically, solely for this reason and it is for the concerned Court exercising jurisdiction under Section 482 to consider the various aspects and decide the matter in accordance with law.
7. The learned Counsel appearing for the petitioners submitted that the two prosecutions had been launched long before and, therefore, it would not be in the interest of justice to continue such prosecutions. Though we see some prima facie merit in such contention, we feel that it is a matter which has to be considered by the learned single Judge.
8. For the aforesaid reasons, the reference is answered accordingly by accepting the views of Visa J. The matter shall now be placed before the learned single Judge to consider all aspects of the matter and pass final orders in accordance with law.