Commodities essential for human and community sustenance are classified. as essential commodities. They may be summarized as basic commodities such as

Transcription

1 Defnton, Nature, Meanng and Scope Commodtes essental for human and communty sustenance are classfed as essental commodtes. They may be summarzed as basc commodtes such as foodstuffs, fuel, clothng, etc DEFINITION Essental Commodtes are defned as Goods consdered essental to mantan a mnmum acceptable standard of lvng 34. The Essental Commodtes Act, 1955,. gves an all nclusve defnton whch "means and ncludes any commodty n the lst provded n lthe schedule to Secton 2(a) 35. At present, the lst36 n the Schedule to secton 2(a) ncludes the followng essental commodtes; "(1) drugs. Explanaton.-For the purposes of ths Schedule, "drugs" has the meanng assgned to t n clause (b) of secton 3 of the Drugs and Cosmetcs Act, 1940; (2) fertlzer, whether norganc, organc or mxed; (3) foodstuffs, ncludng edble olseeds and ols; (4) hank yarn made wholly from cotton; (5) petroleum and petroleum products; (6) raw jute and jute textles; (7)() Seeds of food-crops and seeds of fruts and vegetables; () seeds of cattle fodder; and () jute seeds.] DICTIONARY, kamcty.com/kamwords/worddesc.asp?wordid=1083 ; THE ESSENTIAL COMMODITIES ACT, Ibd SCHEDULE TO SECTION 2A, THE ESSENTIAL COMMODITIES ACT, :d 27 vj Q

2 However, consderng the mantenance of a mnmum standard of lfe ard for sustenance of the socety many raore stems cars fee categorzed as -essental commodtes that must be endeavoured to be made avalable to the general publc at far prce by the Government. Hence, as suggested (under, chapter 9), perodc revew for the ncluson of tems under control s a necessty n the present economc scenaro and context 3.2. NATURE! The human socety sustans on basc elements such as food, clothng ard shelter etc. The control of tems enlsted n the Prncpal Act s of publc nature affectng and used by the whole naton. The nature of provsons of the law whch s a soco- economc penal legslaton covers very wde jursdcton and powers. The nature of object of the law beng regulatory for publc welfare for mantanng or ncreasng the supples of essental commodtes at far prce, t s essental to regulate and control the producton, supply and dstrbuton of such commodtes for ensurng ts equtable dstrbuton and avalablty to benefcares. The power to nclude and remove tems on the lst of essental commodtes has been exercsed to revew from tme to tme for the control over ther producton, dstrbuton and supply n the lght of economc lberalzaton, demand and supply poston and the purchasng power of the people, n consultaton wth the operatng Mnstres/Departments, as well as, the State Governments/ Unon terrtory admnstratons. The number of essental commodtes at present has been brought down to 7 through such revew exercses. On the other hand, addton/modfcaton of any essental commodty wll depend on crcumstances when there s a scarcty or non-avalablty of the commodty n a stuaton lke war, natural calamtes, dsrupton or threat of dsrupton of supply of such essental commodtes, whch cannot be tackled through normal

3 feade change! mqmmg guvemmert nterventon s'na) be ncuded n tee of commodtes. Earler, the Central Government duly keepng n vew the comfortable avalablty of food products, ssued orders on and under the Essental Commodtes Act, 1955, allowng the dealers to freely buy, stock, sell, transport, dstrbute, dspose, etc. any quantty n respect of specfed foodstuffs. However, n the wake of the recent rsng trend n prces, Government, apart from takng a number of steps to augment supples, decded to keep n abeyance certan provsons of the Central Order dated n so far as they related to wheat and pulses vde Removal of (Lcensng Requrement, Stock Lmts and Movement Restrcton on specfed Foodstuffs), Amendment Order, 2006, whch was notfed on , to enable the State Governments/UT Admnstratons to contnue to take effectve acton for undertakng de-hoardng operatons under the Essental Commodtes Act, It was also decded wth the approval of the competent authorty to mpose restrctons by keepng n abeyance some provsons of the Central Order dated n respect of edble ols, edble olseeds, rce, paddy and sugar. These Orders have been extended from tme to tme. The foodstuff wheat has been removed from ths lst to.e.f The other Commodfes?.e. poses, edble ols, edbe olseeds, rce, paddy and sugar for whch such stock controj orders have been ssued are vald tll The Preventon of Blackmarketng and Mantenance of Supples of Essental Commodtes Act, 1980, s beng employed by the State Governments/UT Admnstratons for the preventon of unethcal trade practces lke hoardng and black-marketng etc., by detanng persons whose actvtes are found to be prejudcal to the smooth flow and mantenance of supples of commodtes essental to the communty. Detentons are made by the States/UTs n selectve cases to prevent hoardng and black-marketng of the essental commodtes. Under the fs J 29

4 provsons of ths Act, the State Governments are requred to report the facts together wth the grounds of detenton and other partculars relatng to t, to the Central Government wthn seven days of approval of the State Government. The nature of detenton under the Act s preventve. The nature of; offences of the commodtes and any unfar trade and commerce theren, s also protected under the Consumer Protecton Act, The provsons contaned theren can also be taken shelter of by the consumers n ca^e the exstng complant mechansm for relef under the Essental Commodtes Act, 1955, s nsuffcent for proper redressal of grevances. 3.3 MEANING AND SCOPE Essental Commodty means any commodty essental for the sustenance of the lfe of communty and declared as such by the CentralGovemment and ncluded n the lst to schedule under secton 2(a) to the Essental Commodtes Act, Ths Act, especally, Secton 3, s an example of what appears n practcally every statute nowadays, that new enactment s vald not wthstandng any law to the contrary. Secton 6 of the Act, lays down that any order made under Secton 3 of the Act shall have effect notwthstandng anythng nconsstent, therewth, contaned n any enactment other than ths Act or any order, notfcaton or crcular havng effect by vrtue of any enactment other than ths Act. The Frut Products (control) Order, 1955, whch was made under Secton 3 of the Essental Commodtes Act, 1955, was held to overrde the provsons of the Preventon of Food Adulteraton Act 1954, cn Hamdacd Oawakfana33. Act 10 of Hamdard Dawakkana v. Unon of Inda AIR 1965 SC 1167 atp

5 Generally, a delegated legslaton lke a role or regulaton cannot have overrdng effect, ws-d-ws, an Act of Parlament as the State Legslature s always su/e servent, however, accordng to the provsons of Secton 6, of the Essental Commodtes Act, 1955, n the event of any nconsstency the control order wll preval over other Acts whether made by the Parlament or by the State Legslature. Ths mples that the Central Government has been delegated unlmted and overrdng powers for the purpose of exercsng control over the supply, producton and dstrbuton etc. of essental commodtes. Furthermore, f the crtera for ssung the control orders are satsfed and adhered to as provded under Secton 3 of the Act, the control orders cannot be challenged n any Court of law. It was held by the Courts that,...there s no doubt that the Motor Sprt and Hgh Speed Desel (Preventon of Malpractces n Supply and Dstrbuton) Order, 1990, wll preval over another statutory enactments 40. Hence, t s beyond doubt that the Essental Commodtes Act, 1955, has overrdng powers over other enactments. However, the overrdng powers are not absolute and unlmted as held n Arvnd Kumar & Brothers41 that, a mere rregularty l n declaraton of stock of food grans found by the authorty and an order confscatng entre stock passed by the Dstrct Supply Offcer durng nspecton of the places of the busness of the pettoner who was carryng on busness of,sale and purchase of food-grans havng a lcence ssued under the provsons of Gujarat Essental Artcles (Control & Stock Declaraton) Rules, 1991, was not tenable. Therefore, the entre quantty of food-grans s not lable to be confscated only on the ground that there were certan rregulartes and the confscaton proceedngs were therefore, quashed. 41 Krshna Kumar v. Sr. Suptd. of Polce 1998 CrLJ 380$ at3817(all); ChentRam v. State AIR 1971 Punjab 310: CrLJ971. Arvnd Kumar & Brothers v. State of Gujarat 1995 (1) GCD 764: (1995) 1 Guj LH Q )

6 Therefore, the requrement of bonafde and concrete proof of volaton of an Order (Control or Lcencng) must be establshed, s a necessary condton for confscaton. Legslatve changes have also expanded the scope of the Law. Secton 6A whch was newly added to the Essental Commodtes (Amendment) Act, 1966, 42 and n 1967, n ths secton, n place of'food-grans, edble ol-seeds or edble ol are sezed', for the words 'they may', the words 't may' and for the words 'may order confscaton of the food-grans, edble ol-seeds or edble ols, the words may order confscaton of the essental commodty so sezed' were substtuted by Sec. 4 of the Essental Commodtes (Second Amendment) Act43, In 1974, also n ths secton 6A n the openng paragraph for the words 'may order confscaton of the essental commodty so sezed ', thetolowng words were substtuted retrospectvely wth effect from by Sec. 4 of the Essental Commodtes Amendment Act, 1974 ; vz., may order confscaton of (a) (b) the essental commodty so sezed; any package, coverng or receptacle n whch such essental commodty s found; and (c) any anmal, vehcle, vessel or other conveyance used n carryng - Such essental commodty. 44 In 1976, n the secton the followng amendments were made on by Secton 4 of the Essental Commodtes Amendment Act 92 of (I) Secton 6-A of the prncpal Act has been renumbered as sub- secton (1) thereof and n sub-secton (1), as so renumbered (a) for the words 't may be produced, wthout any unreasonable delay, before', the words 'a report of such sezure shall, wthout unreasonable delay, be made to1 has been substtuted, and for the words f satsfed, Act 25 of ActXAXVI ot Act 30 of 1974.

7 the words ;'may, f he thnks t expedent so to do, drect the essental commodty so sezed to be produced for nspecton before hm, and f he s satsfed' has been substtuted; <b) after the provso, the followng provso has been nserted, namely: Provded further that n the case of any anmal, vehcle, vessel or such conveyance used for the carnage of goods or passengers for hre, the owner of such anmal, vehcle, vessel or other conveyance shall be gven an opton to pay, n leu of ts confscaton, a fne not exceedng the market prce at the date of sezure of the essental commodty sought to be carred by such anmal, vehcle, vessel or other conveyance; (II) after sub-secton (1) as so renumbered, sub-sectons (2) and (3) have been nserted, namely: S; : (a) n sub - secton (2) Where the Collector, on recevng a report of sezure or on 'nspecton of any essenta} commodty under sub-secton (1), s of th'e opnon that the essental commodty s subject to speedy and natural decay or t s otherwse expedent n the publc nterest so to do, he may () Order the same to be sold at the controllers prce, f any, fxed for such essental commodty under hs Act or under any other law for the tme beng n force; or aucton; () Where no such prce s fxed., order the same to be sold by publc Provded that n case of food-grans, the Collector may, for ts equtable dstrbuton and avalablty at far prces, order the same to be sold through far prce shops at the prce fxed by the Central Government or by the State Q s/ 33

8 Government, as the case may be, for retal sale of such food-grans to the publc. ; (b)ln sub- secton (3) where any essental commodty s sold, as aforesad, the sale-proceeds thereof, after deducton of the expenses of any such sale jor aucton or other ncdental expenses relatng thereto, shall () where no order of confscaton s ultmately passed by the Collector; () where an order passed on appeal under sub-secton (1) of Secton 6-C so requres; or () where n a prosecuton nsttuted for the contraventon of the order n respect of whch an order of confscaton has been made under ths secton, the person concerned s acqutted, be pad to the owner thereof, or the person from whom t s sezed. Ths secton makes necessary provsons for the confscaton of essental commodty sezed n pursuance of an order made under Secton 3 of the Prncpal Act and n relaton, thereto. The Collector of; the Dstrct or the Presdency town n whch such essental commodty s sezed s empowered and may order ts confscaton f he s satsfed that there has been a contraventon of such order. But, no order of confscaton shall be made under ths secton f the sezed essental commodty has been produced by the producer wthout prejudce to any acton whch may be taken under any other provson of ths Act. Also, snce, the wder powers of confscaton and dsposal of property have been conferred by Sectons 517 and 523 (new Sectons 452 and 457 of 1973) Code of Crmnal Procedure Code these powers must be regarded as mpledly lmted by the specfc provson of Sec. 6-A of the Act. The rule s that where a statute specfes a partcular mode of enforcng a new oblgaton created by t, such

9 oblgaton can as a general rule be enforced n no other manner than that provded by the statute 45. However, n the followng decsons t has been observed/ held by the Courts that the provsons of the Law cannot overrde or subrogate the provsons of the general, normal jursdcton of the other statutes such as the Crmnal Procedure Code, As was held, that, the provson of Secton 6-A ntroduced by Secton 4 of the Amendment Act, 1974, s prospectve and not retrospectve. In the nstant case, Rameshwar Rathod was the owner of the truck whch was sezed for the contraventon of the provson of the Essental! Commodtes Act, They fled a wrt under Artcles 226 & 227 of the Consttuton of Inda, n the Hgh Court, to guash the orders of the Judcal Magstrate who has refused to return the vehcle. The Hgh Court held that, the provson was not retrospectve and the Crmnal Court was empowered under Sec. 7 of the E.C. Act, to confscate the vehcle after due and proper nqury 46. Therefore, the proceedngs of the Dstrct Collector under Sectons 6-A and 6-B of the Act was argued to be quashed. But, dsmssng the appeal fled by the State of M.P. aganst Rameshwar Rathod, the Supreme Court has reterated the above vew and held that, the Crmnal Courts of the country have the jursdcton and the ouster of the ordnary Crmnal Court n respect of a crme can only be nferred f that s the rresstble concluson flowng from necessary mplcaton of the Act and the Crmnal Court retaned the jursdcton n spte of necessary nserton of Provson 6A. 47ln another case, t was agan held that f the confscated goods are pledged to a bank under a cash credt agreement, the effect of legal sezure n confrmaton under Secton 6A shall not overrde the rgfrfs of the banks. "Collector s restraned from recoverng Are safes proceeds from the pettoners unless t s found that out of the sale proceeds anythng n excess of Purshottam Devj v. Emperor 46 Bom LR.449: AIR 1944 Bom 247: IllR 1944 Bom (1) Crmes, 222 SC Ibd. I ' r\ ss 35 CT) >

10 the loan of the pettoners wth nterest and the expenses nvolved s stll lable to be recovered from the pettoners 48. Also, n the case of Ram Suresh Ra,49 a truck sezed belongng to revsonst and the other truck belongng to other and n vew revsonst nvoked Fertlzer Control Order, 1985 and they prayed for the release of truck. Ths was refused by the Specal Judge but the Hgh Court held that, the truck should be released because otherwse t wll deterorate and wll not be n the nterest of the revsonst. But, certan condtons were mposed 50. Nevertheless, the followng decsons agan asserted the overrdng powers of the Law. In ths case t was held that, the power to order confscaton n respect of food-grans, edble ol-seeds and edble ols for contraventon of the orders made under the Act s gven to the Collector of the Dstrct under the amended Sec. 6-A of the Act. He s empowered to exercse the sad power whether or not the prosecuton s nsttuted aganst the accused for contraventon of the orders. Thus, the Legslature ntended to gve the power of forfeture by an express proton the statute to the collector whether or not prosemstsfesfod. Therefore, foe general provsons relatng to the confscaton and dsposal of property under the Crmnal Procedure Code cannot be exercsed by the crmnal court n the matter of confscaton of foodgrans, etc. The provsons of Sec. 6-A of the Act mpledly lmt the powers of the crmnal court n the matter of dsposal of foodgrans, etc. whch are sezed n contraventon of the Act and orders whether or not prosecuton s nsttuted aganst the accused- Even after the prosecuton n nsttuted, the Crmnal Courts get the power to dspose of food-grans only after the nqury or tral s over as provded under the varous Clauses of the orders made under Sec. 3 or 5 of the Act ! BankofBaroda v. Collector of Indore, 1995 Company Cases 580 (MP) (DB) U.P. Cr. R. 258 (AC) Ibd State v. Abdul Rasheed AIR 1967 Mys 231: 1967 Cr. LJ 1661

11 In decdng the above case, the Supreme Court quoted, Inda Carbon Ltd & Others 52 and held, after analysng the Consttuton Bench judgment n J.K. Synthetc /C.T.O.53 that nterest can be leved and charged on delayed payment of tax only f the statute that leves and charges the tax makes a substantve provson n the Act for the levy of nterest on arrears of tax that appled to purchase of sugarcane made subsequent to the date of commencement of the Amendng(Act, no nterest thereon, could be so leved, based on the applcaton of the sad Rule! 45 or otherwse 54. j However, t was cautoned by the Courts that the overrdng powers should not be exercsed arbtrarly and wthout applcaton of judcous mnd as has been held that, a Mere storage wthout an actual sale, n a place other than the place of busness, does not result n contraventon of provsons of the lcensng order and therefore, does not justfy confscaton under Secton 6A of the Essental Commodtes Act, The crcumstances under whch an order of confscaton s lable to be passed by the Dstrct Collector under the Essental Commodtes Act, 1955, was consdered n length n Satsh & Co,56, wheren, the Hgh Court sounded a word of cauton by observng that, the dscreton n ths regard should be exercsed judcally and properly, and not arbtrarly 57. j > There s certanly a dstncton between the contraventon of the lcensng order, and contraventon of the condtons of lcense ssued; under the order. The second Provso to Secton 6A of the Essental Commodtes Act 1955, lmts the power of the competent authorty to recover fne up to the market prce for releasng the anmal, vehcle, vessel or other conveyance sought to be confscated"58 s the SS 1997 (6) S.C.C. 479., 1994 (4) S.C.C Ibd D. B. modun v. State ofkerela AIR 1999 Ker, Ker. L.T. 240 Ibd Dy. Commssoner Dakshna Kannada Dst. v. Rudolph Fernandes AIR 2000 SC

12 vew of the Hon ble Supreme Court n Rudolf Fernandez?9, but the Apex Court has held n Ramesh Chandra PadhP0 that, what s to be confscated s the vehcle ard therefore, measure of fne would be relatable to the market prce of the vehcle at tlje date of the sezure of the essental commodty sought to be carred by such vehcle. Ths decson would also be consstent wth the scheme of Secton 7 whch provdes for levy of penalty and secton 8 also wdens the scope of Sec.7 of the Act, as t expressly lays down that any person who attempts to contravene or abets a contraventon of any order made under Sec.3 shall be deemed to have contravened that order 61 as. was aptly held earler by the Hon ble Hgh Court of Orssa that, a person attemptng to contravene an order made under Secton 3 s deemed to have contravened t on the bass of the provsons of ths secton and s lable to be convcted 62. The above decsons, n the process, ncreasng the scope of punshments n essental commodty related offences, also s suffced and supplemented by the Provsons of the Preventon of Blackmarketng and Mantenance of Supples of Essental Commodtes Act, 1980, thus, makng the scope of the Law and of punshments for essental commodty related offences and for both makng of Control Orders as well as punshments for volaton of such Orders, gargantuan. Therefore, prma face, there, s very less scope for commttng offences and prospectve offenders unless there s lacunae and spllage n the proper mptementeton of fne Law. Scope for grevance redressal has ncreased consderng the applcablty of provsons of the Consumer Protecton Act, 1986, under the purvew of whch unfar and deceptve actvtes have been covered as unfar trade practce and hence punshable Ibd Ramesh Chandra Padh v. Collector of Ganjam, Supreme Court, 2008 dt Ibd y.auunham Jagstodkam v. State -of Orssa, AIR 1952 "Or 164:17 Cut LT154. A 38 V J