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1980 DIGILAW 177 (PAT)

Sheonarayan Ram Tulsiram v. State of Bihar

1980-09-04

K.B.N.SINGH, P.S.SAHAY

body1980
JUDGMENT Heard learned counsel for the petitioners and the learned Additional Advocate General on behalf of the State. 2. In this writ petition the petitioners have prayed for quashing the order dated 28.11.76 [annexured] passed by Collector, Bojpur under section 6-A of the Essention commodities Act, confiscating 61 quintals of rice and the order dated 28.5.1979 [Annexure 5] passed by the Commissioner dismissing the appeal of the petitioners. 3. The main contention of learned counsel for the petitioners is that the goods were never produced after the selzune on 20.9.74 before the Collector and therefore the Collector has no power or directing its confiscation. Reliance is placed on a Beach decision of thus Court in the case M/S much erjee and Brothers and another v. The Deputy Commissioner Hazaribagh and another [Cr.W.J.C. No.17 of 1976 (R) disposed of on 23rd December, 1976] to which one of us was party. In that case reliance was placed on a single Judge decision of this court in the case of Shambhu prasad Sah V. The State of Bihar for holding that actual production of the seized article was necessary to give jurisdiction to the Collector to order confiscation of the seized articles under section 3 of the Essential Commodities Act, and relying on the said decision of the single Judge the Bench held the confiscation as invalid. It appears that an earlier Bench decision of this court In the case of Kanhai Lal Bhagat V. The State of Bihar and others dealing with the question of confiscation under section 6-A, as before its amendment by Act, 92 of 1976, taking a different view was not brought to the notice of the Division Bench in which it was held as follows ; "So far as the contention of the learned counsel for the petitioner that the articles seized wore never produced before the respondent Deputy Commissioner, which was a condition precedent to the exercise of the jurisdiction under section 6-A of the Act, is concerned, our attention was drawn to the words v. here any essential commoity is seized......... it may be produced, without any unreasonable delay, before the Collector of the district. it may be produced, without any unreasonable delay, before the Collector of the district. The words it may be produced occurring in section 6-A of the Act, in my opinion have to be so interpreted al to cover cases in which due to the nature of the article seized, it may not be possible to produce it before the Collector. It cannot be conceived that the intention of Parliament was that, before the power under that section could be exercised, the seized foodgrains which might weigh even several thousand quintals in come cases, have to be physically produced before the Collector. In my view, this docs not mean physical production of the articles In question In every case what it means is that the seizure of the articles in question should be reported to the Collector of the district who may apply his mind to the facts and the circumstances of the case, and, if he is satisfied that there has been a contravention of the provisions of the order in question, be may after complying with the requirements or sections 6-A and 6-B of the Act, confiscate the goods in question". (Underlining is mine) It will be important to mention that the order learned Judge (H.L. Agrawal, J.) who was a party to the decision in M/S Mukherjee and Brothers and another (supra) and had followed the single Judge decision in the case of Shambhu Prasad Sah [supra] expressly dissented from the view expressed by S. P. Sinha. J. In that case that (or the purpose of being "seized with the matter" under section 6 -A[6] one of the pre-conditions would be Inspection and taking charge of the article or articles that is to say, selzing it was not at all necessary. This Inspection was for finding out whether the commodity was subject to speedy and natural decay and it would be expedient in the public Interest to sell the same and not as a condition precedent towards mahing him competent to be seized with the matter. The following observation made by the learned Judge is also significant and may be quoted: "In this connection I may also point out the amendment that was made in section 6A by Act, 92 of 1976. The following observation made by the learned Judge is also significant and may be quoted: "In this connection I may also point out the amendment that was made in section 6A by Act, 92 of 1976. Before that amendment the provision required the production of the commodity wit bout and unreasonable delay before die Collector of the district, but the amendment made a change and thereby a report of seizure without any unreasonable delay is only to be made to the Collector and not the production of the commodity itself. This position has already been noticed by me In yet another unreported decision in Cr. W. J. C. No. 17 of 1976 (R) M/S Mukherjee and Brothers and another V. The Deputy Commissioner. Hazaribagh and another disposed of on 23.12.1976. sitting with Mr. Justice P.S. Sahaye" It is thus manifest that the earlier Bench decision in Kanhai Lal Bhagat's case (8upra) took the view that the expression "it may be produced" under section 6-A, as it then existed, was not a mandatory requirement of law as the very nature or bulk of the seized article may make it impossible for its being produced in Court. Had the attention of the Bench bearing the case of M/S Mukherjee and Brothers and another (Supra) been drawn to the Beach decision in Kanhai Lal Bhagat case (supra), which was binding on it, we have no doubt, it would have doubtless followed that decision and not the single Judge decision in the case of Shambhu Prasad Sah (supra) what is of importance is the seizure of the article and report to the Collector about the seizure before he could proceed to take action (or confiscation in respect thereof his actual production is not essential and the proceedings started for confiscation before the Collector are not without jurisdiction. The - view we have taken gains support from a Bench decision of this court in the case of Narendra Kumar. v. State or Bihar and of hers in which the case of Shambhu Prasad Sah (supra) has been distinguished. 4. In the instant cue the seizure of 61 quintals of rice whose production in court by no means was an easy proposition, was reported to the Collector before confiscation proceeding was started. v. State or Bihar and of hers in which the case of Shambhu Prasad Sah (supra) has been distinguished. 4. In the instant cue the seizure of 61 quintals of rice whose production in court by no means was an easy proposition, was reported to the Collector before confiscation proceeding was started. We therefore, do not find any substance in the submission of learned counsel for the petitioners that the confiscation proceeding was vitiated on account of non-production or the seized article before the Collector. The amendment of section 6-A by Act, 92 of 1976 has cleared the matter in this regard and leaves no room for confusion. What is required to be reported is the seizure of the article and the discretion is left with the Collector to direct its production if he considers it expedient to do so for purposes of inspection etc. The petition also suffers from another infirmity, Although the appellate order was passed by the Commissioner on 28.5.1979, this writ petition as tiled on 12.5.1980. The delay was sought to be explained by filing a certificate from the Bihar State food Corporation of India dated 2nd April, 1980, to show that the foodgrains were still lying in the corporation’s office when it was deposited after seizure and have neither been returned nor sold, Mere filing of the certificate would not be sufficient to explain the delay as it is not known as to when the application for copy was filed and hen the receipt was delivered. On this ground also the application is not likely to be entertained, Learned counsel for the petitioners has urged that the order of confiscation is vague in as much as It may be construed as confiscating the paddy and directing the petitioners to pay a sum equivalent to the price also. The learned Additional Advocate Geaeral has conceded that it means only confiscation of tile seized paddy or its price if sold and not both, In view of the clarification made by the learned Additional Advocate General, we do not find any merit in this application and it is summarily dismissed. Application dismissed.