In re : Swadeshi Sugar Supplies Private Ltd. v. . — 1980 DIGILAW 81 (CAL)

Judgment P.C. Borooah, J. In this application under Article 227 of the Constitution, moved with notice to the State, the petitioners have impugned the validity of two order dated 21.12.79 and 14.2.80 passed by Sri C.R. Gautam, Additional District Magistrate, Howrah in connection with Howrah police Station Case No. 33 dated 18.12.79. 2. On December 18, 1979 the District Enforcement Branch, Howrah seized 140 bags of sugar weighing approximately 140 quintals from the possession of one Sriram Agarwala if 61, Chintamani Dey Road, Howrah: consequent to such seizure Howrah Police Station Case No. 33 dated December 18, 1979 was stated. The said seizure was also reported to the Additional District Magistrate, Howrah (being the Collector) under the Provisions of S. 6A of the Essential Commodities Act, 1955 (hereinafter the Act). 3. On receipt of such report the learned Magistrate by an order dated 21.12.79 started a confiscation proceeding and ordered issue of a notice to Sriram Agarwala under S. 6B of the Act directing him to show cause against confiscation by 2.2.80. He also by the same order, acting purportedly under S. 6A(2) of the Act, directed the seized sugar to be sold by the Investigating Officer to 14 Ration dealers to be selected by the Rationing Officer concerned in view of the fact that sugar was a scarce commodity and also subject to speedy decay. 4. On February 14, 1980 a petition was filed on behalf of the 1st petitioner for release of the seized sugar claiming that the sugar seized from the godown of Sriram Agarwala actually belonged to Swadeshi Sugar Suppliers. The learned Magistrate by an order of the same date rejected the petition holding inter alia, that except for the oral and written submissions, there was no other matrial before him in support of the contention of Swadeshi Sugar Supplies. The learned Magistrate further held that since by his earlier order dated 21.12.1979 he had started a confiscation proceeding under S.6A of the Act, the prayer for release of the sugar to the first petitioners could not be entertained in view of S. 6E of the said Act. 5. Mr. The learned Magistrate further held that since by his earlier order dated 21.12.1979 he had started a confiscation proceeding under S.6A of the Act, the prayer for release of the sugar to the first petitioners could not be entertained in view of S. 6E of the said Act. 5. Mr. Balai Chandra Roy, appearing on behalf of the petitioners, has submitted that before the order for sale was made by the learned Magistrate under S. 6A(2) of the Act, the petitioners should have been given an opportunity of being heard, and the denial of such opportunity has resulted in the violation of the principles of natural justice warranting this Court’s interference under Article 227 of Constitution. Mr. Roy further submitted that the observation made by the learned Magistrate in his order dated 14.2.80, viz. that except for the and written submission there was no other material before him in support of the contentions made by the 1st petitioner, is erroneous as a number of documents were produced before the learned Magistrate but the same were not considered by him. In this context, Mr. Roy has referred to the supplementary affidavit filed by the 2nd petitioner Bijay Kumar Kalanoria on behalf of himself and the 1st petitioner. Annexure “A” to the said affidavit enumerates the documents which were said to have been produced before the collector on 14.2.80. 6. Mr. Mitra, the learned Public Prosecutor appearing on behalf of the State, has firstly submitted that in as much as a confiscation proceeding had been started by the learned Magistrate under S. 6A of the Act, this Court’s jurisdiction to entertain any application, even under Article 227 of the Constitution, is clearly barred in view of S.6E of the Act. Mr. Mitra then contended that even assuming that this Court has the jurisdiction to entertain the present application, even then we should not interfere in the instant case, because the power giving to be Collector under S. 6A(2) of the Act to direct the sale of any seized essential commodity is independent of the starting of any confiscation proceeding under S. 6A(1) of the Act. As such, according to Mr. Mitra, an order for sale may be made under S. 6A(2) of the Act without prior notice to the owner of the seized essential commodity. 7. We regret, that we are unable to agree with either of the contentions of Mr. As such, according to Mr. Mitra, an order for sale may be made under S. 6A(2) of the Act without prior notice to the owner of the seized essential commodity. 7. We regret, that we are unable to agree with either of the contentions of Mr. Mitra, Article 227 of the Constitution gives this Court the general power of superintendence ever all courts and tribunals. If this Court finds cogent reasons for the exercise of this constitutional power, statutory limitations, such as those imposed by S. 6A of the Act, cannot stand in the way. 8. Section 6B of the Act mandates the issue of a show cause notice prier to an order of confiscation under S.6A of the Act. Although this requirement is not expressly mentioned at the time the Collector exercises his powers under S. 6A(2) of the Act, principles if natural justice require that a person whose right to property is being affected be given an opportunity of having his say. Moreover sugar is not a commodity which is subject to such speedy and natural decay that a heaving to owner would cause the commodity to perish. 9. The Supreme Court in construing the provision of Ss. 517 and 520 of the Code of Criminal Procedure, 1898 observed as follows in the case if the State Bank of India v. Ratendra Kumar Singh & ors. Reported in AIR 1969 Sc 401 : “It is true that the statute does not expressly require a notice to be issued, or rearing to be given to the parties adversely affected. But though the statute is silent and does not expressly require issue of any notice, there is in the eye of law the necessary implication that the parties adversely affected should be heard before the Court makes an order for return of the seized property.” 10. Coming bake to the instant case, the petitioners claim that they are the owners of the seized sugar and not Sriram Agarwala. In support of their contention they allegedly produced certain documents before the Collector on February 14, 1980. If the document were produced the Collector’s duty was to look into the said documents and then pass an order in accordance with law. We do not know whether inadvertently or otherwise the Collector took no notice of the documents referred to in annexure ‘A’ to the supplementary affidavit filed on behalf of the petitioners. If the document were produced the Collector’s duty was to look into the said documents and then pass an order in accordance with law. We do not know whether inadvertently or otherwise the Collector took no notice of the documents referred to in annexure ‘A’ to the supplementary affidavit filed on behalf of the petitioners. In any event the impugned orders having adversely affected the petitioners, the principles of natural justice require that they should be afforded a reasonable opportunity of being heard and their documents scrutinized. 11. We accordingly set aside both the orders passed by the Collector on 21.12.79 and 14.2.80 and direct the Collector to proceed afresh in accordance with law after giving the petitioners an opportunity of being heard and after considering the document referred to in annexure ‘A’ of the supplementary affidavit. The Collector will act as expeditiously as possible. 12. As prayed for, let this order be communicated to the Collector by a special messenger at the cost of the petitioners. D.C. Chakravorti, J. : I agree Order set aside.