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1982 DIGILAW 124 (PAT)

Ishwar Chand Sahu v. State of Bihar

1982-10-11

RAM CHANDRA PRASAD SINHA, S.K.JHA

body1982
JUDGMENT S. K. Jha, & Ramchandra Pd. Sinha, JJ. - In this application under Articles 226 and 227 of the Constitution of India, there are seven petitioners. The relief sought by thenm is for the issuance of a writ in the nature of mandamus commanding the respondents to release the foodgrains as detailed in Annexure-5 to the petition. It may be stated here that the chart (Annexure-5) shows as to what quantity of rice belongs to which of the petitioners. The quantity of rice in respect of which the petitioners want the relief of release was seized along with some other foodgrains, details of which would be given later, on three dates, namely, 27.12.81, 30.12.81 and 2.1.82, which are before (sic) out by Annexure-2, 3 and 4, the seizure lists, respective]y. The grievance of the petitioner is that the seizure was wholly illegal. 2. The short facts relevant for the disposal of this application may be stated thus. Petitioners 1 to 6 arc petty dealers in foodgrains. Petitioner no. 7, Ambika Prasad, is a retail licensee under the provisions of the Bihar Foodgrains Dealers' Licensing Order, 1967 (hereinafter to be referred to as "the Licensing, Order"). The other petitioners dealing in very small quantities of foodgrains require no licence under the Licensing Order. On 26.12.1981, the Assistant -District Supply Officer, Buxar, respondent no. 2, along with some other officers of the Supply Department of the State Government, raided the premises and the Barge station as well as the two barges which were operating namely, barge no. 1 and barge no. 7, at Sidhnath Ghat, Buxar, belonging to the Poland Water Transport Directorate under the Government of India, and, on 26.12.81 and 27.12.81, seized 579 bags of rice, ]95 bags of wheat, 23 bags of gram and 3 bags of Ata which were found loaded on the two barges aforementioned. Over and above this, 57 hags of rice and 11 bage of wheat, which were found in the compound of the Barge Station, were also seized. The aforesaid seizure was effected on the basis of an allegation that respondent no. Over and above this, 57 hags of rice and 11 bage of wheat, which were found in the compound of the Barge Station, were also seized. The aforesaid seizure was effected on the basis of an allegation that respondent no. 5, the officer-in-charge of the Barge Station, had not actually booked a part of the goods which were loaded in the barges and was transporting the same in un1tuthorised manner, thereby violating the provisions of the Bihar Rice and Paddy Procurement Order, 1981-82 (hereinafter to be referred to as "the procurement order"). Thereafter, the premises were sealed and, later, on 30.12.81 and 2.1.82, certain other papers, in- voices and documents were seized by the police from the said premises. On the basis of the aforesaid allegation, a first information report was lodged with the Buxar police, and, on the basis thereof, Buxar P. S. case No. 0332/81 dated 27.12.81 was registered under section 7 of the Essential Commodities Act, 1955 (hereinafter to be referred to as "the Act") as also under section 114 of the Indian Penal Code (hereinafter to be referred to as "the Code"). A true copy of the first information report has been marked Annexure-l to this writ petition. From a perusal of the first information report all that transpires is that the allegations against the petitioners are that, although the number of bags containing foodgrains was found to be 800 loaded on the two barges, according to the invoice, only 597 bags of foodgrains had been booked for transport. Thus, there was an excess of 203 bags of foodgrains which were being sought to be transported without proper booking. On these facts; it has been alleged simply that the petitioners were carrying on trade in foodgrains illegally and had, thus, voliated the provisions of section 7 of the Act and section 114 of the Code. On a plain reading of the first information report; no fact can be found pointing out to any offence attracting either section 7 of the Act or section 114 of the Code. 3. A counter-affidavit has been filed by respondent no. 5 supporting the petitioner's case. It has also been asserted by respondent no. On a plain reading of the first information report; no fact can be found pointing out to any offence attracting either section 7 of the Act or section 114 of the Code. 3. A counter-affidavit has been filed by respondent no. 5 supporting the petitioner's case. It has also been asserted by respondent no. 5 that only 597 bags were loaded on the barges under booking invoice, although R. R.'s with regard to some bags may not have been prepared and handed over by the time the raid was conducted by the officials of the supply Department. 4. A counter affidavit bas also been filed on behalf of respondents 1 to 3 in which the stand taken is that the petitioners are liable to be prosecuted for contravention of the provisions of clause (3) of the Bihar Essential Articles (Display of Price & Stock) Order, 1977 (hereinafter to be referred to as "the Display Order"), Mr. Lala Kailash Bihari Prasad, appearing for respondents 1 to 3, very vehemently contended that, although it may not have been mentioned in the first information report, the Court can very well take notice of the legal provisions as incorporated in clause (3) of the Display Order Our attention was invited to that provision. It merely lays down that any dealer dealing in foodgrains or essential commodites shall at a conspicuous place near the business premises display a list of prices and stocks. It is not the case of the respondents that any seizure was made at any of the business premises of any of the petitioners. It was ultimately conceded Mr. Lala Kailash Bihari Prasad that clause (3) of the display order cannot be attracted as the stock was not in the business premises of any of the dealers. Admittedly, the entire stock was sought to be transported frem Buxar either to Patna or to Dighwara Ghat. It is not a case of any Inter State trade. No provision of law could be shown to us showing the restriction of movement of foodgrains seized within the State itself. Mr. Lala Kailash Bihari Prasad had ultimately to accept the legal position that the first information report, as it stands, discloses no offence, much less, contravention of any of the provisions of any Control Order for the time being in force made under the Act. 5. Mr. Lala Kailash Bihari Prasad had ultimately to accept the legal position that the first information report, as it stands, discloses no offence, much less, contravention of any of the provisions of any Control Order for the time being in force made under the Act. 5. On 12.4.82, when this case was last heard at length Mr. Lala Kailash Bihari Prasad gave us to understand that the confiscation proceedings started by the District Magistrate, Bhojpur, under section 6-A of the Act were likely to be disposed of within ten days from that date and that we should defer this judgment for ten days. We had granted indulgence to him out of deference for his sheer tenancy with the result that this case, Instead of coming before us after ten days, could be put up for further, hearing after a period of more than six months, as this Bench was not available. Even till today, confiscation proceeding, if at all started, have not yet been concluded for the reasons best known to the authorities concerned. At one point of time, it has been urged by the learned counsel for the State that rice should also be treated as, paddy for the purpose of restriction of movement but when it was pointed out to him that rice and paddy could not be used in the same sense as they are not the same commodity in common parlance. In view of numerous decisions of various court to cite only one decision of the Supreme Courts in the case of M/s Ganesh Trading Co. Karanl vs. State of Haryana and another (A. I. R. 1974 S. C. 1362) Mr. Lala Kailash Bihari Prasad gave up that contention and admitted the legal position that, in so far as rice was concerned, it was not covered either by the Procurement Order, 1981-82 or any other law for the time being in force restricting its movement or making it a condition pre-requisite for depositing the amount to be levied under such law. Although there is a provision under the Procurement Order, 1981-82 with regard to the amounts to be levied as against whole salers and millers, it is the admitted position that, in the instant case, none of the petitioners is either a miller or a wholesaler. Although there is a provision under the Procurement Order, 1981-82 with regard to the amounts to be levied as against whole salers and millers, it is the admitted position that, in the instant case, none of the petitioners is either a miller or a wholesaler. It is therefore needless to refer to any such provision whereunder levy is payable by either a wholesaler or a miller. 6. In the result, therefore, we do not see any justification in law in letting the foodgtains belonging to the petitioners as detailed in Annexure-5 to the writ petition continuing under illegal seizure. We accordingly allow this application and issue a writ of mandamus directing the respondents 1 to 4 to release the stock of rice as detailed in Annexure-5 insofar as the petitioners alone are concerned we order accordingly.