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1982 DIGILAW 308 (CAL)

Shyam Sundar Khaitan v. State of West Bengal

1982-08-25

AMITABHA DUTTA

body1982
ORDER This revisional application is directed against an order dated 29nd January, 1982 passed by the learned District Judge, Purulia, as judicial authority under S. 6(C) of the Essential Commodities Act, 1955 in Misc. Appeal No. 28 of 1981 affirming the order of the Collector, confiscating the entire stock of 213 tins of Vanaspati as seized by the police by his order under S. 6(A) of the said Act. 2. It appears that on April 20, 1981 the officers of the Enforcement Branch of the West Bengal Police, raided the shop-cum-godown of the petitioner between 9.30 A.M. and 3 P.M. and found that although the stock-cum-rate board of the petitioner showed an opening balance of 206 tins of Vanaspati the actual stock on physical verification, was found to be 213 tins of Vanaspati. So, there was an excess of 7tins of Vanaspati which it is alleged that the owner failed to give any account. So, the police seized the entire stock of Vanaspati along with some documents and subsequently, applied before the Collector for confiscation of the seized 213 tins of Vanasrati for violation of the provisions of Pulses, Edible Oil Seeds and Edible Oils Licencing (Control) Order, 1978 and paragraph 3(2) of the West Bengal Declaration of Stocks and Prices of Essential Commodities Order, 1977. 3. At the hearing before the Collector the petitioner took the plea that he procured tins of vanaspati from a dealer in Bankura which was despatched from Bankura by a lorry on April 18, 1981, that the lorry broke down on April 19, 1981 on the way, that it reached the shop of the petitioner on April 20, 198l when the said 7 tins of vanaspati were delivered and that the petitioner's employee who had been sent to Bankura for purchase of the articles fell ill and arrived with the credit memo of the Bankura Dealer on April 21, 1981. So, according to the petitioner, the excess stock of 7 tins of Vanaspati in question was received in course of the day of April 20, 1981 and he was under no obligation to include the same in recording the opening stock of Vanaspati on April 20, 1981. 4. So, according to the petitioner, the excess stock of 7 tins of Vanaspati in question was received in course of the day of April 20, 1981 and he was under no obligation to include the same in recording the opening stock of Vanaspati on April 20, 1981. 4. Both the Collector and the learned District Judge, as Judicial Authority, have not accepted the explanation given by the petitioner regarding the procurement of the excess 7 tins of Vanaspati in course of the day on April 20, 1981 in the manner alleged by the petitioner. So, the Collector passed the order confiscating the entire stock of 213 tins of Vanaspati under S. 6(A) of the Act and this order of confiscation has been affirmed by the learned District Judge as Judicial Authority, in appeal under S. 6(C) of the Act. It has been pointed out by the learned advocate for the petitioner that there is no existence of any such order as Pulses, Edible Oil Seeds and Edible Oils Licencing (Control) Order, 1978 Although the Collector purported to hold that there was violation of the said order as well as paragraph 3(2) of the West Bengal Declaration of Stocks and prices of Essential Commodities Order, 1977, the learned District Judge, as Judicial Authority, has, however, found that the petitioner has violated paragraph 3(2) of the said order of 1977 and so the order of confiscation made by the Collector has been upheld. 5. It has been submitted by the learned Advocate firstly that the extra 7 tins of vanaspati which were not shown in the opening balance of the stock-cum-price, board of the petitioners on 20.4.81, were procured by the petitioner during the day and, therefore, there was no violation of paragraph 3(2) of the West Bengal Declaration of stocks and Prices of Essential Commodities Order, 1977 and, secondly, in any event, the order of confiscation of the entire stock of 213 tins of Vanaspati is not justified as the contravention of paragraph 3 (2) of the aforesaid order of 1977 is in respect of only 7 tins of Vanaspati, which were found to be in excess of the quantity shown as opening balance in the stock-cum-rate board of the petitioner on 20.4.81. In this connection, he has referred to paragraph 5 of the said order of 1977 which empowers seizure of stock of an essential commodity in respect of which the police or empowered officer has reason to believe that any provision of the said order has been contravened. On the other hand it has been submitted by the learned Advocate for the State that the police is empowered to seize the entire stock of the commodity in relation to which there is contravention of any order made under S. 3 of the Essential Commodities. Act and the Collector is competent to confiscate the entire stock of such commodities seized by the Police. 6. After hearing the learned Advocates for the parties and considering the materials placed before me, I find that as both the Collector and the Judicial Authority have not accepted the plea of the petitioner regarding bona fide acquisition of petitioner's procurement or the excess quality of 7 tins of Vanaspati in course of the day on April 20, 1981, this Court sitting in Revision will not interfere with such a finding of fact which is not arbitrary or capricious. But on the question of legality of confiscation in respect of the entire stock of Vanaspati comprising 213 tins although the opening balance shown in the stock-cum-rate board of the petitioner on April 20, 1981 showed the stock as 206 tins of vanaspati, I find that it cannot be said that there was contravention of the provisions of paragraph 3(2) of the West Bengal Declaration of Stock and Prices of Essential Commodities Order of 977 in respect of 206 tins of Vanaspati which were shown as the opening balance in the stock-cum-rate board of the petitioner on April 20, 1981. The quantity of such articles in respect of which it can be said that the Police Officer, who searched the shop cum-godown premises of the petitioner had reason to believe that paragraph 3(2) of the said Order had been contravened consists of 7 tins of Vanaspati and only such quantity can be legally confiscated by the Collector under S. 6(A) of the Act. This view is supported by a decision of the Division Bench of this court of Jayant Kumar v. The Stare reported in AIR 1955 Calcutta 631. This view is supported by a decision of the Division Bench of this court of Jayant Kumar v. The Stare reported in AIR 1955 Calcutta 631. Although the said decision related to forfeiture of properly of a conviction under S. 7(1) of the Act, in my view, the same principle should apply also in the case of confiscation under S. 6(A) of the Act. It may be mentioned that the Supreme Court in the case of Motibhai F.P. & Co v. Collector Central Excise AIR 1970 SC 829 has held that where a dealer has contravened Rule 40 of the Central Excise Rules (1944) by unlawfully maxing duty paid tobacco with non-duty paid tobacco, the entire mixture cannot be confiscated but only so much of the mixture as can reasonably represented the value of the non-duty paid tobacco can confiscated. The view taken by the Supreme Court in the aforesaid case also largely supports the view taken by me in this case that power of confiscation cannot extend to articles for which there has been no contravention of the Control Order in question. I, therefore, hold that the order of the learned District Judge as Judicial Authority, in so for as it affirms the Collector's order of confiscation of entire stock of Vanaspati consisting of 213 tins should be modified and that the under of confiscation would be valid only in respect of the excess quantity, comprising 7 tins of Vanaspati, seized from the petitioner's shop-cum-godown. The remaining quantity of 206 tins of Vanaspati are to be returned to the petitioner. 7. The application, therefore, succeeds in part to the extent indicated above. The application is disposed of accordingly. The observations made in this judgment will not, in any way, be applicable to any decision that may be made in the Criminal Case under S. 7(1) of the Essential Commodities Act pending against the petitioner. Order modified.