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1982 DIGILAW 49 (PAT)

Nandu Sao v. State of Bihar

1982-04-12

M.P.VARMA

body1982
JUDGMENT : M. P. Varma, J. The petitioner is a retail-foodgrain dealers. He owns a license under the Bihar Foodgrain. Dealers Licensing ORDER :, 1967 (hereinafter to be referred to as the Licensing ORDER :). The officials of the Commerce and Supply Department raided the business premises of the petitioner on 7.10.1971 and notice some discrepancy in respect to stock position of food-grams as displayed out he notice board and the stock of grain kept in the business premises belonging to the petitioner. 2. On the report being submitted by the inspecting staff, who raided the shop, a criminal case has been instituted against the petitioner, and a separate proceeding under section 6. A of the Essential Commodities Act (hereinafter referred to as the 'Act') had also been taken up. The different varieties of grains found in the business premises were also seized by the raiding party. The proceeding under section 6-A of the Act was initiated for confiscation of the foodgrains seized. 3. It is stated that a notice to show case a required under section 6-A of the Act as to why the foodgrain be not confiscated was also served on him. In the notice issued by the Collector (which is Annexure 1 to the application), it was said that the articles shown on the notice board did not tally with that of the actual articles found in the stock in the shop, and thereby, the petitioner violated the provisions of the Foodgrain Dealers Licensing ORDER :and Display of Price and Stock ORDER :of 1975, and he was called upon to show cause why the seized grains be not forfeited to the State. It is the case of the petitioner that he submitted his reply showing cause against forfeiture and confiscation of the foodgrains seized. In the show cause the petitioner explained how the discrepancy arose in the stock position shown in the notice board and in the actual stock stored in the business premises. 4. The learned Collector did not accept the show cause filed by the petitioner and held that the petitioner committed breach of the condition no. 3(6) of the licence and by ORDER :dated 1.2.1978 confiscated the entire stock of the foodgrain, the detail of which was given in the seizure list. The learned Collector made a further direction that the grain seized and confiscated be disposed of by the Special Officer Rationing. 3(6) of the licence and by ORDER :dated 1.2.1978 confiscated the entire stock of the foodgrain, the detail of which was given in the seizure list. The learned Collector made a further direction that the grain seized and confiscated be disposed of by the Special Officer Rationing. Patna, at the market-price or at a price to be fixed by the Government. 5, The petitioner preferred an appeal against the aforesaid ORDER :of confiscation before the Commissioner. Patna Division, under section 6-C of the Act, but the appeal was also dismissed by JUDGMENT : dated 8.9.1978. In this application in revision) the petitioner being aggrieved, bas challenged the correctness of the aforesaid two ORDER :., on passed by the Collector and the other b, the learned Commissioner. 6. The main ground of attack is that the Display Control ORDER :of 1975 as referred to above has been declared to be ultra-vires by a bench decision of this Court and consequently allege violation of such control ORDER :cannot form a basis or a ground for confiscation), inasmuch as, the notice for show cause does not indicate which particular ORDER :made under section 3 of the Act was violated. It has also been argued that the only ground given in the show cause notice was that the articles as shown in the notice board did not tally with that of, actual articles found in the stock, but the learned collector as well as the learned Commissioner took in to consideration certain other materials which were foreign to the notice in passing the final ORDER :of confiscation of the foodgrain seized. 7. Be that as it may, the counsel for the, petitioner, however, has confined his argument to the point that even if the court finds that the criminal prosecution initiated against the petitioner is pending in the court below an interim ORDER :at release may be passed by this Court pending final disposal of the criminal prosecution brought against him. 7. Be that as it may, the counsel for the, petitioner, however, has confined his argument to the point that even if the court finds that the criminal prosecution initiated against the petitioner is pending in the court below an interim ORDER :at release may be passed by this Court pending final disposal of the criminal prosecution brought against him. While making submissions the learned counsel has referred to sub-section (2) (r.) of the Act wherein it has been laid down that where an ORDER :under section 6-A is modified or annulled by judicial authority or wherein a prosecution instituted for the contravention of the ORDER :in respect of which an ORDER :of confiscation has been made under section 6-A the person concerned is acquitted-in either case if it is not possible to return the commodity seized, he shall be paid the price thereof as if essential commodity bas been sold to the Government with reasonable interest calculated from the date of seizure of the commodity. It has been, therefore, submitted that State should have no objection for the refund of the food-grain confiscated or in case if the same has been sold the amount i.e. the sale price of the grain seized may be refunded to the petitioner on furnishing sufficient security to the satisfaction of the Collector. The counsel for the State has, however, submitted that the refund may be made to the petitioner only after final disposal or after the ultimate decision of the criminal case. 8. It is, however, not disputed that a revision lies to this Court against the final ORDER :passed in appeal by the Commissioner of the Division who has been designated to be a judicial authority under proper notification of the State Government. However, while making prayer for release of the commodities seized the learned counsel has placed reliance on the case of Sunil Kumar v. State of Bihar vide Cr. Misc. No. 195 of 1979 disposed of on 22nd November, 1979 wherein it ha, been held that pending ultimate decision of the criminal case, the amount of the sale proceeds of the goods' seized or confiscated may be returned to the claimant on furnishing sufficient security to the satisfaction of the Collector of the district concerned. Similar view bas been taken by a Bench of this Court in case of Ashok Kumar v. State of Bihar in Cr. Rev. Similar view bas been taken by a Bench of this Court in case of Ashok Kumar v. State of Bihar in Cr. Rev. No. 251 of 1979 disposed of on 17th May, 1979. Since the criminal prosecution against this petitioner is also pending in the court below, I refrain from giving my finding with regard to the validity or otherwise of the ORDER :passed by the Collector which has been affirmed in appeal by the Commissioner of the Division, with respect to the grounds placed before this court in the application as that may cause prejudice of the court below in ultimate decision of the case pending for disposal. But considering the. circumstances of this case, I direct that the foodgrains seized from the business premises of this petitioner and so confiscated be refused to the petitioner or, in case if the foodgrains have been sold, the sale-proceeds thereof may be refunded to the petitioner on furnishing efficient security by him to the satisfaction of the Collector, Patna. 9. The application is accordingly disposed of.