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1989 DIGILAW 375 (PAT)

Sanjay Kumar Jaiswal v. State of Bihar

1989-10-23

UDAY SINHA

body1989
JUDGMENT Uday Sinha, J. -The petitioner by this application under Articles 226 and 227 of the Constitution of India has prayed for quashing a proceeding initiated by the Collector, Patna for confiscation of Urea seized by the District Agricultural Officer, Patna 1 (respondent no 13). 2. On 21. 1. 1989 the District Agricultural Officer, Patna came to the fertilizer shop of the petitioner and seized 250 bags of Urea. On the report of the aforesaid District Agricultural Officer a criminal case vide Naubatpur P.S. Case No. 18/89 was instituted on 21.1.1989 under section 7 of the Essential Commodities Act. The District Agricultural Officer also recommended that the seized Urea be confiscated and on the said recommendation, Collector, Patna initiated Confiscation Case No. 45 of 1988-89 and issued notice to the petitioner to show cause why the seized Urea be not confiscated. The petitioner was also called upon to show cause why sized Urea be not sold at the Government rate. That brought the petitioner rushing to this Court by the present writ application. 3. The point urged on behalf of the petitioner is that the District Agricultural Officer has no jurisdiction to seize Urea which is fertilizer in terms of Fertilizer (Control) Order, 1985. Clause 27 of the Fertilizer (Control) Order, 1985 provides for appointment of Inspector. This clause provides that the State Government or the Central Government may, by notification in the official Gazette appoint such number of persons, it thinks necessary, to be Inspectors of Fertilizers for the purpose of the Order. Clause 28 defines the powers of the Inspector. Needless to say, it includes the power to enter into/upon any premises, search and/or seize fertilizer. It is axiomatic that a fertilizer Inspector alone has the power to search and seize the fertilizer. 4. Question, however, is whether the person seizing fertilizer has the notification in his favour empowering him to exercise the powers under clause 28 of the Order. A counter affidavit has been filed on behalf of the State. Annexure-A to it shows that a notification has been issued empowering all District Agricultural Officer in the district to exercise the power of Fertilizer Inspector. The rub, however, lies in the fact whether Annexure-A has been published in the official Gazette or not. The petitioner has been challenging that there has been no such Gazette notification since April, 1989. Annexure-A to it shows that a notification has been issued empowering all District Agricultural Officer in the district to exercise the power of Fertilizer Inspector. The rub, however, lies in the fact whether Annexure-A has been published in the official Gazette or not. The petitioner has been challenging that there has been no such Gazette notification since April, 1989. On 15.4.1989 the State Counsel was instructed to take instruction and to produce Gazette notification. The State Counsel failed to do so. The application was, therefore, adjourned on 9.5.1989 to 16.5.1989. It was once again adjourned to 18.5.1989. On that day also the Gazette notification in terms of Annexure-A was not produced. This application was, therefore, admitted for bearing on 18.5.1989. The case was listed for final hearing before me on 31.8.1989. On that day once again I gave opportunity to the learned Standing Counsel No. II to produce the said gazette notification. It could net be produced. Even today, the Gazette notification has not been produced. That being the state of affair, I have no option but to hold that Annexure-A appointing the District Agricultural Officer as Fertilizer Inspector has not been published in the official Gazette. The publication in the official Gazette not having been effected, the requirement of clause 27 of the Order has not been fulfilled. That being so, Annexure-A loses all its sanctity. There is, therefore, no option but to bold that the District Agricultural Officer, Patna had no jurisdiction to seize the fertilizer which is the subject matter of the confiscation proceeding. The net result, therefore, is that the seizure of fertilizer by the District Agricultural Officer, Patna was without jurisdiction. The seizure being without jurisdiction, the confiscation proceeding will also be without jurisdiction. The proceeding initiated against the petitioner i. e. Confiscation Case no. 45 of 1988-89 is hereby quashed. This application is allowed accordingly. However, there will be no order as to costs.