Judgment :- 1. In this writ petition, the petitioners pray for the issue of writ of certiorari to call for the records relating to G.O.Ms.351 (Food and Consumer Protection Department) dated 6.9.1995 issued by the first respondent in partly confirming the proceedings of the second respondent and quash the same in so far as they are against the petitioners. 2. Heard Ms. P.V. Rajeswari for the petitioners and Mr. M.S. Palanisamy, Special Government Pleader appearing for the respondents. 3. The first petitioner is a licenced wholesale dealer under the Tamil Nadu Essential Trade Articles (Regulation of Trade) Order, 1984, hereinafter called 1984 Order. The second petitioner is the owner of the lorry bearing registration No. TAM 7989. According to the first petitioner, in the usual course of his business, he had sold under Bill No. 17, dated 28.6.1992, 43 quintals of boiled rice and 77 quintals of raw rice to another licenced wholesale dealer carrying on business in the name and style of “P.R. Traders”, who is carrying on business at No. 118-A, Ayyasamy Koil Street, Coimbatore. The second petitioners Lorry was engaged to transport the said consignment of rice bags to Coimbatore. The goods were accompanied in the lorry by the first petitioners clerk, Gunasekaran. The goods were covered by valid vouchers and bills. The bill issued by the first petitioner was also being carried along with consignment of rice bags. The Goods Vehicle Record would show the name of the consignee as per the bil l. The place of the departure of the goods is Attur and destination being Coimbatore. 4. The Inspector of Police, C.S.C.T.O Salem intercepted the lorry on 29.6.1992 at 6.30 AM and registered a crime for the alleged violation of clause 4(1) and 19(1) of the 1984 Order read with Section 7(1)(a)(iii) of The Essential Commodities Act. The petitioner came to know about the seizure despite his clerk showing the goods vehicle Register as well as the bill to the said Police Inspector. The petitioners received a show cause Notice under Section 6-B of the Essential Commodities Act alleging violation of Clause 4(1) and 19(1) of the 1984 Order and the petitioners submitted their objection in detail. The second respondent ordered confiscation of the entire rice bags and imposed a penalty of Rs. 5000/- on the lorry owner. Being aggrieved, the petitioners preferred an appeal before the first respondent, Appellate Authority. The second respondent ordered confiscation of the entire rice bags and imposed a penalty of Rs. 5000/- on the lorry owner. Being aggrieved, the petitioners preferred an appeal before the first respondent, Appellate Authority. The first respondent merely modified the confiscation proceedings by ordering confiscation of rice to 75% and reducing the fine amount to 75%. Being aggrieved, the present writ petition has been filed. 5. On behalf of the respondents, a counter affidavit has been filed contending that no interference is called for. It is further contended that the contravention committed by the petitioners had been clearly held proved, as it is the duty of the wholesaler to send a valid document along with the consignment. It is the case of the respondents that the lorry driver was not in position to show the bill at the time of seizure and the lorry driver did not make correct entries in the Trip sheet and connected records. It is further contended that G.V.R. had no entries regarding the clear address of the consignor and the consignee. The seizure mahazar was prepared in the presence of the accused. It is further stated that the sale of rice bags by one wholesaler to another wholesaler or dealer is neither restricted nor prohibited, but the movement should carry relevant purchase or sale bills and related entries should have been made in the G.V.R of the vehicle concerned. The order of confiscation has been made for violation of the 1984 Order and they are valid. According to the respondents, no interference is called for in this writ petition. 6. The first and foremost contention of the counsel for the petitioner being that the Appellate Authority had neither adverted to nor considered any of the contentions, but as a matter of routine confirmed the order of confiscation ordered by the second respondent by slightly modifying the confiscation to 75% as against confiscation of entire bags by the original authority and this demonstrates the non-application of mind by the first respondent, the statutory appellate Authority. 7. The learned counsel is well founded in this respect and it is relevant to extract the very portion of the order passed by the first respondent. “The learned counsel for the appellants has stated that the appellant is a licensed food-grains dealer and that he was transporting the seized rice from Attur for sale to another dealer in Coimbatore. 7. The learned counsel is well founded in this respect and it is relevant to extract the very portion of the order passed by the first respondent. “The learned counsel for the appellants has stated that the appellant is a licensed food-grains dealer and that he was transporting the seized rice from Attur for sale to another dealer in Coimbatore. He has further stated that the rice was being transported with proper bill and trip sheet was available in the lorry at the time of seizure. He has further stated that the contention of the Additional Collector, Salem is wrong that the lorry was not having proper bill and the mahazar has not made any mention of the same. The learned Counsel has further stated that there was no mensrea on the part of the lorry owner. He has further stated that the actual contravention had not been mentioned in the Additional Collectors orders. 4. After a careful perusal of the records of the case and after hearing the arguments of the Learned Counsel, the order of the Additional Collector, Salem District first read above is amended by Government to the extent that 75% (seventy five) of the seized rice and 75% (seventy five) of the fine imposed on the lorry owner may be confiscated by the Government and the rest returned to the respective appellants. The stay imposed in the proceedings third read above is vacated.” (emphasise supplied) 8. The above would show that the first respondent had neither applied its mind nor considered any of the contentions advanced by the petitioners while passing final order on the appeal nor it had confirmed the findings. As the appellate Authority had merely reduced the quantum of confiscation by 25%, this vitiates the proceedings of the first respondent, appellate Authority. The first respondent, a statutory appellate Authority, is bound to consider the various contentions advanced at the hearing, advert to the contentions and pass orders either accepting or rejecting. But, in this case, none of the contentions have been adverted to nor considered nor have been rejected and this vitiates the impugned proceedings of the first respondent. The learned counsel is well founded in this respect. On this short ground, this court would be justified in quashing the impugned proceedings of the first respondent and remitting the matter back to the first respondent for denova consideration. The learned counsel is well founded in this respect. On this short ground, this court would be justified in quashing the impugned proceedings of the first respondent and remitting the matter back to the first respondent for denova consideration. However, the Essential Commodities (Special Provisions) Act has been allowed to lapse and the first respondent is no longer the appellate Authority. Therefore no purpose will be served in remitting the matter to the first respondent. 9. The learned counsel for the petitioner persuaded this Court to examine the matter on merits and pass orders, according to law. The learned counsel for the petitioner filed a copy of the First Information Report and seizure mahazar. Even in the seizure mahazar, it has been recorded that K. Thirumalaisamy, the first writ petitioner, is the consignor and in the same mahazar, the first respondents name finds place along with his Accountants name, who accompanied consignment on the lorry. The entire First Information Report was prepared by the Inspector, C.S.C.I.D., Salem proceeds as if the writ petitioner had purchased the rice meant for Public Distribution System and the same has been transported to Coimbatore. The seizure has been effected on the premise that the entire rice bags seized are meant for Public Distribution System. But in the proceedings passed by the first respondent, there was no such consideration and no such conclusion had even been arrived at nor there is anything to suggest that the petitioner had purchased the rice meant for Public Distribution System. The second respondent proceeds as if is an illicit transportation, while seizure was on the premise that the entire bags of rice are meant for Public Distribution System and the petitioner had purchased the same for lesser price and is moving to Coimbatore District. No such finding has been recorded by the second respondent before confiscating the rice. But, the order of confiscation has been passed on the sole premise that the Accountant, who accompanied the lorry, had not produced the receipt or bill or voucher and the G.V.R. is silent in this respect. It is again, in my considered view, is nothing an inference of surmise without any material. The seizure mahazar prepared by the Inspector of police, C.S.C.I.D. also refers to the first petitioner as a consignor and the destination of the consignment being Coimbatore. It is again, in my considered view, is nothing an inference of surmise without any material. The seizure mahazar prepared by the Inspector of police, C.S.C.I.D. also refers to the first petitioner as a consignor and the destination of the consignment being Coimbatore. In the seizure mahazar, the very presence of the first petitioners Accountant has been noted and he had also stated that the rice bags belongs to the first petitioner and it is being transported to Coimbatore under a valid voucher. The seizure has been effected as if the entire rice consignment is meant for Public Distribution System rice and it is not for non-possession of a valid Sale Bill. 10. The Goods Vehicle Record would also show that the vehicle is consigned to Coimbatore and it refers to bill. The statement of two witnesses, who were present at the time of seizure also would show about the presence of the first petitioners Accountant and has stated that the first petitioner, wholesaler is the consignor. Thus, from the seizure mahazar as well as the reports sent by the Investigating Officer, the seizure has been effected on the premise that this rice is meant for Public Distribution System, while the order of confiscation has been passed for the alleged violation of the 1984 Order. This would show the non-application of mind on the part of the second respondent as well. If the consignment is meant for Public Distribution System, then confiscation should have been on that basis and not on the basis that there is a violation of the Trade Order, 1984. 11. In Shambhu Dayal Agarwala v. State of West Bengal & others reported in 1990 (3) SCC 549 , it has been held thus: — “6, Section 6-A empowers confiscation of the seized essential commodity, the package, covering and receptacle in which the essential commodity was found and the animal, vehicle or other conveyance in which such essential commodity was carried. The words may order confiscation convey that the power is discretionary and not obligatory.” 12. In State of Karnataka v. K.B. Walvakar reported in AIR 1981 SC 1468 , the Apex Court held thus: — “9, As to point No. (1), it is axiomatic that the power of confiscation of an essential commodity seized for contravention of an order issued under S. 3 is a discretionary power. In State of Karnataka v. K.B. Walvakar reported in AIR 1981 SC 1468 , the Apex Court held thus: — “9, As to point No. (1), it is axiomatic that the power of confiscation of an essential commodity seized for contravention of an order issued under S. 3 is a discretionary power. The use of the word may, however, does not necessarily mean that the Deputy Commissioner cannot, in the given circumstances of a particular case, direct the confiscation of the entire consignment of an essential commodity in relation to which there is a contravention of any of the orders issued under S. 3 of the Act. It all depends on the facts and circumstances of each case whether the confiscation should be of an entire consignment or part of it, depending upon the nature of the contravention. The power conferred on the Deputy Commissioner under S. 6-A of the Act, by the use of the work may, makes the power coupled with a public duty. Sometimes, it may be in the public interest to direct confiscation of the entire consignment of an essential commodity when there is deliberate contravention of the provisions of an order issued under S. 3.” It is thus clear that confiscation of the seized paddy should be based on the nature of alleged contravention and there must be some material to hold that there has been a contravention and without any material, there could be no order of confiscation. It is not as if the public interest warrants confiscation of the paddy bags, that there is deliberate contravention of the provisions of the order by the petitioners who have substantiated that they are agriculturists and it is their farm produce, which h as been stored by them in their respective houses. No material has been placed by the Police Officer who had seized the bags from the residence of the three petitioners and there cannot be an assumption of violation and on that score, no confiscation could be ordered at all.” 13. This Court, normally will decline to interfere with the order of confiscation, if there is some material or something to show that there is violation of the Essential Commodities Act or the Trade Order, 1984 or there is an attempt to violate any other control order. This Court, normally will decline to interfere with the order of confiscation, if there is some material or something to show that there is violation of the Essential Commodities Act or the Trade Order, 1984 or there is an attempt to violate any other control order. On the other hand, the first petitioner, wholesaler has established that he is a licenced wholesale dealer and the consignment is covered by the Sale Bill/Voucher issued by him and the consignment was accompanied by his Accountant. There is no material to show that there has been a violation of the 1984 Order by the first petitioner. Further, there is no material at all even to sustain the basis of seizure, namely that the consignment is meant for Public Distribution System, Hence, the order of confiscation as passed by the second respondent, original authority cannot be sustained. 14. In the foregoing circumstances, the order of confiscation passed by the second respondent as affirmed by the first respondent cannot be sustained at all. The order passed by the 2nd respondent also suffers with error apparent on the face of the record and the confiscation has been ordered as a matter of routine without application of mind and without material, which is arbitrary and the order of confiscation is liable to be quashed in this respect. 15. The 2nd respondent has no material and no reasonable person would have ordered confiscation merely on the inference made by the Inspector of Police who had seized the rice from the lorry of the petitioner. 16. In the circumstances, the writ petition is allowed. The impugned proceedings of the second respondent as modified by the first respondent are quashed and proceedings of both the respondents will stand quashed. It is represented that the seized rice bags were temporarily released to the first petitioner as per the Government order dated 14.8.1992 on his executing the bond. In the circumstances, since the order of confiscation passed by the second respondent as modified by the first respondent are quashed, the bond if any, executed by the first petitioner is directed to be cancelled and released. The fine amount paid by the second respondent is directed to be refunded to the second petitioner by the second respondent within twelve weeks from the date of receipt of copy pf this order. The parties shall bear their respective costs. Consequently, connected W.M.Ps are closed.