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2001 DIGILAW 632 (JHR)

Ram Narayan Saw v. State Of Jharkhand

2001-09-06

SUDHANSU JYOTI MUKHOPADHAYA

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ORDER S.J. Mukhopadhya, J. 1. Both the writ petitions have been preferred by common petitioner, Ram Narayan Saw with two different prayer for same sets of fact. 2. In WP (C) 3475/2001, while the petitioner made prayer for direction on the respondents to unseal the business premises and godown, in question, which was sealed on 4th July, 2000 by the Additional District Supply Officer. Latehar-- ADSO for short-along with the Market Secretary, Latehar; in WP (C) 3476/2001, the petitioner has challenged the order dated 7th August. 2000, passed by the Deputy Commissioner, Palamau in Misc. (Supply) Case No. 114 of 2000-01, rejecting the prayer of petitioner to release the seized commodities like rice, aata, maida, wheat, and pulses which were confiscated under Section 6A of the E.C. Act 3. The ADSO, Latehar along with the Market Secretary. Latehar seized certain rice, aata, maida, wheat and pulses from the business premises and godown of petitioner and registered a police case under Section 7 of E.C. Act and Section 31 of the Bihar Agriculture. Produce Market Act on 7th July, 2000. The Deputy Commissioner-cum-Collector, Daltonganj, Palamau passed order on 7th August, 2000 for confiscation of the commodities. 4. The petitioner initially moved against the- order of confiscation before the Ranchi Bench of Patna High Court in CWJC No. 2515 of 2000 (R), but it was withdrawn to move the appellate authority. The petitioner preferred appeal before the Food Commissioner, Government of Bihar but, in the meantime vide a Notification dated 5th October, 2000, the power was vested with the District Judge under Section 6 of the E.C. Act. 5. In the police case, after investigation, final form for the offence under Section 7 of the E.C. Act was submitted and the only charge levelled was for the offence under Sections 3l(B) and 3(6) (iii) of the Agricultural Produce Market Ordinance. This will be evident from the order sheet dated 7th February. 2001, passed by the learned Special Judge, E.C. Act, Palamau in E.C. No. 6 of 2000. 6. In the aforesaid background, the case records were sent back to ACJM, Latehar to proceed, in accordance with law, registered as GR No. 56 of 2001. The learned ACJM. Latehar put the petitioner on trial for the offence under the Bihar Agriculture Produce Market Ordinance and vide judgment dated 28th June. 2001 acquitted the petitioner for the offence, vide Annexure 8. 7. The learned ACJM. Latehar put the petitioner on trial for the offence under the Bihar Agriculture Produce Market Ordinance and vide judgment dated 28th June. 2001 acquitted the petitioner for the offence, vide Annexure 8. 7. As the seized goods were kept under lock and key with the seal of the authorities and the food grains being Of perishable nature, the petitioner moved before the Patna High Court in CWJC No. 7884 of 2000 against the order passed by the Deputy Com-missioner-cum-Collector, Palamau dated 7th August, 2000. However, after notice to the respondents, the case could not be taken up and stood transferred to Jharkhand High Court under Section 89(1) of the Bihar Reorganisation Act, 2000 after 15th November, 2000. In the aforesaid background the present writ petitions have been preferred by the petitioner and in the supplementary affidavit, it has been brought to the notice of the Court that CWJC No. 7884 of 2000 as was preferred by the petitioner has been withdrawn from Patna High Court on 6th August. 2001, as the matter relates to Jharkhand area. 8. The respondents in their counter affidavit have not disputed the facts, as referred above. However, they have taken stand that market fee is leviable in all the commodities of which the petitioner is the trader. Giving reference of the Bihar Agricultural Produce Market Act. 1960, they have taken plea that free sale does not and cannot arise. The further stand of the respondents is that a legal action was taken against the petitioner on the basis of inspection report, wherein it was taken into consideration that the petitioner has not displayed the total quantity of all the scheduled commodities, though he was required to maintain Stock Register, Sale Register, Purchase Register. Accounts Books etc. in proper manner for the purpose of assessment under the provisions of Market Act. 9. It is not in dispute that the provision of the Bihar Trade Articles (Licences Unification) Order. 1984 is not applicable since 27th January. 1995 in respect to rice, wheat, aata and maida, the storage limit haying removed by the Central Government.. This has been consistently held by the Patna High Court and this Court, as evident from the decisions in the cases of Adahaihbar Saw v. State of Bihar, reported in 1990 (2) BLJ 18 , and Kiran Bala Jain v. State of Bihar, reported in 1996 (1) PLJR 730 . This has been consistently held by the Patna High Court and this Court, as evident from the decisions in the cases of Adahaihbar Saw v. State of Bihar, reported in 1990 (2) BLJ 18 , and Kiran Bala Jain v. State of Bihar, reported in 1996 (1) PLJR 730 . 10. So far as pulses are concerned, admittedly, the State Government has not prescribed any licence fee for carrying on business. In this circumstances, the provision of Bihar Trade Articles (Licences Unification) Order. 1984 is not workable for the pulses, which has already been decided by the different Courts, including the Supreme Court in the case of Bihar State Cooperative Marketing Union Ltd. v. State of Bihar, reported in 1988 PLJR 44 (SC) and the Patna High Court in the case of Satya Narayan Prasad v. State of Bihar, reported in 1988 PLJR 502 and an unreported decision of Patna High Court in the case of Om Prakash Bhartia v. State of Bihar and Ors. Cr WJC No. 412 of 1991, disposed of on 19th, February, 1992. 11. For the reasons aforesaid, the respondents cannot allege violation of the provisions of E.C. Act for keeping excess stock of rice, aata, maida. wheat or pulses, nor tan confiscate such goods under Section GA of the E.C. Act. 12. In the impugned order dated 27th August, 2000 (Annexure 9), the Collector, Palamau took certain additional plea that the challans and bills were not accompanied by the required road permit which makes them questionable and establishes that the accused was indulging in black-marketing and tax evasion. However, the Collector, Palamau exceeded his jurisdiction and failed to take into consideration that there was no such requirement to produce challans and bills with the road permit in respect to the food grains, in question, there being no higher limit prescribed for rice, aata etc., and the provision of E.C. Act was not workable in respect to pulses. 13. The question as to whether the petitioner maintained Stock Register and shown less quantity than the food grains found in the godown is a question of fact. The Collector. 13. The question as to whether the petitioner maintained Stock Register and shown less quantity than the food grains found in the godown is a question of fact. The Collector. Palamau by impugned order dated 7th August, 2000 though held that the petitioner entered the quantities of food grains in the Stock Register less than the quantity of food grams actually found in the godown, but he failed to discuss as to what was the quantity reflected in the Stock Register and the quantity of different food grains actually found. In the impugned order dated 7th August, 2000, no details of quantity entered and actual quantity found in respect to any item like rice, aata, maida, wheat or pulses have been shown and without discussing such fact, the Collector came to a conclusion based on no evidence. 14. For the reasons aforesaid and as no case under section 7 of the E.C. Act was made out, the petitioner was acquitted from the charges framed under the Bihar Agricultural Produce Market Act, 1960; on the ground shown above, the impugned order dated 7th August, 2000 passed by the Collector. Palamau in Misc. (Supply) Case No. 114 of 2000-01 cannot be upheld and it is, accordingly, set aside. 15. The respondents are, accordingly, directed to unseal the business premises and godown as was sealed on 4th July, 2000 by the ADSO, Latehar and hand over the seized stocks of food grains, in question, in condition forthwith. In case of loss of any food grains or if any food grains perished during the intervening period, the respondents would be liable to pay price equivalent to the present market sale price of such goods. 16. Both the writ petitions are allowed with the aforesaid observations and directions. 17. Writ petition allowed.