Judgment :- 1. Three petitioners claiming to be agriculturists have joined together and filed the present writ petition praying this Court to issue a writ of certiorari calling for the records of the first respondent. Special Secretary to Government, Cooperative Food and Consumer Protection Department, Madias -9, culminating in his proceedings G.O.Ms. No. 305, Cooperative Food and Consumer Protection Department dated 22.8.95 wherein the proceedings of the District Revenue Officer. Tirunelveli, in his office Roc. No. R1/94166/1991 dated 20.2.1992 have been confirmed, quash the same and render justice. 2. Heard Mr. P. Senthur Pandian, learned counsel appearing for the petitioners and Mr. M. Mahalingam, learned Government Advocate appearing for the respondents. 3. The petitioners claim that they are agriculturists and they have stored their farm product in their houses respectively. The Inspector of Police (Civil Supplies), CID, Tirunelveli, searched the petitioners house and seized 120 bags of paddy in the three residences on 26-9-91 under a mahazar on the ground that the petitioners have violated the provisions of the Tamil Nadu Essential Trade Articles (Regulation & Trade) (Order) 1984. The petitioners moved the 2nd respondent, District Revenue Officer for release of the paddy bags contending that the entire bags are the farm produce and they are not traders and they are not liable to be seized or confiscated and that they have not violated the provisions of the Tamil Nadu Essential Trade Articles (Regulation & Trade) (Order), 1984 or any other order framed under the Essential Commodities Act. 4. The 2nd respondent, the District Revenue officer, issued a show cause notice to which the petitioners submitted their objections and requested for release of the entire 12o bags as 70 bags belong to the first petitioner, 20 bags belong to the 2nd petitioner and 30 bags belong to the 3rd petitioner as it is their farm produce. The 2nd respondent, over-ruling the objections ordered confiscation of the entire 120 bags on the view that the petitioners have not substantiated their claim that they are agriculturists and that the bags are their farm produce, besides pointing out certain deficiencies with respect to the petitioners claim. Being aggrieved, the petitioners preferred appeal before the first respondent, appellate authority. The appellate authority, by impugned G.O.Ms. No. 305. Cooperative Food and Consumer Protection Department dated 22.8.95 confirmed the order of confiscation and dismissed the appeal. Being aggrieved, the petitioners preferred appeal before the first respondent, appellate authority. The appellate authority, by impugned G.O.Ms. No. 305. Cooperative Food and Consumer Protection Department dated 22.8.95 confirmed the order of confiscation and dismissed the appeal. Being aggrieved, the present writ petition has been filed challenging the order of confiscation as affirmed by the appellate authority on various grounds. 5. A counter affidavit has been filed on behalf of the respondents wherein this contended that the petitioners have purchased paddy from the landlords of nearby villages and stored them in their house in order to sell them to Malaimurasu Rice Mill of Nallur village to earn profits. As the petitioners have no licence or bills to store. The bags were seized under a proper mahazar for violation of the Tamil Nadu Essential Trade Articles (Regulation of Trade) Orders. It is further Contended that the 2nd respondent had considered the claim of the petitioners and not satisfied with the documents produced by the claimants to sustain the claim that they are farmers and that the bags are their farm produce. The respondents further contended that the extent of property, which the petitioners claim to have cultivated and by such cultivation they have harvested paddy crops is an extent which is not sufficient to produce 120 bags as claimed and, therefore, the petitioners have violated the control order. It is further contended that at time of seizure, it was represented that the bags have been purchased from the local agriculturists for sale to Malaimursu Rice Mill. 7. The respondents further contended that the petitioners have not established that they are fanners and not traders and, therefore, no case has been made out for interference in this writ petition since the petitioners have neither purchase bills nor they have measured paddy for levy towards traders levy and the Confiscation is not liable to be interfered with. 8. The learned counsel for the petitioners mainly contended that when the petitioners have produced material documents in support of their cultivation and raising crops, either as owner or as tenant, in respect of various extents of lands, in the absence of any other material, the respondents have acted illegally, arbitrarily and proceeded on an erroneous assumption that the petitioners are traders. Merely because seizure mahazar was effected by the police on the plea that the petitioners have purchased paddy from various producers with a view to sell to the Malaimurasu Rice Mill and make a bargain, there could be no assumption to hold that the petitioners are traders as defined under the Act and that the paddy is not their farm produce. It is contended that at no point of time the petitioners have engaged themselves nor they have traded in any essential commodities, much less, rice and in the absence of any provisions or proceedings under the Essential Commodities Act, the respondents 1 and 2 cannot assume that the petitioners are not agriculturists and that they are trading in essential articles. There is force in the contention advanced by the learned counsel for the petitioners. 9. The learned Government Advocate contended that no interference is called for with respect to the order of confiscation passed by the 2nd respondent as affirmed by the first respondent, in that the petitioners have not produced sufficient material to sustain the claim that the entire paddy bags is their farm produce. 10. The substantial points that arise for consideration are: — “1) Whether the petitioners are traders or fanners? 2) Whether the 70 bags seized from the first petitioner, 20 bags seized from the 2nd petitioner and 30 bags seized from the 3rd petitioner is the farm produce of the respective petitioners or they have purchased the same as traders to sell it to the Rice Mill for Profit? 3) Whether the order of confiscation is liable to be interfered? If so to what relief?” 11. There is no quarrel that the respondents have followed the procedure prescribed. The learned counsel for the petitioners strongly and rightly contend that the respondents cannot on mere surmises and conjectures assume that the petitioners are traders and they are not agriculturists and the bags seized from the residence of the three petitioners are not their farm produce. There is no quarrel that the respondents have followed the procedure prescribed. The learned counsel for the petitioners strongly and rightly contend that the respondents cannot on mere surmises and conjectures assume that the petitioners are traders and they are not agriculturists and the bags seized from the residence of the three petitioners are not their farm produce. The petitioners have produced material documents before the 2nd respondent such as cultivation accounts, patta and adangal extracts in support of their respective claims and they have raised paddy during the material period and they have kept their farm produce in their respective houses and there is no reason at all to assume or surmise that the paddy bags kept by the petitioners in their respective houses are not their farm produce. It is further contended that there is neither material nor there is an iota of evidence even to infer that the petitioners are traders dealing in paddy and in the absence of any material, the respondents ought not to have ordered confiscation. The burden of proof is on the respondents to prove that the petitioners have violated the Tamil Nadu Essential Articles (Regulation of Trade) Order. There is force in the submissions made by the learned counsel for the petitioner. 12. Excepting a seizure mahazar wherein the police inspector who had seized the bags, namely 70 bags from the house of the first petitioner, 20 bags from the house of the 2nd petitioner and 30 bags from the house of the 3rd petitioner, that the bags are meant for trade and they are not the farm produce of the petitioner, there is no other material before anyone of the respondents to conclude that the petitioners are traders. The respondents have not considered the materials placed by the petitioners with respect to adangal extracts, cultivation accounts and the pattas and the certificate issued by the local village officers about their cultivating paddy and harvesting paddy, which they have stored. 13. When such materials have been placed, the same should have been considered in the right perspective, but the respondents had proceeded as if the average yield in the area is low and, therefore, the petitioners could not have raised so much of quantity of paddy. This is an assumption without any basis and such a reasoning cannot be sustained. 14. When such materials have been placed, the same should have been considered in the right perspective, but the respondents had proceeded as if the average yield in the area is low and, therefore, the petitioners could not have raised so much of quantity of paddy. This is an assumption without any basis and such a reasoning cannot be sustained. 14. As already pointed out, the first petitioner has produced the adangal extract. Cultivation account and certificate to show that he is a tenant as well as he owns lands wherein he had harvested paddy. The extent of the land cultivated by the petitioner is more than sufficient. There is no reason at all to doubt that the petitioner has not raised paddy and that the 70 bags of paddy are not his farm produce. On mere surmises and conjectures and without any material there could be no order of confiscation. Confiscation could be justified or sustained only if there is some material to show that the petitioners have violated the provisions of the Essential Commodities Act and the order made thereunder. On mere inference there could be no confiscation. The same arguments apply in respect of petitioners 2 and 3 also who own property and who have produced materials to show not only their title and also their having raised paddy, the extent of land owned by them also prove that they could have harvested more than 20 or 30 bags respectively, which the inspector of police had seized from them. 15. When the paddy bags have been seized, on the plea that the paddy bags are not the farm produce and that the petitioners claim that they are farm produce and produce material in support of their claim, in the absence of any material to the contra, and when the burden is on the respondents to prove that the paddy bags are not farm produce, but they have been acquired in the course of trade, there could be no order of confiscation on the facts of the case. The burden of proof, the respondents have wrongly fastened on the petitioners to prove the negative. The burden of proof, the respondents have wrongly fastened on the petitioners to prove the negative. It is well settled that when the respondents seized and seek to confiscate the paddy bags from the residence of the three petitioners, the onus proof is on them as well as it is for them to prove that there is violation of the Essential Commodities Act or an order made therein and it is not for the petitioners, to prove the negative. Merely on surmise and conjectures, the respondents cannot order confiscation on the assumption that the petitioners have violated the Essential Trade Articles (Regulation of Trade) Order. 16. 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 word may order confiscation convey that the power is discretionary and not obligatory. 17. 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.” 18. 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 has 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. 19. This Court, normally, shall not 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 order made there under or there is an attempt to violate or the claimant had no prima facie case that he is a farmer and he had sufficient lands to raise paddy as his farm produce. 20. In the foregoing circumstances, the order of confiscation passed by the 2nd 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. 21. 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 paddy bags from the houses of the three petitioners. 22. Hence, the writ petition is allowed. The impugned proceedings of the 2nd respondent as affirmed by the first respondent are quashed. It is represented that the petitioners have furnished bank guarantee and the, bags have been released to them. If that be so, the respondents are directed to return the original bank guarantee canceling it within 12 weeks from the date of communication of this order. Parties shall bear their respective costs, consequently, connected W.M.P.s are closed.