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2002 DIGILAW 23 (CAL)

SWAPAN KUMAR GHOSH v. STATE OF WEST BENGAL

2002-01-18

DEBIPRASAD SENGUPTA

body2002
D. P. SENGUPTA, J. ( 1 ) IN the present application under Article 227 of the Constitution of India the petitioner has challenged the inaction on the part of the confiscating authority in not paying the value/price of the seized articles namely 338 bags of mustard seeds which was damaged due to the negligence of the authorities and which was directed to be returned to the petitioner by this Court. ( 2 ) 338 bags of mustard seeds were seized by the police from the premises of the petitioner. On a prayer for confiscation made by the I. O. a confiscation proceeding was initiated before the Additional Collector, Nadia, who by an order dated 25,9,97 confiscated the seized articles. Challenging such order of confiscation the petitioner preferred an application under Article 227 of the Constitution of India. The said application was ultimately dismissed by this Court on 30. 4. 98. As an order of stay was granted by this Court the order of confiscation could not be given effect to. ( 3 ) THE petitioner thereafter preferred an appeal before the appellate authority under section 6-C of the E. C. Act and the order of confiscation was affirmed by the appellate authority. The order of the appellate authority was again challenged before this Court in an application being C. R. R. No. 1789 of 1998 and this Court finally disposed of the said application on 16. 7. 99 and after setting aside the order of confiscation as affirmed on appeal by the appellate authority directed the seized articles to be returned to the petitioner on furnishing bond to the satisfaction of the learned Collector. ( 4 ) IT is submitted by the learned Advocate of the petitioner that pursuant to the order passed by this Court, the petitioner approached the learned Collector for return of the seized articles namely the mustard seeds. The learned Collector by his order dated 24,8. 99 released the articles on execution of a bond of Rs. 2,00,000/ -. Such bond was executed and the same was accepted by the learned Collector. On 3. 9. 99 when the petitioner went to take delivery of the seized articles it was found that the mustard seeds were in a damaged condition and, according to the petitioner, the same was unfit for human consumption. Accordingly the petitioner refused to accept the mustard seeds in such a damaged condition. On 3. 9. 99 when the petitioner went to take delivery of the seized articles it was found that the mustard seeds were in a damaged condition and, according to the petitioner, the same was unfit for human consumption. Accordingly the petitioner refused to accept the mustard seeds in such a damaged condition. ( 5 ) IT is submitted by the petitioner's learned advocate that due to illegal order of confiscation and unlawful seizure of 338 bags of mustard seeds and due to neglect of the concerned authorities, the seized mustard seeds have been completely damaged. The petitioner brought it to the notice of the learned Additional Collector by an application dated 13. 9. 99 praying for payment of the price of seized mustard seeds. But such prayer was turned down by the learned Collector. It is the submission of the learned advocate of the petitioner that section 6-C (2) of the E. C. Act clearly provides that if it is not possible for any reason to return the essential commodities seized, the petitioner is entitled to get back the price of essential commodities with reasonable interest. ( 6 ) THE learned Advocate of the petitioner relies on a judgment of Andra Pradesh High Court reported in 1984 Cr. L. J. 173 ( Sri Krishna Oil and General Merchants v. State of A. P. ). The points which was for decision was whether the owner of an essential commodity, which was ordered to be confiscated by the Collector under section 6a of the Act, is entitled to the return of the essential commodities in case the prosecution instituted against him under section 7 of the E. C. Act ends in acquittal. It was decided by the Division Bench of Andhra Pradesh High Court that where the prosecution under section 7 of the E. C. Act ends in acquittal, the satisfaction recorded by the Collector in a proceeding under section 6a of the Act stands annulled by the finding of the criminal Court to the effect that there is no contravention. Accordingly it was held that the owner of the essential commodity is entitled to return of the commodity or it converted into money, to the return of the money in view of the provision of section 6-C (2) of the E. C. Act. Accordingly it was held that the owner of the essential commodity is entitled to return of the commodity or it converted into money, to the return of the money in view of the provision of section 6-C (2) of the E. C. Act. ( 7 ) THE next judgment relied upon by the learned Advocate of the petitioner is reported in 2000 Cr. L. J. 1172 (Fakira Subudhi v. State of Orissa ). From a reading of the said judgment it appears that it was held b the learned single Judge of Orissa High Court that where the articles which had been seized cannot be returned to the petitioner in specie as the articles have been sold or damaged in the meantime, there is no difficulty to return the sale proceeds which is deposited in the treasury to the petitioner and the same was directed to be returned to the petitioner, if not already returned in the meantime. ( 8 ) FROM a reading of the said judgment it appears that the facts and circumstances in the said case was quite different from the present case. In the case referred to above there was no confiscation proceeding and no order of confiscation proceeding was initiated and in the said proceeding the Collector passed an order of confiscation of seized articles. The order of confiscation could not be given effect to as the said order was stayed by this Court. After the application was dismissed by this Court on 24. 11. 97, the petitioner preferred an appeal before the appellate authority under section 6-C of the Act. The order of confiscation was affirmed by the appellate authority and the petitioner again challenged the order of the appellate authority before this Court, which was finally disposed of by this Court on 10. 7. 98 with a direction for return of the articles to the petitioner. So, it is quite evident that the delay in this case was caused due to pendency of the application before this Court and the order of stay granted by this Court on the prayer of the petitioner himself. If the order of confiscation could be given effect to the sale proceeds could have been deposited in a separate account and in that event there would have been no difficulty in returning the sale proceeds to the petitioner after his acquittal in the criminal prosecution. If the order of confiscation could be given effect to the sale proceeds could have been deposited in a separate account and in that event there would have been no difficulty in returning the sale proceeds to the petitioner after his acquittal in the criminal prosecution. But the order of confiscation could not be given effect to in view of the order of stay obtained by the petitioner himself from this Court. In my considered view the said judgment is not at all applicable in the present case. ( 9 ) THE next judgment relied upon by the petitioner's learned Advocate is reported in 1994 Cr. L. J. N0 C-220 (State of M. P. v. Deena Nath Bulanala ). It was held by the learned single Judge of Madhya Pradesh High Court that the judicial Magistrate does not have any power under section 6 (2) of the E. C. Act to direct payment of the price of the seized articles and the application filed by the dealer before the judicial Magistrate was not maintainable and therefore, dismissal of such application by the judicial Magistrate was in accordance with law. ( 10 ) THE next judgment relied upon by the learned Advocate of the petitioner is reported in AIR 1994 SC. 2663 (Nagendra Rao and Co. v. State of Andhra Pradesh ). The said judgment was delivered by the Hon'ble Supreme Court in Civil Appellate Jurisdiction. From a reading of the said judgment it becomes clear that the facts and circumstances of the said case are quite different from the present case. The premises of the appellant was visited by the police and huge stocks of fertilisers, food grains and even non-essential goods were seized. In exercise of the power under section 6a of the E. C. Act the District Revenue Officer (D. R. O) directed the fertilisers to be placed in the custody of Assistant Agricultural Officer (A. A. O) for distribution amongst the needy rayats and the food grains and non-essential goods in the custody of Tehsildar for disposing of the same and depositing the sale proceeds in the Treasury. The A. A. O did not take any step for disposing of the fertiliser. The A. A. O did not take any step for disposing of the fertiliser. The appellant brought it to the notice of the D. R. O by filing successive applications, but neither any order was passed by the D. R. O nor any action was taken by the A. A. O. The proceeding under section 6a of the Act was decided and the stock of food grain was confiscated as the appellant's licence was cancelled. As regards fertiliser the Collector directed confiscation of part of the stock and the rest was released in favour of the appellant. The confiscated stock was only a small quantity. But dispute Collector's order and the order passed in appeal by the Sessions Judge, the A. A. O did not release the stock. Ultimately a notice was issued by the A. A. O to the appellant to take delivery of stocks released in his favour. When the appellant went to take delivery of the same, he noticed that the stock had been spoilt both in quality and quantity. Thereafter the appellant made a demand for value of the stock released by way of compensation. There being no response the appellant filed the suit for recovery of the amount. The trial Court held that the A. A. O acted negligently in not disposing of the stocks in time and in failing to obtain necessary direction from the D. R. O. and it was in such circumstances and on the findings recorded on the negligence of the A. A. O that the trial Court decreed the suit in part for the loss suffered by the appellant. In appeal the findings recorded by the trial Court on negligence were not interfered with. In the said judgment it was held by the Hon'ble Supreme Court as follows:" What the law requires under sub-sec. (2) of section 6c to be returned is also the essential commodity. Any commodity continues to be so, so long as it retains its characteristic of being useful and serviceable. If the commodity ceased to be of any sue or is rendered waste due to its deterioration or rusting, it ceases to be commodity such less essential commodity. (2) of section 6c to be returned is also the essential commodity. Any commodity continues to be so, so long as it retains its characteristic of being useful and serviceable. If the commodity ceased to be of any sue or is rendered waste due to its deterioration or rusting, it ceases to be commodity such less essential commodity. Therefore, if the commodity of the appellant which was seized became useless due to negligence of the officers it ceased to be an essential commodity and the appellant was well within its rights to claim that since it was not possible for the authorities to return the essential commodity seized by them, it was entitled to be paid the price thereof as if the essential commodity had been sold to the Government. The fiction of sale which is incorporated in sub-sec. (2) is to protect the interest of the owner of the goods. It has to be construed liberally and in favour of the owner. The respondents were thus liable to pay the price of the fertiliser with interest as directed by the trial Court. " ( 11 ) I have gone through the judgment referred to above. The facts and circumstances of the said case is totally different from the present case. In the said case there was a total negligence on the part of the concerned authorities in not disposing of the articles as per direction of the Collector before final order of confiscation. After the final order was passed in the confiscation proceeding confiscating a part of the seized article and reasing the motor portion of the articles in favour of the petitioner, the authorities refused to release the article. The dealer brought it to the notice of the Collector that the condition of the articles was being deteriorated by filing successive petitions. So, in that particular case, as it was found by the Civil Court, the articles were damaged only due to negligence on the part of the concerned authorities. But the circumstances are quite different in the present case. Here the seized mustard seeds were confiscated by the collector on 25. 9. 97. But for challenging the said order of confiscation the petitioner chose the wrong forum. He preferred an application under Article 227 of the Constitution of India and obtained an order of stay of operation of the order of confiscation. Here the seized mustard seeds were confiscated by the collector on 25. 9. 97. But for challenging the said order of confiscation the petitioner chose the wrong forum. He preferred an application under Article 227 of the Constitution of India and obtained an order of stay of operation of the order of confiscation. But the said application was ultimately dismissed by this Court as there was a provision of appeal before the appellate authority under section 6c of the E. C. Act. Thereafter appeal was preferred, which was also dismissed by the appropriate authority. Challenging the said order of the appellate authority the petitioner again moved this Court, which was allowed on 16. 7. 99 and this Court directed return of the seized articles in favour of the petitioner. The petitioner thereafter went to take delivery of the articles on 3. 9. 99 and found the same in damaged condition. ( 12 ) IT is clear from the aforesaid circumstances that the order of confiscation could not be given effect to and the goods could not be disposed of in view of the order of stay obtained by the petitioner himself. Petitioner chose the wrong forum for which the application was ultimately dismissed by this Court. Although the petitioner is a dealer in mustard seeds having sufficient knowledge in dealing with such articles, he never brought it to the notice of the learned collector that there was any chance of deterioration in the condition of the mustard seeds. On the contrary he kept silent after obtaining the stay order from this Court. So, delay in the present case was caused mainly at the instance of the petitioner himself. ( 13 ) AFTER the order for return was passed by this Court on 16. 7. 99 the same was communicated to the learned Collector, who passed an order on 24. 8. 99 directing release of the articles on furnishing bond. Such bond was furnished by the petitioner and was accepted by the learned Collector. On 3. 9. 99 the petitioner went to take delivery of articles and found the same in damaged condition. In such circumstances I am of the considered view that there was no negligence on the part of the concerned authorities in returning the seized articles. as it was found in the case decided by the Hon'ble Supreme Court referred to above. ( 14 ) MR. In such circumstances I am of the considered view that there was no negligence on the part of the concerned authorities in returning the seized articles. as it was found in the case decided by the Hon'ble Supreme Court referred to above. ( 14 ) MR. Sudipta Moitra, learned Additional public Prosecutor submits that the reliefs proved for by the petitioner cannot be granted by this Court in the present application. It is further submitted that in the present case it is quite evident that for the damage of the seized mustered seeds the concerned authorities can not be held responsible. There was no negligence on the part of the authorities and the delay was mainly caused at the instance of the petitioner himself. ( 15 ) I have heard the learned advocates of the respective parties. I have also gone through the judgments referred to above. In my considered view if there is any damage to the seized articles, the same was caused only due to the laches on the part of the petitioner himself. As it has already been discussed above, the authorities cannot be held responsible for such damage. ( 16 ) IN view of the discussion made above I am of the view that this is not a fit case for interference by this Court. The present application accordingly fails and the same is dismissed. The records of C. R. R. No. 3242 of 1997 and C. R. No. 1789 of 1998, which were earlier disposed of by this Court and were called for by this Court for disposal of the present application, may be sent down to the department immediately. Application dismissed