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2003 DIGILAW 62 (JHR)

State of Jharkhand v. Anil Kumar

2003-01-13

AMARESHWAR SAHAY, GURUSHARAN SHARMA

body2003
Judgment By Court.-Anil Kumar, the sole respondent herein was holding a wholesale dealer's license for carrying on business in edible oil, sugar and food grains etc. in the name and style of M/s. Sat yam Enterprises at Barhi, within Hazaribagh district. 2. On 3.10.1997, on inspection of his business premises, an First Information Report was lodged against him, for the alleged offence under section 7 of the Essential Commodities Act, (hereinafter referred to as the 'Act') read with section 33(5) of the Bihar Finance Act and section 120B of the Indian Penal Code, on which Barhi P .S. Case No. 117 of 1997 was registered. 3. Several articles were seized at the said business premises, under clause 30 of the Bihar Trade Articles (Licenses Unification) Order, 1984 and confiscation case no. 42 of 1997 was initiated in respect of those articles, under section 6(a) of the Act. 4. By order dated 20.11.1997, the Deputy Commissioner, Hazaribagh confiscated the seized articles/goods and directed the Sub-divisional Officer to sell the same and deposit the sale price in the Government Treasury. 5. The appeal preferred by the licensee, against the order of confiscation before the Secretary, Food and Civil Supply, was also dismissed on 5.1.1999. 6. Meanwhile, on 12.5.1998 a First Information Report was lodged by the Chowkidar, for offence under sections 461, 379 and 406 of the Indian Penal Code regarding theft of some of the seized articles which were kept in the aforesaid business premises of the respondent, wherein Bijay Kumar, Rajendra Prasad, Ajoy Prasad, Uday Prasad and others were made accused. It was registered as Barhi P.S. Case No. 91 of 1998. After filing of the aforesaid First Information Report, the seized articles, which were available in the business premises of the respondent, were sold for a sum of Rs. 24,35,520/-. 7. The respondent had filed C.W.J.C. No. 3543 of 1997 (R) which was disposed of on the assurance of the Deputy Commissioner that the seized food grains shall be sold under section 6A(1) of the Act through fair price shops and the market price shall be paid. 8. The licensee had filed another C.W.J.C. No. 1628 of 1998 (R) complaining that in spite of order dated 18.2.1998 passed in the earlier writ application, some of the goods confiscated were sold at the rates lower than the market rate. 8. The licensee had filed another C.W.J.C. No. 1628 of 1998 (R) complaining that in spite of order dated 18.2.1998 passed in the earlier writ application, some of the goods confiscated were sold at the rates lower than the market rate. The licensee at that stage claimed that he had already filed a representation before the Deputy Commissioner, Hazaribagh, regarding the rates, on which those articles were sold, which was not disposed of. While disposing of C.W.J.C. No. 1628 of 1998 (R) on 1.7.1998• this Court directed the Deputy Commissioner to dispose of the licensee's representation by a speaking order within two months after making thorough enquiry regarding the market price of the goods sold and after giving a reasonable opportunity of hearing to the writ petitioner. The Deputy Commissioner was directed to ensure that the goods are sold in terms of the undertaking given before this Court in C.W.J.C. No. 3543 of 1997 (R). 9. It is said that Vanaspati, Mustard Oil and Postman were respectively sold at Rs. 550/-, Rs. 540/- and Rs. 650/- per tin and Vanaspati (Dalda) pouch was sold at Rs. 550/- per carton (6 Kg), whereas the licensee calculated price of the articles, namely, Vanaspati, Mustard Oil, Postman and Dalda, which were stolen earlier, respectively at Rs. 750/-, Rs. 800/-, Rs. 1010/- and Rs. 750/-, which according to him were the prevailing market rate at the relevant time. Thus total price was calculated at Rs. 24,35,520/-. 10. The respondent filed C.W.J.C. No.1403 of 2000 (R) for a direction to return those goods or to pay its market price with interest. The number and quantity of those seized articles, which were stolen away and for which a First Information Report was lodged were not correct. According to the licensee, those articles after seizure were taken by the authorities in their custody and the theft took place while it was in their custody. 11. The State Government in its written statement accepted that some of the seized articles were stolen away and alleged that such theft was committed by Vishwanath Prasad and his family members. He was none else, but own brother in-law of the licensee and was the real owner of the business. 12. 11. The State Government in its written statement accepted that some of the seized articles were stolen away and alleged that such theft was committed by Vishwanath Prasad and his family members. He was none else, but own brother in-law of the licensee and was the real owner of the business. 12. In the aforesaid background the learned Single Judge took into consideration the earlier direction of this Court and held that the respondent cannot deny the seizure and refund of the seized goods or the equivalent price thereof which were stolen away. We are of the view that the respondent-licensee became entitled to the value of the goods, which were sold, as the order of confiscation of those goods was held to be bad by this Court. Either the goods were required to be returned to the owner thereof or if the goods were sold away and the respondent was not in a position to return the goods to the licensee, the value thereof to be paid to the licensee. Admittedly some of the goods were stolen away, while in custody of the respondent, they therefore, cannot now escape from the liability. 13. So far as the price of the stolen goods is concerned, it cannot be denied that in case those goods were also available, they must have been sold along with other goods, which in the present case was sold some time in June, 1998. This Court, on the complaint of the licensee that the goods were sold on a lesser price, had already directed the Deputy Commissioner, before whom a representation in this regard was already pending, to enquire into the matter in detail and pass appropriate orders. Hence, in our opinion, while dealing with the licensee's claim for payment of price of the goods stolen, there was no occasion for this Court to accept the market rate, on which the licensee had calculated the price of those goods. 14. In our view, the licensee was entitled to get the price of the goods stolen on the same rate on which the balance goods/articles were sold in June, 1998, subject to the final decision of the Deputy Commissioner, regarding the rate as per order dated 1.7.1998, passed in C.W.J.C. No. 1628 of 1998. 15. 14. In our view, the licensee was entitled to get the price of the goods stolen on the same rate on which the balance goods/articles were sold in June, 1998, subject to the final decision of the Deputy Commissioner, regarding the rate as per order dated 1.7.1998, passed in C.W.J.C. No. 1628 of 1998. 15. Another aspect of the matter which is relevant for consideration is the direction of the learned Single Judge granting interest payable on the price of those stolen goods payable to the licensee. Learned Single Judge directed payment of interest at the rate of 8%. It is not in dispute that the price of the goods sold in June, 1998 was paid to the licensee some time in the year 2000, without interest, which was accepted by him. 16. In our opinion, no doubt the State Government was liable to pay the price of the seized goods which were stolen away from its custody after the order of confiscation was quashed by this Court, but the State Government's case was that those seized goods were stolen by the licensee and/ or his relation and for which a criminal case was pending against them, hence we are of the view that the licensee was not entitled to any amount of interest, in the facts and circumstances of the present case. 17. The ratio of the decision of the apex Court in Northern Plastics Limited VS. The Collector of Customs and Central Excise ( AIR 1999 SC 3643 ) over which reliance has been placed by the senior counsel for the respondent, in our opinion, is not applicable in the present case. In the said case under the Custom Act certain goods were confiscated and sold by the Custom Authorities. Subsequently, the order of confiscation was held to be bad and the goods were required to be returned to the owner thereof. The authorities were not in a position to return. In such circumstance, the apex Court directed to refund CIS value with 12% interest. 18. We, therefore, dispose of this appeal with a direction that instead of a sum of Rs. 24,35,520/- as calculated by the licensee, on the aforesaid market rates, he would be entitled to get price of the seized goods stolen on the rates on which the remaining goods/articles were sold in the year 1998. 19. 18. We, therefore, dispose of this appeal with a direction that instead of a sum of Rs. 24,35,520/- as calculated by the licensee, on the aforesaid market rates, he would be entitled to get price of the seized goods stolen on the rates on which the remaining goods/articles were sold in the year 1998. 19. In the result, this appeal is disposed of with the aforesaid modification in the impugned order of the learned Single Judge. No costs.