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2006 DIGILAW 950 (JHR)

Amarjit Singh v. State of Bihar

2006-07-26

AMARESHWAR SAHAY

body2006
ORDER :- The prayer of the petitioner in this writ application is for quashing of the order dated 26-10-1999 as contained in Annexure-4, passed by the Deputy Commissioner, Singhbhum East at Jamshedpur whereby, in a proceeding under Section 6A of the Essential Commodities Act 1955, 196 Quintal of wheat and 174 Quintal of sugar said to be belonging to the petitioner was confiscated apart from the two trucks regarding which the petitioner has no concern. 2. The facts leading to the present case in short are that on 26-8-1998, an inspection was made in the premises of the petitioner at 8.00 A.M. and it was alleged that two trucks bearing Registration No. BR -14G - 8058 and HR 29A 7688 were loaded with sugar on that. It is alleged that a substantial quantity of sugar was already unloaded from truck No. BR 14G 8058 and only 54 quintals of sugar remained on the truck whereas the dala of truck No. HR 29A - 7688 was intact and on counting 97 bags were found on that. The truck driver Amarjit Pandey disclosed that both the trucks were loaded from the godown of Food Corporation of India and it was to be transported to Jhikpani Block but at the instance of Devendra Prasad Agarwal, it was taken to the shop of the petitioner. The shop of the petitioner was inspected in presence of one Babulal Sharma and it was alleged that during inspection 196 quintals 65 Kg. of wheat was found in the shop but no document was produced in respect of the wheat and it is alleged that no document was produced by the petitioner in respect of the sugar loaded on the trucks. It is further alleged that 29 quintals of sugar were found in the shop. The sugar and wheat were seized along with the trucks. An F.I.R. was lodged with the Golmuri P.S. and it was registered as Golmuri P.S. Case No. 187/98 corresponding to G.R. No. 1615/98 and the petitioner was taken into custody on the date of occurrence itself. 3. There is no dispute of the fact that by order of the Supreme Court, the petitioner was granted bail and was released from the custody on 21-4-1999. Therefore, in between 26-8-1998 to 21-4-1999, the petitioner admittedly was in jail custody. 4. 3. There is no dispute of the fact that by order of the Supreme Court, the petitioner was granted bail and was released from the custody on 21-4-1999. Therefore, in between 26-8-1998 to 21-4-1999, the petitioner admittedly was in jail custody. 4. The Confiscation proceeding was initiated by the Deputy Commissioner, East Singhbhum, Jamshedpur on 4-9-1998 which was registered as Revenue Misc. Case No. 63 of 1998 - 99. Pursuant to the order dated 4-9-1998 in the Confiscation proceeding, notices were issued to six persons including the petitioner Amarjit Singh, the proprietor of M/s. Amarjit Singh. The photocopy of the certified copy of the notice dated 4-9-1998 has been made Annexure-3 to this writ application. In the last page of the said notice, the process server has made endorsement that the notices were served only on three other persons against whom also notices were issued but the said notice could not be served against two persons including the petitioner since he was in jail custody. Therefore, apparently it appears that the petitioner, who was in custody at that time and therefore the notice of the Confiscation proceeding was not served on him. 5. It appears that though the petitioner was in custody but he made appearance through his lawyer in the Confiscation proceedings and prayed for adjournment to file show-cause and several adjournments were allowed to the counsel for the petitioner to file show-cause and ultimately, when no show-cause was filed, the impugned order ex parte against the petitioner was passed on 26-10-1999 which is under challenge in this writ application. 6. Mr. P. D. Agarwal, learned counsel appearing for the petitioner invited my attention to Section 6-B of the Essential Commodities Act, 1955 and submitted that in order to initiate any Confiscation proceeding, issuance of notice in writing, informing the said person about the grounds on which the proposed Confiscation proceeding is to be initiated is a must and that person has to be given an opportunity of making a representation in writing against the ground of confiscation as envisaged in Section 6-B of the Act and unless the said provision is complied with, no order of confiscation can be passed. He further submitted that admittedly in the present case, the notice under Section 6-B of the Act was not served on the petitioner and he was not given a reasonable opportunity of making representation or opportunity of being heard as envisaged in Clauses (a), (b) and (c) of Section 6-B of the Essential Commodities Act and therefore, the order passed by the learned Deputy Commissioner against the petitioner confiscating the food grains of the petitioner was bad in law. 7. In support of his submission, Mr. Agarwal has relied on the decision in the case of Ramanand Kejriwal v. State of Bihar and others reported in 1992 East Cr C 164 (Pat) and the Division Bench Judgment of the Patna High Court in the case of Chandeshwar Mahto and others v. State of Bihar and others reported in 1978 Cri LJ 672. 8. On the other hand, Mr. Pradeep Modi, learned G. P.-I submitted that admittedly, on behalf of the petitioner, a counsel appeared in the Confiscation proceedings and prayed for time to file show-cause and therefore, since once appearance on behalf of the petitioner was made in the Confiscation proceedings, the service of notice as envisaged under Section 6-B of the Essential Commodities Act, 1955 was not required and even if no notice was served on the petitioner, it does not matter since the petitioner already appeared in the proceeding through a counsel. Therefore, there was no violation of the provisions of Section 6B (a) to (c) of the Act. Section 6-B of the Essential Commodities Act, 1955 reads as under:- "6-B. Issue of show cause notice before confiscation of foodgrains, etc.- (1) No order confiscating any (essential commodity, package, covering, receptacle, animal, vehicle, vessel or the conveyance) shall be made under section 6A unless the owner, of such (essential commodity, package, covering; receptacle, animal, vehicle, vessel or other conveyance) or the person from whom (it is seized)- (a) is given a notice in writing informing him of the grounds on which it is proposed to confiscate the (essential commodity, package, covering, receptacle, animal, vehicle, vessel or other conveyance;) (b) is given an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the ground of confiscation; and (c) is given a reasonable opportunity of being heard in the matter. From bare perusal of the aforesaid provisions, it appears that no order for confiscation of any essential commodities can be made under Section 6-A of the Essential Commodities Act, 1955 unless the owner of such essential commodities or the person from whom goods were seized, is given a notice in writing informing him the grounds on which the proposed proceeding is to be made and then after such notice, such persons has to be given an opportunity of making representation in writing within a reasonable time and also a reasonable opportunity of being heard has to be afforded to him. 9. In the present case, as it appears and the facts discussed above, that though the notice under Section 6-B of the Essential Commodities Act was issued against the petitioner on 4-9-1998 but the same could not be served on him since he was in custody at that time. The impugned order was passed when the petitioner was in custody and this fact was known to the Deputy Commissioner as it appears from the records particularly the service report of the Process Server on the notice itself. Annexure-3 the notice is clear on this fact. 10. In such circumstances, I hold that the requirement as envisaged under Clauses (a), (b) and (c) of Section 6-B of the Essential Commodities Act, 1955 which are mandatory in nature were not followed before passing the impugned order. Even if the petitioner made appearance through his counsel before the Confiscating authority, it cannot be said that he should not have been given an opportunity of making representation by affording a reasonable opportunity and also a chance of being heard. Admittedly at that time, the petitioner was in custody, and prayer for time was being made on behalf of the petitioner by his counsel before the Confiscating Authority and ultimately the final order was passed without even a show-cause or a chance to make representation or without giving a chance of being heard and therefore, there is no doubt that the mandatory requirement, as envisaged under Section 6-B(a) to (c), were not complied with which make the impugned order unsustainable. My above findings is supported by the decisions cited by the learned counsel for the petitioner. 11. Accordingly, this application is allowed. My above findings is supported by the decisions cited by the learned counsel for the petitioner. 11. Accordingly, this application is allowed. The order dated 26-10-1999 as contained in Annexure-4, passed by the Deputy Commissioner, Singhbhum East at Jamshedpur is hereby quashed and the matter is remitted back to the Deputy Commissioner-cum-Confiscating Authority to pass fresh order after giving reasonable opportunity to the petitioner to file show-cause and a chance of being heard. The petitioner is directed to file show-cause, if any, within a period of six weeks from today and the Deputy Commissioner, Singhbhum East at Jamshedpur, after hearing the parties, may pass fresh order in accordance with law within a period of three months thereafter. With these observations and directions, this writ application is allowed. No order as to costs. Application allowed.