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2007 DIGILAW 646 (ORI)

Kshyema Karan Giri v. State of Orissa

2007-08-24

L.MOHAPATRA

body2007
JUDGMENT L. MOHAPATRA, J. — The petitioner in this writ application challenges the legality of the order in Annexure-3 passed by the Collector, Keonjhar in a proceeding under Section 6-A of the Essential Commodities Act directing confiscation of 11,180 litres of kerosene oil and also directing for sale of the seized kero¬sene oil as well as the order passed by the learned District and Sessions Judge, Keonjhar dismissing the Criminal Appeal filed against the said order of confiscation. 2. The case of the petitioner is that he was functioning as Kerosene Sub-wholesaler at Bhanda in Champua Block in the district of Keonjhar. On 30.1.2006, the Sub-Divisional Enforce¬ment Squad inspected the business premises of the petitioner, verified the records and found shortage of 40 litres of kerosene oil. Having found shortage of 40 litres of kerosene oil, the entire stock of 11,180 litres of kerosene oil were seized and given in zima of the President of Mahalaxmi W.S.H.G. Group, Mundusahi, Bhanda. Upon seizure of the said stock, the Inspector of Supplies, Champua submitted the report before the Collector, Keonjhar alleging contravention of Clauses 8, 9 and 10 of P.D.S. Control Order, 2002. On receipt of the report of the Inspector of Supplies, Champua, the confiscation proceeding under Section 6-A of the Essential Commodities Act was initiated and the petitioner was directed to submit his reply. The petitioner submitted his reply in Annexure-2 and, thereafter, the impugned order in Annex¬ure-3 was passed by the Collector confiscating the seized kero¬sene oil. The Criminal Appeal filed by the petitioner before the learned District and Sessions Judge, Keonjhar was also dismissed in Annexure-4 which has given rise to the present writ applica¬tion. 3. Shri Das, the learned counsel appearing for the petitioner submitted that the show cause notice issued to the petitioner did not disclose the detail allegations made against the petitioner except mentioning that there has been violation of certain Clauses of the P.D.S. Control Order, 2002 and accordingly it was difficult on the part of the petitioner to submit a reply. Without detail being disclosed in the show cause notice, Shri Das, the learned counsel appearing for the petitioner further submitted that leakage of one percent kerosene oil is within permissible limit and the total quantity of oil seized being 11,180 litres, the shortage of 40 litres of kerosene oil found at the time of inspection was well within the permissible limit. Therefore, no confiscation order could have been passed. The learned counsel also submitted that no evidence was adduced before the Collector before finalization of the confiscation proceeding and, therefore the order of confiscation is liable to be quashed. 4. The learned counsel appearing for the State submitted that during inspection of the business premises of the petitioner 40 litres of kerosene oil had been found to be short. On examina¬tion of the records, it revealed that the self-help group dealing with P.D.S. had not lifted any stock on 29.1.2006 but the whole¬saler had shown issue of 2000 litres of kerosene oil against the retailer. The President of the said self-help group has stated that she had received 1,100 litres of kerosene oil on 30.1.2006 against 1200 litres shown by the sub-wholesaler. Accordingly, the Inspector of Supplies reported that the sub-wholesaler had made false entries in the stock register, which was detected at the time of raid. Accordingly, there has been contravention of Clauses 8, 9 and 10 of the Control Order, 2002. On consideration of the above materials, the Collector not only directed for confiscation of kerosene oil but also the Criminal Appeal filed by the petitioner before the learned District and Sessions Court, Keonjhar was rejected. 5. As is evident from both the orders passed by the au¬thorities below as well as the averments made in the writ application, an inspection was conducted by the squad in the business premises of the petitioner on 30.1.2006. The squad also found shortage of 40 litres of kerosene oil and seized the entire stock of kerosene. They also verified the stock register and other registers and submitted a report to the Collector alleging violation of Clauses 8, 9 and 10 of the P.D.S. Control Order, 2002. On the basis of such report, a case No. 9 of 2006 was initiated before the Collector, Keonjhar under Section 6-A of the Essential Commodities Act and the petitioner was directed to show cause as to why the seized kerosene oil shall not be confiscated to the State. The petitioner has submitted his reply in Annexure-2. The Collector in the impugned order in Annexure-3 held that there has been violation of Clauses 8, 9 and 10 of the P.D.S. Control Order, 2002 and directed confiscation of the seized kerosene oil. 6. The petitioner has submitted his reply in Annexure-2. The Collector in the impugned order in Annexure-3 held that there has been violation of Clauses 8, 9 and 10 of the P.D.S. Control Order, 2002 and directed confiscation of the seized kerosene oil. 6. Clause 8 of the Control Order, 2002 speaks of the responsibilities and duties of Fair Price Shop Owner. The Fair Price Shop Owner as defined in Clause 2 discloses that a person and includes a co-operative Society or a Corporation or a Company of State Government or a Gram Panchayat or any other body in whose name a shop has been licensed to distribute essential commodities under the Public Distribution System. Therefore, Clause 8 of the Control Order, 2002 has no application to the case of the petitioner. So far as Clause 9 of the Control Order is concerned, it deals with maintenance of Accounts. Clause 10 of the Control Order speaks of the contravention of conditions of licence. 7. The allegation is that there was a shortage of 40 litres of kerosene oil at the time of inspection and that the self-help group had received 1100 litres of kerosene oil in 30.1.2006 but the same was reflected as 1200 litres in the sale register. In this connection, it can be said that there is viola¬tion of Clause 9 of the Control Order, 2002 as also Clause 10 of the Control Order, 2002. However, from the impugned order passed by the Collector, it appears that the Collector not only took note of the shortage of 40 litres of kerosene oil as reported by the Inspector of Supplies but also relied on the statement of Bhabani Mohant, who stated that she had not received 2,000 litres of kerosene oil on 29.1.2006 as shown in the sale register and that the signature appearing in the sale register is not her. Reliance was also placed on the statement of Smt. Kuntala Mohanta that on 30.1.2006 she has received 1,100 litres kerosene oil but the same was reflected as 1200 litres in the sale register. There is no dispute that these two persons, who were examined by the Inspector of Supplies before submission of the report had never examined as witnesses in the proceeding under Section 6-A of the Essential Commodities Act. There is no dispute that these two persons, who were examined by the Inspector of Supplies before submission of the report had never examined as witnesses in the proceeding under Section 6-A of the Essential Commodities Act. Their statements were collected behind the back of the petitioner and there was no scope to find out the truth or otherwise of their statements. I am, therefore of the view that such statements, which were collected behind the back of the petitioner and did not stand the test of truth, could not have been relied upon by the Collector in order to come to a conclusion that the petitioner was involved in black marketing. The learned District and Sessions Judge, Keonjhar lost sight of the said fact and dismissed the appeal. So far as shortage of kerosene oil is concerned, the learned counsel appearing for the petitioner relied upon the letter of the Government of Orissa, Food and Civil Supplies on 18th September, 1992 addressed to all the Collectors which permits leakage of one percent. If this letter is taken into consideration, the shortage of 40 litres of kerosene oil is well within the permissible limit. I am, there¬fore of the view that both the orders in Annexures-3 and 4 should be quashed. The Collector should be directed to hear the matter afresh by giving opportunity to the parties to adduce evidence. 8. I, accordingly allow the writ application, quash Annexures 3 and 4 and direct the Collector, Keonjhar to hear the case afresh by giving opportunity of hearing to the parties to the extent of adducing evidence. Application allowed.