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2009 DIGILAW 644 (JHR)

Sudama Sao v. State of Jharkhand

2009-04-29

D.G.R.PATNAIK

body2009
JUDGMENT: Heard the counsel for the petitioners and the State. The petitioners in this application has prayed for quashing of the order dated 21.9.2007 passed by the respondent no. 2 in the Confiscation Case no. 4/2006-7 whereby 62.50 quintals of rice belonging to the petitioners has been confiscated by the respondent no. 2 on the allegation that the rice was illegally procured by the petitioners from a PDS dealer against the provisions of law. The challenge to the impugned order has been made on the ground that such order could not have been passed in view of the fact that there was no control order restricting the stock limit, distribution and transportation of rice . Sri Nilesh Kumar, learned counsel for the petitioners explains that the aforesaid quantity of rice was seized from the possession of the petitioners by the police on a suspicion that it was obtained by the petitioners from one Rajendra Shaw, a PDS dealer. The informant Sub Divisional Officer had filed FIR against the petitioners and on the basis of the said report, confiscation proceeding was also initiated. Inviting attention to certain paragraphs of the impugned order, and also referring to the order of the SDO dated 19.10.2006, learned counsel submits that the same SDO has given a clean chit to the PDS dealer Rajendra Saw on the ground that there was no involvement of Rajendra Saw in the alleged offence for which the petitioners are being prosecuted. Learned counsel adds further that from the said impugned order, it would be evident that the Police has confirmed that the seized rice was not obtained by the petitioners from PDS shop dealer Rajendra Saw in view of the fact that his stock register did not show any inconsistency or anomaly. Referring to the judgment passed by this Court in a similar case vide W.P. (C ) No. 3800 of 2006, learned counsel for the petitioners submits that the same issue was raised before this Court in the said writ petition wherein after considering the fact that control in respect of stock, distribution and transport etc on rice was abolished by the Central Government notification dated 15.2.2002, no offence under the Essential Commodities Act was made out and no confiscation proceeding could have been initiated for confiscation of the rice seized. Learned counsel explains that the same ratio applies to the facts of the present case also. Mr. Learned counsel explains that the same ratio applies to the facts of the present case also. Mr. Manoj Tondon, learned counsel for the State, on the other hand, would try to explain that it cannot be said that the restriction under the earlier Order has been totally abolished. Referring to the relevant provisions of the notification dated 15.2.2002, of the Central Government, learned counsel would explain that although the restriction on stock, distribution and transportation was abolished, but such withdrawal of restriction did not apply to the food grains including rice, meant for distribution through PDS and since in the instant case, the original complaint was that rice seized, was obtained from the PDS shop, therefore the confiscation proceedings was continued and the impugned order was passed. While appreciating the efforts of the learned counsel for the State to explain and justify the impugned order, it cannot be ignored that the investigation into the case by the Police had confirmed that rice was not obtained from the PDS shop of the co-accused Rajendra Saw to whom a clean chit was given since he was not involved in any manner in the alleged offence for which the case was registered against the petitioner. Sri Tandon would further submit that as against the impugned order passed by the respondent no. 2, there is provision of appeal which the petitioners have apparently not availed and have straightway come to this Court in this writ petition. This plea of the learned counsel does not stand to reason in view of the fact that there appears a patent illegality and perversity in the impugned order in view of the fact that no confiscation proceeding could have been initiated at all on the basis of the facts of the case and even if initiated, final order of confiscation could not have been passed. This Court therefore would not hesitate to exercise its jurisdiction in the matter raised by the petitioner. In view of the above discussions, I find merit in this application. Accordingly, this application is allowed and the impugned order dated 21.9.2007 ( annexure 3) passed by respondent no. 2 in the confiscation proceedings no.4/ 2006-07 is hereby quashed. It is informed that rise has since been sold and the sale proceeds deposited in the Government Treasury. In view of the above discussions, I find merit in this application. Accordingly, this application is allowed and the impugned order dated 21.9.2007 ( annexure 3) passed by respondent no. 2 in the confiscation proceedings no.4/ 2006-07 is hereby quashed. It is informed that rise has since been sold and the sale proceeds deposited in the Government Treasury. It is directed that the sale proceeds of the seized rice shall be paid forthwith to the petitioners together with statutory interest. With the above observation and direction, this application is disposed of.