Research › Search › Judgment

Patna High Court · body

2011 DIGILAW 1872 (PAT)

Shyam Jha alias Shyam Kant Jha v. State of Bihar

2011-09-02

JYOTI SARAN

body2011
ORDER Heard Mr. Kaushalesh Choudhary, learned counsel appearing on behalf of the petitioner and Mr. Manoj Kumar Ambastha, learned Government Pleader No.14 for the State. 2. The writ petition has been filed seeking a direction to the respondent authorities for making payment of the price of 67 bags of wheat weighing 67 quintals allegedly seized by the respondent authorities, inter alia, on allegation of the goods being meant for sale in black market and also for payment of the statutory interest thereon as provided under the Act. 3. The facts of the case briefly stated is that a raid was made by the Sub Inspector of Police, Biraul Police Station in the district of Darbhanga on 5.10.1998 at the residence of the petitioner leading to seizure of 33 bags of wheat from the tractor and trailer of the petitioner standing in front of his house and 34 bags from his house premises, with each bag containing one quintal of wheat. The allegation is that the wheat bags so seized were meant for sale in the black market. 4. The alleged seizure led to institution of an F.I.R. giving rise to Biraul P.S.Case No.103 of 1998 which was instituted on 5.10.1998 inter alia for alleged violation of the provisions of the Essential Commodities Act, 1955 (hereinafter referred to as ‘the Act’). Although the seizure as well as the arrest of the petitioner took place on 5.10.1998 and the first information report was also instituted on 5.10.1998 but the petitioner was produced before the Chief Judicial Magistrate, Darbhanga on 7.10.1998 in violation of Section 57 of the Code of Criminal Procedure. The Sub Inspector of Police not only seized the 67 bags of wheat but also seized the tractor and trailer on which 33 bags of wheat were alleged to have been concealed by the petitioner. 5. The pleas of the petitioner that the wheat in question was a produce of his agriculture fields, fell on deaf ears of the police party and even in absence of any accompanying circumstances, controverting the statement of the petitioner, the goods were seized and the arrest made. 5. The pleas of the petitioner that the wheat in question was a produce of his agriculture fields, fell on deaf ears of the police party and even in absence of any accompanying circumstances, controverting the statement of the petitioner, the goods were seized and the arrest made. The Sub Inspector of Police, after making the alleged seizure, submitted a report which was forwarded by the Superintendent of Police, Darbhanga vide memo no.356 dated 23.1.1999 before the District Magistrate, Darbhanga for initiation of a confiscation proceedings under the provisions of Section 6A of the Act giving rise to Confiscation Proceeding no.08 of 1999. 6. The institution of the first information report led to a proceeding before the Special Judge, E.C. Act, Darbhanga. The petitioner filed an application before the Special judge, E.C. Act for release of his tractor and trailer and which was released vide order passed on 25.11.1998. The tractor and trailer thus remained in the custody of the respondent authorities of the Investigating Department for a period of 52 days, i.e from 5.10.1998 to 25.11.1998. The petitioner also filed a petition on 9.12.1998 before the Special Judge, E.C.Act, Darbhanga for release of 67 bags of wheat which was rejected vide order dated 23.1.1999. 7. Feeling aggrieved, the petitioner moved this Court vide Cr. Revision No.83 of 1999 and which was allowed by order dated 7.5.1999 placed at Annexure-3 to the writ petition directing for release of the seized wheat bags. 8. Whereas the petitioner contends that in spite of the order passed by this Court issuing direction for release of wheat in question, the respondents did not respond to the same, this stand is controverted by the learned counsel appearing on behalf of the State by submitting that the fault lay with the petitioner as he produced the order after considerable lapse of time and in between, the wheat in question, had already rotted and decomposed as per the final form submitted by the Police on 31.7.1999 placed at Annexure-11 to the writ petition. 9. In any view, it is not in dispute that by the time, the petitioner obtained the release order from this court, the seized wheat had decomposed and rotted and was not in a position to be either sold in the open market or be released to the petitioner. 10. 9. In any view, it is not in dispute that by the time, the petitioner obtained the release order from this court, the seized wheat had decomposed and rotted and was not in a position to be either sold in the open market or be released to the petitioner. 10. The provisions of the Act as can be found under section 6A is self eloquent and in no uncertain terms creates an obligation on the District Magistrate-Cum-Collector to take prompt steps for disposal of the commodities so seized in view of its natural and speedy decay. Though the report itself was submitted by the Police after considerable delay on 23.1.1999 as is manifest from the order sheet of the confiscation proceedings available at Annexure-6, but no sooner did the District Magistrate cum Collector, Darbhanga receive the report from the Investigating Agency as regarding the alleged seizure, he should have taken prompt action in terms of the obligation cast upon him under the provisions of Section 6A(1) and 2 of the Act by making inspection of the condition of the wheat so seized and for its disposal in the open market in terms of the Act. 11. It is a matter of record and present at Annexures-7, 8,9 and 10 that despite reports of the Sub Divisional officer, Biraul, exonerating the petitioner of the charges with further certification of the wheat being the own agricultural produce of the petitioner and not meant for sale in black market, it made no difference and the wheat rotted. That the proceedings itself was wholly without jurisdiction is manifest from the statutory provisions of Section 6A of the Act which provids for initiation of any proceedings only in case of violation of any order issued under Section 3 of the Act. 12. It is not in dispute that the subject matter of wheat is neither controlled nor its movement is restricted or the price controlled under any order of the Central government or the State Government issued under Section 3 of the Act. The issue stands settled by a Division Bench decision of this court rendered in the case of Pritamlal Yadav & ors Vs. The State of Bihar & ors reported in 1982 PLJR 304. The issue stands settled by a Division Bench decision of this court rendered in the case of Pritamlal Yadav & ors Vs. The State of Bihar & ors reported in 1982 PLJR 304. Thus despite the judicial pronouncement on the issue rendered as back as in the year 1982, yet, the respondent authorities have proceeded with their illegal acts of seizure of commodities even in absence of conditions precedent thereto. 13. It is but obvious that a proceeding initiated in absence of any statutory violation, has to reach its logical conclusion in favour of the aggrieved party and the same also happened in the case of the petitioner when the District Magistrate cum Collector, Darbhanga vide order passed on 18.10.2003 (Annexure-13) dropped the confiscation proceeding while the petitioner was also discharged of the charges in the criminal proceeding pending before the Special Judge, E.C. Act, Darbhanga vide order passed on 14.10.2009 (Annexure-15). 14. The contention of the petitioner that the wheat in question was his own produce and not meant for sale in black market stood vindicated but loss had been caused and the damage done as the wheat had rotted and the petitioner had suffered incarceration without any fault. 15. It is in these circumstances, that the present writ petition came to be filed seeking direction to the respondent authorities to compensate the petitioner by making payment of the price of the wheat allegedly seized by them together with the interest in terms of the provisions of Section 6A and 6C of the Act. 16. Learned counsel for the petitioner, in support of his contention that the petitioner is entitled for payment of the market price of the wheat, has relied upon the judgments of this court reported in 1997 (1) PLJR 800 (Nathuni Sah Vs. The State of Bihar & ors) and 2009 (4)PLJR 310 (Ranjeet Kumar Vs. The State of Bihar & anr.). 17. A State Amendment has been introduced in Section 6A of the Act vide Bihar Act 9 of 1978. Sub section (2) and (3) thereof casts obligation on the Collector to inspect and sell the seized commodity in case of the same being subject to natural decay, at a controlled price or through Fair Price Shops. 17. A State Amendment has been introduced in Section 6A of the Act vide Bihar Act 9 of 1978. Sub section (2) and (3) thereof casts obligation on the Collector to inspect and sell the seized commodity in case of the same being subject to natural decay, at a controlled price or through Fair Price Shops. By the same Amendment, section 6 (C) was also substituted by providing for payment of reasonable interest to be calculated from the date of seizure until the payment thereof. 18. It is now not in dispute that the petitioner is entitled for payment of price of 67 quintals wheat seized by the respondents and also for payment of compensation for the seizure of his tractor trailer which remained in police custody for a period of 52 days. 19. The issue now arises as to the quantification of the amount. On directions of this court, a supplementary counter affidavit has been filed on behalf of the respondents enclosing a relevant extract of information as regarding the price of the wheat at the relevant time, down loaded from the Website of the Ministry of Food and Consumer Affair, Govt. of India. 20. Learned counsel for the State with reference to the downloaded information, submits that the price of the wheat at the relevant time was Rs.450/- per quintal. He is only partially correct. Though the price of wheat indeed was RS.450/- per quintal w.e.f. 1.6.1997 but it was subject to revision from time to time and during the relevant period when the wheat in question was in custody of the respondents, i.e. from 5.10.1998 until its release under order of this court on 7.5.1999, the price of wheat in terms of the information appended at Annexure-A of the supplementary counter affidavit of respondent, was Rs.650/- per quintal. Thus on the date of release i.e. 5.7.1999, the price of wheat as according to the information placed by the respondents themselves was at RS.650/- per quintal. The petitioner would accordingly be entitled for payment of price at the rate of Rs.650/- per quintal payable together with the interest at the rate of 15 % w.e.f. the date of alleged seizure i.e. 5.10.1998 until the date of its final payment. 21. The petitioner would accordingly be entitled for payment of price at the rate of Rs.650/- per quintal payable together with the interest at the rate of 15 % w.e.f. the date of alleged seizure i.e. 5.10.1998 until the date of its final payment. 21. In so far as the compensation for illegal seizure of the tractor and trailer is concerned, learned counsel for the petitioner has produced a circular of the Transport department issued on 22.2.2001 providing for charges payable to vehicles requisitioned during election purposes and which provides for payment of hire charges in respect of tractor and trailer payable at the rate of Rs. 300/- per day. Thus, in view of the Government circular of the Transport Department itself, the petitioner would be entitled to payment of hire charges at the rate of Rs.300/- per day for the period of alleged seizure of the tractor and trailer of the petitioner i.e from 5.10.1998 until its release on 25.11.1998. 22. The writ petition is allowed with the directions aforesaid. The calculation of the amount and its payment should be made to the petitioner by the respondent Collector cum District Magistrate, Darbhanga within a period of three months from the date of receipt/production of a copy of this order.