JUDGMENT Hon’ble Kalimullah Khan, J.—This Criminal Misc. Writ Petition has been filed by the accused applicant Surendra Singh to issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 21.9.2011 passed by learned Sessions Judge, Court No. 8 Moradabad in Criminal Appeal No. 61/2011 Surendra Singh v. State of U.P. Under Section 6(c) of Essential Commodities Act and the impugned order dated 17.2.2011 passed by the Pergana Magistrate, Sadar district Moradabad in Case No. 4/8 State v. Surendra Singh, Under Section 6 A of Essential Commodities Act arising out of case crime No. 343/2010 Under Section 3/7 of Essential Commodities Act P.S. Bhagatpur district Moradabad and to issue a writ, order or direction in the nature of mandamus releasing the Horse and Horse cart (Bugghi) of the petitioner in his favour. 2. Brief facts of the case are that the co-accused Smt. Santosh Devi was a Fair price shop dealer. For the purpose of black marketing she hired applicant’s Horse and Horse cart to transport two quintals of rice in four gunny bags and one gunny bag weighing 50 kg. wheat from her shop to sell it some where else The aforesaid Horse cart was intercepted and the aforesaid food grains meant for public distribution was recovered. The food grains and Horse cart alongwith horse were seized and a case crime No. 343/2010 State v. Smt. Santosh Devi and others, including Surendra Singh petitioner Under Section 3/7 of Essential Commodities Act was registered at police station Bhagatpur district Moradabad. 3. Case No. 4/8 State v. Surendra Singh and others Under Section 6A of Essential Commodities Act police station Bhagatpur district Moradabad was instituted to confiscate the seized food grains and also the Horse and Horse cart of the victim in favour of State. 4. Notices were issued to Surendra Singh and other two co-accused. Surendra Singh appeared before the learned Magistrate and made an application for release of Horse and Horse cart in his favour claiming their ownership. 5. Police report was called for. The report did not contain anything denying the ownership of the accused petitioner. However, the police reported that there is a case registered Under Section 3/7 of Essential Commodities Act against him. 5. Police report was called for. The report did not contain anything denying the ownership of the accused petitioner. However, the police reported that there is a case registered Under Section 3/7 of Essential Commodities Act against him. On rest of the contention of the release application police report was silent as it appears from the perusal of the impugned order dated 17.2.2011 passed by learned Magistrate Sadar, Moradabad. Another accused Vijendra Singh appeared but he did not file any written statement. Accused Smt. Santosh Devi did not appear at all even after service of the notice. Learned Magistrate vide order dated 17.2.2011 confiscated the aforesaid case properties including the Horse and Horse cart in favour of State and the learned Magistrate directed the Supply Inspector, Bhagatpur to get the food grains distributed amongst the consumers according to law and after auction of horse and horse cart deposit the auction amount in Criminal Head 8443-00-105. The aforesaid order was passed behind the back of the petitioner as he neither appeared nor adduced any evidence of ownership of Horse and Horse cart. 6. Be it known that the release application of the applicant was not disposed of at all by the learned Magistrate. 7. Feeling aggrieved Criminal Appeal No. 61/2011 Surendra Singh v. State of U.P. Under Section 6(c) of Essential Commodities Act police station Bhagatpur district Moradabad was preferred before the Sessions Judge, Moradabad against the order dated 17.2.2011 passed by learned S.D.M.Sadar, Moradabad in the aforesaid case No. 4/8 Under Section 6A of Essential Commodities Act, 1955 on the ground that the impugned order is against the law and facts of the case. Petitioner is the owner of Horse and Horse cart. The receipt of ownership was filed alongwith memo of appeal supported by affidavit. The only source of livelihood of the petitioner and his family is the said Horse cart. He had loaded the aforesaid food grains from the house of co-accused Vijendra Singh and it was not in his conscience knowledge that the said food grains was meant for public distribution and or it belonged to fair price shop. The receipt of the ownership of the Horse and Horse cart dated 10.2.2009 was enclosed alongwith the memo of appeal which was executed by one Nanhey. The perusal of which shows that for a consideration of Rs. The receipt of the ownership of the Horse and Horse cart dated 10.2.2009 was enclosed alongwith the memo of appeal which was executed by one Nanhey. The perusal of which shows that for a consideration of Rs. 20,000/- he had sold his Horse and Horse cart to the petitioner. 8. The main point on the basis of which the impugned order passed by learned S.D.M. was challenged in the criminal appeal is that the petitioner was not given the option, in lieu of its confiscation, to pay a fine at the market price on the date of seizure of essential commodities including horse and horse cart as provided in second proviso to Section 6A of Essential Commodities Act. The said provision is a mandatory provision, according to which option had to be given at the time of passing of final order of confiscation Under Section 6A of Essential Commodities Act. 9. Appellate Court failed to consider this aspect of the matter and dismissed the appeal by recording a finding that petitioner was not present before the S.D.M. and therefore, he could not be given option and on the basis of the aforesaid finding learned Additional Sessions Judge Court No. 8 Moradabad, before whom the appeal was transferred, vide his order dated 21.9.2011 dismissed the criminal appeal and upheld the finding recorded by learned S.D.M. concerned. 10. Feeling aggrieved this criminal Misc. Writ Petition has been filed. 11. Learned counsel for the petitioner has submitted that there has been a gross violation of the mandatory provisions contained Under Section 6A of Essential Commodities Act and petitioner is a poor and illiterate person. He was merely transporting the food grains in a bona fide belief that it belonged to co-accused Vijendra Singh. There is no evidence at all on record to show that the petitioner was transporting essential commodities having conscience knowledge that it was meant for public distribution system. 12. Learned A.G.A. has opposed the submissions made by the learned counsel for the petitioner and argued that when the petitioner was not present on the date of passing the final order by S.D.M. he could not be given an option to pay the fine in lieu of its confiscation and has argued that there is no illegality or perversity in the order impugned passed by the Courts below. 13. 13. Having considered the arguments advanced by the learned counsel for the parties I have given my judicial thought over the issue in the light of mandatory provisions contained in proviso second of Section 6A of Essential Commodities Act, 1955 which provides provisions for confiscation of Essential Commodities as well as vehicles or other transportation means, besides punishment, in the event of violation/contravention of any of the provisions of any of the control Orders enacted thereunder. Section 3/7 of Essential Commodities Act is a penal provision and it has serious civil consequence as well therefore, this provision has to be applied in strict adherence to the statute. In the present writ petition for a poor horse carter seizure of his Horse and Horse cart entails very harsh and extreme civil consequence as it deprives him of his livelihood and impinges upon his fundamental right to vocation and carry on business. Mens-ria is an essential ingredients for making a person liable for penalty or forfeiture and confiscation of his assets. Article 300 A of the Constitution of India provides that “ No person shall be deprived of his property save by authority of law”. Therefore, deprivation of property should be only in accordance with law. Natural corollary of above discussion is that unless it is established beyond doubt that the vehicle or other means of transport carrying Essential Commodities was used consciously and knowingly in contravention of the provisions of the Act and Control Orders formulated thereunder no confiscation order can be made depriving the owner of his right to carry on business as a transporter or other person of his means of transport. 14. There is no evidence on record, as it appears that it was in conscience knowledge of the petitioner that the food grain in question belonged to fair price shop. Likewise there is no evidence on record as is apparent from the perusal of the orders passed by the Courts below that there was any other person claiming ownership of the Horse and Horse cart except the petitioner. It was the petitioner who was arrested at spot alongwith horse cart. Possession is nine point of law. The person who is found in possession of a case property is the best person entitled to the release of the property in his favour, in the absence of any better claimant or owner. It was the petitioner who was arrested at spot alongwith horse cart. Possession is nine point of law. The person who is found in possession of a case property is the best person entitled to the release of the property in his favour, in the absence of any better claimant or owner. The settled principle of law has not been taken note of by either of the Courts below. 15. None of the aforesaid two impugned orders disclose as to which of the provisions of any Control order has been violated by the petitioner. Unless some contravention of any of the Control order is disclosed no confiscation of Horse and Horse cart could be ordered. 16. In Deputy Commissioner, Dakshina Kannada District v. Rudolph Fernandes, (2000) 3 SCC 306 , it has been held by the Hon’ble Apex Court as under : “ Further it is required to be noted that under Section 6-B(2) no order confiscating the vehicle or other conveyance can be passed if the owner proves to the satisfaction of the competent authority that it was used in carrying the Essential Commodities without his knowledge or connivance.” 17. Both the Courts below surmised that the food grains were belonging to the fair price shop and petitioner was carrying the same having conscience knowledge that it was meant for public distribution. The aforesaid conjecture and surmises of both the Courts below were uncalled for. 18. Right of livelihood cannot be infringed otherwise than by following the procedure established by law. If the confiscation was to be ordered then prior to it option to pay a fine as per the market value in lieu of confiscation must have been given by the learned S.D.M. Sadar, Moradabad. Undisputedly, he has not given the said option for one reason or the other, but the fact remains that the said mandatory provisions of law was not followed at all hence the confiscation order is bad in law. 19. Learned A.G.A. has not been able to point out that any option as required by the second proviso of Section 6A of Essential Commodities Act was ever given to the petitioner. There appears no substance in his contention and the observations made by the learned appellate Court that since the petitioner was not present therefore, said option could not have been given to him. 20. There appears no substance in his contention and the observations made by the learned appellate Court that since the petitioner was not present therefore, said option could not have been given to him. 20. If show-cause notice could be issued to him in his absence then why after all the said option could not have been given to him in his absence. In view of the aforesaid discussion it is crystal clear that both the impugned orders passed by the Courts below are bad in law and deserve to be set aside. 21. Criminal Misc. Writ Petition No. 21736/11 Surendra Singh v. State of U.P. is allowed and the impugned orders dated 21.9.2011 passed by the learned Additional Sessions Judge Court No. 8, Moradabad in Criminal Appeal No. 61/11 and order dated 17.2.2011 passed by learned S.D.M. Sadar, Moradabad passed in case No. 4/8 State v. Surendra Singh Under Section 6A of Essential Commodities Act arising out of case crime No. 343/2010 Under Section 3/7 of Essential Commodities Act P.S. Bhagatpur district Moradabad are hereby set aside. The writ petition stands allowed. 22. Let the Horse and Horse cart (Bugghi) of the petitioner be released in his favour forthwith on his executing a personal bond of Rs. 25,000/- to produce the same before the Court as and when required. ——————