BAIJNATH KATHAL Vs. M K QUREISHI

JUDGEMENT

(1.) In this petition under Articles 226/227 of the Constitution of India the petitioner has challenged the impugned orders dated 26-8-85, passed by the Collector Seoni, confiscating the essential commodity i.e. foodgrains under Section 6-A of the Essential Commodities . Act, 1955 for contravening the provisions of Clause 3(2) of the licence-conditions under M.P. Foodgrains Dealers Licensing Order, 1965 and condition No.3(2) of the licence issued under the M.P. Pulses, Edible Oilseeds and Edible Oil Dealers Licensing Order, 1977, which have been upheld in appeal before the Hon'ble Minister for Food. Government of Madhya Pradesh vide 22-10-86 under Section 6-C of the said Act.

(2.) (i) It is common ground that the petitioner Baijnath Kathal holds licences under M.P. Foodgrains Dealers Licensing Order, 1965 and under M.P. Pulses, Edible Oilseeds and Edible Oil Dealers Licensing Order, 1977. He has a shop in Budhwari Bazar, Seoni with Godowns in Budhwari Bazar in Ganj at Seoni and at Ugli. The last two places i.e. Ganj and Ugli are said to be located at a distance of approximately 3 and 78 Kilo-metres from the Budhwari shop. (ii) Respondent No.1 Shri M. K. Qureishi is one of the Food Inspectors at Seoni. It is further admitted that the said Food Inspector visited the shop premises on 8-7-84 for inspection of the shop and godowns. Under Condition No.10 of the licence, it is enjoined that "the licensee shall give all facilities at all reasonable times to the licensing authority or any officer authorised by it or the State Government for the inspection of his stocks and accounts at his shop, godown or other place used by him for the storage, sale or purchase of foodgrains and for the taking of samples of foodgrains for examination." Respondent No.1 Food Inspector inspected the register of daily accounts of foodgrains maintained at the shop. Thereafter, along with the petitioner, the Food Inspector proceeded to the Godown located in the mill area belonging to Damodar Prasad but it was found locked. The Food Inspector, because of the non-availability of the keys of the godown about which the versions of the parties are divergent sealed it on 8-7-84 so that it could be inspected subsequently. The other three godowns except the above one, were inspected. According to the entries in the stock register for 8-7-84, the opening stock of Kanki was shown as 439 Quintals 40 Kgs. and that of wheat : 14 Quintals 40 Kgs. The petitioner who was present throughout, stated that there were no other transactions of sale/ purchase. On inspection and physical verification of the stock on 8-7-84 of the three godowns, the wheat was found to be 14.8.0 Quintals and Kanki in 377 bags. The petitioner then stated that 62 bags are in the other Godown at Ganj. To recall, that Godown was not and could not be inspected on 8-7-84 because of the non-availability of the keys. (iii) Subsequently, on the next day i.e. 9-7-84, (according to the respondents at 1 O'clock noon) the seal of the godown was broke open and on physical verification the Food Inspector found the following stock. <FRM>JUDGEMENT_24_AIR(MP)_1990Html1.htm</FRM> This entire quantity (except Kanki 62 Quintals) was found in excess vis-a-vis stock register. It was seized, and given back on Supradginama to the petitioner by the Food Inspector. (iv) Shri Qureishi, Food Inspector submitted his report dated 15-7-84 to the Collector along with the documents viz. the seizure memoranda dated 8-7-84 and 9-7-84, Supradginama, the statements recorded by him, the Dalhan and Tilhan registers relating to the entries from 1-1-84 to 8-7-84 and the bill book. The Collector, Seoni u/S.6-B of E. C. Act issued a notice in writing informing the petitioner of the grounds on which he proposed to confiscate the essential commodities and further directed the petitioner to make a representation in writing. He further specified that if the petitioner desires personal hearing, he should specify in writing. On 31-7-84, the petitioner submitted his representation in writing and stated that he has not committed any breach/ breaches of the licensing order. As regards the godown situated at Ganj ward, he stated that as the key was with Anil Kumar son of Shri Damodar Prasad Agrawal, it was not possible to have physical verification done on the same day. As regards the excess quantity of the essential commodities referred above, he stated that they belong to one dealer Laxmi Narayan of Barghat who wanted to close his business and therefore on 8-7-84 itself at about 5.30 A.M. those foodgrains were received and entries thereof were made in the concerned registers and the Food Inspector was apprised thereof for his satisfaction; that the foodgrains were received in his absence and whatever disclosures he made to the Food Inspector on 8-7-84, related to the entries as then existed. Lastly, he prayed that he has not committed any breaches and the proceedings for confiscation are liable to be set aside and in case the Collector is not satisfied, then he may be afforded as opportunity of being heard and also for cross-examination. (v) In the above background, the Collector, Seoni passed the impugned orders dated 26-8-85 (Annexure-P-11) which have been upheld in appeal decided on 22-10-86 (Annexure-P-15).

(3.) The impugned orders have been assailed inter alia on the ground that the Collector erred in not believing the Certificate No.1147 dated 8-7-84 (Ann. P-8) declaring receipt and check at the Mandi outpost relating to the seized commodities; that the three affidavits Annexure-P-5, P-6 and P-7 which were filed by the petitioner to show that another dealer Laxmi Narayan had sent those commodities as per his bill No.41 dated 7-7-84. and Shri Damodar Prasad had brought those commodities in the truck on 8-7-84 to the godown; that Anil Kumar son of Damodar Prasad who had the keys of the Godown, had left for Jabalpur, had been wrongly disbelieved; that Shri Qureishi. Food Inspector, conducted the search and seizure outside his jurisdiction; that there is absence of mens rea; that the inspection was done on Sunday which is a Gazetted holiday; that the Collector has not acted fairly, reasonably and judiciously in exercise of his powers u/s 6-A of the E.C. Act and there was no application of mind; that the rules of natural justice demanded that the report of the Food Inspector could not be used against the petitioner without giving an opportunity of cross-examining the Food Inspector and to further adduce evidence; that those orders are illegal and are liable to be quashed.