STATE OF PUNJAB Vs. JAWAHAR LAL MALHOTRA

JUDGEMENT

(1.) JAWAHAR Lal Malhotra, respondent in this appeal and petitioner in the original lis, proprietor of M/s Punjab Khad Depot, Dana Mandi, Khamano, District Ludhiana, dealing in fertilizers, through Civil Writ Petition No. 3364 of 1991 successfully challenged orders dated June 30, 1990 passed by the Sub Divisional Officer (Civil), Samrala, District Ludhiana, authorising the 4th respondent-Shamsher Singh to confiscate the seized stocks as also order dated August 6, 1990 cancelling certificate of registration passed by the third respondent as also order dated November 26, 1990 dismissing his appeal against order dated August 6, 1990, as his writ petition, filed on that behalf, was allowed by learned Single Judge on July 9, 1991. In addition to setting aside orders aforesaid, petitioner was also held entitled to market price of the confiscated stock along with interest @18% from the date of sealing/seizure, viz, June 27, 1990 till the date of actual payment. He was also held entitled to extension of his licence by an equivalent span of time of his registration certificate as also penal costs on that account. Petitioner was further held entitled to costs of Rs. 5000/- which were ordered to be paid personally by Shri Ajit Singh Pannu, Sub Divisional Officer (Civil), Samrala and Shri Shamsher Singh, 4th respondent. It is this order of learned Single Judge that has been challenged by the State of Punjab and others in this Letters Patent Appeal filed under Clause X of the Letters Patent.

(2.) BRIEF facts giving rise to Civil Writ Petition No. 3364 of 1991 filed by Jawahar Lal Malhotra (here-in-after referred to as 'petitioner'), as projected in the petition, reveal that he was carrying on the business of stocking and sale of fertilizers in retail under the firm's name and style M/s Punjab Khad Depot at Khamano, Tehsil Samrala, District Ludhiana. He was granted a registration certificate as required under the provisions of the Fertilizer Control Order, 1985 (here-in-after referred to as the 'Control Order') which was valid upto February 16, 1990. This Certificate was further got renewed from the third respondent and was valid upto February 16, 1993. It has been the case of petitioner that while applying for the Fertilizer Registration Certificate, he had mentioned in the application, in the prescribed from, the details of the premises where he was to carry on the business of stocking and sale of fertilizers as also the details of godown wherein he proposed to stock the fertilizers. According to the terms and conditions of the Fertilizers Registration Certificate the holder of the certificate had, from time to time, report to the Registering Authority any change in the premises of sale depot and godown attached to the sale depot. Accordingly, no prior permission of the registering authority was required for any change in the premises if and when there was any change, except that it was required to be reported to the Registration Authority. It has further been the case of the petitioner that petitioner's firm continued to carry on the business of fertilizers in the original sale premises and also the godowns which was place for stocking of fertilizers under the said certificate of registration and no change in the premises was ever made. Petitioner was also carrying on the business of sale and stocking of insecticides. He had obtained a licence in the name of the said firm for stocking and sale of insecticides under the provisions of the Insecticides Act, 1958 and Insecticides Rules, 1973. Petitioner was stocking insecticides in a godown under the said insecticides sales and stocking licence granted by the Licensing Officer under the Insecticides Act, 1958. Shamsher Singh-4th respondent was In-charge of Khamano area and it is stated that he was inimical to the petitioner on account of his refusal to accept his illegal demands. Further, Shamsher Singh was involved in an electricity theft case and he was penalised by the electricity board for which he demanded money from the petitioner as a loan which he paid and on asking for return, the inspector became more vindictive towards him. on June 26, 1990, Shamsher Singh along with another person, styling himself to be Fertilizers Inspector from the office of the Registering Authority, Ludhiana and few police constables, visited the business premises of the petitioner and checked the stock of fertilizers and took away with them the registers and other account books concerning the sale of fertilizers without giving any receipt or without following the procedure as prescribed under the law. Again on June 27, 1990 the fourth respondent and other members including the police constables raided the business premises of the petitioner and asked him to take out BHC from the insecticide godown and bring the same to the shop and they took the samples of four brands of fertilizers from the shop and godowns of the petitioner and one of the godowns, where fertilizer was lying, was sealed illegally and without any reasonable cause. Shamsher Singh also took away ten quintals of zinc sulphate from the business premises of the petitioner illegally while the other stock in the godown was sealed by him without any reasonable cause and on account of his biased attitude. He did not give any receipt of the stock register and other documents taken into custody while searching the business premises of the petitioner. No seizure memo was prepared nor any receipt was issued to the petitioner for ten quintals of zinc sulphate which was taken away by the 4th respondent. Petitioner then received a show cause from the third respondent asking him to explain the alleged irregularities reported against him by the 4th respondent, as a result of his checking the business premises of the petitioner on June 26/27, 1990. A copy of the show cause notice dated July 10, 1990 is Annexure P-1. The allegations levelled against the petitioner in the show cause notice were as follows :-

(3.) ALL the four respondents entered defence and in the joint written statement that came to be filed on their behalf, cause of petitioner was seriously opposed. It was, inter-alia, pleaded that the petitioner had contravened the terms and conditions of the Control Order. He had kept two unauthorised godowns and had also kept unauthorised fertilizer. The unauthorised fertilizer of petitioner was sealed and then confiscated by the 4th respondent with the orders passed by the SDO (Civil) Samrala dated June 30, 1990. As per the complaint made by the 4th respondent to the third respondent, prosecution against petitioner had been launched on the basis of complaint forwarded to the senior Superintendent of Police, Ludhiana vide letter dated November 23, 1990 under Section 7/12-AA of the Essential Commodities Act, 1955 (here-in-after referred to as the 'Act of 1955'). There is no need to give further details of the written statement at this stage as we shall make mention of same as and when required in the context of submissions that have been made before us or for that matter while dealing with the findings returned by the learned Single Judge that have since been challenged in this appeal by the State.