MEWALAL KAPILDEO PRASADAND Vs. STATE OF BIHAR

JUDGEMENT

(1.) This writ application has been filed on behalf of the petitioner-firm for quashing an order dated 3-5-1975 passed by the respondent-District Magistrate, Gopalganj in purported exercise of the powers conferred on him under Section 6A of the Essential Commodities Act, 1955 (hereinafter referred to as the Act). By that order the respondent-District Magistrate confiscated 189 tins of mustard oil weighing 16 kg. each and 60 tins of mustard oil weighing 4 kg. each, which were found in the premises of the petitioner-firm, taking the view that the petitioner-firm had contravened the provisions of the Bihar Edible Oil Wholesale Dealer's Licensing Order, 1966 (hereinafter referred to as the said Licensing Order). He also directed the Sub-divisional Officer to dispose of the articles in question through public distribution system and to deposit the sale proceeds according to the Government instructions. A copy of that order is Annexure 2 to the writ application. An appeal filed on behalf of the petitioner before the Commissioner was also dismissed affirming the finding of the respondent-District Magistrate. A copy of that order is Annexure 1 to the writ application.

(2.) According to the petitioner, it made an application for wholesale dealer's licence under the provisions of the aforesaid Licensing Order before the authority concerned on 18-12-1973. After due enquiry, a report was submitted to the Sub-divisional Magistrate recommending for the grant of the licence. On 15-1-1974, the Sub-divisional Magistrate approved the proposal saying "as proposed". Thereafter the petitioner deposited the licence fee of Rs. 20.00 for one year, which was accepted after deposit being made through chalan in the treasury. Actual licence, however, was not granted to the petitioner, but the petitioner-firm started carrying on the business in edible oil as a wholesale dealer because it was told that the licence would be forwarded to it in due course. According to the petitioner, officer of the Supply Department inspected the records of the petitioner-firm as also the relevant registers maintained by the petitioner. Road permits were also granted by the Sales-tax Department for carrying the stock of mustard oil to the premises of the petitioner. The petitioner claims to have filed fortnightly returns showing the position of the stock of mustard oil, which were duly checked by the competent officers of the department periodically. However, on 30-101974 a raid was made in the business premises of the petitioner and, for the first time, an objection was taken by the raiding party that the petitioner was carrying on the business in edible oil as a wholesale dealer without a licence. The raiding party during the raid seized the aforesaid stock of mustard oil and filed a criminal case before the Chief Judicial Magistrate, Gopalganj alleging that the petitioner has contravened the provisions of the aforesaid Licensing Order as it was carrying on the business in edible oil without licence.

(3.) On the basis of the seizure of the mustard oil tins a confiscation proceeding was also initiated by the respondent-District Magistrate and the petitioner was asked to show cause as to why those tins of mustard oil should not be confiscated. The petitioner appeared before the respondent-District Magistrate and filed its show-cause in which it stated about its application being filed for a licence on 18-12-1973 as well as the deposit of licence fee by chalan. It also asserted that it was submitting return in accordance with the provisions of the aforesaid Licencing Order and has also got road permit from the Sales-tax Department for bringing mustard oil. On the aforesaid assertion, it was claimed on behalf of the petitioner that there was no mens rea on the part of the petitioner to contravene the provisions of the said Licensing Order and it was carrying on the business under a bonafide belief which was based on a reasonable basis that the licence had been granted in its favour. The said claim was however, rejected by the District Magistrate as well as by the Commissioner on the view that there has been an amendment of Section 7 in the year 1967 by the Parliament as a result whereof it was no more open to the petitioner to take a plea of absence of mens tea and even in cases where the contravention was unintentional the person concerned could be held to have contravened the provisions of any such Licencing Order.