AVTAR SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) This is an application under Articles 226 and 227 of the Constitution of India for quashing the notice issued by the Collector, Chaibasa, asking the petitioner to show cause as to why seized commodities should not be confiscated under Section 6-A of the Essential Commodities Act, in the circumstances noted below.

(2.) It appears that the business premises of the petitioner was inspected on 12-11-1987. The shop was found closed and lock was broken open and there after inspection was done and the following articles were found in the godown. Khesari Dal 5 bags of 5 quintals Urad Dal 4 bags of 3 quintals. Chana Dal 9 bags of 9 quintals The above articles were seized and when demanded register, cash memos, licence were not produced which is said to be of violation of the provisions of the Bihar Essential Articles (Display of Price and Stock) Order, 1977 (hereinafter referred as the "Display Order") and therefore, a notice of show cause was issued for confiscating the aforesaid articles. It was submitted that notice is apparently in violation of any provisions of Display Order, 1977 as the petitioner is required to display the stock position before commencement of the business. In this case, admittedly, the shop was closed, lock was opened, nobody was present and therefore the question of showing the register on demand, in the circumstances admitted in the notice itself and also in the First Information Report, do not arise. There is no question of showing those registers to anybody because the licensee or his servant were not present and therfore there was none to show or to produce those relevant register. In the First Information Report it is also written that at the time of inspection inspite of search, the petitioner did not turned up and therefore lock of shop was opened in presence of Executive Magistrate and search was made.

(3.) Learned Counsel for the petitioner has drawn my attention to paragraph 10 of the counter affidavit that the traders had fled away downing their shutters when the raiding party has arrived for the purpose of inspection. This averment appears to be an attempt on the part of the prosecution to make improvement in the case itself because whether the petitioner or his servant or anybody fled away from the shop has neither been mentioned in the show cause notice (Annexure-2) or in the First Information Report. Under such circumstances this improvement made in the counter affidavit cannot be taken notice of. In this connection reliance has been placed on the case reported in AIR 1978 SC 851 in which it was held that "When a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. Therefore, the improvement which has been attempted to be made by the State cannot be looked into at this stage after admission and the matter has to be thrased out on the basis of the notice issued and the first information, itself.