GIRDHARI LAI JALAN Vs. STATE OF BIHAR

JUDGEMENT

(1.) In this writ petition the petitioner seeks quashing of Annexure-3 an order passed under Section 6-A of the Essential Commodities Act confiscating 705 qtls., 13 kg., 800 gms. of rice for violation of the Bihar Foodgrains Dealers Licensing Order, 196 / made under Section 3 of the Essential Commodities Act. The petitioner was served with a show cause notice on 21-6-1984 as to why the rice seized on 5-6-1984 be not confiscated on the various grounds indicated in the show cause notice (Annexure-2). The Deputy Commissioner in his order, however, has found two conditions to have been violated by the petitioner i.e., (a) the petitioner stored some rice in a godown which was not incorporated in his Licence, (b) he has sold marua a food stuff without issuance of cash memo. The Deputy Commissioner seems to have exonerated the petitioner from other charges and/or did not record any finding on those charges.

(2.) Mr. P.D. Agarwal, learned counsel appearing on behalf of the petitioner firstly contended that the Bihar Foodgrains Dealers Licensing Order stood repealed on and from 19-4-1984, therefore, on 5-6-1984 the petitioner cannot be held to be liable for cantravention of the Bihar Foodgrains Dealers Licensing Order. He, however, frankly conceded if the facts, alleged, constitute an offence under the Bihar Trade Articles (Licences Unification) Order, 1984 which is an order made under Section 3 of the Essential Commodities Act, action taken for confiscation under Section 6-A of the Essential Commodities Act cannot be held to be bad. We are, therefore, required to see whether the facts found by the Deputy Commissioner constitute violation either of the provisions of Bihar Foodgrains Dealers Licensing Order or the Provisions of Bihar Trade Articles (Licences Unification) Order, 1984. This takes us to his second point namely, the petitioner having intimated to the authorities on 12-3-1984 about the additional godown where he intends to store foodgrains and the authorities during the raid in the godown having seized office copy of the said intimation letter on 6-3-1984, storage of rice in the said new godown cannot be held to be unauthorissd storage, constituting violation of condition-2 of the licence issued under the provisions of Bihar Trade Articles (Licences Unification) Order and/or condition-2 of the Bihar Foodgrains Dealers Licensing Order. The Deputy Commissioner has not disbelieved the sending of intimation about the acquisition of new godown where rice was found to have been stored by the petitioner. He has on the contrary proceeded on the basis that giving of such intimation is not enough. When the attention of Deputy Commissioner was drawn to the Circular of the licensing authority directing to incorporate the new godown in the licence if sought for, on the same day, learned Deputy Commissioner states in his order that the Circular is too old to be acted upon and it might have been superceded by other notification. He has however, failed to point out any such notification superceding the old one issued on 13-10-1969. So far as non-issuance of cash memo for marua is concerned learned counsel for the petitioner contended that marua is not an item of food article under any of the licensing orders issued or made under Section 3 of the Essential Commodities Act which can justify confiscation of the Food stuff.

(3.) We find considerable force in the argument of learned counsel for the petitioner that the storage was not in an unauthorised godown. In this connection our attention has been drawn to the Bihar Trade Articles (Licences Unification Order) wherein a note to condition No. 2 provides that a dealer can store even before intimation. What the dealer is required to do is to, intimate the authorities within 72 hours of storage. The dealer shall also produce the licence before the Licensing Authority within a fortnight of his giving intimation for the purpose of making requisite change in his licence. Our attention has been drawn to a decision of this Court in Criminal Writ Jurisdiction Case No. 26 of 1976 (R) where storage of foodgrains under previous intimation in the new godown was held to be not unauthorised storage under the Bihar Foodgrains Dealers Licensing Order. It was also held that the facts stated in the First Information Report do not constitute offence requiring investigation. It is now well established that confiscation proceeding is also a quasi criminal action and therefore mens rea is an essential ingredient for confiscating the articles. In a case reported in 1978 PLJR 315, M/s. Mewalal Kapildeo Prasad v. The State of Bihar and others, it was held "for confiscation as well as for conviction it must be established that the person concerned has contravened any order made under Section 3 of the Essential Commodities Act. The word 'contravention' has to be interpreted in Section 6-A and in Section 7 to mean that the provision of any order framed under Section 3 of the Act has been contravened 'intentionally'. We are satisfied that the petitioner by giving intimation long before the storage in the new godown and the stored commodities taken along with the commodities found in the shop, having correctly responded to the entry in the Stock Register, manifest that there can be no guilty mind in storing the commodities in the intimated godown. So far as contravention in not issuing cash memo for the sale of marua, no action under Section 6-A of the Act can be taken, since Section 5-A expressly refers to contravening any order made under Section 3 of the Essential Commodities Act. There is no order made under Section 3 of the Essential Commodities Act which relate to marua. Therefore, the decision of the Deputy Commissioner on this question also is vitiated in law.