BIRENDRA KUMAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) This is an application for quashing Annexure-8 an order passed by the Deputy Commissioner under Section 6-A of the Essential Commodities Act confiscating wheat, rice, sugar and K. Oil of the petitioner.

(2.) On a day when the business premise of the petitioner was closed, there was a raid in his shop which appears to be a Fair Price Shop. The petitioner was not present in the shop. In course of the raid food stuffs aforesaid and K. Oil was seized. The petitioner was thereafter served with a notice (Annexure-6) as to why a proceeding under Section 6-A of the Essential Commodities Act be not initiated against the petitioner there being some irregularity in the physical stock of the shop and the Stock Register maintained therefor. The other charge was that the commodities seized were not displayed under Bihar Essential Articles (Display of Prices and Stocks) Order, 1977. The petitioner showed cause and submitted that wheat is a delicensed commodity and therefore any discrepancy in the matter of maintenance of Stock Register relating to wheat will not amount to contravention of an order made under Section 3 of the Essential Commodities Act. It was further submitted that since the business premise was closed, there is no question of displaying stock of food stuff and/or other materials under the Bihar Essential Articles (Display of Prices and Stocks) Order, 1977. The Deputy Commissioner by his order dated 28-9-1987 concluded that even though it is true that the wheat is delicensed but since this wheat was supplied to the dealer for distribution amongst the backward communities any failure to account for the wheat supplied to the dealer call for stern measure. The Deputy Commissioner further observed that in that view of the matter the delicensing of wheat under the order of the Central Government followed by an order passed by the State Government is of no consequence. The Deputy Commissioner also held that the dealer ought not to have kept the shop closed during the business hours. Therefore, there has been a violation of the Display Order also. Having so held, the Deputy Commissioner passed an order canfiscating all the commodities. Learned Counsel appearing on behalf of the petitioner submitted that the confiscation order is vitiated in law and the Deputy Commissioner has acted without jurisdiction in confiscating all the commodities from his shop. According to the learned Counsel for the petitioner an order of confiscation can only be passed for contravention of an Order made under Section 3 of the Essential Commodities Act and not otherwise. The reason assigned by the Deputy Commissioner may lead to other criminal proceeding, if there is any irregularity or discrepancy with respect to the stock of wheat, but not a proceeding for confiscation under Section 6-A of the Essential Commodities Act. He further submitted that it is now well established that no display is required under the Display Order when the shop is closed and admittedly the shop being closed there could be no inspection of the requirement of the said Order. Further even assuming that there has been some contravention with respect to the stock of wheat the Deputy Commissioner had no jurisdiction to confiscate the other commodities from his shop. Learned Counsel appearing on behalf of the State on the other hand submitted that there is alternative remedy before the State Government and the petitioner must approach the State Government to seek the said remedy and this Court should forbear from entertaining with the impugned order and reiterated the reasons assigned by the Deputy Commissioner in upholding the confiscation of the commodities seized.

(3.) Having heard learned Counsel for the petitioner we are of the opinion that there is an error of law apparent on the face of the order inasmuch as wheat admittedly being delicensed could not be the subject matter of confiscation for any irregularity whatsoever under an Order made under Section 3 of the Essential Commodities Act. The reason which pursuaded the Deputy Commissioner to confiscate wheat may not be a good reason for initiating criminal proceeding and or civil action.