Nandu Sao vs The State of Bihar

M.P. Varma, J.—The petitioner is a retail-food grain dealers. He owns a license under the Bihar Food grain-Dealers Licensing Order, 1967 (hereinafter to be referred to as the Licensing Order). The officials of the Commerce and Supply Department raided the business premises of the petitioner on 7.10.1977 and noticed some discrepancy in respect to stock position of food-grains as displayed on the notice board and the stock of grain kept in the business premises belonging to the petitioner. On the report being submitted by the inspecting staff, who raided the shop, a criminal case has been instituted against the petitioner, and a separate proceeding u/s 6A of the Essential Commodities Act (hereinafter referred to as the ''Act'') had also been, taken up. The different varieties of grains found in the business premises were also seized by the raiding party. The proceeding u/s 6-A of the Act was initiated for confiscation of the food grains seized.

It is stated that a notice to show cause as required u/s 6-A of the Act as to why the food grain be not confiscated was also served on him. In the notice issued by the Collector (which is Annexure 1 to the application), it was said that the articles shown on the notice board did not tally with that of the actual articles found in the stock in the shop, and thereby, the petitioner violated the provisions of the Food grain Dealers Licensing Order and Display of Price and Stock Order of 1975, and he was called upon to show cause why the seized grains be not forfeited to the State. It is the case of the petitioner that he submitted his reply showing cause against forfeiture and confiscation of the food grains seized. In the show cause the petitioner explained how the discrepancy arose in the stock position shown in the notice board and in the actual stock stored in the business premises.

The learned Collector did not accept the show cause filed by the petitioner and held that the petitioner committed breach of the condition No. 3(6) of the Licence and by order dated 1.2.1978 confiscated the entire stock of he food grain, the detail of which was given in the seizure list. The learned Collector made a further direction that the grain seized and confiscated be disposed of by the Special Officer Rationing, Patna, at the market-price or at a price to be fixed by the Government.

The petitioner preferred an appeal against the aforesaid order of confiscation before the Commissioner, Patna Division, u/s 6-C of the Act, but the appeal was also dismissed by judgment dated 18.9.1978. In this application in revision, the petitioner being aggrieved, has challenged the correctness of the aforesaid two orders, one passed by the Collector and the other by the learned Commissioner.

The main ground of attack is that the Display Control Order of 1973 as referred to above has been declared to be ultravires by a bench decision of this Court and consequently allege violation of such control order cannot form a basis or a ground for confiscation, inasmuch as, the notice for show cause does not indicate which particular order made u/s 3 of the Act was violated. It has also been argued that the only ground given in the show cause notice was that the articles as shown in the notice board did not tally with that of actual articles found in the stock, but the learned Collector as well as the learned Commissioner took into consideration certain other materials which were foreign to the notice in passing the final order of confiscation of the food grain seized.

Be that as it may, the counsel for the petitioner, however, has confined his argument to the point that even if the Court finds that the criminal prosecution initiated against the petitioner is pending in the court below an interim order of release may be passed by this Court pending final disposal of the criminal prosecution brought against him. While making submissions the learned counsel has referred to sub section (2)(c) of the Act wherein it has been laid down that where an order u/s 6-A is modified or annulled by judicial authority or wherein a prosecution instituted for the contravention of the order in respect of which an order of confiscation has been made u/s 6-A the person concerned is acquitted--in either case if it is not possible to return the commodity seized, he shall be paid the price thereof as if essential commodity has been sold to the Government with reasonable interest calculated from the date of seizure of the commodity. It has been, therefore, submitted that State should have no objection for the refund of the food-grain confiscated or in case if the same has been sold, the amount i.e. the sale price of the grain seized may be refunded to the petitioner on furnishing sufficient security to the satisfaction of the Collector. The counsel for the State has, however, submitted that the refund may be made to the petitioner only after final disposal or after the ultimate decision of the criminal case.

It is, however, not disputed that a revision lies to this Court against the final order passed in appeal by the Commissioner of the Division who has been designated to be a judicial authority under proper notification of the State Government. However, while making prayer for release of the commodities seized the learned counsel has placed reliance on the case of Sunil Kumar v. State of Bihar vide Cr. Misc. No. 195 of 1979 disposed of on 22nd November, 1979 wherein it has been held that pending ultimate decision of the criminal case, the amount of the sale proceeds of the goods seized or confiscated may be returned to the claimant on furnishing sufficient security to the satisfaction of the Collector of the district concerned. Similar view has been taken by a Bench of this Court in case of Ashok Kumar v. State of Bihar in Cr. Rev. No. 251 of 1979 disposed of on 17th May, 1979. Since the criminal prosecution against this petitioner is also pending in the court below, I refrain from giving my finding with regard to the validity or otherwise of the order passed by the Collector which has been affirmed in appeal by the Commissioner of the Division, with respect to the grounds placed before this court in the application as that may cause prejudice to the court below in ultimate decision of the case pending for disposal. But considering the circumstances of this case, I direct that the food grains seized from the business premises of this petitioner and so confiscated be refused to the petitioner or, in case if the food grains have been sold, the sale-proceeds thereof may be refunded to the petitioner on furnishing efficient security by him to the satisfaction of the Collector, Patna. The application is accordingly disposed of.