Bombay High Court
M/S.Ace International And Anr vs The State Of Maharashtra & Ors on 8 August, 2013
Bench: S. C. Dharmadhikari, S.B.Shukre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.161 OF 2013
M/s.Ace International and Anr. .. Petitioners
Versus
The State of Maharashtra & Ors. .. Respondents
WITH
WRIT PETITION NO.162 OF 2013
Pankaj Pranjibhai Thakkar .. Petitioner
Versus
The State of Maharashtra & Ors. .. Respondents
WITH
WRIT PETITION NO.1018 OF 2013
M/s.Metro International and Anr. .. Petitioners
Versus
The State of Maharashtra & Ors. .. Respondents
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Mr.P.A.Pol with Mr.Sharad Suryawanshi, Siddheshwar Kalel
and Mr.Rajesh M. Durvesh i/b. Pol Legal Juris for petitioners
Mr.J.P.Yagnik, APP for State.
CORAM : S. C. DHARMADHIKARI &
S.B.SHUKRE, JJ.
8th August 2013.
ORAL ORDER : (Per Dharmadhikari, J)
1] These petitions were heard on the earlier occasion and even today. After hearing the parties, we put it to the learned APP and the Deputy Controller of Rationing (Enforcement) who was present in court, as to how the respondents have invoked provisions of Essential Commodities Act against the petitioners.
Though, there was no explanation forthcoming on this vital point so also as to whether the Commodity is an Essential Commodity within the meaning of the said Act, the learned APP stated that the action cannot be withdrawn and the court must pass orders, either upholding it or quashing and setting it aside.
Hence, we pass the following order.
::: Downloaded on - 27/08/2013 21:16:06 ::: 3wp161com.doc 2] This order is passed in all the three matters as facts are stated to be common and in all cases seized commodity does not fall within the provisions of the Essential Commodities Act, 1955 and the Control Orders issued thereunder.
3] What we have noticed is that the stand of these respondents repeatedly has been to justify drastic actions of seizure of commodities and goods upon raids on the premises of parties like the petitioners, though, their actions in the past have been struck down by this Court.
4] Even in these petitions, the basic question remains unanswered as to how the authorities and particularly the Controller of Rationing and the Rationing Officer proceeded to register the F.I.R. The petitioner No.1 in W.P.No.161 of 2013 and W.P.1018 of 2013 is a proprietary firm and the business activities are set out in the petition. It is stated that on 2 nd November 2012, the officers and the Controller of Rationing ::: Downloaded on - 27/08/2013 21:16:06 ::: 4 wp161com.doc visited the business premises and enquired as to whether any rice is stored by one M/s.Iskon Company in the premises. The representatives of the petitioners present at site gave details about wheat and rice in the premises. The petitioners in Criminal Writ Petition No.1018 of 2013 complain that there are clearing plants wherein their stock of wheat was kept for cleaning purpose. The Rationing Officers were also given proofs and by producing necessary documents. The enquiries continued but what came to the notice of the petitioner is that a F.I.R. was registered against them and petitioner No.2 was arrested. The provisions of the Essential Commodities Act, 1955 and Public Distribution System (Control) Order 2001, The Maharashtra Scheduled Commodities Wholesale Dealers Order, 1998 were invoked. The petitioner's case is that though a show cause notice was issued and the petitioners were called upon to state as to why seized articles should not be confiscated, the seizure was effected, the goods confiscated and disposed off, without giving them the requisite opportunity ::: Downloaded on - 27/08/2013 21:16:06 ::: 5 wp161com.doc in law.
5] The petition has been filed on the footing that the FIR does not disclose commission of any offence by the petitioners.
The petitioners have been repeatedly pointing out that the Maharashtra Scheduled Commodities Wholesale Dealers Order, 1998 is not applicable to them. There cannot be any violation of the provisions of Essential Commodities Act when such control order does not apply to them. The petitioner has a licence under the provisions of Food Safety and Standards Act as well as the Bombay Shops and Establishments Act, 1948.
They are not required to obtain any licence under any control order or otherwise of the Essential Commodities Act, 1955.
6] It is in these circumstances and raising fundamental jurisdictional issues that the petitioners have invoked writ jurisdiction of this Court.
::: Downloaded on - 27/08/2013 21:16:06 ::: 6wp161com.doc 7] In the reply affidavit all that has been stated by the Deputy Controller of Rationing is that he reliably learnt that there is an illegal, without permission storage of the mid-day meal rice at some premises. Therefore, the squad conducted a raid in the premises of Welworth Food Pvt. Ltd. The statement was recorded and the statement revealed that the rice belonging to M/s.Iskon Food Foundation Relief came to be stocked in the petitioner's premises. That is part of the Mid-day meal scheme introduced by Government of Maharashtra in Primary Schools from Thane and Mumbai district. The details of such seizure and the raid have been set out and that is how the respondent No.2 justifies registration of C.R. against the petitioners and others.
8] On perusal of this affidavit what we find is that except for answering the basic issue of applicability of the enactment and the Control Order everything else has been stated and which is wholly irrelevant for our purpose. The authority taking steps ::: Downloaded on - 27/08/2013 21:16:06 ::: 7 wp161com.doc and as serious as carrying out a raid, effecting seizure;
confiscating goods from the business premises of the parties like petitioners, must before resorting to such measures satisfy itself about the violation of the applicable provisions of law.
That is so elementary that it hardly requires reiteration. The satisfaction about breach of the provisions of the control order and applicable law alone could justify further steps. We find nothing in this affidavit about the requisite satisfaction and reasonable belief. The attempt to justify this brazenly illegal act compels us to observe that the Controller of Rationing and Deputy Controller of Rationing, firstly are unaware of the legal provisions, secondly, they continue their high handed and arbitrary acts even after the court of law questions them as to why they resort to such measures and actions without requisite satisfaction; thirdly, when matters are pending before the court of law and they cannot place any material to justify their actions, still, they continue and even refuse to abide by any reasonable and practical suggestions from the Court. This ::: Downloaded on - 27/08/2013 21:16:06 ::: 8 wp161com.doc compels us to interfere even in matters of this nature and at the stage of issuance of show cause notice. It is too well settled that if a show cause notice is issued without jurisdiction and if the F.I.R. registered fails even prima facie to disclose commission of any offence under the Essential Commodities Act or Violation of any control order issued thereunder, then, one must proceed to quash them. We find that repeated orders of quashing such F.I.Rs. have had no result and impact. The authorities continue their illegal acts. In the case of N.Nagendra Rao & Co. Vs. State of Andhra Pradesh, reported in A.I.R. 1994 S.C. 2663, the Supreme Court has held that such drastic measures, if resorted to illegally and without jurisdiction, then, the State must pay damages and compensation to aggrieved citizens. The amount of such damages and compensation can be recovered from the guilty officers by proceeding against them departmentally or otherwise in ordinary common law remedies. We bring to the notice of the authorities the following observations of the Supreme Court:-
::: Downloaded on - 27/08/2013 21:16:06 ::: 9wp161com.doc "5. Prior to adjudicating upon the legal issues, it appears appropriate to examine in brief the objective of the Act, the provisions dealing with search, seizure and confiscation and the nature of their powers and manner of its exercise as it shall assist in determining if the statutory authorities are responsible for any loss or damage to the stocks and, if so, to what extent. The Act was enacted in 1955 in the interest of the general public for the control of the production, supply and distribution of essential commodities and trade and commerce. In Diwan Sugar & General Mills (P) Ltd. v. Union of India, A.I.R. 1959 S.C. 626 : 1959 (2) SCR 123, it was held that the prime object of the legislation was to secure availability of essential commodities to the general public at fair prices and to protect their interest by way of equitable distribution. "Essential commodity" under clause (a) of Section 2 of the Act means any of the commodities mentioned therein.
It extends to such varied items as cattle fodder, coal, component parts and accessories of automobiles, cotton and woollen textiles, foodstuffs, iron and steel, paper, petroleum, raw cotton, jute and any other class of commodity notified by the appropriate Government. Section 3 is the main provision directed towards securing equitable distribution of the essential commodity and its availability at fair prices. To achieve this objective, its various sub-sections confer powers on Government to issue orders regulating or even prohibiting production, supply and distribution of such goods. Clause (j) of sub-section (2) of Section 3 empowers the Government to make any provision ::: Downloaded on - 27/08/2013 21:16:06 ::: 10 wp161com.doc for any incidental or supplementary matter including in particular, the entry, search or examination of such premises, aircraft, vessels, vehicles etc. to make seizure by a person authorised to make such entry, search or examination. But the power in respect of the articles has been made subject to reasonable belief that a contravention of the order has been, is being, or is about to be committed. The reach of the sub-section is very wide as it empowers the person authorised to seize even if any contravention is about to be committed. The expression "reason to believe" has been interpreted by this Court to mean that even though formation of opinion may be subjective but it must be based on material on the record. It cannot be arbitrary, capricious or whimsical. It is, thus, a check on exercise of power to seize the goods. The procedure after seizure is provided for by Section 6-A of the Act. Sub-section (1) of it is extracted below :-
"6-A. Confiscation of essential commodity.-
(1) Where any essential commodity is seized in pursuance of an order made under Section 3 in relation thereto, a report of such seizure shall, without unreasonable delay, be made to the Collector of the district or the Presidency town in which such essential commodity is seized and whether or not a prosecution is instituted for the contravention of such order, the Collector, may, if he thinks it expedient so to do, direct the essential commodity so seized to be produced for inspection before him, and if he is satisfied that there ::: Downloaded on - 27/08/2013 21:16:06 ::: 11 wp161com.doc has been a contravention of the order may order confiscation of-
(a) the essential commodity so seized;
(b) any package, covering or
receptacle in which such essential
commodity is found; and
(c) any animal, vehicle, vessel or
other conveyance used in carrying such
essential commodity;"
It requires a report of seizure of the essential commodity to be made without unreasonable delay to the Collector of the district who is empowered to direct confiscation if he is satisfied that there has been a contravention of the order. This requirement is to ensure that the higher authority shall apply its mind and take necessary steps in accordance with law. For instance, in this case even non-essential goods were seized. If the Collector would have applied his mind and perused the report he would have immediately directed release of such goods instead of directing its sale by Tehsildar as the provision of the Act and the Control Orders do not apply to non-
essential goods. The exercise of power was obviously mechanical. This is being mentioned only to demonstrate the nature of power and how it is expected to be exercised. Nothing turns on it so far this appeal is concerned. But what needs to be mentioned is that since the power is very wide as a person violating the Control Orders is to be visited with serious consequences leading not only to the confiscation of the seized goods, packages or vessel or vehicle in which such essential commodity is ::: Downloaded on - 27/08/2013 21:16:06 ::: 12 wp161com.doc found or is conveyed or carried, but is liable to be prosecuted and penalised under Section 7 of the Act, it is inherent in it that those who are entrusted with responsibility to implement it should act with reasonableness, fairness and to promote the purpose and objective of the Act. Further, it should not be lost sight of that the goods seized are liable to be confiscated only if the Collector is satisfied about violation of the Control Orders. The language of the section and its setting indicate that every contravention cannot entail confiscation. That is why the section uses the word 'may'. A trader indulging in black marketing or selling adulterated goods etc. should not, in absence of any violation, be treated on a par with technical violations such as failure to put up the pricelist etc. or even discrepancies in stock."
"6. However, this appeal is primarily concerned with nature of Power exercised by the Collector under sub-section (2) of Section 6-A of the Act the purpose and objective of which is to make interim arrangement of the goods which are seized. The sub- section is extracted below :
" Where the Collector, on receiving a
report of seizure or on inspection of
any essential commodity under sub-section (1), is of the opinion that the essential commodity is subject to speedy and natural decay or it is otherwise expedient in the public interest so to do, he may-::: Downloaded on - 27/08/2013 21:16:06 ::: 13
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(i) order the same to be sold at the controlled price, if any, fixed for such essential commodity under this Act or under any other law for the time being in force; or
(ii) where no such price is fixed, order the same to be sold by public auction:"
Provided that in the case of any
such essential commodity the retail sale price
whereof has been fixed by the Central
Government or a State Government under this
Act or under any other law for the time being in force, the Collector may, for its equitable distribution and availability at fair prices, order the same to be sold through fair price shops at the price so fixed."
When a statute gives a power and requires the authority to exercise it in public interest then the person exercising the power must be vigilant and should take it as a duty to discharge the obligation in such a manner that the object of the enactment is carried into effect. The purpose of sub-section (2) is for protecting the goods seized by the Collector whether they are eatables or they are foodstuffs or they are iron and steel, as, if they are spoilt or they deteriorate then it is a loss not only to the owner but to the society. Loss in value of goods or its deterioration in quality and quantity would be in violation of the purpose and spirit of the Act. Even though the section uses the word 'may' but keeping in view the objective of the Act and the context in ::: Downloaded on - 27/08/2013 21:16:06 ::: 14 wp161com.doc which it has been used it should be read as 'shall'; otherwise it would frustrate the objective of the sub-
section. Once goods are seized, they are held by the State through the Collector and his agents as custodia society, unless it is found that the detention was illegal in which case it shall be deemed to have been held for the benefit of the person from whom it was seized. In either case, its proper maintenance and early disposal is statutory duty.It is more so as the proceedings do not come to an end quickly. The rationale of the provision appears to be that penalise the person who acts in contravention of the order but protect the goods as they are essential for the society. Loss in value of the goods in quality or quantity is neither in public nor in society's interest. Therefore, the Collector has to form an opinion if the goods seized are of one or the other category and once he comes to conclusion that they fall in one of the categories mentioned in the sub-section then he has no option but to direct their disposal or selling of in the manner provided. The expression "speedy and natural decay"
does not need any elucidation. It is not an expression of art and must be understood in a common sense manner. The other expression, "it is otherwise expedient in the public interest" has also to be understood so as to advance the legislative objective of ensuring that the goods do not suffer either in quality or quantity. For instance, fertilizer may not be susceptible to speedy and natural decay but it is expedient in public interest to ensure that it is either sold to the agriculturist or disposed of at least before the next season. This interim arrangement comes to an end once an order of confiscation is passed.::: Downloaded on - 27/08/2013 21:16:06 ::: 15
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7. But what happens when the goods seized are not confiscated. That has been provided for by sub-section (2) of Section 6-C relevant part of which reads as under :
"(2) Where an order under Section 6-
A is modified or annulled by the State Government, or where in a prosecution instituted for the contravention of the order in respect of which an order of confiscation has been made under Section 6-A, the person concerned is acquitted, and in either case it is not possible for any reason to return the essential commodity seized, such person shall, except as provided by sub-section (3) of Section 6-A, be paid the price therefor as if the essential commodity had been sold to the Government with reasonable interest calculated from the day of the seizure of the essential commodity; and such price shall be determined".
"8. This sub-section ensures that a person who has been prosecuted or whose goods have been confiscated does not suffer if the ultimate order either in appeal or in any proceeding is in his favour.::: Downloaded on - 27/08/2013 21:16:06 ::: 16
wp161com.doc It is very wide in its import as it statutorily obliges the Government to return the goods seized or to pay the value of the goods if for any reason it cannot discharge its obligation to return it. The circumstances in which the goods are to be returned are-
(a) an order under Section 6-A is modified or annulled by the State Government;
(b) where the goods were confiscated in consequence of prosecution of the person and he is acquitted;
(c) and in all these cases where it is not possible for any reason to return the essential commodity seized."
This provision cuts across the argument of the State that where even part is confiscated the person whose goods are seized is not liable to be compensated for the remaining. The section is clear that if only part of the goods are confiscated then the remaining has to be returned. The very first part of the sub-section indicates that where the order of confiscation is modified in appeal meaning thereby if confiscation is confined to part only the Government is bound to release or return the remaining or pay the value thereof. But what is more significant of this sub-
section which widens its reach is the expression "and in either case it is not possible for any reason to return the essential commodity seized" then the State shall be liable to pay the market price of the ::: Downloaded on - 27/08/2013 21:16:06 ::: 17 wp161com.doc value with interest. The expression "for any reason"
should be understood in broader and larger sense as it appears from the context in which it has been used. The inability to return, giving rise to the statutory obligation of deeming it as sale to the Government, may arise for variety of reasons and extends to any failure on the part of the Government. For instance, the goods might have been sold in pursuance of interim arrangement under Section 6- A(2). Or it might have been lost or stolen from the place of storage. The goods might have deteriorated or rusted in quality or quantity. The liability to return the goods seized does not stand discharged by offering them in whatever condition it was. Confiscation of part of the goods thus could not affect the right of owner to claim return of the remaining goods. Nor the owner is bound to accept the goods in whatever condition they are. The claim of the respondent, therefore, that the appellant was bound to accept the goods in whatever condition they were is liable to be rejected."
"12. However, since 1965 when this decision was rendered the law on vicarious liability has marched ahead. The ever increasing abuse of power by public authorities and interference with life and liberty of the citizens arbitrarily, coupled with transformation in social outlook with increasing emphasis on human liberty resulted in more pragmatic approach to the individual's dignity, his life and liberty and carving out of an exception by the court where the abuse of public power was violative of the constitutional guarantee. Such infringements have been held to be wrong in public ::: Downloaded on - 27/08/2013 21:16:06 ::: 18 wp161com.doc law which do not brook any barrier and the State has been held liable to compensate the victims. (See Rudul Sah v. State of Bihar (1983) 4 SCC 141 : (A.I.R. 1983 S.C. 1086), Sebastian M. Hongray v. Union of India (1984) 3 SCC 82: (A.I.R. 1984 S.C. 1026), Saheli, A Women's Resources Centre v. Commissioner of Police, Delhi Police Headquarters (A.I.R. 1990 S.C. 513), State of Maharashtra v.
Ravikant S. Patil (1991) 2 SCC 373 : (1991 A.I.R. SCW 871). In Nilabati Behera v. State of Orissa (1993) 2 SCC 746 : (A.I.R. 1993 S.C. 1960), Hon'ble Mr Justice J.S. Verma observed as under: (SCC p.
758, para 10):
"It may be mentioned straightaway that award of compensation in a proceeding under Article 32 by this Court or by the High Court under Article 226 of the Constitution is a remedy available in public law, based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply, even though it may be available as a defence in private law in an action based on tort."
In the same decision, it was observed by Hon'ble Dr Justice A.S. Anand : (SCC p. 768, para 34) "The purpose of public law is not only ::: Downloaded on - 27/08/2013 21:16:06 ::: 19 wp161com.doc to civilize power but also to assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights."
"13. Sovereign immunity as a defence was, thus, never available where the State was involved in commercial or private undertaking nor it is available where its officers are guilty of interfering with life and liberty of a citizen not warranted by law.
In both such infringements the State is vicariously liable and bound, constitutionally, legally and morally, to compensate and indemnify the wronged person. But the shadow of sovereign immunity still haunts the private law, primarily, because of absence of any legislation even though this Court in Kasturi Lal (supra) had expressed dissatisfaction on the prevailing state of affairs in which a citizen has no remedy against negligence of the officers of the State and observed :
"In dealing with the present appeal, we have ourselves been disturbed by the thought that a citizen whose property was seized by process of law, has to be told when he seeks a remedy in a court of law on the ground that his property has not been returned to him, that he can make no claim against the State. That, we think, is not a very satisfactory position in law. The remedy to cure this position, however, lies in the hands of the Legislature."::: Downloaded on - 27/08/2013 21:16:06 ::: 20
wp161com.doc Necessity of the legislation apart, which shall be adverted later, it is necessary to mention that in subsequent decisions rendered by this Court the field of operation of the principle of sovereign immunity has been substantially whittled down. In Shyam Sunder v. State of Rajasthan (A.I.R. 1974 S.C. 890) (1974 Lab IC 598) where the question of sovereign immunity was raised and reliance was placed on the ratio laid down in Kasturi Lal case (supra), this Court after considering the principle of sovereign immunity as understood in England and even applied in America observed that there was no "logical or practical" ground for exempting the sovereign from the suit for damages. In Pushpa Thakur v. Union of India, 1984 ACJ SC 559, this Court while reversing a decision of the Punjab & Haryana High Court (1984 ACJ
401) which in its turn placed reliance on a Full Bench decision of that very Court in Baxi Amrik Singh v. Union of India (1973 PLR Vol.75 p.1: (1974) ACJ
105) held that where the accident was caused by negligence of the driver of military truck the principle of sovereign immunity was not available to the State.
"25. But there the immunity ends. No civilised system can permit an executive to play with the people of its country and claim that it is entitled to act in any manner as it is sovereign. The concept of public interest has changed with structural change in the society. No legal or political system today can place the State above law as it is unjust and unfair for a citizen to be deprived of his property illegally by negligent act of officers of the State without any remedy. From sincerity, efficiency and dignity of ::: Downloaded on - 27/08/2013 21:16:06 ::: 21 wp161com.doc State as a juristic person, propounded in nineteenth century as sound sociological basis for State immunity the circle has gone round and the emphasis now is more on liberty, equality and the rule of law.
The modern social thinking of progressive societies and the judicial approach is to do away with archaic State protection and place the State or the Government on a par with any other juristic legal entity. Any watertight compartmentalization of the functions of the State as "sovereign and non-sovereign" or "governmental and non-
governmental" is not sound. It is contrary to modem jurisprudential thinking. The need of the State to have extraordinary powers cannot be doubted. But with the conceptual change of statutory power being statutory duty for sake of society and the people the claim of a common man or ordinary citizen cannot be thrown out merely because it was done by an officer of the State even though it was against law and negligent. Needs of the State, duty of its officials and right of the citizens are required to be reconciled so that the rule of law in a Welfare State is not shaken. Even in America where this doctrine of sovereignty found its place either because of the "financial instability of the infant American States rather than to the stability of the doctrine's theoretical foundation", or because of "logical and practical ground", or that "there could be no legal right as against the State which made the law" gradually gave way to the movement from, "State irresponsibility to State responsibility". In Welfare State, functions of the State are not only defence of the country or administration of justice or maintaining law and order but it extends to regulating and controlling the ::: Downloaded on - 27/08/2013 21:16:06 ::: 22 wp161com.doc activities of people in almost every sphere, educational, commercial, social, economic, political and even marital. The demarcating line between sovereign and non-sovereign powers for which no rational basis survives has largely disappeared. Therefore, barring functions such as administration of justice, maintenance of law and order and repression of crime etc. which are among the primary and inalienable functions of a constitutional Government, the State cannot claim any immunity. The determination of vicarious liability of the State being linked with negligence of its officers, if they can be sued personally for which there is no dearth of authority and the law of misfeasance in discharge of public duty having marched ahead, there is no rationale for the proposition that even if the officer is liable the State cannot besued. The liability of the officer personally was not doubted even in Viscount Canterbury (supra). But the Crown was held immune on doctrine of sovereign immunity. Since the doctrine has become outdated and sovereignty now vests in the people, the State cannot claim any immunity and if a suit is maintainable against the officer personally, then there is no reason to hold that it would not be maintainable against the State."
"26. A law may be made to carry out the primary or inalienable functions of the State.
Criminal Procedure Code is one such law. A search or seizure effected under such law could be taken to be an exercise of power which may be in domain of inalienable function. Whether the authority to whom this power is delegated is liable for negligence in discharge of duties while performing such functions ::: Downloaded on - 27/08/2013 21:16:06 ::: 23 wp161com.doc is a different matter. But when similar powers are conferred under other statute as incidental or ancillary power to carry out the purpose and objective of the Act, then it being an exercise of such State function which is not primary or inalienable, an officer acting negligently is liable personally and the State vicariously. Maintenance of law and order or repression of crime may be inalienable function, for proper exercise of which the State may enact a law and may delegate its functions, the violation of which may not be sueable in torts, unless it trenches into and encroaches on the fundamental rights of life and ig liberty guaranteed by the Constitution. But that principle would not be attracted where similar powers are conferred on officers who exercise statutory powers which are otherwise than sovereign powers as understood in the modem sense. The Act deals with persons indulging in hoarding and black marketing. Any power for regulating and controlling the essential commodities and the delegation of power to authorised officers to inspect, search and seize the property for carrying out the object of the State cannot be a power for negligent exercise of which the State can claim immunity. No constitutional system can, either on State necessity or public policy, condone negligent functioning of the State or its officers. The rule was succinctly stated by Lord Blackburn in Geddis v.
Proprietors of Bonn Reservoir (1878) 3 App Cases p.430 at page 435:-
"No action will lie for doing that which the Legislature has authorised, if ::: Downloaded on - 27/08/2013 21:16:06 ::: 24 wp161com.doc it be done without negligence, although it does occasion damage to anyone; but an action does lie for doing that which the Legislature has authorised if it be done negligently."
This judgement and the principle of Sovereign and inalienable functions and duty of the State has been referred and followed by the Hon'ble Supreme Court later on as well.
9] We gave a suggestion and enquired from the learned APP as to why the impugned actions cannot be withdrawn and we were told that the Court must pass an order and the authorities have no intention to withdraw their illegal actions. If the orders are per se illegal and if the freedoms guaranteed to the citizens are brazenly violated, then, we are compelled to not only direct that the F.I.R. be quashed and set aside but the Principal Secretary in the Department of Food and Civil Supplies, Government of Maharashtra should issue a show cause notice to the Controller of Rationing and Deputy Controller of Rationing, calling for their explanation as to why ::: Downloaded on - 27/08/2013 21:16:06 ::: 25 wp161com.doc departmental action should not be taken against them for their illegal act and why they should not be proceeded against, even for recovery of amounts because of the State suffering adverse orders and unable to justify their acts before the Court of law.
Let such notice be issued within four weeks from today. It is, thereafter, left to the competent authority to deal with the erring officers, if they find that their explanation or reply is not satisfactory. This order had to be passed because, today in the morning session we gave an opportunity to the Rationing Officers to withdraw their actions but when they did not agree to do so, even after the matter was kept back in the afternoon session, that we are compelled to issue this direction. They do not show any remorse, leave alone, tendering unconditional apology to the Court for having caused wastage of precious judicial time.
10] As a result of the above discussion, Rule in each of the petitions, is, thus made absolute in the above terms. It is ::: Downloaded on - 27/08/2013 21:16:06 ::: 26 wp161com.doc directed that the F.I.R. registered namely, C.R. No.3112 of 2012 registered with Turbhe Police Station and subject matter of W.P.No.161 of 2013 and W.P.1018 of 2013; C.R.No.3041 of 2012 with Nerul Police Station, Navi Mumbai and subject matter of W.P. No.162 of 2013, alleging offences punishable under sections 3, 7, 8, 9 and 10 of the Essential Commodities Act, 1955 and the Order dated 27 th February 2013 passed by the Controller of Rationing, Mumbai under provisions of Section 6-A of the Essential Commodities Act, 1955 being subject matter of W.P.No.1018 of 2013 and all acts in pursuance thereof are quashed and set aside to the extent they allege violation of the Essential Commodities Act, 1955 and the Control Orders issued thereunder. Writ Petitions are allowed accordingly.
(S. C. DHARMADHIKARI, J) (S.B.SHUKRE, J) ::: Downloaded on - 27/08/2013 21:16:06 :::