Patna High Court
Bishwanath Singh And Ors. vs State Of Bihar And Ors. on 22 June, 1976
Equivalent citations: 1978(26)BLJR717
JUDGMENT
Shambhu Prasad Singh and S.K. Jha, JJ.
1. The petitioners have made this application under Articles 226 and 227 of the Constitution of India for a writ quashing the order dated 3.2.1976 of the District Magistrate-cum-Collector, Aurangabad, confiscating some foodgrains and two trucks and also directing for sale of the foodgrains through District Manager of State Food and Civil Supplies Corporation through public distribution system and depositing the sale proceeds in the treasury as well as for the sale of the trucks by auction and deposit of the sale proceeds thereof also in the treasury.
2. It appears that on 22.5.1975 two trucks, BRZ 582 and BRZ 3119, were stopped by the Officer-In-Charge, Nabinagar Police Station in the district of Aurangabad at Nabinagar bus stop. They were found loaded with rice. The drivers on being asked could not show any permit. Four persons, who are not petitioners before this Court, were also found on the truck. On truck No. BRZ 582, 104 big bags and 4 small bags of rice were found and on the other truck BRZ 3119, 88 big bags and 4 small bags of rice were found. The Officer-In-Charge, Police Station Nabinagar recorded a first information report which has been made Annexure '1' to this writ application, for action against the drivers of the two trucks and the four persons who were found on the truck under the Essential Commodities Act. Subsequently petitioners Nos. 1 and 2, who claim to be owners of the two trucks, made an application before the Chief Judicial Magistrate, Aurangabad for release of the two trucks and their prayer was refused by order dated 29.1.1976 (Annexure '2'). The other three petitioners 3 to 5 claimed that they were owners of the rice which was found on the trucks and they filed affidavits to that effect in the court below. They also filed show cause even though no action was being taken against them. A criminal case, on the basis of the said first information report, is pending against the drivers and the four persons who were on the trucks at the time the rice and the trucks were seized.
3 The District Magistrate-cum-Collector, Aurangabad heard the arguments of the parties in that connection on 6.8.1975 but passed the impugned order of confiscation and sale of the rice and the trucks on 3.2.76.
4. The said order of the District Magistrate-cum-Collector, Aurangabad, has been challenged on behalf of the petitioners before this Court on two grounds, firstly, that while recording the impugned order he has not stated that the petitioners have contravened any order made under the Act or that they are not bona fide consumers of agriculturists so as to debar them from carrying the rice without a licence and, secondly, that, at any rate, the order for sale of the trucks is without jurisdiction. True it is that in the impugned order the District Magistrate-cum-Collector, Aurangabad, has not specifically said that the petitioners or others had contravened any specific order made under the Act but from the facts of the case it is apparent that the allegation is that there was contravention of the Foodgrains Dealers, 'Licensing Order', 1967 (hereinafter referred as the 'ORDER'). It is not in dispute that the Police has submitted charge-sheet in the case. It would have been better for the District Magistrate-cum-Collector, Aurangabad to record specifically that he was satisfied that there had been a contravention of the order before ordering confiscation, but facts that he has refused to accept the explanation offered before him and that he was stated, "the report from the Police clearly stated the over 100 quintals of foodgrains were loaded on each truck. This shows that if the trucks were loaded with (Sil lorha) the driver could not have taken on so much of foodgrains", show that he was in fact satisfied that there had been contravention of an Order made under the Act.
5. Clause 3 of the Foodgrains Dealers' Licensing Order, 1967 lays down that no person shall carry on business as a wholesale dealer or retail dealer except under and in accordance with the terms and conditions of a licence issued in this behalf by the licensing authority and that for the purpose of this clause, any person other than a bona fide consumer or agriculturist, who stores one or more foodgrains in quantity exceeding ten quintals or more at any one time shall unless the contrary is proved, be deemed to store the foodgrains for the purpose of sale. It was not the case of the petitioner Nos. 3 to 5 before the District Magistrate-cum-Collector, Aurangabad that they were bona fide consumers. In the affidavits filed on their behalf it was not specifically stated that they were agriculturists. Of course, in the show cause it has been said that they were cultivators, The very fact whether the foodgrains belong to petitioner Nos. 3 to 5 or to the four persons who were found on the trucks at the time the rice was seized and are allegedly businessmen is in dispute in the criminal case and in the circumstances when the District Magistrate-cum-Collector has passed the order of confiscation he must be deemed to have held impliedly that there was a contravention of the Order in the case. Be that as it may, on the facts and circumstances of the case we do not find ourselves in a position to hold that the order of confiscation passed by the District Magistrate-cum-Collector itself is illegal and the rice of the trucks should be released on that basis.
6. However, there appears to be substance in the second contention of Learned Counsel for the petitioners. Of course, under Section 6-A of the Act the trucks which were vehicles carrying the rice that is the essentials commodities seized could be confiscated, but if ultimately the criminal case fails, then they have to be returned to the person to whom they belong. As laid down in Sub-section (2) of Section 6-C of the Act, in the case of essential commodities seized, if it had been sold to the Government the price thereof with the reasonable interest calculated from the day of the seizure of the essential commodities shall be returned to the owner. There is no such provision for return of the price of the vehicles. It, therefore, follows that while the essential commodities, so seized, may be sold to the Government the vehicles which ate confiscated under Section 6-A of the Act cannot be sold unless the criminal prosecution is finally disposed of.
7. In this connection Learned Counsel appearing for the State has drawn our attention to the Essential Commodities (Bihar Amendment Ordinance 1975 which has amended Section 6-A of the Act. Sub-section (6) of Section 6-A of the Act after the amendment, reads as follows:
Notwithstanding anything to the contrary contained in the Code of Criminal Procedure, 1973 (Act No. II of 1974) when Collector or the appellate authority is seized with the matter under this section no court shall entertain any application in respect of essential commodities, any package, covering, receptacle, any animal, vehicle or other conveyance used in carrying such commodities as far as its release, distribution, etc. is concerned and the jurisdiction or Collector or the appellate authority with regard to the disposal of the same shall be exclusive.
It has been contended that as the Collector or the appellate authority bas been given exclusive jurisdiction with regard to disposal of the vehicles he has got power to sell the vehicles also. This Ordinance came into force with effect from 15th November, 1975. In this case the vehicles were seized in May, 1975 and it has been submitted on behalf of the petitioners that the Ordinance not being retrospective Sub-section (6) of Section 6-A of the Act could not apply to it. On the other hand Learned Counsel for the State has urged that as the matter was pending before the Collector, Sub-section (6) would apply to it even though the amending Ordinance was not given retrospective effect. We do not consider it necessary to decide this question. In our opinion, the expression "disposal" in Sub-section (6) of Section 6-A as amended by the aforesaid Ordinance does not mean and include final disposal by auction sale.
8. Sub-section (5) of Section 6-A of the Act as amended by the Ordinance provides for sale of the essential commodities and return of the price of the essential commodities sold to the owner where no order of confiscation is passed by the Collector. The Ordinance also amends Section 6-C of the Act but it does not make any provision in Sub-section (2) thereof for the payment of the sale proceeds of a vehicle, Substantially Sub-section (2) of Section 6-A remains the same as it is in the original Act. It is obvious, therefore, that it was not the intention of the makers of the Ordinance to make any change with regard to the law in respect of confiscation of vehicles and sales thereof. It is on that account that we hold that the word 'disposal' used in Sub-section (6) of Section 6-A as amended by the Ordinance cannot main final disposal of the vehicle by way of sale. In such circumstances that part of the order by which the District Magistrate-cum-Collector, Aurangabad has ordered for the sale of the vehicle must be set aside.
9. In the result the application is allowed in part and that part of the order of Annexure '5' by which the District Magistrate-cum-Collector. has directed for the sale of the vehicles is set aside. It may be stated here that the two trucks have already been sold and the purchasers have also been made parties to this writ application One of them has appeared before us and supported the order. He has, however, in the alternative submitted that in case the order is set aside he doss not want to have the trucks ultimately after the final disposal of the criminal prosecution and the money deposited by him as price of the truck may be refunded to him. It will be open to him to make such application in writing before the District Magistrate-cum-Collector, Aurangabad. The prayer being reasonable, the District Magistrate-cum-Collector it is hoped, will consider it favourably. We are also of the opinion that if the trucks are allowed to remain with the District Magistrate-cum-Collector, Aurangabad till the final disposal of the criminal prosecution they may be rendered useless. At the same time, petitioner Nos. 1 and 2 will suffer loss. In the circumstances, we direct that the trucks may be released to petitioner Nos. 1 and 2 on their furnishing security to the satisfaction of the District Magistrate-cum-Collector, Aurangabad on an undertaking that they will return the trucks, is and when required to do so.
10. In the circumstances of the case there will be no order as to costs.