Orissa High Court
Prakash Chandra Agrawal vs State Of Orissa & Others ...... Opp. ... on 3 March, 2012
Author: I.Mahanty
Bench: Indrajit Mahanty
HIGH COURT OF ORISSA : CUTTACK
O.J.C. NO.3469 of 1995
In the matter of an application under Article 226 & 227 of the
Constitution of India.
--------------
Prakash Chandra Agrawal ...... Petitioner
-Versus-
State of Orissa & Others ...... Opp. Parties
For Petitioner : M/s B.M. Patnaik, S. Mohanty,
P.K. Choudhury, S.Patnaik &
B.K. Sahoo.
For Opp. Parties : Additional Government Advocate
---------------
PRESENT:
THE HON'BLE MR. JUSTICE INDRAJIT MAHANTY.
Date of Judgment : 03.03.2012
I. Mahanty, J.In the present writ application, the petitioner-Prakash Chandra Agrawal has sought to challenge the order dated 29.03.1993 passed in Misc. Case No.39 of 1990 under Section 6-A of the Essential Commodities Act, 1955 (in short 'E.C. Act'), whereby the Collector, Cuttack (O.P. No.3) has directed confiscation of 800 tins of mustard oil worth Rs.3,86,660/- which were originally seized by the Inspector of Police, Vigilance (C.B.), Cuttack on 9.11.1990 at 7 P.M. at Manguli Chhak about a distance of about 8 Kms. from the Cuttack city. 2 Apart from the above, the petitioner also sought to challenge the appellate order dated 27.08.1994 passed in L.S. Appeal No.06 of 1993, whereby the Additional Secretary to the Government of Orissa, Department of Food Supplies and Consumer Welfare Department, Bhubaneswar (O.P. No.2), has confirmed the order of confiscation passed by the Collector, Cuttack under Section 6-A of the E.C. Act.
2. The short facts of the present case are that on 17.01.1990, the petitioner-Prakash Chandra Agrawal applied for a license under the licensing order before the A.D.M., Bhubaneswar, who was the competent authority for grant of license at Bhubaneswar. In fact, the license in favour of the petitioner was granted for the year 1990-91 on 28.03.91 vide Annexure-3. While the petitioner's application for license was pending consideration, the Inspector of Police, Vigilance (C.B.), Cuttack acting purportedly on certain information received about clandestine trade in oil, proceeded to Manguli Chhak near Cuttack and stopped a truck bearing Regd. No.OIC-9549, on which 800 tins of mustard oil weighing about 15 Kgs. each had been dispatched by Sarada Oil Mills, Kasikelen (U.P.) in favour of M/s. Pritam General Store, Bhubaneswar, of which the petitioner happens to be the proprietor. The Inspector of Police, Vigilance (C.B.), Cuttack was not satisfied by the explanation provided by the truck driver and registered a case i.e. G.R. Case No.71 of 1990 under 3 Section 7 of the E.C. Act read with Section 420/128-B I.P.C. apart from recommending confiscation of the seized quantum of mustard oil.
3. On the seizure effected by the Inspector of Police, Vigilance (C.B.), Cuttack, confiscation proceeding was initiated before the Collector, Cuttack and although the Collector, Cuttack took note of the fact that M/s. Pritam General Store had its place of business at Bhubaneswar and had been cited as the consignee and had also been issued with the necessary license by the A.D.M., Bhubaneswar but since the same had only been issued on 28.3.91 for the year 1990-91 and was valid till 31.03.91, he came to hold that at the time of seizure, the petitioner was carrying on business in edible oils without obtaining license for which he had applied for earlier. The Collector, Cuttack also took note of the fact that, based on the prosecution report filed by the Inspector of Police (Vigilance), charge sheet under Section 7 of the E.C. Act read with Section 428/434 I.P.C. was filed against the petitioner and two others before the Court of Special Judge, Cuttack which was subjudice at that time. Considering the aforesaid facts, direction was issued for effecting confiscation of the seized mustard oil and for deposit of the sale amount in the Treasury within three weeks.
4. Although the petitioner-proprietor of M/s. Pritam General Store filed an appeal before the Additional Secretary to Government of 4 Orissa, Food Supplies and Consumer Welfare Department, Bhubaneswar and the same was registered as L.S. Appeal No.06 of 1993 which came to be dismissed by order dated 27.8.1994 confirming the order of confiscation passed by the Collector, Cuttack.
5. Mr. B.M. Patnaik, learned Sr. Advocate appearing for the petitioner submits that in the facts and circumstances of the present case, since the petitioner had in fact applied for a license on 17.1.1990 and the license had been recommended by all concerned, yet due to delay caused in the office of the A.D.M., Bhubaneswar in the issue of such license though applied on 17.01.1990 and was in fact issued for the year 1990-91 only on 28.03.1990. He further submits that the mustard oil in question had been consigned in favour of M/s. Pritam General Store which was duly registered in the Sales Tax Act and more importantly, the consignment had not reached the godown of the petitioner and was seized on the National Highway at Cuttack, while the consignment was enroute to Bhubaneswar, without there being any basis whatsoever for effecting such seizure.
Apart from the above, learned counsel for the petitioner placed reliance on a judgment of the Hon'ble Supreme Court of India in the case of Nathulal v. State of Madhya Pradesh, AIR 1966 Supreme Court 43 as well as a judgment of a Division Bench of the Gauhati High Court in the case of State of Assam v. Monglunia & 5 Co. & Others, 1991(2) Crimes 583 and contended that when a dealer has made an application for license and had deposited the requisite license fee and purchased the food grains from time to time, no prosecution under Section 7 of the E.C. Act, 1955 can be made since the accused could not possess the 'mens-rea'. Mr. Patnaik has also filed a memo enclosing thereto certified copy of the judgment dated 30.08.2000 passed in G.R. Case No.71 of 1990, wherein the present petitioner and others had faced trial for offence under Section 7 of the E.C. Act. On perusal of the said judgment, it is clear therefrom that the petitioner had been acquitted under Section 255(1) of Cr.P.C., having been found not guilty of the charge under Section 7 of the E.C. Act. In the said case, the learned Ist Additional Sessions Judge, Cuttack came to a finding that even though the license had been issued in favour of the petitioner's proprietorship firm only on 28.03.1991, there is nothing on record to show that the accused had no authority to deal with the edible oils during the period from 17.01.1990 to 31.03.1991 since the license in question was for the aforesaid period. It is also submitted that this acquittal has attained the finality and no challenge to the same has been made by the prosecution.
6. Learned counsel appearing for the State on the other hand supports the order impugned herein and stated that there can be no 6 presumption of operating the business on a valid license and the mere application for a license would not clothe the petitioner with any right to deal with the controlled product, namely, mustard oil.
7. Having heard learned counsel for the petitioner as well as the learned counsel for the State and on perusing the judgment referred herein above, the following facts emanate.
Admittedly, the petitioner had applied for a license on 17.01.1990 and was also duly registered his proprietorship firm under the Sales Tax Act. Further, the license, in fact, was issued to the petitioner on 28.03.1991 but the same was valid for the period from 01.04.1990 till 31.03.1991. The said license was exhibited as Ext.B in the criminal trial faced by the petitioner. On 09.11.1990 the Inspector of Police, Vigilance (C.B.), Cuttack purportedly on suspicion stopped a vehicle bearing Regd. No.OIC-9549 and the entire prosecution is based merely on such suspicion. Admittedly, when the goods were moving from Sarada Oil Mills, Kasikelen (U.P.) to M/s. Pritam General Store at Bhubaneswar, at Manguli Chhak, Cuttack on the National Highway, seizure was effected of the said goods prior to the goods reaching the destination. Admittedly, also the prosecution has failed in prosecuting the petitioner and others under Section 7 of the E.C. Act and the petitioner has been acquitted by judgment dated 30.08.2000 in G.R. 7 Case No.71 of 1990 by the learned Ist Additional Sessions Judge, Cuttack.
The judgment of the Hon'ble Supreme Court in the case of Nathulal (supra) is clear on this point that in the case where an applicant makes an application for a license and rejection thereof is not communicated to him and the accused carried on business on the plea that he was duly authorized to do so, he could not be said to have intentionally contravened the provision of Section 7 of the Act or those of the order made under Section 3 of the Act. Further, in the case of State of Assam (supra), a Division Bench of the Gauhati High Court headed by the then Acting Chief Justice came to a conclusion in paragraph-4 thereof that where an applicant makes an application for license and the same has been recommended and remains pending consideration, he could not be held that the accused had any mens-rea in this respect. In the aforesaid case, it was an admitted fact that the respondents had no license on the date of seizure but application along with necessary recommendation of the Supply Officer to grant license were pending before the licensing authority. Therefore, for prosecution under Section 6-A and effecting confiscation of the materials seized, it was mandatory that mens-rea against the accused must be established in order to sustain confiscation as valid. 8
8. In the light of the aforesaid findings and in terms of the judgment of the Hon'ble Supreme Court in the case of Nathulal (supra) as well as keeping in view of the fact that the petitioner has been acquitted of offence under Section 7 of the E.C. Act, I find no justification in passing of the impugned order of confiscation by the Collector, Cuttack under Annexure-5 dated 29.03.1993 nor any justification in the order passed by the Additional Secretary to the Government of Orissa, Food Supplies and Consumer Welfare Department, Bhubaneswar in dismissing the L.S. Appeal No.06 of 1993 by order dated 27.08.1994 under Annexure-7.
In view of such findings, the writ application is allowed and Annexures-1, 5, & 7 are hereby quashed. The Collector, Cuttack is directed to refund all the sale proceeds of 800 tins of mustard oil and such refund be effected within three months from the date of receipt of the certified copy of this judgment along with simple interest @ 9% per annum.
.........................
I.Mahanty,J.
ORISSA HIGH COURT : CUTTACK 3rd March, 2012 /PKP