Patna High Court
Namita Kumari vs The State Of Bihar Through The Principal ... on 31 August, 2018
Equivalent citations: AIRONLINE 2018 PAT 1108
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.19 of 2018
Arising Out of PS.Case No. - 57 Year- 2017 Thana - Guraru District- GAYA
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Namita Kumari Wife of Kumar Shashi Shekhar, Resident of Village-Diha, Guraru
Mills, Police Station-Guraru, District-Gaya.
.... .... Petitioner/s
Versus
1. The State of Bihar Through The Principal Secretary, Food And Civil Supplies
Department, Government of Bihar, Patna & Ors
2. The District Magistrate, Gaya.
3. The Sub Divisional Officer, Tekari Sub Division, District-Gaya.
4. The Senior Superintendent of Police, Gaya,
5. The Block Development officer,Guraru Block, District-Gaya.
6. The Block Supply Officer, Guraru Block, District-Gaya.
7. THe Anchal Adhikari-Cum-BlockSupply Officer, Guraru Block, District-Gaya.
8. The Officer in Charge, Guraru Police Station, District-Gaya.
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Manish Kumar, Adv.
For the Respondent/s : Mr. S. Raza Ahmad, AAG-5
Mr. Alok Ranjan, AC to AAG-5
For the BSFC : Mr. Nirmal Kumar, Adv.
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CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
CAV JUDGMENT
Date: 31-08-2018
Heard learned counsel for the petitioner and the State.
2. In this writ application the prayer is for issuance
of an appropriate writ/writs/order/orders/direction/directions to the
respondent authorities particularly the Anchal Adhikari-cum-Block
Supply Officer, Guraru Block in the District-Gaya (respondent no. 7)
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to release 323.45 quintals of rice which had been seized from the
truck bearing Reg. No. JH-02J-8207 and from godown of the Puja
Rice Mill. The petitioner claims that total number of 651 bags has
been seized by the informant in connection with Guraur P.S. Case No.
57 of 2017. The petitioner has prayed for any other relief or reliefs to
which the petitioner may be found entitled to in course of hearing of
this writ application. The petitioner claims that she happens to be
proprietor of Puja Rice Mill who used to receive paddy in the rice mill
and thereafter same had to be sent in the godown of Food Corporation
of India. On 05.06.2017 a first information report was instituted by
the Block Supply Officer, Guraru alleging that he had received a
secret information and conducted a raid based on that in the
permission of the Puja Rice Mill, Diha.
3. During the raid it transpires that on Truck No. JH-
02J-8207, 450 bags of rice had been loaded and 201 bags rice has
been kept in the godown. On enquiry it was observed that all the rice
are subsidized rice and same had been kept in bag of rice mill. A
seizure list had been prepared in presence of two witnesses and all the
seized rice were handed over to the Assistant Godown Manager, Food
Corporation of India, Guraru.
4. According to the petitioner 450 bags had been
loaded on the truck, Annexure-1 is the first information report which
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is based on the written complaint of the Anchal Adhikari-cum-Block
Supply Officer, Guraru Block, District-Gaya who has alleged that the
seized rice seems to be Grade 'A' rice which is supplied from the
Food Corporation of India and those are not available at the local
level. The allegation is that the petitioner and her husband had
indulged in purchase of the rice from the public distribution shop
dealers and by changing the bags and by putting the seal of her
establishment, those were being sold as Custom Mill Rice (CMR) in
the name of different PACs and Vyapar Mandal. A copy of the
seizure list is also attached with the written complaint. It, further,
appears that the seized rice were handed over to one Aavnish Kumar,
Assistant Godown Managar of Food Corporation of India, Guraru on
Jimmenama. It also appears that a Confiscation Case No. 13 of 2017
had been started for confiscation of the seized rice and vide order
dated 12.08.2017 passed by the District Magistrate, Gaya (respondent
no. 2) in the said confiscation case, a direction was issued to sell the
seized rice and to deposit the proceeds thereof in the government
treasury. On 09.11.2017 auction of the seized rice was notified fixing
date of 13.01.2018 for auction sale. The auction sale was conducted
and the amount of sale being Rs.3,02,426/- was deposited vide
treasury challan No. 93 dated 27.01.2018.
This writ application seems to have been registered in
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this Court on 03.01.2018, however, for the first time matter was taken
on 06.02.2018 and a direction was issued to learned counsel
representing the petitioner to serve the copy of the writ application on
the learned counsel representing the B.S.F.C. On 16.02.2018 the
District Manager, State Food Corporation, Gaya and the Sub-
Divisional Officer, Tekari was directed to get the quality of the rice
tested and to submit a report to this Court as to whether the rice seized
are the government subsidized rice which are provided for supply
through public distribution shop. This Court fixed 27.02.2018 as the
date for taking the sample of rice in presence of the petitioner and
other officials but later on the Court was informed on 19.03.2018 by
filing a supplementary counter affidavit about the progress made in
the confiscation case and the auction of the seized rice which had
already taken place on 13.01.2018. It appears now that admittedly the
rice in question have been sold in the auction sale without taking
sample of the same and to get it tested to even prima-facie find out
that those are the government rice purchased through the public
distribution shop dealers.
5. Learned counsel representing the petitioner
submits that not only the seizure of the rice in question is wholly
illegal, arbitrary and without following the procedures established by
law but even the manner in which the auction sale has been conducted
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in the case when the case was pending before this Hon'ble Court
would show that authorities were acting in hot haste and they have
sold the rice in a hurry and 225 quintals of rice have been sold for a
sum of Rs. 3,02,426/- only which is much less than price fixed by the
government of Grade 'A' rice. It was alleged by the informant that the
rice seized were looking like Grade 'A' rice, if it was so then how the
rice could be sold only @ Rs. 935/- per quintal as against government
sale of Rs. 2390/- per quintal. It is also submitted that the rice was
kept safely in the godown of F.C.I., therefore, those rice were not
going to perish with in a month or so. The procedure adopted for
auction sale also do not inspire confidence.
6. In the counter affidavit as well as supplementary
counter affidavit filed on behalf of the respondents the only plea
which has been taken in that the seized rice was found old having less
moisture in comparison with the new rice. It was a grade 'A' rice
which is supplied in F.C.I. and because the seized rice were perishable
item, therefore, immediate sale of the seized rice was required to
prevent any deterioration pending disposal of the confiscation
proceeding.
7. It is submitted that the public auction was held in
which the highest bid of Rs. 935/- per quintal was offered by one Sri
Arvind Prasad and same was sold for said highest bidder. In
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paragraph no. 11 of the supplementary counter affidavit it has been
admitted that according to the report of the S.D.O., Tekari no sample
was taken before such sale. In this regard the supplementary counter
affidavit says that the S.D.O., Tekari has been called upon to submit a
report with his comment after causing show cause to the concerned
officers.
8. The petitioner has filed one I.A. No. 1138 of 2018
during pendency of the writ application whereby in the changed
circumstances the reliefs prayed for, has been amended and the
following reliefs have been prayed for :-
"(a) For setting aside the order dated 12.08.2017 by
which the learned Collector issue notice to the
petitioner in Confiscation Case No. 13/2017 and
further directed to sold the rice and deposit the
money in treasury.
(b) For setting aside the order dated 15.01.2018
issued by the Block Supply Officer, Guraru by
which the seized rice of the petitioner has been
sold in open market without fulfilling proper
procedure.
(c) For issuance of direction to the Respondent
authorities to pay adequate compensation to the
petitioner for damage caused to the petitioner on
act of the respondent authorities by selling the
seized rice in open market without adopting
proper procedure and sold in lower rate."
9. The petitioner submits that in the confiscation
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proceeding for the first time notice was issued to her fixing the date
15.09.2017but while issuing notice to the petitioner on 12.08.2017 simultaneously the District Magistrate directed to sale the rice in question. Petitioner appeared in the confiscation proceeding on 21.11.2017 but prior to her appearance the order was already passed by District Magistrate, Gaya to sale the rice, the authorities below the Collector sold this seized rice without preserving the sample of food grains. It is, thus, submitted that the authorities did not try to even prima-facie satisfy themselves about the quality of the rice and the whole allegation in the first information report that the rice is a grade 'A+' rice which is a government rice normally made available to public distribution shop remains a mere allegation without there being any substance and prima-facie evidence. It is further submitted that the respondent authorities have caused heavy loss to the government by selling the grade 'A+' rice at the rate of Rs. 935 per quintal. In Paragraph No. 14 of the Interlocutory Application a statement has been made that the government rate of grade 'A+' rice is fixed Rs. 2390/- per quintal, and a question has been raised that if the case of the informant is true then what was the occasion to sale the seized rice in open market at the rate of Rs. 930/- per quintal.
10. It appears that in response to the Interlocutory Application filed by the petitioner the second supplementary counter Patna High Court Cr. WJC No.19 of 2018 dt.31-08-2018 8/14 affidavit has been filed by respondent no. 3. It has been submitted that the petitioner neither approached the authorities nor assailed the order passed by the authorities initially in the writ application being full knowledge of same. It is admitted that the petitioner appeared in the confiscation proceeding on 24.11.2017 through her legal representative and sought time for filing show cause reply. Same old facts regarding seizure of grade 'A+' rice have been reiterated in the second supplementary affidavit. It is reiterated that the rice was sold through public auction on 13.01.2018 in which the highest bid of Rs. 935/- per quintal was offered. There is no denial that rate of grade 'A+' rice fixed by the government is Rs. 2390/- per quintal. The procedure adopted for auction sale have not been discussed or stated in the two affidavits of the State.
11. After hearing learned counsel for the parties and perusal of the records, this Court finds that in the present case the order dated 12.08.2017 was passed by the District Magistrate, Gaya directing sale of the rice in question while issuing notice to the petitioner has been challenged by way of I.A. The District Magistrate, Gaya was well aware that as per allegations the rice in question is grade 'A+' rice and the rice have been handed over to the Assistant Godown Manager of the Food Corporation of India on Jimmenama. The rice was kept safely and it was not such a perishable item that Patna High Court Cr. WJC No.19 of 2018 dt.31-08-2018 9/14 even without giving an opportunity of hearing to petitioner, the District Magistrate was under any compulsion to order the sale of rice. In the opinion of this Court the power conferred on the District Magistrate under Section 6A(2) of the EC Act has to be exercised with due diligence and care. Only because power has been conferred upon the District Magistrate to pass an order for sale of an essential commodity which is likely to get perished if it is not immediately sold, the District Magistrate would not have exercised that power with respect to sale of the rice in question which was not going to decay or become useless or worthless within a month or so. This Court is of the opinion that the order for sale was passed in hot haste and contrary to the spirit of Section 6A(2) of he EC Act. This Court further finds that while directing sale no direction was issued to keep the sample of the rice and to get it tested in order to prove that prima-facie the allegation that the seized rice is a government subsidized rice had a basis. This is prima-facie a serious negligence and latches on the part of the District Magistrate, Gaya and the officers who ordered and indulged in the sale of the rice in question without keeping the sample of the rice. This is apparently a case of exercise of power in a most arbitrary and fanciful manner. It is also a case of non-application of mind on the part of the authorities. If seizure may be allowed to be made in this manner just by making an allegation and then selling of Patna High Court Cr. WJC No.19 of 2018 dt.31-08-2018 10/14 the seized goods is allowed in hot haste, in the opinion of this Court it will be a chaotic situation and there will be no rule of law and anybody's property may be seized and sold by a person in power.
12. In the counter affidavit and supplementary counter affidavit filed on behalf of respondents nothing has been brought on record to show as to what procedure has been adopted in the matter of auction sale of the rice in question. The rice has been sold in favour of one Arvind Prasad who is the said to be a highest bidder at the rate of Rs. 935/- per quintal. It has not been denied by the respondents in their counter affidavit that the grade 'A+' rice has a price of Rs. 2290/- per quintal fixed by the government as claimed by the petitioner in her Interlocutory Application. Non-denial of this fact would lead to a belief in the mind of this Court that rice in question has been sold without following a transparent procedure as also without keeping in mind the rate fixed by the government for grade 'A+' rice. The respondents have not brought on record the copies of notice inviting public to participate in the auction process, further no reserve price seems to have been fixed based on even a tentative valuation. The statement made to the effect that rice was sold to highest bidder is a totally vague statement which do not inspire confidence.
13. In the case of Bihar Deed Writers Association Patna High Court Cr. WJC No.19 of 2018 dt.31-08-2018 11/14 vs. The State of Bihar and others reported in 1988 (1) PLJR (HC) 671 on which reliance has been placed by learned counsel representing the petitioner, this Court has held that rice is not a perishable item and hence the power conferred on the District Magistrate under Section 6A(2) of the EC Act could not have been exercised in haste. The ratio of the judgment in the case of Bihar Deed Writers Association (supra) is equally applicable in the facts of the present case.
14. In result this Court of the considered opinion that the order dated 12.08.2017 passed by the District Magistrate, Gaya in Confiscation Case No. 13 of 2017 directing sale of the rice in question was illegal and had been passed in complete conflict with the spirit of Section 6A(2) of the EC Act. The District Magistrate, Gaya has acted arbitrarily in directing sale of rice while issuing notice to the petitioner in the confiscation proceeding. There was no reason for him to act in such hot haste. The subsequent auction of sale conducted by the Block Supply Officer, Guraru vide order dated 15.01.2018 is also illegal and this Court is of the view that the entire auction process was vitiated due to non-observance of the established procedure in the matter of auction sale of goods. Non-observance of a transparent procedure has caused loss to the government exchequer.
15. Since, the counter affidavit and supplementary Patna High Court Cr. WJC No.19 of 2018 dt.31-08-2018 12/14 counter affidavit no where state about the procedure adopted by the Block Supply Officer, Guraru in the matter of sale of rice in question, this Court has reasons to believe that the auction sale was conducted without giving a wide circulation or causing advertisement about the proposed sale of rice, the Block Supply Officer sold the rice in question to the auction purchaser by showing the highest bidder. No reserve price was fixed in this case, sale has been made to an individual even though the provision are there to sale through Public Distribution System Sale to an individual should have been done only in a transparent manner. Since there is no denial of the assertion of the petitioner that grade 'A+' rice had a price of Rs. 2290/- per quintal fixed by the government, the sale at the rate of Rs. 930 per quintal to an individual has caused loss to the government exchequer, if the government loses it's case the petitioner will be required to be compensated by the amount at the rate fixed by the government i.e. Rs.2290/- per quintal.
16. This Court would, therefore, hold the District Magistrate, Gaya as well as the Block Supply Officer, Guraru responsible for directing and holding the auction sale in haste without following a transparent procedure as such this Court would direct the State Government to take appropriate steps in accordance with law to recover the difference amount from the erring officials in equal Patna High Court Cr. WJC No.19 of 2018 dt.31-08-2018 13/14 proportion. Those who are totally negligent in selling of rice in question without keeping sample of the rice and without taking steps to get them tested to even prima-facie show and satisfy themselves that those are grade 'A+' rice which were allegedly purchased by the petitioner from the public distribution shop dealers are also required to be proceeded against in accordance with law.
17. In the given facts and circumstances of this case, the impugned order dated 12.08.2017 and 15.01.2018 are set aside. Now the entire amount which has been collected by auction sale of the rice in question and which would be recovered from the District Magistrate, Gaya and Block Supply Officer, Guraru shall be kept in deposit in the government treasury till conclusion of the criminal case and only when on conclusion of criminal case, if it is found that the petitioner is not guilty of the offences alleged against her, the petitioner will be entitled to make a prayer before the learned trial court for release of the amount lying in the treasury with the government. Failure of the government in realizing the amount from erring officials shall not disentitle the petitioner from getting the entire amount as per her entitlement.
18. This Court makes it clear that observation of this Court in the present case while considering the facts and circumstances pleaded before this Court would not be considered in Patna High Court Cr. WJC No.19 of 2018 dt.31-08-2018 14/14 course of trial of the criminal case.
19. This writ application as well as I.A. No. 1138/2018 stands allowed to the extent indicated above.
(Rajeev Ranjan Prasad, J) Ved/-
AFR/NAFR NAFR CAV DATE 03.08.2018 Uploading Date 31.08.2018 Transmission 31.08.2018 Date