Patna High Court
Krishna Kumar Singh vs The State Of Bihar And Ors. on 22 February, 1989
Equivalent citations: 1989(37)BLJR541A
JUDGMENT L.P.N. Shahdeo, J.
1. This is an application under Articles 226 and 227 of the Constitution of India for quashing the notice dated 21-6-1984 issued by Respondent No. 2 the Food Commissioner, Bihar, Patna arising out of an appeal No. 57/84 filed by the State of Bihar before the appellate authority in the following circumstances :-
2. It appears that the business premises of the petitioner in the name of "Manoj Kumar Satish Chandra" at Chas, in the District of Dhanbad was inspected on 27-1-84 by Shri K. P. Sharma, Executive Magistrate and during the course of inspection Chura, Gur and Tejpatta were seized and a report was submitted to the Deputy Commissioner as a result of which a confiscation proceeding No. 11/84 was started for contravention of Clause 3 of the Bihar Essential Articles (Display of Prices and Stock) Order, 1977 and which is punishable under Section 7 of the Essential Commodities Act. This confiscation proceeding was ultimately transferred to the Additional Collector who disposed of the confiscation proceeding holding that no contravention of the Food Control Order or any of the provisions has been made out and as such he dropped the proceedings by the order dated 30-3-1984.
3. It appears that after dropping of the aforesaid confiscation proceeding, the State Government has preferred an appeal before the appellate authority which was admitted as Appeal No. 57/84 and in consequence thereof a notice dated 21-6-1984 was issued which is being challenged in this case including the competency of preferring an appeal before the appellate authority by the State Government.
4. Shri P. D. Agrawal, learned counsel appearing on behalf of the petitioner has submitted that under Section 6-A of the Essential Commodities Act it is apparent that an appeal lies only against the order of confiscation but not against an order by which the confiscation proceeding has been dropped.
5. It will appear that the learned Additional Collector has dropped the proceeding by a reasoned order which is as under :-
On a consideration of the facts and submissions made by the parties, I come to the conclusion that Chura and Tejpatta are certainly not the essential commodities. I further find that Gur also is not essential commodities for the purpose of the Bihar Essential Commodities Act. I also find that no contravention of the "Gur Control Order" has been alleged. I, therefore, find reasons to believe that there has been no contravention of Clause 7 of the Bihar Essential Commodities (Display of Stock and Price) Order, 1977.
6. Section 6-C of the Essential Commodities Act says that :-
Any person aggrieved by an order of confiscation under Section 6-A may within one month from the date of the communication to him of such order, appeal to the State Government concerned and the State Government shall after giving an opportunity to the appellant to be heard, pass such order as it may think fit confirming, modifying or annulling the order appealed against.
7. From the examination of the aforesaid provisions, it is clear that an order of confiscation under Section 6-C of the Act is appealable by any aggrieved person. This section does not empower the State Government or any authority to prefer an appeal before the appellate authority under Section 6-C of the Act in case, no confiscation order passed or in case the trial court or the court before which confiscation proceeding is pending has declined to confiscate the property in question. In this case also the Additional Collector had refused to confiscate the seized articles namely Gur, Chura and Tejpatta and ultimately dropped that proceedings. Therefore, appeal against that nature of order before the appellate authority under Section 6-C of the Act is not maintainable.
8. Right to prefer an appeal has been conferred under Section 6-C of the Act only to a person who was aggrieved by an order of confiscation and not in case of order where in confiscation proceeding, the court has refused to confiscate any articles or had dropped the proceedings. In substance, this shows that an appeal is maintainable only when an order of confiscation is passed and not otherwise and in these circumstances no appeal lies before the appellate authority from the impugned order dated 30-3-1984 passed by the Additional Collector. Therefore, the entertainment of the appeal by the appellate authority or issue of notice in consequence of that appeal being admitted, appears to be wholly without jurisdiction and against the clear mandate given in Section 6-C of the Essential Commodities Act. It is well established that an appeal is a creation of statute and must be specifically provided by the statute. No such appeal has been provided under Section 6-C of the Essential Commodities Act and therefore admission of appeal from such nature of order is not maintainable before that appellate Court. Admission of appeal and subsequent steps thereto are therefore without jurisdiction and are fit to be quashed.
9. It appears that similar question had cropped up before the Division Bench of Allahabad High Court and similar view was expressed by the Bench, Learned counsel for the petitioner has relied upon that ruling reported in 1984 Excise and Food Adulteration Reports 116 in the case of State of U. P. v. Ram Autar Jaiswal and another in which it was held that "an order of confiscation cannot include an order refusing to confiscate or refusing to exercise the power of confiscation under Section 6-A of the Act".
10. In the circumstances, the appeal preferred by the State Government before the appellate authority is without jurisdiction and not maintainable. Therefore, requires interference by this court.
11. In the result, this application is allowed, The impugned notice and the appeal itself are hereby quashed. The petitioner is discharged from the liabilities of the security executed before the Respondent No. 3 in pursuance of the order of this court dated 5-7-1984.