The reference analysis report superseding the initial analysis report has a significant impact on the initiation of confiscation proceedings under the Essential Commodities Act, influencing the validity of the confiscation order.

PER A.S. CHANDURKAR, J.

1. Rule. Heard finally with the consent of the contesting parties. Considering the nature of controversy, service of notice of hearing on respondent No.5 is dispensed with.

2. By this Writ Petition under Article 226 of the Constitution of India the petitioner challenges the order dated 22.3.2013 passed by the Collector, Raigad in proceedings under Section 6A of the Essential Commodities Act, 1955 (for short, “the said Act”) and under Clause 28(3) of the Fertilizer (Control) Order, 1985 (for short, “the Control Order”). As the aforesaid order passed by the Collector is an appealable order, in the alternate, the petitioner has prayed that the Appellate Authority be directed to accept the appeal that was sought to be preferred by the petitioner under Section 6C of the said Act.

3. The facts giving rise to the present proceedings are that :

The petitioner – Company, which carries on the business of manufacture and sale of chemicals and fertilizers, imported from Saudi Arabia 1000 MT of Bentonite Sulphur, a “fertilizer” as defined under the Control Order . Out of 1000 MT fertilizer, about 400 MT fertilizer was disposed of by the petitioner before passing of any order of seizure. According to the petitioner, the sample of the aforesaid fertilizer was duly analyzed by the Regional Fertilizer Control Laboratory and was found to be of “standard” certification. On 7.11.2012, the Fertilizer Inspector and Divisional Quality Control Inspector (respondent No.3) took samples of the said fertilizer. After obtaining an analysis report from the Fertilizer Testing Laboratory, Nashik on 10.12.2012, the respondent No.3 issued a showcause notice dated 19.12.2012 to the respondent No.5 with whom the aforesaid fertilizers were kept being the Clearing and Forwarding Agent of the petitioner. By the said notice, a direction was issued not to sell or distribute the aforesaid fertilizer until further orders.

4. The petitioner in terms of Clause 32A(2) of Control Order preferred appeal against the analysis report dated 10.12.2012. The Collector (respondent No.1), in the meanwhile, initiated proceedings under Section 6A of the said Act for confiscation of the seized commodities. According to the petitioner, fresh samples were sent for reference analysis in terms of Clause 32A(2) of the Control Order. While the appeal preferred by the petitioner was pending with the Appellate Authority, the respondent No.1 passed an order on 22.3.2013 under Section 6A of the said Act read with Clause 28 (3) of the Control Order directing auction of the aforesaid seized commodities. On 21.3.2013 the Joint Director, Agriculture informed the petitioner that the sample of goods that were sent for reference analysis had been declared as “standard”. According to the petitioner in view of the aforesaid, the petitioner was under an impression that the proceedings for confiscation no longer survived. However, on 19.12.2013 when steps were taken by the Joint Director, Agriculture, seeking status of the action taken pursuant to the order dated 22.3.2013 passed by the respondent No.1, the petitioner preferred an appeal against the said order under Section 6C of the said Act along with an application for condonation of delay. According to the petitioner, the Appellate Authority at Navi Mumbai refused to accept the aforesaid appeal and in these circumstances the petitioner has filed the instant Petition seeking the reliefs aforestated.

5. Shri V.R. Dhond, learned Senior Counsel appearing with Shri Shailesh Mendon and Mr. Shahezad Kazi, for the petitioner submitted that in view of the report of the reference analysis, the action for confiscation of the seized commodity under Section 6A of the said Act would not survive as the said report superseded the first analysis report. It was submitted that though request was made to the respondent No.1 to await the report of the reference analysis, the said Authority proceeded to pass the impugned order on 22.3.2013