SHMBHU PRASAD SINGH, J.

1. The petitioner, proprietor of M/s Laxmijee Mills, which carries on business in foodgrains and is a licensee under the Bihar Foodgrains Dealer's Licensing Order 1967 (hereinafter referred to as 'the Order') issued under section 3 of the Essential Commodities Act, (hereinafter referred to as 'the Act') at Biharsharif in the district of Nalanda, has made this application under Articles 226 and 227 of the Constitution of India for quashing orders contained in annexure 2 and 6 of the Collector of district, respondent no. 3, confiscating 128 bags of maize, 6 bags of Masur Chhati and 6 bags of Masur in a proceeding under section 6A of the Act.

2. It appears that on 12th of August, 1975, at about 5 P.M. there was an inspection of the business premises of the petitioner by a Magistrate. He made the inspection under order of the Sub-divisional Officer, Biharsharif, on the basis of the information received from officers of the Commercial Taxes Department. He seized in presence of other Government officers who were present there the entire stock of foodgrains of the petitioner and submitted a written report to the Officer-in-charge Biharsharif, Police station on the basis of which a first Information report (annexure 1) was drawn up. The report of the Magistrate is a part of the said first information report. The report shows that the Magistrate examined the signboard, the stock register and also verified the entire stock by getting it weighed. As mentioned in the report, he found the following discrepancies (i) There was excess of 15 quintals 4 Kilograms of maize in 18 bags and also of 4 quintals 24 kilograms 600 grams of Khesari Dal than the quantities thereof as entered in the stock register. (ii) The quantity of Masur was 800 grams less than its quantity as entered in the stock register. The actual verification by weighing the foodgrains was done in the morning of 13th of August, 1975 and not on 12th of August, 1975. An explanation was offered on behalf of the petitioner on 13th of August, 1975 that the excess in maize was on account of the fact that it was received on 12th of August, 1975 which was entered in the Amdani (income) register but not in the stock register as the inspection was made before the closing of business and the stock register itself was seized. The magistrate in his report has referred to this explanation and also observed that the officer of the Commercial Taxes Department stated that the entry in the Amdani register was wrong as it was made therein after he had signed the register. In the opinion of the Magistrate, therefore, the entry in the Amdani register about maize was doubtful.

3. The Police, however, after completing the investigation in the case submitted final report (Annexure 4) which was accepted by the Additional Chief Judicial Magistrate of the place, by the order dated 13th of February, 1976 vide annexure 3. In the meantime on 20th of January, 1976, the Collector had passed the order as contained in annexure 2 confiscating the grains as aforesaid. He did not pass any order for confiscation of Khesari and Khesari Dal as they were not covered in any of the foodgrains mentioned in the Order which may lead to a proceeding under section 6A of the Act. While passing the order the Collector considered the show cause filed by the petitioner stating that excess maize which was found was received on 12th of August, 1975 itself and the shortage in the Masur was negligible and, therefore, it should be ignored, and observed that he did not accept the contention of the opposite party, i.e. the petitioner that the maize was received on the said date, the 12th of August; 1975 and was, therefore, properly accounted for.

4. Against the aforesaid order of the Collector, the petitioner appealed to the Commissioner, Patna Division respondent no. 2. The appeal was taken up for admission on 9th of March, 1976. Before that the police had already submitted final report (Annexure 4) and the