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1985 Supreme(Pat) 153
HIGH COURT OF PATNA
P.S. Sabay, J.
Surendra Prasad and another - Petitioners
versus
The State of Bihar ors.
Criminal Writ Jurisdiction Case No. 201 of 1981
Decided on : 25.4.1985
For the Petitioners: M/s G. C. Bharuka, Navniti Prasad Singh and Ramesh Kumar Agrawal : Mr. Ganesh Prasad Jaiswal
For the State : Mr. Ganesh Prasad Jaiswal
A valid seizure is necessary to give jurisdiction to a Collector for initiating a proceeding for confiscation of essential commodities.
Headnote:
Fertilizers - Seizure and Confiscation - The court quashed the seizure of fertilizers and the confiscation proceeding under the Fertilizers (Control) Order, 1957 and the Essential Commodities Act, finding that the seizure was invalid and without jurisdiction due to the lack of authority of the seizing officer as required by the Fertilizers (Control) Order.
Fact of the Case:
The petitioners sought to quash the seizure of fertilizers and the confiscation proceeding under the Fertilizers (Control) Order, 1957 and the Essential Commodities Act. The seizure was done by an officer who was not authorized under the Fertilizers (Control) Order.
Finding of the Court:
The court found that the seizure was invalid and without jurisdiction due to the lack of authority of the seizing officer as required by the Fertilizers (Control) Order. The court also noted that the inclusion of fertilizer in the schedule was held to be without any authority of law in a previous case.
Issues: The issues involved the validity of the seizure of fertilizers and the authority of the seizing officer under the Fertilizers (Control) Order.
Ratio Decidendi: A valid seizure is a prerequisite for initiating a proceeding for confiscation of essential commodities. The lack of authority of the seizing officer under the Fertilizers (Control) Order rendered the seizure invalid and without jurisdiction.
Final Decision: The court allowed the application and quashed the seizure and the confiscation proceeding. It also left open the possibility for the petitioners to seek appropriate relief if any action is taken against them in the criminal prosecution.
P.S. Sahay, J.- The petitioners have moved this Court for quashing the seizure of fertilizers (Annexure-I), which was done under the provisions of Fertilizers (Control) ORDER :, 1957 and the show cause notice issued under the confiscation proceeding (Aanexure-4), the ORDER :of the Collector passed in the proceeding under section 6A of the Essential Commodities Act.
2. Certain facts have to be stated in ORDER :to appreciate the points. Petitioner no. 1 is the licensee under the Fertilizers (Control) ORDER :and petitioner no. 2 is the employee. On 13.9.1980 the Anchal Adhikari (respondent no. 3) came to the shop of the petitioners and after breaking open the lock verified the stocks and a first information report was lodged on 19.9.1980. The fertilizers were seized and a seizure list was prepared, which is Annexure-I. Thereafter, first information report was lodged, a copy whereof has been filed as Annexure-2. A proceeding under section 6A of the Essential Commodities Act was started in ORDER :to confiscate the seized stocks of fertilizers and notice was served on the petitioners (Annexure-4). The learned Collector by his ORDER :dated 22.6.1931 ORDER :ed for confiscation of the seized articles. A copy of the ORDER :has been filed and marked Annexure-5. Against the aforesaid ORDER :the petitioners have moved this Court.
3. Mr. G.C. Bharuka learned counsel appearing on behalf of the petitioners, bas contended that the seizure of the articles was wholly illegal and unjustified and, therefore, no confiscation proceeding could have been initiated under' section 6A of the Essential Commodities Act, The contention is that the Anchal Adhikari, respondent no. 3, is not a competent authority under the provisions of the Fertilizers (Control) ORDER :, 1957- and, therefore, the seizure made by respondent no. 3 was wholly invalid and without jurisdiction and fit to be quashed and,' accordingly, the confiscation proceeding started against the petitioners on the basis of that illegal seizure also must be quashed. In• support of his contention reliance has been placed on a Bench decision of this Court in the case of Suresh Pars ad and another v. State' of• Bihar & ors. 1978 (LVII) I.L.R.]. Patna series, page 988 : 1981 BRLJ 1. In that case the seizure of-fertilizers was made by the Inspector of C.L.D. (Food) and a similar point was raised that he wall not an Inspector as required under clause 19 of the Fertilizers (Control) ORDER :and, therefore, the seizure was bad. On a consideration of various authorities, it was held that a valid seizure was a sine qua non for giving jurisdiction to a Collector for starting a proceeding for confiscation of Essential commodities.
4. In my opinion the contention raised on behalf of the petitioner" is well founded and has to be accepted. In the counter affidavit filed on behalf of the State it has been stated that all Magistrates have been given the power of Inspector as required under clause 19 of the Fertilizers (Control) ORDER :, but the two notifications, which have been appended along with the counter affidavit, are subsequent to, 18.9.1980 and, therefore, those will not be relevant in the instant• case. In that view of the matter- it will not be necessary to decide in this case whether' the Anchal Adhikari 'was also empowered to act as Inspector under the Fertilizers (Control) ORDER :. It has also been stated in the counter affidavit that there was a violation of the Bihar Essential Articles (Display of Prices & Stocks) ORDER :. 1977. Learned counsel, appearing on behalf of the petitioners, has submitted that fertilizer was brought under the schedule by notification dated 8.5.1980, which was challenged in this Court and in the case of Madbusudao Prasad v. The State of Bihar & ors. (Cr.W.J.C.212 of 1981 : disposed of on 25.11.81) it has been held that inclusion of fertilizer in the schedule was without any authority of law. Therefore, it cannot be said in the instant case that there was a violation
