Mens rea is an essential ingredient for confiscation under section 6A of the Essential Commodities Act.

This petition under Article 226 read with Article 227 of the Constitution of India by the State of Assam has assailed the judgment and order dated 10.6.1982 passed by the Sessions Judge. Kamrup, Gaubati (Judicial Authority) in Criminal Appeal No.41 (K-4) of 1981 setting aside the order of confiscation dated 17.6.1981 passed by the Additional Collector cum Additional Deputy Commissioner, Kamrup, Guwahati exercising power under section 6 A of the Essential Commodities Act.

2. The allegation was that the respondents carried on business of essential commodities without licence under the Assam Paddy and Rice Procurement (Licencing and Levy) Order, 1980 and the Assam Pulses, Edible Oil Seeds and Edible Oil Dealers (Licencing and Control) Order, 1977 and the supply staff seized essential commodities of that firm on 12.1.1981. The sale proceed of the commodities amounting Rs. 2,16,933.50 paise was kept under revenue deposit pending enquiry under section 6 A of the Essential Commodi­ties Act for confiscation. The Additional Collector cum-Additional Deputy Commissioner vide order dated 17.6.1981 confiscated the sale proceeds. Thereupon, the respondents, preferred appeal before the District & Sessions Judge under the provision of section 6C of the Essential Commodities Act.

3. The only ground for confiscation was that the respondents carried the business of essential commodities without obtaining licence from concerned authorities. The defence plea in the confiscation proceeding was that they celebrated 'Mohaiat' ceremony of the firm on 27.7.80 and immediately thereafter a petition affixing proper court fee stamp was submitted for a licence in Form A under the Assam Pulses, EJiole Oil Seeds and Edible Oil Dealers (Licencing and Control) Order 1977;and another petition dated 28.7.80 affixing necessary court fee was submitted for granting dealership licence under the Assam Paddy and Rice Procurement (licencing and Levy) Order 1979; and that the supply authority made enquiry on those petitions and submitted report stating that the respondent has fulfilled the conditions and became eligible to get licences and recommended their case; and that supply staff gave understanding to carry on their business pending issue of necessary licences; and that respondents started the business by maintaining accounts and by exhibiting the stocks and price lists at the prominent place as required under the Rules} and that daily return of stocks and sales were submitted to the supply staff visited the shop from time to time and verified the affairs of the business/stock registers etc.

4. It was an admitted fact that the respondents had no licence on the date of seizure on 12.1.1981, but their formal petitions with necessary recommendation by the Supply Officers to grant licences were pending before the Licencing Authority for issuance of required licences. Learned Govt. Advocate, Mr. U. Das submits that a confiscation was justified because the business of essential commodities was carried on in violation of the provisions of the Orders and that submission of petition for licences, process taken by Supply Department thereon and carrying on business in anticipation of licences would not protect the respondents. We areas learned counsel Mr. J.P.Bhattacharjee submits that the violation if any was mere technical and ingredients of mens-rea had not been established for confiscation.

5. Notice specifying grounds of proposed confiscation under section 6A on the concerned party giving reasonable time for explanations against such grounds with reasonable opportunity of hearing were necessary. It was clear that although power of confiscation was discretionary, the authority had to meticulously observed the formalities of section 6A before passing an order of confiscation. Formalities required under law had not been complied. Besides, the decisions of different High Courts and of the Supreme Court have unanimously held that in a proceeding under sec