JUDGMENT

S. B. SINHA, J. 1. — Leave granted.

2. Appellants were owners of a truck. The said truck was hired for transportation of foodgrains by one Kailash Chand Sahu. It was allegedly carrying wheat belonging to the Food Corporation of India. A confiscation proceeding was initiated. An order of confiscation was passed by the Deputy Commissioner, Sahibganj. An appeal preferred thereagainst has been dismissed by the Addi¬tional Sessions Judge I, Sahibganj by an order dated 7.03.2005 passed in Criminal (Confiscation) Appeal No. 32 of 2003. Appel¬lants filed a writ petition before the Jharkhand High Court which by reason of the impugned judgment has been dismissed by a learned Single Judge of the said Court.

3. Mr. H.L.Agrawal, learned senior counsel appearing on behalf of the appellants, in support of this appeal, would submit that wheat being a de-controlled item and there being no control whatsoever, either on trading of wheat or possession or transpor¬tation thereof, the impugned judgment cannot be sustained.

4. Mr. B.B.Singh, learned counsel appearing on behalf of the State, on the other, would submit that the appellants having abetted a fair price shop dealer who was appointed under the Public Distribution System (Control) Order, 2001 (for short “the 2001 Order”), the impugned order cannot be faulted with.

5. Indisputably, confiscation of goods and the vehicles and vessels carrying the same amounts to deprivation of property. Confiscation of an essential commodity or a truck is permissible only if the provisions of any order made under Section 3 of the Essential Commodities Act, 1955 (for short “the Act”) are violat¬ed. When a vehicle is used for carrying an essential commodity, it may be seized and ultimately directed to be confiscated in terms of Clause (c) of Sub-section (1) of Section 6-A of the Act. Violation of an order made under Section 3 of the Act, therefore, is a pre-condition for passing an order of confiscation.

6. The 2001 Order does not deal with a matter dealing in wheat or transportation thereof. “Fair Price Shop” has been defined in Clause 2(k) of the 2001 Order to mean “a shop, which has been licensed to distribute essential commodities by an order issued under Section 3 of the Act, to the ration card holders under the Public Distribution System.” Clause 3 provides for identification of families living below the poverty line. Clause 4 provides for issuance of ration cards. Clause 5 deals with scale of issue and issue price. Clause 6 provides for the procedure for distribution of foodgrains by the Food Corporation of India to the State Government or their nominated agencies. Sub-clause (2) of Clause 6 obligates the fair price shop owners to take delivery of stocks from authorized nominees of the State Governments to ensure that essential commodities are available at the fair price shop within first week of the month for which the allotment is made. Sub-clause (4) thereof obligates the authority or person who is engaged in the distribution and handling of essential commodities under the Public Distribution System not to wilfully indulge in substitution or adulteration or diversion or theft of stocks from central godowns to fair price shop premises or at the premises of the fair price shop. Explanation appended thereto defines “diversion” to mean “unauthorised movement or delivery of essential commodities released from central godowns but not reaching the intended beneficiaries under the Public Distribution System”. Clause 9 provides for penalty. There is no provision for search of a vehicle. The power of search is con¬fined to fair price shop or any premises relevant to transaction of business of the fair price shop. The power of such authorities causing a search is confined to sub-Clause (3) of Clause 10 of the 2001 Order to search, seize or remove such books of accounts or stocks of essential commodities where such authority has reason to believe that these have been used or will be used in contravention