Confiscation proceedings under Section 6A of the Essential Commodities Act require a prior order under Section 3 to be valid.

1. Order No. DMS / Jud / Misc / 318/2011 dated 24/05/2011, issued by respondent No. 3 is sought to be quashed.

2. The Collector (Additional Deputy Commissioner) on the basis of application filed by SHO P/S Sadder has invoked power under S.6A of Essential Commodities Act so has ordered confiscation of two trucks bearing registration Nos. JK02AE - 2499, JK02L - 5229 and same were directed to be handed over to General Manager (Opr) SRTC for using the same for public purpose.

3. Police Station / Sadder during Naka checking on 18/02/2011 intercepted two trucks bearing NO. JK02L - 5229 and JK02AE - 2499 loaded with sugar 92.05 quintals and 93.46 quintals respectively when they were on way to Jaharigir Chowk from Hyderpora. The sugar was loaded from FCI Railway, Jammu for FCI Baramulla. In a hatched conspiracy with FCI employees of Jammu / Baramulla and CAPD, the said sugar was being sold (misappropriated) through truck drivers. On this basis, case FIR No. 31/2011 under S.420, S.406, S.409, S.418, S.471 RPC and 3/7 EC Act was registered. Number plates of two trucks allegedly after crossing Lower Munda check post were replaced by numbers plates i.e. 5299 - JK02L and 2499 - JK02AE. During investigation fabricated challans and - number plates were allegedly recovered.

4. During the proceedings before the Collector (Additional Deputy Commissioner), the petitioners projected that in fact there was some business rivalry pursuant to which this case has been cooked up. Basically sugar was loaded from FCI Jammu in four vehicles bearing registration Nos. JK02AE - 2499, JK02L - 5229, JK02AE - 3329 and JK02L - 5429 out of which two truck loads were for FCI Srinagar and another two were for FCI Baramulla. The four vehicles though had left from Jammu on different dates but due to closure of road all the trucks met at Pantha Chowk. The two trucks which moved towards Srinagar carried the challans of other two trucks and were on way for unloading sugar at proper destination but on way were intercepted.

5. This theory has not been accepted by the Collector (respondent No. 3) who has concluded that the vehicles were being used for misappropriation of essential commodities (sugar) so directed confiscation of truck Nos. JK02AE - 2499 and JK02L - 5229.

6. The first contention as was raised by the learned counsel for the petitioner is that the Collector (respondent No. 3) had no jurisdiction to initiate confiscation proceedings. It is only when an order is issued under S.3 of the EC Act, on breach thereof S.6A of EC Act will apply, no such order was in operation, therefore, Collector (respondent No. 3) had no jurisdiction to pass the order of confiscation.

7. Learned counsel appearing for the respondents was pointedly asked if there was any such order issued under S.3 of the EC Act, he sought time for collection of record so as to ascertain whether there was any such order in force. Case was adjourned but after collection of records learned counsel submitted that he could not ascertain from the records as to whether any such order was issued under S.3 of the EC Act. He has produced the records but from the records it is not discernible that any such order under S.3 was issued. It being so, the Collector (respondent No. 3) could not invoke the powers under S.6A of the EC Act. For facility of reference, S.6 - A is reproduced hereunder: -
' ' 6A. Confiscation of essential commodity: (1) Where any essential commodity is seized in pursuance of an order made under S.3 in relation thereto, a report of such seizure shall, without unreasonable delay, be made to the Collector of the district or the Presidency town in which such essential commodity is seized and whethe