KASLIWAL - (1.) THIS appeal by special leave is directed against the order of the High Court of Delhi dated 20/12/1985 dismissing in limine the writ petition filed by the appellant against the order of the Lt. Governor, Delhi dated 8/11/1985 THIS Court by order dated 25/08/1986 granted special leave limited to the following question. "One of the questions raised by the learned Counsel before us is whether the samples taken from 3 out of 80 bags of khandsari could be treated as representative samples. He has cited before us a judgment of the High Court where it has been held that they cannot be so treated. We grant special leave limited to the question stated above. We find no force in other submissions."
(2.) IN order to decide the above question we would mention facts in brief necessary in this regard. In a raid in the business premises of the appellant on 28/02/1980, the following bags of Khandsari (sugar) were seized in the presence of Shri Ram Niwas, sole proprietor of the firm. JUDGEMENT_310_SUPP2_1991Html1.htm Two samples each from all the three varieties of Khandsari were taken and three samples of sugar were sent for analysis to the public analyst. The public analyst reported that the samples of sugar contained Sucrose - 93.5 Per Cent , 94.2 Per Cent and 97.16 Per Cent respectively. The Collector passed an order confiscating the entire goods as the same were kept in contravention of the provisions of Delhi Sugar Dealers Licensing Order, 1963 (in short the 'Licensing Order). It is not necessary to mention the details of this order of confiscation because the matter had gone into the High Court and the case was ultimately remanded by the High Court of Delhi by order dated 27/03/1984. The High Court directed the Collector for de novo determination of the proceedings under S. 6A of the Essential Commodities Act, 1955, in accordance with law. The Collector (North) after remand gave a fresh show cause notice to the appellant on 21/05/1984 setting forth the brief sequence of the proceedings and asking him to show cause as to why the entire stock of 80 bags of sugar seized in the case, be not confiscated to the State? The appellant appeared and filed a written reply to the show cause notice. The case was then heard at length and the Collector again passed an order confiscating the entire stock of 80 quintals of sugar. An appeal filed against the aforesaid order was dismissed by the Lt. Governor, Delhi by order dated 8/11/1985. A writ petition filed against the order of the Lt. Governor was dismissed in limine by the High Court by order dated 20/12/1985. Hence this appeal. Clause 2(f)(i) of the Licensing Order defines sugar as under: "Sugar means any form of sugar including Khandsari sugar containing more than 90 Per Cent of Sucrose." Under the Licensing Order a person was entitled to keep only up to a maximum of 10 quintals of sugar, without a licence. Admittedly the appellant was not having any licence.
(3.) IT was contended on behalf of the appellant that in order to prove that Khandsari was 'sugar' under the Licensing Order, it was necessary to prove that it contained more than 90 Per Cent of Sucrose. IT was submitted that the prosecution only took two samples each out of the three bags from the entire lot of 80 bags of Khandsari and this could at the most show that only 3 quintals of Khandsari was 'sugar' and the same being less than 10 quintals, there was no violation of the Licensing Order. IT was submitted that it was necessary for the prosecution to prove that the appellant was in possession of more than 10 quintals of sugar and this could only be done by taking samples from all the bags of Khandsari if it wanted to show that other bags of Khandsari also contained more than 90 bags of Sucrose. IT was also submitted that the possibility cannot be excluded that those bags from which samples were not taken, did not contain Sucrose more than 90 Per Cent IT was argued that the burden lay on the prosecution to prove that more than 10 quintals of sugar was found in the premises and then alone any order of confiscation could have been passed. In support of the above contention reliance was placed on a judgment of learned single Judge of Delhi High Court in Suraj Bhan Sharad Kumar v. Delhi Administration (Crl. Revision No. 104 of 1988 decided on 25/09/1980): (reported in ILR (1980) 2 Delhi 1198). In the facts and circumstances of the present case the contention raised on behalf of the appellant has no force. The admitted facts of the case are that at the time of seizure of the goods Shri Ram Niwas was present and the samples were taken in his presence. Two samples each were taken separately from three different varieties of Khandsari at the instance of Shri Ram Niwas himself. It was proved by the public analyst that all the three samples contained Sucrose more than 90 Per Cent . It was nowhere disputed nor suggested by Shri Ram Niwas at the time of taking samples or thereafter that the samples taken would not represent the correct quantity of Sucrose in those bags of Khandsari from which samples were not taken. Shri Ram Niwas had filed a reply in writing, to show cause notice, but in such reply also no objection was taken as sought to be raised now. In the facts and circumstances mentioned above if the Collector was satisfied that 80 quintals of sugar were found in the premises without licence, it cannot be said that the order of confiscation passed by the Collector was arbitrary or based on no material. The decision of the learned single Judge of Delhi High Court in Suraj Bhan Sharad Kumar v. Delhi Administration (ILR (1980) 2 Delhi 1198) (supra) is totally distinguishable as in that case the dealer was having licence and the prosecution failed to prove that he was in possession of more than 1000 quintals of sugar. In the case in hand before us the facts are entirely different.;