Jagdish Sahai, Broome, Manchanda and Pathak, JJ. -
(1.)1. We are in agreement with the conclusions drawn by the learned Chief Justice. It was strenuously contended by Mr. Khare that the Full Bench has been wrongly constituted inasmuch as the judgment of B.D. Gupta, J. has been affirmed by a Division Bench of this Court consisting of V.G. Oak and Seth, JJ.; but now that a Full Bench has been constituted, we do not think it is* for us to enter into the question of the propriety of the constitution of this Bench. Desai, C.J. This and connected special appeals are from a judgment of B. D. Gupta, J. allowing the respondents' petitions and directing the appellants to release forthwith the entire quantities of foodgrains seized by them under paragraph 18 of the Uttar Pradesh Foodgrains (Control Requisition, and Distribution) Order, Order, 1963. Under Section 3 of the Defence of India Act the Central Government was authorised to make rules for securing the defence of India and civil defence, the public safety and the maintenance of public order or for maintaining supplies essential to the life of the community and in particular rules providing for or empowering authorities to make orders providing for the control of trade and the prevention of hoarding, profiteering, blackmarketing or any other unfair practices in relation to any goods notified by or under the rules sis essential to the life of the community. The rules may also provide for the seizure, detention and forfeiture of any property in respect of which any contravention of or any attempt to contravene, or any abetment to, or any attempt to abet, the contravention of any of the provisions of the rules or any order issued thereunder. Section to lays down that no order made in exercise of any power conferred by or under this Act shall be called in question in any Court and that when an order purports to have been made or signed by any authority in exercise of any power conferred by or under the Act, a Court shall presume that it was so made by that authority. In exercise of the power conferred by Section 3 the Central Government made "Rules under the Defence of India Act, 1962". One of them is Rule 125, which is to the effect that if the State Government is of opinion that it is necessary or expedient so to do for securing the maintenance or increase of supplies essential to life of the community or for securing the equitable distribution and availability of any article or thing at fair prices it may, by order, provide for regulating or prohibiting the production, manufacture, supply and distribution, use and consumption of articles or thing, or for preventing any corrupt practice or abuse of authority in respect of any such matter and, in particular, for regulating the keeping, storage, distribution, disposal, acquisition or use of articles or things of any description whatsoever, for the minimum and maximum stock of any article or thing appearing to the Government essential to any or the purposes mentioned above to be held by any consumer or by any producer, manufacturer, distributor, dealer or any other person and for any incidental or supplementary matters for which the Government thinks it expedient for the purposes of the order to provide, including in particular, the entry into, search and inspection of premises and places, and seizure by a person authorised to make such search of any articles or things in respect of which he has reason to believe that a contravention of the order has been, is being or is about or likely to be committed. Sub-rule (7) lays down that any articles or things seized under the authority of any order made under the above provision must be conveyed without delay before a Magistrate, who may give such directions as to their temporary custody as he thinks fit and that where no prosecution is instituted for a contravention of the order in respect of the articles or things seized within a reasonable period the Magistrate must direct their return to the person from whom they were seized and that in other respects the provisions of the Code of Criminal Procedure, so far as they are applicable, will apply to any search or seizure made under the authority of any such order. Sub-rule 9 (a) provides that any person contravening any order made under this rule is liable to punishment with imprisonment, or fine, or with both. Rule 5 lays down that any person to whom any provision of these Rules relates, or to whom any order made in pursuance of these Rules is addressed or relates, or who is in possession or control of anything to which such provision relates, or in respect of which such order is made, fails without lawful authority or excuse to comply or secure compliance with such provision or order, he shall be deemed to have contravened the provision or order within the meaning of the Rules. Rule 144 includes within the meaning of "contravention" attempt to contravene, abetment of contravention or doing any act preparatory to contravention. 2. In exercise of the power conferred by Rule 125 of the Defence of India Rules the State Government passed what is known as the Uttar Pradesh Foodgrains (Control, Requisition and Distribution) Order, 1963, to be referred to henceforth as "the Order". The order has been amended from time to time and the provisions in force when the foodgrains were seized from the possession of the respondents were as under.
(2.)CLAUSE 3 prohibits a person other than a regular or approved dealer from selling any of the foodgrains (wheat, gram, jwar, bajra, paddy, barley, maize and peas). CLAUSE 3-A authorises the Government to fix by a notification the maximum quantity which may at any time be possessed by a member of a household, a producer or a regular dealer, the maximum quantity which may be sold in any one transaction and the maximum price which may be charged by a producer or regular dealer; no such notification has been issued by the State Government. CLAUSE 3-B (a) prohibits a producer from having in his possession at any time a quantity of foodgrains exceeding 20 quintals for the use of his household and 40 kg. per acre of his agricultural holding for use as seed, CLAUSE 3-B (b) requires that no regular dealer can have in his possession at any time a quantity of foodgrains exceeding one hundred quintals "provided that if he receives any quantity of foodgrains exceeding one hundred quintals from any mandi then the mandi in which he receives it, he may dispose of the quantity in excess of the maximum permitted under this para within a week from such receipt." CLAUSE 3-B (c) prohibits the members of a household from having in their possession at any time a quantity of foodgrains exceeding 4 quintals for their personal consumption. CLAUSE 3-B (e) provides that no person shall have in his possession any quantity of foodgrains except to the extent allowed under para (a), para (b), para (c) or para (d) "provided that the District Magistrate, on being satisfied that it is in the public interest so to do, may, on an application presented before him......grant exemption to any institution...." CLAUSE 3-C is as follows:--- "Notwithstanding anything contained in.... clause 3-B any person who "on 3-8-64" has in his possession any quantity of foodgrains in excess of the maximum permitted under the said CLAUSE 3-B may, within fifteen days From the said date dispose of the same by way of sale under intimation to the District Magistrate". CLAUSE 5 prohibits a regular or approved dealer from entering into any transaction involving purchase or sale or storage for sale in a speculative manner, prejudicial to the maintenance of easy availability of the supplies of any of the foodgrains in the market, or from withholding from sale any of the foodgrains ordinarily kept by him for sale. CLAUSE 7 obliges every regular and approved dealer to maintain an account of all purchases, sales and transaction in respect of foodgrains. CLAUSE 18 authorises any Food Officer or the Superintendent of Police to enter and search any premises used or believed to be used for the purchase, sale or storage for sale of any of the foodgrains and to seize any of them in respect of which he has reason to believe that a contravention of this Order has been, is being or is about or likely to be committed and to take all measures for their safe custody pending such production as provided under Rule 125 (7) of the Defence of India Rules. CLAUSE 19 makes it an offence punishable under Rule 125 (9) (a) of the Defence of India Rules for any person to contravene any provision of the Order.
In exercise of the power conferred by Clause 18 of the Order on or about 25-9-1964 Food Officers raided the houses of the respondents in this and connected appeals and seized quantities of rice, paddy, wheat, etc. Thereupon the respondents filed petitions for mandamus requiring them to release the foodgrains seized by them. They contended that the provisions of the Order were arbitrary and discriminatory and that in any case the seizure of foodgrains within the exempted limits was illegal. The petitioions were contested by the appellants.
In Special Appeal No. 929 of 1964 the respondent claimed to be a dealer purchasing food grains from producers and selling them in the market. 76 quintals of wheat were seized by the District Magistrate on 26-9-64 from a warehouse where it was kept on its behalf. In the counter-affidavit filed on behalf of the appellants it was denied that it was a dealer because its licence had been suspended under an order, dated 28-1-64. It said in its rejoinder-affidavit that the suspension order was cancelled and the licence was renewed for the period ending on 31-12-64. So it is a regular dealer. Under para 6 of the licence granted to it, it was forbidden to contravene any provision of any Jaw relating to food stuffs for the time being in force
(3.)IN Special Appeal No. 921 of 1964 the respondent is a producer and on 26-9-64 the appellants seized 258 quintals of rice, 30 quintals of paddy, 19 quintals of wheat and 1 1/2 quintals of barley from his house. His case is that the seized foodgrains belonged to thirteen persons who, once members or a joint family, are now separate from one another, though living in a common house. The appellants denied that the seized foodgrains belonged to thirteen different families and not to one and asserted that out of the foodgrains found in his granary 3 quintals of gram, 1 1/2 quintals of Kerao and 20 quintals of rice were left for his consumption and for seed purposes and were not seized at all and that no quantity of gram was seized at all though found there.
In Special Appeal No. 933 of 1964 the respondent is a regular dealer and had in its possession on 8-9- 64 more than 100 quintals of foodgrains which had been in its possession for more than a week. The foodgrains were seized actually on 26-9-64. Its ease is that it had received the quantity in excess of the maximum quantity permitted, namely 100 quintals, from an outside mandi within a week of the date of the seizure and that whatever was the excess quantity in its possession on 8-9-64 had been sold out within a week.