- (1.) BRIJESH Kumar, J. Heard Sri Yogesh Kesharwani for the petitioner and Sri B. N. Sirswal for the State.
(2.) THE brief question involved in this petition relates to the opportunity which is sought to be provided to an owner of the goods which have been seized and confis cated under Section 6-A of the Essential- Commodities Act, 1955, by the Collector by an order passed under Section 6-B of the Act. Briefly, the facts of the case are that on a search and raid made in the premises of an Ata Chakki and godown of Nirmal Kumar adjacent to it in the Fatehganj locality P. S. Naka, Lucknow, on 24-3-1982, some tins of palm oil, bags of wheat and flour and bags of cement etc. were recovered. Nirmal Kumar, it appears, had denied the fact that Ata Chakki belonged to him. Some other persons came forward, saying that it was taken by them on rent from Nirmal Kumar. However, without going into that aspect of the matter, suffice it to say that the authorities had recorded a find ing that the Atta Chakki belonged to Nirmal Kumar. So far as the petitioners are con cerned, they moved an application along with an affidavit on 23-4-1982, for warding their claim to the bags of wheat and flour recovered in the raid, saying that they carry on business in wheat and flour and had sent 92 bags of wheat to the Atta Chakki for being grinded. They had thus claimed the ownership of the bags of wheat and flour. In support of their case, they also seem to have filed an affidavit in June, 1982. Thereafter on 7-7-1982 the authority concerned issued a notice to Nirmal Kumar under Section 6-B of the Essential Commodities Act, 1955 (for short, the Act ). The order of confiscation shows that after providing an opportunity of hearing to both the parties and after hearing the counsel, the Collector, Lucknow did not accept the case that Atta Chakki was given on rent to Kedarnath Gupta and Ganesh Prasad, but found that the same belonged to Nirmal Kumar. So far as the case of the petitioners was concerned, it was rejected on the ground that according to the petitioners, they had given 92 bags of wheat for being grinded, but at the spot 58 bags of wheat as well as 38 bags of flour were recovered, the total of which comes to 96 bags. The other reason for not accepting the case of the petitioners was that only it was once that the petitioners had sent their wheat for grinding to the Atta Chakki of Nirmal Kumar and had not sent it either before or after the recovery. The appeal preferred by the petitioners was also rejected by the Additional Commissioner by order dated June 16, 1984. He also adopted the same reasoning as indicated by the Col lector. The main thrust of the learned coun sel for the petitioners is that no notice as required under Section 6-B of the Act was ever served upon the petitioners. From the order passed by the Collector, it appears that undisputedly a notice was served upon Nirmal Kumar alone from whom the goods were seized. The question to be considered is as to whether it was necessary to give notice to the petitioners who had claimed to be the owners of wheat bags or not. In this connection, the relevant provision, as con tained in section 6-B of the Act, is quoted below: "6-B. Issue of show-cause notice before con fiscation of essential commodity.- (1) No order confiscating any essential commodity shall be made under Section 6-A unless the owner of such essential commodity package, covering, recep tacle, animal, vehicle, vessel or other conveyance or the person from whom it is seized - (a) is given a notice in writing informing him of the grounds on which it is proposed to confis cate the essential commodity package, covering, receptacle, animal, vehicle, vessel or other con veyance; (b) is given an opportunity of making a rep resentation in writing within such reasonable time as may be specified in the notice against the grounds of confiscation; and (c) is given a reasonable opportunity of being heard in the matter. (2 ). . . . . . . . . . . (3 ). . . . . . . . . . . "
(3.) LEARNED counsel for the State has vehemently urged that according to sub-sec tion (1) of Section 6-B of the Act, notice is to be given either to the owner or to the person from whom the goods are seized. It is also submitted that in any case, the petitioners had since put forward their case before the authority concerned, there was substantial compliance with the provisions contained under Section 6-B of the Act. It is, however, difficult to appreciate the arguments as ad vanced on behalf of the State. LEARNED counsel for the petitioners submits that once the petitioners had put forward their claim as owners of the wheat bags, it was necessary for the authority concerned to give notice, indicating the grounds of confis cation, to the petitioners in relation to wheat bags. To appreciate the above argu ment, one may have to closely scrutinize the provision, namely, Section 6-B of the Act as quoted above. The provision is in terms that no order of confiscation is to be passed unless the owner of such goods is given a notice in writing informing him of the grounds on which it is proposed to confis cate the commodity. It also provides, "or" the notice is given to a person from whom the commodity is seized. The whole inten tion of the provision is clear that it is the owner who is first entitled to the notice. It cannot be the sweet will of the authority concerned to give notice indicating the grounds of confiscation to either of the two. In case, where the owner is known or some body comes forward claiming to be the owner of the goods seized, notice at the first instance has to be given to him. The alterna tive which has been provided in the provision seems to be where the owner of the goods is not known or nobody is coming forward claiming to be the owner of the goods and in that event, the notice if given to the person from whom the commodity is seized, would only suffice. There may be circumstances in which it may not be pos sible to trace out the owner. In that event also, there would be no option left but to give notice to the person from whose cus tody the goods are seized. It is difficult to envisage a situation in which the authority concerned may have the owner as well as the person from whose custody the goods are seized, before it, but on its own sweet will, may prefer to give notice to the person from whom the goods are seized ignoring the owner of the goods. That would frustrate the whole purpose of the provision itself. The owner and the person from whose cus tody the goods are seized, are not inter changeable. The only possible interpreta tion of the provision as contained under Section 6-B of the Act is that in event, where the owner is not known or is not traceable or in some special circumstances where it may not be possible to serve such owner with the notice, it will meet the requirement by giving notice to the person from whom the goods are seized. As observed earlier, the order itself indicates that the notice was sent only to Nirmal Kumar from whose Atta Chakki and godown the goods are said to have been seized even though the petitioners had come forward claiming ownership of the wheat and flour bags. Learned counsel for the State then submits that even though the notice was not sent to the petitioners, substantially the provision of Section 6-B of the Act was complied with, since the petitioners had themselves put forward their claim and the case, before the authority concerned, and had also supported the same by filing an affidavit later on sometime in June, 1982. Again a scrutiny of the provision contained in Section 6-B of the Act would indicate that the argument advanced does not hold water. First of all, it is to be noticed that the petitioners had placed their claim in April, 1982 and had filed an affidavit in June, 1982. It was only thereafter that the Collector had issued notice under Section 6-B of the Act to Nirmal Kumar, as it was rightly thought necessary that grounds of confiscation had to be informed as provided under clause (a) of sub-section (1) of Section 6-B of the Act. No such grounds have been informed to the petitioners as owners and the claimants of wheat bags. Thereafter clause (b) of sub-sec tion (1) of Section 6-B of the Act provides that reasonable time would have to be given for making a representation in writing and further, there is yet another provision in clause (c) of sub-section (1) of Section 6-B of the Act which specifically provides for a reasonable opportunity of being heard in the matter. Thus the mode and manner in which the opportunity of hearing is to be provided has been very clearly and specifi cally laid in clauses (a), (b) and (c) of sub section (1) of Section 6-B of the Act. In the present case, the grounds of confiscation nave not been intimated to the petitioners. A representation could be given only meet ing those grounds, informed to the petitioners; that too was not done, much less an opportunity of hearing after repre sentation, as provided under clause (c) referred to above. Had the petitioners been provided that opportunity, they might have preferred to produce evidence to convince the authorities about their ownership of the confiscated wheat and flour by producing record etc. , but their claim has been brushed aside behind their back only on the ground that the total of the wheat bags and the flour bags recovered was 96, whereas according to the petitioners they had handed over only 92 bags of wheat for being grinded and the other ground "that according to the docu ments, the petitioners had not sent the wheat for being grinded to that Atta Chakki before or after the raid and seizure. Had an opportunity of hearing been given to the petitioners, they might have been able to explain the circumstances which have been considered in their absence.;