A.K.CHATTERJEE,J. - (1.) IS Rule issued under article 227 of the Constitution of India raises a short and an interesting question regarding the permissible extent of confiscation, if any under section 6A of the Essential Commodities Act if a dealer licenced under the West Bengal Pulses. Edible Oilseeds Edible Oils (Dealers Licensing) Order, 1978 made under section 3 of the said Act, is found to have in stock a quantity of essential commodity less than what he was supposed to have in violation of the condition of licence granted to him under the said order. Relevant facts are that on the 29th May, 1981 when the place of business of the petitioner a dealer licenced under the aforesaid order, was searched, he had in his stock 99 quintals of 'Arhar dal' while according to the stock board displayed by him, he had 110 quintals of this commodity as the opening stock on the said date. The petitioner could not explain the difference of 11 quintals, which, according to the police was sold without issuing cash memo in violation of a condition subject to which licence was issued to him. In these circumstances, the entire quantity of 99 quintals of the said commodity was seized by the police and confiscated by the learned Collector under the provisions of section 6A of the Essential Commodity Act.
(2.) THE learned Advocate for the petitioner has argued that a Collector in authorised to confiscate only such part of the essential commodity in respect of which there has been a contravention of the order, under which it has been seized and he has no jurisdiction to confiscate any essential commodity which does not offend the order. A plain persual of section 6A referred to above will show that it provides, inter alia that if any essential commodity is seized in pursuance of any order made under section 3 of the Act relating to such commodity, the Collector, if he is satisfied that there has been a contravention of order, may confiscate the essential commodity so seized. Therefore, there is no doubt that the Collector has power to confiscate only such essential commodity which has been validly and legally seized in exercise of power under an order made under section 3 of the Act. In the instant case clause 13 (1) (e) of the West Bengal Pulses, Edible Oil seeds & Edible Oils (Dealers Licensing) Order, 1978 empowers certain authorities to seize the entire quantity of any stock of pulses etc. If there is any reason to believe that any provision of this order has been, is being or is about to be contravened in respect of such stock or any part thereof. The learned Advocate for the petitioner has argued, and very rightly, that the words "any part thereof" are not without significance and the sensible conclusion is that only that part of the essential commodity can be seized in respect of which there has been a contravention of the order. He has relied in this connection upon a decision of this court in Shyam Sunder Khaitan v. State of West Bengal.1 In that case, a dealer held in stock 213 tins of 'Vanaspati' though he was supposed to have only 206 tins with him, in this situation it was held that it was only in respect of 7 tins that it could be said that there was reason to believe that an order has been contravened and, therefore, only this quantity was liable to confiscation and not the entire stock of 213 tins as done by the learned Collector in, that case. This decision is also consistent with the view taken by a Division Bench of this court in Abdul Rahman v. The State2, In that case Their Lordships were considering the question of forfeiture under section 7(1) of the Essential Supplies (Temporary Powers) Act, 1946, when a dealer licenced under the West Bengal Cotton Cloth and Yarn Control Order, 1948 was found to have sold a quantity of yarn without issuing cash memo and after such sale was found in possession of 34 bundles of cotton yarn. Clause 29 of the said order empowered the court to direct forfeiture of any cotton yarn in respect of which it was satisfied that there has been a contravention of the order. The language of this clause is pari materia with clause 13(1) (e) of the West Bengal Pulses, Edible Oil seeds & Edible Oils (Dealers Licensing Order, 1978 and therefore, the analogy of the decision of Division Bench applies with all force in the instant case. This view was also followed by Karnataka High Court in Subhas Motichand Sheth v. The State of Karnataka3. That was a case under section 6A of the Essential Commodities Act in which the petitioner was charged for violation of the condition of a certain clause of Karnataka Sugar Dealers Licensing Order, (1962) made under section 3 of the Act and was found to bold 33 bags of sugar in stock and was said to have sold away another 51 bags in transit which constituted contravention of the order. In this situation it was held that there was contravention of the order in respect of 51 bags only and the balance of 33 bags could not be seized or confiscated. Without multiplying precedents it may be noted that similar view has been taken by Madhya Pradesh High Court in State of Madhya Pradesh v. Swaladas Brothers4. The learned Advocate for the State, on the other hand, in opposing this rule has relied heavily upon the contrary view taken by Patna High Court in Narendra Kumar v. State of Bihar5. It is no doubt true that the decision of the Patna High Court referred to above supports the contention of the learned Advocate for the State that the learned Collector was within his power to confiscate 99 quintals of "arhar dal" but considering the weight of judicial authorities on the point and on my own reading of the relevant provisions of the Act and the order in question, I hold that the law permits the Collector to confiscate only that portion of the commodity which offends the order under which it was seized and, therefore, in the instant case, the learned Collector was not right in confiscating 99 quintals of the said commodity since this stock does not contravene any of the provisions of the order". For foregoing reasons the Rule is made absolute and the order passed by the learned Judicial authority and the learned Collector confiscating 99 quintals of 'arhar dal' are set aside. Rule made absolute. 1. 1982 (H) C.R N. 279. 2. A.I.R. 1985 Cal. 631. 3. 1978 Crl. L.J. 136.
(3.) 1981 M.R.L.J. Notes of cases 27.;