- (1.) Mr. Iqbal Singh Tiwana has invited our attention to the provisions of Sections 6-A, 6-B and 6-C of the Essential Commodities Act (10 of 1955) as amended up to date. The provisions read as below :- "6-A. Confiscation of foodgrains, edible oilseeds and edible oils. - Where any essential commodity is seized in pursuance of an order made under Section 3 in relation thereto, it may be produced, without any unreasonable delay, before the Collector of the district or the Presidency town in which such essential commodity is seized and whether or not a prosecution is instituted for the contravention of such order the Collector, if satisfied that there has been contravention of the order, may order confiscation of - (a) the essential commodity so seized; (b) any package, covering or receptacle in which such essential commodity is found; and (c) any animal, vehicle, vessel or other conveyance used in carrying such essential commodity : Provided that without prejudice to any action which may be taken under any other provision of this Act, no foodgrains or edible oil seeds seized in pursuance of any order made under Section 3 in relation thereto from a producer shall, if the seized foodgrains or edible oil-seeds have been produced by him, be confiscated under this section. 6-B. Issue of show-cause notice before confiscation of foodgrains, etc. - (1) No order confiscating any essential commodity, package, covering, receptacle, 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 confiscate the essential commodity, package, covering, receptacle, animal, vehicle, vessel or other conveyance; (b) is given an opportunity of making a representation 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) Without prejudice to the provisions of sub-section (1) no order confiscating any animal, vehicle, vessel or other conveyance shall be made under Section 6-A if the owner of the animal, vehicle, vessel or other conveyance proves to the satisfaction of the Collector that it was used in carrying the essential commodity without the knowledge or connivance of the owner himself, his agent, if any, and the person in charge of the animal, vehicle, vessel or other conveyance, and that each of them had taken all reasonable and necessary precautions against such use. 6-C. Appeal. - (1) Any person aggrieved by an order of confiscation under Section 6-A may, within one month from the date of the communication to him of such order, appeal to any judicial authority appointed by the State Government concerned and the judicial authority shall, after giving an opportunity to the appellant to be heard, pass such order as it may think fit, confirming, modifying or annulling the order appealed against. (2) When an order under Section 6-A is modified or annulled by such judicial authority, or where in a prosecution instituted for the contravention of the order in respect of which an order of confiscation has been made under Section 6-A, the person concerned is acquitted, and in either case it is not possible for any person to return the essential commodity seized, such person shall be paid the price therefor as if the essential commodity has been sold to the Government with reasonable interest calculated from the day of seizure of the essential commodity and such price shall be determined - (i) in the case of foodgrains, edible oilseeds or edible oils, in accordance with provisions of sub-section (3-B) of Section 3; (ii) in the case of sugar in accordance with the provisions of sub-section (3-C) of Section 3; and (iii) in the case of any other essential commodity, in accordance with the provisions of sub-section (3) of Section 3." On a mere perusal of these provisions it is clear that there is authority for confiscation of any vehicle in which the seized essential commodity is found to be carried in case there has been contravention of any order made under Section 3 of the Act. Mr. Malik has rightly pointed out that in the Punjab Food and Supplies Department Manual of Legal Orders published by the Government Press in 1973, Section 6-A does not contain the amendment which has been made earlier relating to the seizure and confiscation of the package, covering or receptacle in which the essential commodity is found, and/or the animal, vehicle or vessel or other conveyance used in carrying such commodity in addition to the seized essential commodity itself.
(2.) Faced with the above situation Mr. Malik has vehemently argued that Section 6-A of the Act authorising the confiscation of not only the vehicle, but even the seized foodgrain is ultra vires Article 19(1)(f) of the Constitution as it does not provide as to who is to decide whether there has in fact been any contravention of any order issued under Section 3 of the Act or not, and does not even provide the machinery for coming to such a decision. He has placed reliance for this submission on the judgment of the Supreme Court in Kantilal Babulal and Brothers v. H.C. Patel and others, 1968 AIR(SC) 445and on the judgment of the Calcutta High Court in M/s. Munilal Bhagwat Sharan and others v. The Chief Commercial Superintendent, Eastern Railway and others, 1972 AIR(Cal) 405The Supreme Court case related to the vires of Section 12A(4) of the Bombay Sales Tax Act (5 of 1946). Sub-sections (1) and (2) of Section 12A of the Bombay Act prohibited the collection of any tax by the seller or purchaser in respect of any sale on which the tax is not levied under the Act. The relevant part of sub-section (4) of Section 12-A of the Bombay Act was in the following terms :- "If any person collects any amount by way of tax in contravention of the provisions of sub-section (1) or (2) --------- the amounts so collected shall without prejudice to any prosecution that may be instituted against such person -------------- be forfeited to the State Government and such person or dealer, as the case may be shall within the prescribed period, pay such amount into a Government treasury and in default of such payment, the amount shall be recovered as an arrear of land revenue." It was conceded before their Lordships of the Supreme Court that the amount in question could be forefeited only as a measure of penalty for the contravention of Section 1-A(1) and (2). Their Lordships held that no one can be penalised without a proper inquiry and penalising a person without any inquiry is abhorrent to the sense of justice. In paragraph 11 of the judgment it was made clear that Section 12A(4) of the Bombay Act was being struck down as the said Act was silent as to the machinery and procedure to be followed in determining the question as to whether there has been contravention of Sections 12A(1) and (2), and if so, to what extent. It was in that situation that it was observed that it would be open to the department to evolve all the requisite machinery and procedure which means that the whole thing from the beginning to end is treated as of a purely administrative character, completely ignoring the legal position.
(3.) The judgment of the Supreme Court in the aforesaid cases does not help the petitioner as in the instant case Sections 6-A and 6-B as amended provided that machinery. Action of confiscation can only be taken if contravention of an order under Section 3 is found, and Section 6-B lays down the detailed machinery for deciding the crucial issue, the decision of which is a condition precedent for proceeding further under the penal provision of Section 6-A. Even an appeal is provided under Section 6-C against any order of confiscation that may be passed under Section 6-A. That appeal lies to a judicial authority appointed by the State Government and not to an administrative officer. The decision under Section 6-A has to be arrived at it an objective manner, and it is futile to argue that such a decision is left to the subjective satisfaction of the appropriate authority.;