V. S. DAVE, J. - (1.) THIS revision is directed against the order of the State Committee appointed under Essential Commodities (Special Provision) Act, 1981 (hereinafter referred, to as the Special Provision Act), Jaipur dated 22. 4. 1988, confirming the order of the Collector, Ajmer dated 28. 9. 1985, confiscating 112 bags of wheat alleged to have been seized on 29. 1. 1983.
(2.) BRIEF facts giving rise to this revision petition are that Enforcement Inspector, Ajmer, inspected the premises of Firm Basti Ram Trading Company the owner of which is Mirchoo Mal, petitioner on 29. 1. 1988 in the presence of Mangalesh Saxena, Ram Kirpal Purohit and Girdhar Gopal Yadav, the motbirs. During the inspection it was found that "the firm was a licence dealer having licence No. W. 218/81 but the same was valid only upto 31. 3. 1982 and was not renewed thereafter. Thus the petitioner was found carrying on the business without valid licence. It was further found that the only shop No. 82. constructed by Municipal Council, was shown as the place of business and godown in the licence but during inspection it was found that he was also carrying on business under title of Firm Raj Kumar Mirchoomal in shop No. 50, where too some wheat was found. This stock found was duly entered into the stock register of Bastiram Trading Company. Thus he violated the condition 2 (9) (b) of the licence. It was further observed that according to entries in the stock registers from 1-4-82 to 19-10-82 and 20-10-82 to 27-1-83 it was found that the accused carried on business regularly during this period. 3 kilties, one from M/s Ratnesh Kumar Pukhraj, Nimbaheda, another from Bhanwar Lal Asbok Kumar and third from Bhawani Ram Rodumal were found regarding 20 bags, 27 bags and 36'bages respectively which had been received as per the octroi receipt of Ajmer Municipal Council on 28. 1. 83. Thus 83 bags which had been received on 28-1-83 were not entered in the stock register till the time of checking on 29-1-84. On physical verification the Enforcement Inspector found 170 bags of wheat containing net weight of 166 Q. 87 Kg. 500 Gms. in shop No. 82 and 99 bags of wheat were found in shop No. 50, the nett weight of which was 98 Q. 22 Kg. Thus the total wheat recovered was 269 bags having 262 Q. 9 Kg, 509 Gms. nett weight of wheat. According to the memo the accused could not keep more than 200 Q. of wheat. Mirchoo Mal disclosed at the time of inspection that he has been Submitting the monthly returns regularly which fact was found correct. He disclosed that the opening stock of the grain on 27-1-83 was as under: - Wheat - 156 Q. Barley - 20 Q. Jwar - 8 Q. Gram - 8 Q. Bajra - 4 Q. On physical verification barley was found to be missing. It is pertinent to mention here that the original documents about the receipt of 83 Q. of wheat, including the receipts issued by the Octroi Post, Municipal Council, Ajmer, dated 28-1-83 were produced on the spot even before physical verification to the Enforcement Inspector alongwith all the invoices and the bills which till date form the part of the record of Food & Supply Department, The recovered wheat was given on supardginama to one Tejumal. On 5-2-83 a show cause notice was given by the District Supply Officer, Ajmer showing four defects; First was that the licence was not renewed, second that there was one other Firm working in the name and style M/s Raj Kumar Mirchoomal as retailor in shop No. 50 where wheat entered in the stock register of Bastiram Trading Company was found lying, third, the wheat recovered from both the shops was 262 Q, 9 Kg and 500 Gms. which was beyond the prescribed limit which was 200 Kg. at that time, and lastly 20 Q. of barley was not found on the physical verification. A detailed reply was filed by the petitioner, Mirchoo Mal, within stipulated period wherein he stated that licence could not be renewed by him under mistaken belief and this can very well be inferred from the fact that though the period of licence was over on 31-3-1982 yet the petitioner had been continuously filing the monthly returns in the office of the District Supply Officer Which have been accepted and the receipts of which he had shown to the Enforcement Inspector. Regarding some material in shop No. 50, he admitted that he had placed 99 bags of wheat in shop No. 50 for paucity of place in shop No. 82 of which he had sent the information by post on the same day to the concerned authorities as required under the conditions of licence. He submitted the carbon copy of the application along with his reply. Regarding the excess stock his submission was that actually the checking was not done on 29. 1. 83 but it was done on 28. 1. 83 and it has been post dated by one day, in order to make out a case against the petitioner. It is stated that at the beginning of the document site memo, interpolation has been done and at the very start of sheet there is tearing of the date at the top and it is only on bottom of the documents that the dates have been put as 29-1-83. It was further submitted that 83 Q. of wheat received on 28. 1. 83, if could not be entered for paucity of time on the same day, it would not make out a case of excess stock under any circumstances. Since the checking was going on the business could not be transacted and for that reason an excess has been detected. His case was that some wheat had already been sold. He had received the money also but goods could not be physically despatched because of the raid and the Enforcement Inspector refused to send them. The petitioner placed the affidavits of those traders also on record. Mirchoo Mal also filed an application before the Collector, Ajmer mentioning all the facts and had also moved the State Government in a representation. The Collector, Ajmer directed that the notice of confiscation should be given for wheat above 200 Q. and the balance may be released. This order was passed on February 3, 1982. It appears from the original record placed before me by the District Supply Officer that the order of the Collector was not complied with in letter and spirit and the matter was again placed before him wherein he recor-ded as under: - "90 bags were found in undeclared godown and hence 90 bags or excess wheat above limit whichever is more should be retained for action under S. 6a and the rest should be released". On the basis of this order the District Supply Officer recorded that in undeclared godown there was 96 Q. 21 Kg wheat (92 bags ). In stock register 156 bags had been shown while on physical verification 169 bags were found i. e. 13 bags more than declared, therefore, 112 bags may be retained and the rest be released. It is in these circumstances that notice of confiscation was issued in respect of 112 bags instead of 69 bags as was initially ordered by learned Collector. Thereafter in proceedings under S, 6a. of the Special Provision Act the learned Collector, Ajmer ordered the confiscation of all these bags. An appeal was filed against the order of learned Collector as contemplated by S. 6c of the Special Provision Act which too was rejected, hence this revision petition. It is pertinent to mention here that the Sub-Divisional Officer had also proceeded against the petitioner in accordance with the provisions of the Act and had confiscated the sum of Rs. 750/- from the security money and had issued a warning for future. Mr. S C. Bhandari, learned counsel for the petitioner, contended that neither the Collector nor the Committee looked into the documents properly and wrongly directed the confiscation of the goods. He submitted that no offence worth the name, of any violation of Act, ulterior Licence has been committed by the petitioner and his case has not been looked objectively but a biased view has been taken by both the authorities. Explaining the misunderstanding under which he could not get renewal of the licence he submitted he had the impression that it was issued for five years and therefore, mentioning this he applied for ex-post facto renewal which had been granted after imposition of penalty on him with retrospective operation and once it has been renewed with retrospective operation it cannot be said that he was carrying on the trade without licence. Besides this it is essential to see mens area in such a case. It is submitted that the petitioner had been regularly filing the monthly returns as a licence dealer which has been regularly accepted by the department and this fact is admitted even in the memo of checking. Thus it should not have been inferred that the petitioner was carry-ing on the trade without licence deliberately in order to defraud the authorities. It was further submitted that checking date has been post-dated for the next day because the Enforcement Inspector found that 83 bags had just been received and they were yet to be entered. According to the prosecution total number of bags were 269 weighing 262 quintal 9 kg. 500 grams and this excess could not have been included, had the correct position would have been shown. It is submitted that checking party also did not permit the sale and showed the checking including receipt of 83 bags which in fact ought not to have been counted for the said purpose. It is submitted that it would be impossible for a trader to honestly do business if such sort of dishonest checking is permitted. It is submitted that according to the stock register and physical position the petitioner had 156 bags of wheat in stock on 27. 1. 83 which was far below the prescribed limit, had he been permitted to sell the next day including 83 bags which came on 28 I 83 his stock would not have exceeded 200 quintal. It is further submitted that the petitioner filed affidavits of various persons but the same have not been considered by both the authorities. Since there were no counter affidavits the Collector as well as the Committee ought to have considered the same. It is further submitted that even assuming that there is excess found, then anything beyond 200 bags alone could be confiscated and confiscation of more than that is illegal. It is next submitted that bias is writ large from the record of the case inasmuch as neither the documents have been properly considered nor the case law cited by the petitioner have been properly read. It is therefore, prayed that both the orders be set aside and 112 bags of wheat should be ordered to be returned to the petitioner. It is submitted on behalf of the State that there is concurrent finding of facts that there is violation of various rules, therefore, finding should not be interfered in re-visional jurisdiction. It is also submitted that the petitioner has not only carried on the business without licence but has kept the stock in excess than the permissible limit and only inference is that he was keeping the stock with ulterior motives. It is submitted that post validity of the licence would not validate a wrong earlier committed.
(3.) I have given my thoughtful consideration to the rival contentions and have perused the entire record. Since there were allegations and counter allegation I sent for the original record of the office of the District Supply Officer to satisfy myself and perused the same. Before I enter into the merit of this case I would like to observe that it is now a settled law that confiscation of goods under S. 6-A is penal in character and therefore, revision petition is maintainable. At one time applications under Art. 227 of the Constitution of India for exercising the general powers of superintendence of High Court also used to be filed but later on it was held in various cases that criminal revision is maintainable however subject to limitation of power which can be exercised that is if there is effective challenge to legality, propriety or otherwise of the impugned order Having found the case falling in these parameters I have gone through the entire record and law. So far as the violation about not having 20 Q. barley in stock is wholly irrelevant for the disposal of this case, therefore, only 3 violations pointed out by the authorities have to be prima facie looked into and further to see whether because of them in these circumstances, confiscation was justified. The first is about carrying on the trade without licence. It cannot be disputed, rather it is admitted by the petitioner himself that he was though possessing (sic) a licence on the date he was checked but it had expired as was not renewed in time. His explanation is that he remained under a mistaken belief that the period of validity of his licence is for five years, while actually it was not so and as soon as be learnt about his mistake on this checking he applied for the renewal from the date of expiry, i e. , with retrospective operation assigning reasons. The authorities considered his request, accepted his request, accepted his plea and therefore on payment of late-fee and fine, his licence was renewed for five years w. e. f the date of expiry. This action on the part of the department amounts to an ex-post facto renewal which has been done and unless in some proceedings it is not held to be against rule or malafide it cannot now be said by the department that he was not working under a licence. Besides this in cases of Essential Commodities Act also mens rea has to be seen atleast for some purposes like the present. In the instant case the facts are peculiar. It is an admitted case of the department that though the licence expired on March 31, 1982, the petitioner treating himself to be a licensed dealer, had been regularly filing the monthly returns without break and this fact shows his bonafides. If the petitioner was negligent in not checking date of expiry in his licence, equally the department showed dereliction in duty in not proceeding against him in time particularly when he was filing the returns in the department without being a licence holder. He was regularly informing the department that he is dealing in wheat as a whole-sale dealer and yet the department did not ask him about licence or did not proceed against him for trading without licence, Fault was thus on both ends, may be due to negligence or otherwise but certainly not with intention to defraud or defeat the provision of law. In these circumstances prima facie it could not be a ground for confiscation of the goods. While dealing with the cases of confiscation it has to be seen that the contravention should be deliberate and there should be mens rea. If there is no material to show intentional contraven-tion, then the order of confiscation is not proper. ;