APARESH KUMAR SINGH - (1.) BY way of this interlocutory application the petitioner seeks to add a prayer made in para 10 of the instant I.A., whereby the petitioner seeks to challenge the final order dated 30th December,2007 passed in Confiscation Case No.43/2007 by the Deputy Commissioner, Hazaribagh.
(2.) ACCORDING to the petitioner, the writ petition was preferred initially for quashing the entire confiscation proceeding arising out of the said confiscation case, thereafter, during pendency of the writ petition, the final order, sought to be impugned by way of the instant I.A., has been passed. Therefore, the amendment sought for is necessary in view of the subsequent development, in the interest of justice. Counsel for the respondents does not dispute the same. Accordingly, the petitioner is allowed to incorporate the prayer made in para 10 of the I.A. in the main writ petition. Let the I.A. be treated as part of the main writ petition. Accordingly, I.A.No.663 of 2008 stands disposed of. Heard learned counsel for the parties. This writ petition is directed against the confiscation proceeding in Confiscation Case No.43/2007 initiated before the Deputy Commissioner, Hazaribagh, respondent no.2, wherein 45 bags of wheat containing 100 kg each weighing 45 quintals and 76 bags of rice containing 50 kg each weighing 38 quintals were sought to be confiscated, as they are alleged to have been seized from the custody of the petitioner. According to the partitioner, the above articles were transported through Truck No.BPK 9721 for which valid road permit was issued in favour of the truck/articles, which were loaded in the godown of the petitioner, who used to sell it in the retail market. It is the contention of the petitioner that 5 bags of wheat and 24 bags of rice were sold between 21st May,2007 to 1st June,2007 but suddenly, for no justifiable reason or violation of any order relating to Essential Commodities Act, on 16th March, 2007 the Supply Inspector, Sadar, Hazaribagh, raided the house of the petitioner and on suspicion seized the aforesaid articles on the ground that the same are being restored for the purpose of black marketing. A case was also instituted under Section 7 of the E.C.Act, vide Sadar P.S.Case no.373/2007, Annexure 3 to the writ petition. By subsequent amendment the final order passed in confiscation proceeding being order dated 30th December,2007 by the respondent no.2 has also been challenged in the instant writ petition. Learned counsel for the petitioner, relying upon the Notification dated 24th April,2002 issued by the Food Supply and Commerce Department, Government of Jharkhand, Annexure 8, submits that in view of the Government of India Gazette Notification dated 15th February,2002, the State Government has issued a consequential notification wherein the storage, sale, transportation, distribution etc. of articles such as wheat, paddy, rice and other edible articles have been released from the schedule of Essential Commodities Act,1955 and the requirement of permit or licence has also been abolished.
(3.) LEARNED counsel for the petitioner, on the basis of the aforesaid facts, submits that simply on account of the fact that the bags bear the FCI marks do not implicate the petitioner of having indulged in violation of the Essential Commodities Act or any control order issued under the said Act. LEARNED counsel for the petitioner also relied upon judgments rendered by this Court, as has been brought on record as Annexure 9 series by way of reply to the counter affidavit in the case of Vijay Sao vs. State of Jharkhand, WP(C) No.4447/2007, Nawal Prasad Sao vs. State of Jharkhand and others, WP(C) No.4335/2007 and Bajrangi Kedia @ Jhagru Seth vs. State of Jharkhand and others, WP(C) No.4384/2007. It is submitted on behalf of the counsel for the petitioner that in those cases it is held that wheat/rice does not come within the schedule of Essential Commodities Act and the respondents have no power to confiscate the same in the purported exercise of power under Section 6(2) of the E.C. Act. The confiscation proceeding itself was quashed as being without jurisdiction by directing the respondents to release the articles in favour of the said petitioner. The learned counsel for the petitioner also submits that in view of Annexure 8 to the writ petition, vide para 30 of the writ petition, these articles have been exempted from the purview of control order under the E.C.Act, which has not been denied in the counter affidavit either on the part of the respondents. Learned counsel for the respondents, on the other hand, submits that these articles were seized from the petitioner's godown as they bear the marks of FCI meant for public distribution system. However, learned counsel for the respondents is not in a position to dispute that the said articles have been brought out of the control order by virtue of Notification contained in Annexure 8, issued by the Government of Jharkhand pursuant to the Gazette Notification dated 15.2.2002 issued by the Government of India. From the submission of the counsel for the parties and from perusal of the relevant materials brought on record including the judgments relied upon by the petitioner, it appears that the confiscation proceedings have been initiated in respect of the articles, which do not come within the purview of control order under the E.C. Act. In similar circumstances the confiscation proceedings initiated in respect of other persons were quashed by this Court in WP(C) No.4447/2007 vide judgment dated 7th November,2007, WP(C) No.4335/2007 vide judgment dated 7th November,2007 and WP(C) No.4384/2007 decided on the same day i.e. 7.11.2007. Relying upon the other judgments of this Court, this Court has also considered the issue that the institution of an FIR in respect of the same materials is no ground to continue with a confiscation proceeding, which is without jurisdiction. In the circumstances, the impugned order dated 30th December,2007 passed in Confiscation Case No.43/2007 cannot be sustained in law and, accordingly, it is quashed and respondents are directed to release the seized articles in favour of the petitioner within a period of four weeks from the date of receipt of a copy of this order. This writ petition stands allowed. ;