D.G.R.PATNAIK, J. - (1.) HEARD Sri Sunil Kumar, learned counsel for the petitioner and J.C. to G.P.- I on behalf of the respondent State and with the consent of the learned counsels, this application is taken up today for disposal at the stage of admission.
(2.) THE petitioner has challenged the order dated 17.03.2008 (Annexure-5) passed by the respondent Deputy Commissioner, Gumla in Confiscation Case No. 34/2007-08 whereby the quantities of rice and wheat seized from the possession of the petitioner, have been ordered to be auctioned sold and the sale proceeds to be deposited in the Government Treasury, Gumla. The case of the petitioner is that he is a licence holder of a Fair Price Shop at Panchayat Turidih (Karida) Block, Raidih. He had lifted 47.92 quintals of rice and 1.49 quintals of wheat from the F.C.I. godown on 16.03.2007. Since by the time the foodgrains were lifted, it was already late evening and no transporter was prepared to transport and deliver the foodgrains at his shop at Village Turidih, he had unloaded the foodgrains at his house nearly within P.S. Gumla. On the next day, the police had seized the foodgrains together with 15 quintals of rice which the petitioner had stored for his personal consumption and lodged an F.I.R. against the petitioner on the ground that he had diverted the foodgrains to his house instead of unloading the same at his Fair Price Shop and such diversion was with intent to sell away the foodgrains in black market. The petitioner's licence was promptly suspended by the order of the Sub- Divisional Officer, Gumla dated 03.04.2007 and was also ordered for sale of the seized foodgrains amongst the consumers of Turidih Panchayat through public distribution. A confiscation proceeding was initiated before the respondent Deputy Commissioner vide Confiscation Case No. 34/2007-08. The petitioner had submitted his objections/show cause replies stating the reasons and the circumstances under which the foodgrains had to be diverted to his house due to the hour of late evening after lifting of the foodgrains from the F.C.I. godown. However, by the impugned order, the respondent Deputy Commissioner ordered for confiscation of the foodgrains and for its sale and for depositing the sale proceeds in the Government Treasury, Gumla.
(3.) ASSAILING the impugned order, learned counsel for the petitioner submits that though there is a provision of alternative remedy of appeal against the impugned order, but the petitioner has preferred the instant writ application invoking the writ jurisdiction of this Court on the ground that the impugned order is perverse on the very face of it and against the principles of natural justice. Learned counsel explains that even though, the F.I.R. was lodged against the petitioner under Section 7 of the Essential Commodities Act but the prosecution has not stated as to which control order did not petitioner violate to invite the prosecution for the offence under Section 7 of the Essential Commodities Act. Furthermore, even though in the conditions of the licence, the foodgrains were to be stored and stocked in the Fair Price Shop specified in the licence, but the condition also enables the Fair Price Shop dealer, in extreme unforeseen circumstances, to store the foodgrains at some other place with due intimation to the authorities concerned within 72 hours. Considering the fact that it was already late evening after lifting of the foodgrains from the F.C.I. godown and in absence of the availability of any transport for delivering the foodgrains at the Fair Price Shop, due to fear of extremists, the petitioner had to unload the foodgrains at his house situated nearby and he had intended to inform about the same to the concerned authorities within the period of 72 hours, allowed under the conditions of licence. Such time and opportunity was not allowed to the petitioner since the foodgrains were seized by the police on the very next day within less than 48 hours. Learned counsel adds further that on the ground that the offence under Section 7 of the Essential Commodities Act is not made out in view of the fact that the prosecution has not stated as to which control order has the petitioner violated, the petitioner was granted anticipatory bail by the order of the Hon'ble Patna High Court and furthermore, pursuant to the order passed by the Patna High Court, the petitioner's licence which was suspended by the order of the Sub-Divisional Officer, was restored. Learned counsel explains that these very facts which the petitioner had consistently pleaded before the respondent Deputy Commissioner in the confiscation proceeding were conspicuously ignored and not taken into consideration. Learned counsel adds further that apparently the Deputy Commissioner, while passing the impugned order, has not applied his judicial mind to the facts and circumstances of the case.;