SURENDRA PRASAD AND ANOTHER Vs. THE STATE OF BIHAR & ORS.

JUDGEMENT

(1.) The petitioners have moved this Court for quashing the seizure of fertilizers (Annexure -1), which was done under the provisions of Fertilizers (Control) Order, 1957 and the show cause notice issued under the confiscation proceeding (Annexure -4), the order of the Collector passed in the proceeding under Sec. 6A of the Essential Commodities Act, Certain facts have to be stated in -order to appreciate the points. Petitioner No. 1 is the licensee under the Fertilizers (Control) Order and petitioner No. 2 is the employee. On 13.9.1980 the Anchal Adhikari (respondent No. 3) came to the shop of the petitioners and after breaking open the lock verified the stocks and a first information report was lodged on 19.9.1980. The fertilizers were seized and a seizure list was prepared, which is Annexure -1. Thereafter, first information report was lodged, a copy whereof has been filed as Annexure -2. A proceeding under Sec. 6A of the Essential Commodities Act was started in order to confiscate the seized stocks of fertilizers and notice was served on the petitioners (Annexure -4). The learned Collector by his order dated 22.6.1981 ordered for confiscation of the seized articles. A copy of the order has been filed and marked Annexure -5. Against the aforesaid order the petitioners have moved this Court.

(2.) Mr. G.C. Bharuka learned counsel appearing on behalf of the petitioners, has contended that the seizure of the articles was wholly illegal and unjustified and, therefore, no confiscation proceeding could have been initiated under Sec. 6A of the Essential Commodities Act, The contention is that the Anchal Adhikari, respondent No. 3, is not a competent authority under the provisions of the Fertilizers (Control) Order, 1957 and, therefore, the seizure made by respondent No. 3 was wholly invalid and without jurisdiction and fit to be quashed and, accordingly, the confiscation proceeding started against the petitioners on the basis of that illegal seizure also must be quashed. In support of his contention reliance has been placed on a Bench decision of this Court in the case of Suresh Parsad and another v/s. State of Bihar & ors. [1978 (LVII) I.L.R. Pat 988:, 1981 BRLJ 1]. In that case the seizure of fertilizers was made by the Inspector of C.I.D. (Food) and a similar point was raised that he was not an Inspector as required under clause 19 of the Fertilizers (Control) Order, and, therefore, the seizure was bad. On a consideration of various authorities, it was held that a valid seizure was a sine qua non forgiving jurisdiction to a Collector for starting a proceeding for confiscation of Essential commodities.

(3.) In my opinion the contention raised on behalf of the petitioners is well -founded and has to be accepted, in the counter affidavit filed on behalf of the State it has been stated that all Magistrates have been given the power of Inspector as required under clause 19 of the Fertilizers (Control) Order, but the two notifications, which have been appended along with the counter affidavit, are subsequent to 18.9.1980 and, therefore, those will not be relevant in the instant case. In that view of the matter it will not be necessary to decide in this case whether the Anchal Adhikari was also empowered to act as Inspector under the Fertilizers (Control) Order. It has also been stated in the counter affidavit that there was a violation of the Bihar Essential Articles (Display of Prices & Stocks) Order, 1977. Learned counsel, appearing on behalf of the petitioners, has submitted that fertilizer was brought under the schedule by notification dated 8.5.1980, which was challenged in this Court and in the case of Madhusudan Prasad v/s. The State of Bihar & ors. (Cr.W.J.C. 212 of 1981; disposed of on 25.11.81) it has been held that inclusion of fertilizer in the schedule was without any authority of law. Therefore, it cannot be said in the instant case that there was a violation of the Display Order. The application is, accordingly, allowed and the seizure (Annexure -1) and the order of the Collector (Annexure -5) are hereby quashed. It is not known what is the stage of the criminal prosecution. However, if any action is taken against the petitioners, it will be open for them to move the court concerned or any other higher court for any appropriate relief.