Agarwal M.P. and Co. vs State of Assam and Another

V.D. Gyani, J.—By this petition under Article 226 of the Constitution, the Petitioner seeks to challenge the Respondents action of search and seizure, its eventual confiscation and the order of forfeiture in respect of the Articles as enlisted in the Seizure list, Annexure -I, from serial No. 4 to 10. The Petitioner approached the Sessions Judge, Jorhat, who by his order dated 13.2.90, directed the Respondents that the seized goods be given at the disposal of the accused/Petitioner on his filing a security for Rs. 50,000/- (Rupees fifty thousand) only. After the aforesaid order passed by the Sessions Judge, the Petitioner approached this Court with the present petition and by the order dated 7.6.90, this Court directed that on furnishing a security bond as ordered by the Sessions Judge, the Petitioner was at liberty to dispose of the seized articles. The learned Counsel states that in view of this order, the seized articles have been disposed of by the Petitioner.

The most striking feature of this petition is that ever since the aforesaid order was passed on 7.6.90, during all these six years this petition was never listed and today it has come up for hearing. Despite the interim order passed, no return or counter has been filed by the State/Respondents although the order was passed after hearing the learned Additional Senior Govt. Advocate. Six years have rolled by and the interim order is still effective and operating. Such orders when passed, it is expected of the Registry to see that the matter is listed as early as possible. What is surprising is that, even the Respondents never felt that in view of the interim order the hearing should be expedited and have never moved the Court. The parties may be remiss, but it is the duty of the Registry to see that petitions with interim orders of stay are not allowed to be passed over for years and years together as in the instant case, which is not the solitary instance - there are several such other cases. It adversely reflects on the functioning of the Registry.

Coming to the case, the learned Counsel appearing for the Petitioner urged that the power of search and seizure is not an absolute power. Since it invades the rights of a citizen to carry on his business, it must be exercised strictly within the permissible limits of law and must satisfy the requirements whenever questioned. Referring to Clause 30 of the Assam Trade Articles (Licensing and Control) Order, 1982 and placing reliance on two judgments of this Court reported in 1992 (2) GLJ 173 and 1992 (2) GLJ 232, the learned Counsel submitted that there is nothing on record to support the essential requirements of ''reason to believe'' which cannot exist in vacuum of facts. The learned Government Advocate appearing for the Respondents pointed out that there is not a whisper in the petition about any such ground. Reading clause 30 as a whole, it would be seen that the power of entry, search and seizure is conferred on the officials enumerated in Sub-clause (1) and it is with the avowed object, as can be gathered from the following words:

with a view to securing the compliance of this Order to satisfy himself that this Order has been complied with....

Thus it is the compliance of the Order and not a fanciful wish of any official that the premises of a businessman can be invaded or raided. The primary object is the compliance of the Order.

Section 6-A of the Essential Commodities Act, for short the Act, empowers the Collector to confiscate essential commodities on his satisfaction that there has been a contravention of any Order promulgated u/s 3 of the Essential Commodities Act. This power is to be exercised when a report of seizure is placed before him and he thinks it expedient so to do that he may order production of such seized articles before him. Sub-section (2) of Section 6-A further provides that on receiving a report of seizure or of inspection of the essential commodity, if he forms an opinion that the essential commodity is subject to speedy and natural decay or it is otherwise expedient in the public interest so to do, he may order the same to be sold at controlled price fixed for such essential commodity and where no such price is fixed, order the same to be sold by public auction. But before any such order of sale either at the controlled price or by public auction is made, the Collector is required to form an opinion that the seized goods or commodities are perishable and subject to speedy decay or that it is in public interest to sell the same. Adverting to the order passed by the Deputy Commissioner (Collector of the District) on 29th December, 1989 it reads as follows:

Seen the report and other documents regarding seizure of Essential Commodities on 18.11.89 last from Sri Mahabir Prasad Agarwalla, proprietor of M/S Agarwal M.P. & Co. Jorhat by Sri A.S. Dutta, Sub-Inspector, Food & Civil Supplies, Jorhat. Also perused the reply to the show cause notice submitted by the proprietor of Agarwal M.P. & Co. on 5.12.89 last with comments of the Investigating Officer.

Both reply and comments are not satisfactory. Hence pending further enquiry on the matter the seized articles are ordered to be sold through Stated, Jorhat and sale proceeds deposited into treasury under Revenue deposit.

It would be seen from the above order that he was not satisfied with the comments offered by the Investigating officer and further enquiry was contemplated. The order does not reflect his application of mind with regard to the essential condition that the articles seized were of perishable nature and subject to such speedy decay that they could not be retained specially pending further enquiry. There is absolutely no indication in the order passed by the Deputy Commissioner that the proposed sale was in the public interest. The order fails on the touchstone of the essential condition which confers jurisdiction on the Deputy Commissioner to pass an order of confiscation u/s 6-A of the Act. On this short ground alone, the impugned order is liable to be quashed and the subsequent action as well is liable to be quashed.

So far as Annexure-XII is concerned, it has been passed by the Deputy Director, Food & Civil Supplies. In the scheme under the Act, reading Section 6-A and Section 6-B together, it is throughout the Collector who has been conferred with the power of confiscation on issuance of show cause notice. The Director or the Deputy Director of the Food & Civil Supplies Department is no where mentioned in the Act; nor does the language of Sections 6-A and 6-B permit delegation of power of the essential function which under the Act is solely conferred on the Collector. The law does not permit delegation of power as indeed it is the formation of the opinion of the Collector, a function which cannot be otherwise delegated to subordinates or some other authorities. The order dated 21st May, 1990 as passed by the Deputy Director is patently without any authority of law. It is accordingly quashed.

Section 6-A of the Act deals with confiscation of essential commodities seized in pursuance of orders and notifications promulgated u/s 3 of the Essential Commodities Act. The discretion and power conferred u/s 6-A of the Act is not only a power conferred but it is a power conferred with a corresponding public duty and any authority while passing orders in exercise of powers conferred u/s 6-A of the Act must be alive to the public duty. It is this part which is sadly lacking in the order passed by the Deputy Commissioner.

This petition deserves to be allowed. It is accordingly allowed. The impugned order and the Respondents actions are quashed. The bond, if furnished by the Petitioner, stands cancelled.