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Judgment
P. Venkatarama Reddi, J
The appellants herein filed Writ Petition No.13593 of 1995 questioning the action of the first respondent in seizing 45 quintals of sunflower oil and the vehicle carrying the same. A direction was sought to drop the proceedings under Sections 6-A and 7 of the Essential Commodities Act. The goods in question were seized by the first respondent under the provisions of Andhra Pradesh Scheduled Commodities Dealers (Licensing and Distribution) Order, 1982. The said Control Order was promulgated u/s 3 read with Section 5 of the Essential Commodities Act. Condition No.7 of the licence issued under the said Control Order was alleged to have been violated. The learned single Judge found that there was prima fade violation of Condition No.7 warranting farther enquiry and, therefore, the seizure as a whole is not vulnerable to attack. Before the learned single Judge, reliance was placed on the decision of this Court in P. Ramachandra Chetty v. Government of India 1978 (2) ALT 212, in which it was held that even before the search leading to seizure is made, reasonable belief has to be formed and in the absence of material disclosing formation of such reasonable belief, the goods are liable to be released and relief could be accordingly granted in a writ petition. That decision was rightly distinguished by the learned single Judge on the ground that the ratio of that decision has no application to a case of search of vehicle in transit and the seizure as a sequel to such search for violation of the provisions of the relevant Control Order. However, the learned single Judge directed that the proceedings for confiscation in respect of the seized goods could only relate to 375 K.Gs for which there was no way-bill and the remaining stock cannot possibly be confiscated as there was no conravention of the Control Order. The writ petition was partly allowed by directing unconditional release of 41.25 quintals of oil, and the balance of 375 KGs. and the vehicle on the condition of the writ petitioner furnishing bank guarantee for a sum of Rs.25,000/-. As the relief granted in the writ petition was not to the satisfaction of (he appellants, the present writ appeal was filed. The learned Judges admitted the writ appeal and directed the matter to be posted before a Full Bench, while doubting the correctness of the judgment in P. Ramachandra Chetty v. Government of India (supra). The question was formulated as follows:
"Should there be any order of release of seized goods or vehicles, which are said to be involved in offences, in exercise of the power of the Court under Article 226 of the Constitution of India is the question involved in the instant appeal".
The Division Bench then observed:
"A Bench of this Court in D. v. Secretary, Ministry of Food and Agriculture, Government of India 1978 (2) ALT 21, has taken the view that if the seizure is illegal and it is so demonstrated, the Court can exercise its power under Article 226 of the Constitution of India and order for the release of the seized goods and vehicles. The matter, in our opinion, requires reconsideration by the Court particularly when against such seizure or at least for the release of (he goods internal remedy is available under the special enactments or even under the general law of the land. We are inclined, for the said reason, to admit the appeal and refer it to a Full Bench for final disposal".
It is brought to our notice that subsequent to the disposal of the writ petition and before the writ appeal came up for admission, the Collector passed an order on 1-4-1996 u/s 6-A read with Section 6-C of the Essential Commodities Act and directed confiscation of 3.75 quintals of oil and also imposed a fine of Rs.2,500/-on account of involvement of the vehicle in the illicit transportation of oil. The learned Counsel for the appellants submits that the appellants have no grievance against the said order of confiscation and that is the reason why the appellants did not pursue the matter further. The learned Counsel for the appellants, in fact, suggested that in view of this fact-situation, the writ appeal may be dismissed as infructuous.
However, an issue which the Division Bench felt to be of sufficient importance having been referred for determination of the Full Bench on the basis of the then existing facts and as we also find that the decision referred to in the reference order is not correctly decided and the said decision is likely to be cited as a precedent, we consider it appropriate and proper to answer the question referred to us.
In our opinion, the question posed by Their Lordships does not admit of a definite answer either in the affirmative or in the negative. There cannot be a fetter on the Constitutional power of this Court under Article 226 to grant appropriate relief, including the release of goods. There cannot be a broad and inflexible proposition that in no case, the High Court can direct release of the goods seized unless and until the proceedings u/s 6-A take their own course. However, having regard to the purpose of the Act and the internal remedies available under the Act, the High Court should be slow and cautious in granting directions for the release of essential commodities, in exercise of jurisdiction under Article 226. In State of West Bengal and Others Vs. Calcutta Hardware Stores and Others, , the Supreme Court while finding fault with the High Court in directing release of the seized goods at the interlocutory stage observed:
".....It is needless to stress that the question whether the seized goods answer the description of tin plates, tin plates waste, waste or waste material etc., or whether the respondents had committed a contravention of Paragraph 3(2) of the West Bengal Declaration of Stocks and Prices of Essential Commodities order issued u/s 3(1) of the Act, which is an offence punishable under Sections 7 and 8, are all questions to be gone into and tried before the learned Special Judge, 24 Paragana, Alipore before whom the trial is pending. That apart, the observations call in question the validity of the action of the Additional Collector in serving a notice of confiscation u/s 6-A of the Act with respect to the seized goods.
We do not see legality and propriety of making these observations by the learned Judges which have the effect of prejudging the whole issue before the learned single Judge who is seized of the writ petition, as also foreclosing the trial of the respondents for commission of the alleged offences."
Adverting to the writ jurisdiction of the High Courts under Article 226, the oft repeated exhortation was reiterated by Their Lordships in the following words:
"Although the powers of the High Court under Article 226 of the Constitution are far and wide and the Judges must ever be vigilant to protect the citizens against arbitrary executive action, nonetheless, the Judges have a constructive role and therefore there is always the need to use such extensive powers with due circumspection. There has to be in the larger public interest an element of self-ordained restraint."
The decision in Shambhu Dayal Agarwala Vs. State of West Bengal and Another, , makes it clear that the release of the goods seized, if ordered as an interim measure, would defeat the objective and scheme of the Act. In that case, it was held that even the Collector who is the competent authority had no power to direct release of the goods seized to the person from whom they were seized pending the proceedings u/s 6-A
Thus, the release of goods seized should not normally and as a rule of prudence, be ordered in exercise of jurisdiction under Article 226 though the powers under Article 226 are wide and untrammeled by any limitations, except self-imposed limitations. It is only in rare and exceptional cases, such a direction, if at all, could be issued. In this category may fall such cases where indisputably and ex facie, the goods were seized without regard to the provisions of any Control order or by an Officer not invested with jurisdiction or there is demonstrable proof of abuse of power suggesting that extraneous considerations weighed with the Officer concerned. If the seizure is wholly outside the provisions of the Control order or the Essential Commodities Act, that could be a ground for quashing the proceedings in exercise of jurisdiction under Article 226. Of course, in doing so, the High Court will not delve deep into the merits, much less into disputed questions of fact. If, on the face of it, the action is wholly outside the provisions of the Act and the seizure is beyond the jurisdiction of the authority concerned, such cases may afford justification to intervene under Article 226. One such case in point is the one decided by the very same learned Judges who referred the matter to the Full Bench, viz., Vinayaka Agro Products Vs. Inspector of Police, VC CSD, Khammam and Another, .
We would only close the discussion on this aspect of the case with an observation that the parameters of the power of the High Court under Article 226 vis-a-vis the seizure of essential commodities cannot be put in a straight jacket formula. The only qualification, which we would like to reiterate, is that the power should only be exercised in rare and really exceptional cases as indicated supra and it can safely be said that the normal rule is not to direct the release until the proceedings are completed.
Coming to the decision in D. Ramachandra Chetty v. Government of India (supra), as much water has flown under the bridge after the decision was rendered, it may not be necessary to enter into an elaborate discussion thereon. Suffice it to observe that the subsequent decisions of the Supreme Court have diluted the authority of that decision. We cannot but get an impression that too liberal an approach was adopted in judging the legality of the seizure in that case. The learned Judges also have gone too far in holding that unless the entry/search is backed up by the formation of reasonable belief, the next step of seizure will also be vitiated irrespective of the fact whether there is reasonable belief for seizure. The learned Judges missed to note that the power to search and the power to seize are not bracketed together though there is nexus between the both. Even if the search is vitiated for the reason that the concerned authority failed to form a reasonable belief, the seizure of the goods on formation of prima facie opinion of contravention of the relevant Control Order does not fall to ground, unless the seizure itself is independently vitiated for any reason. The requirement of reasonable belief for initiating a-search and for effecting seizure can be construed as two independent though allied powers. Above all, as rightly pointed out by the teamed single Judge, the ratio of the said decision cannot have any application to the search of a vehicle in transit. Otherwise, the provision authorising the search designedly conferred on the concerned authorities for the effective enforcement of the provisions under the Essential Commodities Act will be rendered ineffective and will remain a dead letter.
With the clarification of the legal position as above, we dismiss the writ appeal. No costs.