P. Appavu Gounder vs Collector of South Arcot Dt. at Cuddalore

This is a revision against the order of the learned-Sessions Judge of South Arcot at Cuddalore, partly allowing the appeal and modifying the

order of the Collector of South Arcot, who confiscated to the Government 50 bags of paddy. The learned Sessions Judge modified the order of

the Collector by directing only 25 bags of paddy to be confiscated to the Government.

Both the order of the Collector and the judgment of the learned Sessions Judge cannot be sustained for the reasons to be stated hereafter. On

21-6-1976, the Assistant Collector, Tindivanam, along with the Assistant Taluk Supply Officer, Tindivanam, and the Purchase Officer, Tamil

Nadu Civil Supplies Corporation Ltd., Tindivanam, inspected the business premises and the godown of Messrs M. V. Arunachalam and S.

Dhanapal. Agent, Tamil Nadu Civil Supplies Corporation Ltd., Tindivanam and found 50 bags of paddy in excess of the stock entered in the

register. The petitioner, who is an agriculturist, claims to be the owner of the 50 bags of paddy. These 50 bags of paddy and another 76 bags of

paddy alleged to belong to Messrs M. V. Arunachalam and S. Dhanapal were seized by the aforesaid officials of the Revenue Department and

handed over to the Branch Manager, South Arcot District Co-operative Supply and Marketing Society. Tindivanam for safe custody and a report

was sent to the Collector of South Arcot.

A notice dated 6-10-1976 u/s 6-B of the Essential Commodities Act (to be hereafter referred to as the Act) read with the provisions of the

Tamil Nadu Paddy and Rice (Regulation of Trade) Order, 1974 (to be referred to hereafter as the Order) wag issued by an anonymous official of

the Revenue department, whose name is not decipherable from the copy of the notice issued by him on behalf of the Government, as his initial is

merely a geometrical figure over which there is a curve with a downward stroke at left extreme, to show cause why the entire stock of 126 bags of

paddy and gunnies seized should not be confiscated to the Government u/s 6A of the Act. The representations made by the petitioner in support of

his claim for 50 bags out of 126 bags of paddy seized were rejected and the aforesaid order was passed by the Collector and subsequently

modified by the learned Sessions Judge.

Clause 25 of the Order relating to powers of entry, seizure, search etc. lays down that -

(1) If any competent officer has reason to believe that any contravention of this Order has been committed or is being committed or is about to be

committed such officer, may by himself or authorise any other officer to -

(a) inspect any book, account or other document or any stock of paddy or rice in the possession or under the control of any person; ...............

(e) seize the stock of paddy or rice along with the package, coverings or receptacles in which such paddy or rice is found or animals, vehicles,

vessels, boats or other conveyances used in carrying such paddy or rice .........

It is seen from the report of the Assistant Collector. Tindivanam dated 23-6-1976 in B.O. No. 18231/76 that he ""inspected the business premises

of Messrs, M. V. Arunachalam and S. Dhanabal at No. 54 Gingee Road, Tindivanam and their godown at No. 20/2 Gingee Road, Tindivanam

along with the Assistant Taluk Supply Officer, Tindivanam and Purchase Officer Thiru Chandran of Tamil Nadu Civil Supplies Corporation,

Tindivanam on 21-6-1976 by surprise and checked the accounts and stock"" and that he found - ""that the stock at 54 Gingee Road, Tindivanam,

was 42 bags of paddy and another 84 bags of 75 kgs. each at 20/2 Gingee Road (godown) as against the total book balance of 76 bags of

paddy.

He has not stated in his report that he had reason to believe that any contravention of the order had been committed or was being committed or

was about to be committed and that, therefore, he inspected the books of accounts and other documents and the stock of paddy and rice in the

possession or under the control of the petitioner. It is not unlikely that he had such information and therefore, had reason to believe that such a

contravention as referred to above has been or was being or was about to be committed. But then he should have said so in his report to the

Collector. It is unfortunate that the Assistant Collector failed to state in his report that he had such reason to believe as aforesaid and, therefore,

inspected the premises, the stock and the books of accounts. In the absence of such a statement by the Assistant Collector. I am unable to come

to the conclusion that he had reason to believe that any contravention of the order has been committed or was being committed or was about to be

committed.

In the circumstances, the ratio of K.L. Subbayya Vs. State of Karnataka, would apply to the facts of the instant case. That was a case in which

the accused was convicted for being found in possession of 45 bottles of liquor, which were recovered from a car which was being driven by him.

It was contended in that case by the counsel for the accused, who was the appellant, that ""........ the Inspector of Excise who searched the car

along with the panches had no jurisdiction to do so because he did so without complying with the provisions of S. 54 of the Excise Act"".

In the circumstances the Supreme Court held that -

....... the contention is well founded and must prevail. Section 53 runs thus - ""If a Magistrate upon information and after such inquiry (if any) as he

thinks necessary, has reason to believe that an offence under Sections 32, 33, 34, 36, 37, 53 or Section 37 has been, is being or is likely to be

committed he may issue a warrant -

(a) for the search of any place in which he has reason to believe, that any intoxicant still, utensil, implement, apparatus or materials which are used

for the commission of such offence or in respect of which such offence has been, is being or is likely to be, committed, are kept or concealed; and

(b) for the arrest of any person whom he has reason to believe to have been, to be or to be likely to be engaged in the commission of any such

offence."" Thus, this section relates to a contingency where the statute enjoins that any Inspector before searching a place must obtain a warrant

from the Magistrate, Section 54 is a special provision which arises in urgent cases where it may not be possible for the Officer concerned to get a

warrant from the Magistrate. Section 54 runs thus -

Whenever the Excise Commissioner or a Deputy Commissioner or any police Officer not below the rank of an Officer in charge of a Police

Station or any Excise Officer not below such rank as may be prescribed has reason to believe that an offence under S. 32, S. 33, S. 34, S. 36 or

Section 37 has been, is being or is likely to be committed and that a search warrant cannot be obtained without affording the offender an

opportunity of escape or of concealing evidence of the offence, he may after recording the grounds of his belief -

(a) at any time by day or by night enter and search any place and seize anything found therein which he has reason to believe to be liable to

confiscation under this Act : and

(b) detain and search and if he thinks proper arrest any person found in such place when he has reason to believe to be guilty of such offence as

aforesaid.

In the instant case, it is admitted that the Inspector who searched the car of the appellant had not made any record of any ground on the basis of

which he had areasonable belief that an offence under the Act was being committed thus the provisions of Section 54 were not at all complied

with. This, therefore, renders the entire search without jurisdiction and as a logical corollary vitiates the conviction. We feel that both Sections 53

and 54 contain valuable safe-guards for the liberty of the citizen in order to protect them from ill founded or frivolous prosecution or harassment"".

Subsequently, their Lordships have observed that they were satisfied that there was a direct non-compliance of the provisions of S. 54 which

renders the search completely without jurisdiction. Theriefore the appeal was allowed and the conviction and sentence were set aside.

The ratio of this decision has been followed by me in M. Perumal v. State in Criminal R.C. No. 807 of 1976, an extract from which has been

reported in 1980 TLNJ 171. The observations therein apply to the facts of the instant case, because, there is nothing on record to prove that

before entering the business premises of the revision petitioner and checking the books of account and the stock with reference to the books of

accounts, the Assistant Collector had reason to believe that any contravention of the provisions of the Tamil Nadu Paddy and Rice (Regulation of

Trade) Order, 1974 had been committed or was being committed or was about to be committed.

A subtle distinction is sought to be made between a prosecution and an order of confiscation. An order of confiscation cannot be passed

unless an offence had been committed, and, therefore whether in a criminal case in which the accused is prosecuted or in proceedings before

Collector in which confiscation is ordered, the provisions of the Order should be strictly complied with, as the provisions have been incorporated

for the purpose of providing safe-guards for the liberty of the citizens and to protect them from ill-founded or frivolous search and harassment. On

this ground, the order of confiscation has to be set aside.

However, there is another and equally serious infirmity in the proceedings which terminated in the order of confiscation passed by the

Collector. By reason of S. 6B of the Act, no order confiscating any essential commodity shall be made under S. 6A unless the owner of such

essential commodity or the person from whom it is seized is given a notice in writing informing him of the grounds on which it is proposed to

confiscate the essential commodity, and is given an opportunity of making a representation in writing within such reasonable time as may be

specified in the notice against the grounds of confiscation and is also given a reasonable opportunity of being heard in the matter. However, no

orders confiscating any essential commodity shall be invalid merely by reason of any defect or irregularity in the notice given under Clause (a) of

sub-section (1), if in giving such notice, the provisions of that clause have been substantially complied with.

Section 6A of the Act empowers the Collector to order confiscation of the essential commodity seized if he is satisfied that there has been a

contravention of the order. Prior to 2-9-1976, the Collector alone could issue a notice and also pass an order of confiscation. However, by reason

of an amendment made by Act 92 of 1976 Collector'' includes an Additional Collector and such other officer, not below the rank of Sub-

Divisional Officer, as may be authorised by the Collector to perform the functions and exercise the powers of the Collector under this Act. In the

instant case, the notice u/s 6B of the Act has not been issued either by the Collector or by such other officer not below the rank of the Sub-

Divisional Magistrate as might have been authorised by the Collector to perform the functions and exercise the powers of the Collector under the

Act. The person who has initialled the office copy of the notice has purported to act for the Collector and not on his own behalf and could not have

been therefore a person authorised by the Collector as contemplated by Section 2(i-a) of the Act. There is nothing on record to show that the

person who issued the notice had been duly authorised by the Collector to perform the functions and exercise the powers of the Collector under

the Act. Therefore the notice dated 6-10-1976 issued by a person on behalf of the Collector is not a proper notice. Consequently it follows that

the order of confiscation was passed without any valid notice. Therefore, also, the order of the Collector has to be set aside.

In the result, this revision is allowed and the order of confiscation passed by the Collector and the judgment of the learned Sessions Judge are

set aside.

Revision allowed.