Puran Sah vs State Of Bihar & Ors

Heard learned counsel for the petitioner and the State.

In this writ application the following prayers have been made :-

“(i) For issuance of writ in the nature of certiorari to quash the order dated 4.9.2017 passed by the Court of sessions Judge, Bhagalpur in cr Rev

No 123 of 2017 by which learned Sessions Judge has been pleased to pass an order holding therein that the court is not require any interference with

the order of S.D.J.M, Bhagalpur dated 19.6.2017 passed in connection with Sabour (Goradih) P.S Case no 21/2017 and rejected the petition of the

petitioner for release of seized grains on the ground that a confiscation proceeding is pending before the District Magistrate, Bhagalpur relating to the

said seized grains.

(ii) For issuance of writ in the nature of mandamus commanding and directing the respondents concerned to release the seized grains(rice) in favour

of the petitioner as he is not named in the F.I.R. and seized grains are his own produced grains for the purpose of his business and not belonging of

Control shop as alleged.

(iii) For holding and declaration that seized grains are not of Control Shop, rather it is own purchased by the petitioner for the purpose of business.

(iv) And/or pass such other order or orders as deem fit and proper in the interest of justice.â€​

On going through the impugned order dated 04.09.2017 passed by learned Sessions Judge, Bhagalpur in Criminal Revision No. 123 of 2017 it

appears that during the pendency of the said revision application, a confiscation proceeding was initiated by the District Magistrate, Bhagalpur giving

rise to Misc. EC 6A Case No. 107/2017-18 and in the said confiscation proceeding the District Magistrate directed vide his order dated 13.07.2017 a

copy of which has been brought on record with the counter affidavit filed on behalf of respondent no. 4 that the Block Supply Officer, Goradih shall

get sold the seized rice to the public distribution shops and the amount received through such sale shall be deposited in the district treasury.

He also directed that the seized vehicle (Pick Up No. BR-10G-7753) shall be kept safely in the police station and a report with regard to the

ownership of the Pick Up van shall be obtained from the office of B.D.O., Bhagalpur. In the present writ application the petitioner claims that he is

the owner of the rice in question and is entitled to get release of the same.

Learned counsel for the petitioner argues that the seizure in question was wholly illegal as it would appear from the materials available on the

record that one Ramesh Mandal who claims that he is the Sarpanch of Gram Panchayat Nadiama had intercepted the Pick Up van with loaded rice in

the night of 22.01.2017 at 10:00 PM. He claimed that he had received an information that the public distribution shop dealer Ganesh Prasad Sah was

stealthily going to sale the rice of the ration shop by way of committing theft. It is submitted that the vehicle in question was not intercepted by the

police or the Block Supply Officer and even though the said Ramesh Mandal claimed that he had intercepted the vehicle with loaded rice on

22.01.2017 in the night hour at 10:00 PM, the written information in this regard was given to the Officer In-charge of the Goradih Police Station vide

his letter dated 24.01.2017 and the FIR in question has been lodged on 30.01.2017 under Section 7 of the Essential Commodities Act only when the

Block Supply Officer, Goradih lodged the written complaint with the Officer In-charge of Goradih O.P. stating therein that Ramesh Mandal had

intercepted the vehicle which was loaded with rice packed in plastic bags and those bags were 73 in numbers, all the bags were having more than 60

Kg. of rice. He claimed that the sample of the rice gives an impression that it is a government subsidized rice. The Block Supply Officer claimed that

by indulging in stealthily attempting to take away the rice during night hours it appears that the vehicle owner had been indulging in sale of rice in black

market and he raised the suspicion that the dealer might have maintained the register without actually supplying the rice to the beneficiaries.

In his written report addressed to the Officer In-charge of the concerned O.P. the Block Supply Officer has mentioned that in course of inspection of

the public distribution shop of Ganesh Sah on 25.01.2017 the rice and wheat stored in the shop were as per the register maintained, thus he did not find

any discrepancy in the wheat and rice available in the shop and register maintained in that shop.

It is the case of the petitioner that he is the owner of the rice and had been taking the rice for sale in the market but Ramesh Mandal in convince

with the police authorities intercepted the vehicle and without taking any step in accordance with law the vehicle and the rice were lying in possession

of Ramesh Mandal. The F.I.R. was lodged only on 30.01.2017. Block Supply Officer had conducted inspection of the public distribution shop of

Ganesh Sah but no discrepancy was found in the shop. A first information report was lodged on mere baseless suspicion, more over during the

pendency of the revision application itself the rice was sold by the District Magistrate without giving any opportunity to the petitioner. The order to sale

the rice was taken in haste without there being any legal and valid reason. Rice cannot be said to be a perishable item, thus the power conferred upon

the District Magistrate under Section 6(2-A) of the E.C. Act, 1955 has not been exercised in accordance with law.

On the other hand, learned counsel representing the State submits that this writ application as framed cannot proceeds in the facts and

circumstances of the case. It is submitted that the rice in question has already been sold to the public distribution shop as per order dated 13.07.2017

passed by the District Magistrate, Bhagalpur. The order of the District Magistrate has been sought to be defended citing provisions contained in

Section 6 of the Essential Commodities

It is submitted that in such circumstances where the goods were perishable in nature and there likely to decay over the period, the District

Magistrate has got power to pass an order for sale of such goods and in this case the power exercised by the District Magistrate is in accordance with

law. It is further submitted that the confiscation proceeding and the order dated 13.07.2017 passed by the District Magistrate, Bhagalpur has not been

challenged by the petitioner in the present writ application, more over there is no prima facie proof of ownership of rice in favour of petitioner and,

therefore, in the given circumstance if the order by which the District Magistrate, Bhagalpur directed the sale of rice is not under challenge, the reliefs

prayed for a direction to deliver seized rice to the petitioner seems to be misconceived. In the given circumstances now question of release of rice

does not arise.

Having heard learned counsel for the parties and upon perusal of the records this Court finds that the petitioner in the present case has not

challenged the order dated 13.07.2017 passed by District Magistrate, Bhagalpur and no alternative prayer has been made in the facts and

circumstances of this Case. The reliefs as prayed in the writ application cannot be granted in present circumstance. The petitioner, if so advised may

file a fresh application in appropriate jurisdiction for redressal of his grievances. All question raised in the present writ application shall remain open.

For the present this Court has taken note of the submissions of the parties without expressing any opinion on merit.