Qudrat Ali and Others vs State of U.P.

Khem Karan, J.—This revision u/s 401 of the Cr. P.C., is directed against the order dated 26.7.1982 passed by VI Ith Additional Sessions Judge, Unnao in Criminal Appeal No. 72 of 1982, by which he upheld the order dated 28.5.1982 passed by Collector, Unnao, u/s 6A of the Essential Commodities Act.

It appears that a Truck No. UTW-3446 belonging to revisionist Qudrat Ali and driven by the revisionist Annoo, carrying foodgrains, such as wheat barley, gram ; urd, groundnut, etc. weighing in all more than 100 quintals, was intercepted by the police on 30.7.1981, within the limits of Police Station Bangarmau of district Unnao, on the grounds, inter alia, that the owner and the driver were engaged in the business of sale and purchase of foodgrains, without having a valid licence under the U. P. Foodgrains Dealers (Licensing and Registration on Holding) Order, 1976 and were storing foodgrains beyond the permissible limits, without any licence so far and had, therefore, committed contra-vention of the said Control Order, which was punishable u/s 3/7 of the Essential Commodities Act.

The Commissioner, to whom the seizure was reported issued a notice to the owner u/s 6B of the said Act. In reply, the revisionists Nos. 1 and 2 said that in fact the truck was carrying the foodgrains from Gang-Moradabad to Bangarmau and the foodgrains belonged to different farmers such as Babu Lal, Abdul Haleem, Shree Narain, Kandhai, who had loaded the same on the truck for being taken to Bangarmau market for sale. In other words, they denied that they were engaged in the sale and purchase of the foodgrains or were storing the foodgrains for the purposes of sale or purchase.

The order dated 28.5.1982 of the Collector, Unnao, reveals that no evidence was adduced in support of the contravention of the Control Order, but evidence was adduced to support the case that the truck was carrying foodgrains belonging to different farmers from one place to another in the same district. As many as 5 witnesses were examined by the revisionists in support of their defence. The Collector formed the opinion that the defence plea was belated and ill-founded and it was well-established that the revisionists No. 1 was engaged in the business of sale and purchase of the foodgrains or was storing the foodgrains beyond the permissible limit, without having any valid licence under the said Control Order of 1976. He, therefore, ordered confiscation of the foodgrains so seized and the confiscation of the truck carrying the foodgrains, but gave liberty to the owner that if he deposited adequate equal price of the foodgrains, the truck would be released. Aggrieved of this order of confiscation, the revisionists preferred an appeal u/s 6C of the Essential Commodities Act before the learned Sessions Judge, Unnao. This appeal was dismissed by the learned VI Ith Additional Sessions Judge, Unnao.

Sri S. M. Nasir, learned Counsel for the revisionists has argued that the order of the Collector and the order of the appellate court, are contrary to law because no material was placed before the Collector to prove the contravention of the Control Order. He says that the Collector proceeded on the assumption as if the contravention of the Control Order was well-established and the revisionists had to disprove the same. He says that not even a single witness appeared in support of the notice u/s 6B or to show that the revisionist Qudrat or his driver were engaged in the trade of purchase and sale of the foodgrains or were storing the foodgrains for the purposes of such trade. Learned Counsel goes on to argue that mere transporting of the foodgrains, without any previous transaction of sale and purchase, was not sufficient enough to establish that the owner of the truck or the driver were engaged in the business of sale and purchase of the foodgrains or were storing the foodgrains for the purposes of sale or purchase. Sri Nasir says that evidence should have been adduced to prove the contravention and to disprove the defence version.

The power of confiscation u/s 6A of the Essential Commodities Act, 1955, is to be exercised only when the Collector is satisfied that there has been contravention of any Control Order issued u/s 3 of the Act of 1955. In other words, the contravention of Control Order is the foundation of confiscation order. If the contravention is not proved to the satisfaction of the Collector, there can be no confiscation order. There is no presumption of the contravention of a particular Control Order. The allegation of contravention of a particular Control Order has to be proved by adducing reliable evidence.

Clause (3) of the Control Order, 1976, says that no person shall carry on business as a dealer or commission agent except under and in accordance with the terms and conditions of a licence issued in this behalf by a licencing authority. Its Sub-clause (2) further provides that any person who stores any foodgrain in quantity of 5 quintals or more of any one of the foodgrains or 25 quintals of foodgrains taken in all at any time, shall unless contrary is proved, be deemed to store the foodgrains for the purposes of sale.

In the instant case, the foodgrains in question were being transported from one place to another. In absence of any positive evidence to prove that the same were being transported in connection with the business, it was difficult to say that Clause (3) (1) of the said Control Order was contravened. It was for the authorities to prove that the said foodgrains were being transported as part of the business of sale and purchase. The evidence adduced by the revisionists established beyond reasonable doubt that various foodgrains belonging to different farmers and were being taken to Bangarmau market for sale. It was not uncommon in the country side to take foodgrains to a market for sale. If two or more farmers or owners of the foodgrains were transporting the foodgrains to a nearby market for sale, it could not be said that the transporter was carrying on business as a dealer or commission agent. In my view, he was simply transporting the foodgrains belonging to Ors. and was not storing the same. The Collector as well as the appellate authority fell in error in coming to the conclusion that the revisionists were engaged in the business as a dealer or commission agent. It was not a case of business in the sale and purchase of the foodgrains, but it was a case of transporting the foodgrains of various farmers from one place to a nearby market for sale. So, I am of the view that no contravention of the said Control Order was proved and so the order of confiscation and the appellate order against the same, are not according to law and deserve to be set aside.

The order of confiscation passed by the Collector providing that if the owner of the truck deposits the money equal to the price of the foodgrains, the vehicle will stand released does not appear to be in consonance with the law, as held by the Apex Court in Dy. Commissioner Dakshin Kannad District v. Rudolph Fernandes 2000 SCC 632. It has been said that the penalty or the price should be equal to the value of the vehicle and not equal to the value of the foodgrains or essential commodity.

In the result, the revision is allowed and the orders of confiscation as well as the order of dismissal of appeal against confiscation, are set aside. The confiscated material or its price, whichever, is available, shall be returned to the revisionists as described by them.