Shyam Sundar Mal vs The State of West Bengal

Asish Baran Mukherjeee, J.—This is an application preferred under Article 227 of the Constitution. A proceeding u/s 6A of the Essential Commodities Act of 1955 was instituted before the Ld. Sub-Divisional Magistrate, Arambagh being confiscation Case No. ] of 1996 arising out of Arambagh P.S. Case No. 32 dated 9.2.96 u/s 7(1) (a) (ii) of the E.C.Act for alleged contravention of Para 3 of the West Bengal Baby Food Licensing Order, 1966 read with Paragraph 3(s) of the West Bengal Declaration of Stocks and Prices of Essential Commodities Order 1977. On 9.2.96, a Sub-Inspector of Police attached to the D.E.B., Hooghly, along with the O.C. of the Arambagh P.S. went to the place of business of the petitioner and asked for some documents which were produced and verified. On scrutiny there was an allegation of shortage of some of the items due to the reason that article shown on 8.2.96 were not taken into consideration. Accordingly, a complaint was lodged for violation of control orders and the articles in the shop were seized and given in custody of a person as Jimmadar. The contention of the petitioner is that there was no violation.

Another proceeding u/s 6A of the E.C.Act was started on 14.3.96. A notice was served on the petitioner directing him to appear and to file show cause.

It was been challenged that starting of a proceeding u/s 6A, E.C.Act is dependent on the satisfaction of the Collector about contravention of an order. No such satisfaction was recorded by the Collector and the notice issued on the petitioner does not conform to the mandate of Section 5B of the E.C.Act. Accordingly, confiscation case has been sought to be quashed on a finding that the notice is not in accordance with law.

I have given my careful consideration to the submissions made by the Ld. Advocates appearing for the petitioner and also the State, I have perused the initial order of the confiscation proceeding being dated 19.2.96 and have also scrutinised the notice issued in accordance with Section 6A of the E.C.Act and have come to the conclusion that the mandatory provisions of law have been violated by the Ld. Sub-Divisional Magistrate, Arambagh in his capacity as Collector and under the E.C.Act in confiscation Case No. 1 of 1996.

Section 6A of the E.C.Act requires a report to be made without unreasonable delay in the event of seizure of any Essential Commodity under the E.C.Act for any violation of the control order. In this case seizure was effected on 9.2.96 and collector was informed by report dated 13.2.96. On 19.2.96 the Collector directed issue of notice on the present petitioner for his appearance and showing cause as to why the seized articles shall not be confiscated by the state. Before a notice can be issued the collector must satisfy himself that there has been a contravention of an order regarding essential commodity which is the subject matter of seizure. A scrutiny of the order dated 19.2.96 reveals that he has not recorded his satisfaction. On the other hand, it appears that he directed issuance of notice on the present petitioner simply because the I.O. who seized some articles from the shop of the petitioner prayed for confiscation of the seized articles. Therefore, the Collector failed in his duty which Section 6A of E.C.Act casts on him.

The second violation has been made by the notice itself. The notice must comply with the requirements of Section 6B(11) of the E.C.Act in as much as reasons for the proposed confiscation need be mentioned in the notice. A careful perusal of the notice at once reveals that no reason has been assigned in the body of the notice. The argument advanced on behalf of the State, namely. Section 6B(J) E.C.Act cures the defect and irregularity in the notice is not at all convincing. In accordance with the Sub-Section, any defect or irregularity will not make an order of confiscation bad, provided there has been substantial compliance of Section 6A(1A) E.C.Act. In the present case there has been absolute noncompliance of the said Section and as such this notice is also bad. In the result the initiation of the Confiscation Case No. 1 of 1996 being bad in law, the confiscation proceeding can not. stand and as such the notice as well as, the initiation of the confiscation proceeding are set aside.

Liberty is however given to the Collector to apply his mind in accordance with the provisions of Section 6A of the E.C.Act on the report of seizure made by the Sub-Inspector and in the event of his satisfaction he can proceed by way of issuing fresh notice, but not otherwise. Regarding the return of seized articles, the said prayer can not be exercised at this stage, even on the basis of the decision reported in 1990(2) Crimes 665, since there is a case pending with regard to the same before the Special Judge, under the E.C.Act. This will not, however, prevent the petitioner from making his prayer before the appropriate authority if he is so advised and in that event the authority is to act strictly in accordance with law. Liberty given to the Collector for taking a decision u/s 6A of E.C.Act is to be carried on within thirty(30) days from ''the date of communication, of the order. The revisional application is accordingly disposed of. Let the L.C.R. go down, a copy of the judgement be communicated to the Collector, immediately.