* THE HON’BLE SRI JUSTICE V.V.S.RAO +WRIT PETITION No. 14156 of 2005 % Dated 03-11-2008 # Y. Rama Devi … PETITIONER VERSUS $ The Joint Collector, R.R.District, at Lakdikapool, Hyderabad. … RESPONDENT ! Counsel for Petitioner: Sri V.H.V.R.R.SWAMY ^Counsel for Respondent: G.P FOR CIVIL SUPPLIES <GIST: >HEAD NOTE: ? Cases referred 1. AIR 1971 SC 771 2. 1991 BIHAR LAW JOURNAL (1) 468 3. AIR 1945 PC 156 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE THIRD DAY OF NOVEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.14156 of 2005 Between: Y. Rama Devi, W/o. Laxma Reddy, Dealer No.381, R/o. H.No. 46-564/2, Bhagat Singhnagar, Qutubullapur Mandal, R.R.District. ..... PETITIONER AND The Joint Collector, R.R.District, at Lakdikapool, Hyderabad. .....RESPONDENT Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court will be pleased to Issue any writ order or direction more in the nature of Writ of Certiorari to call for the records of the respondent herein in 6-A case No.A7/379/04 dt. 4.03.2005 and quash the same and pass such other order or orders as this Hon’ble Court may deem ﬁt and proper in the circumstances of the case. Counsel for the Petitioner: SRI V.H.V.R.R.SWAMY Counsel for the Respondents: GP FOR CIVIL SUPPLIES The Court made the following : THE HON'BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.14156 of 2005 ORDER: The petitioner is Fair Price Shop (FPS) dealer No.381, Bhagat Singhnagar, Qutubullapur Mandal in Ranga Reddy District. The Assistant Supply Oﬃcer surprised the petitioner’s premises, conducted panchanama and seized essential commodities for contraventions. Respondent initiated action under Section 6-A of the Essential Commodities Act, 1955 (EC Act, for brevity), for conﬁscation of stock, and issued show cause notice dated 13.07.2004 framing the following charges, namely, that she is being authorized FPS dealer involved in clandestine business of public distribution system rice. She is involved in diversion of (10) quintals of public distribution rice to black market as per the news published in daily newspaper, and that when the FPS was raided there was a short fall of balance 5.95 quintals of rice with book balance. The petitioner ﬁled explanation through her Counsel on 20.11.2004 denying the two charges. The respondent veriﬁed the records and found that the petitioner failed to maintain proper account and thereby indulged in clandestine business. However, the respondent thought it ﬁt not to pass an order of conﬁscation, but gave two directions. These are i) a direction to Revenue Divisional Oﬃcer (RDO), Ranga Reddy District (East), to initiate action for cancellation of authorization of petitioner, and ii) order for initiation of action under Section 7 of the EC Act. In this writ petition the petitioner is aggrieved by these two directions. Learned Counsel for the petitioner placed strong reliance on an unreported judgment of this Court in Y.Rama Devi v The Special Grade Deputy Collector & Revenue Divisional Oﬃcer, Ranga Reddy (East) Division (W.P.No.14181 of 2005, dated 01.07.2005), in support of the submission that it is not competent for the Joint Collector to order prosecution and give direction to RDO to initiate action for cancellation of authorization. Per contra, learned Assistant Government Pleader for Civil Supplies placed reliance on Section 6-D of EC Act and submits that the oﬀence under Section 7 of EC Act, being a cognizable oﬀence, it is always open to the Joint Collector, who is in charge of District Civil Supplies and Public Distribution System, to order prosecution and direct subordinates to register case. He also points out that the Joint Collector only directed the competent authority to initiate action for cancellation, and by such direction no prejudice would be caused and authorization can only be cancelled under clause 5 of the Andhra Pradesh State Public Distribution System Control Order, 2001 (Control Order, for brevity). He also placed reliance on Om Parkash v Union of India[1] and a Division Bench judgment in Surendra Kumar Jhunjhunwala v State of Bihar[2]. The only point that arises for consideration is whether while exercising powers under Section 6-A of EC Act, the Joint Collector can order prosecution of the defaulter and also give directions for cancellation of FPS authorization. Sections 6-A, 6-B, 6-C, 6-D and 6-E are ﬁve sections of the EC Act, which form one group dealing with conﬁscation of essential commodities seized for contravention of the Control Order made under Section 3 of EC Act or for contravention of conditions of licence granted under the Control Order. In exercise of such power it is competent for Joint Collector to conﬁscate the essential commodities whether or not prosecution is instituted for contravention of such order. It is also competent to seize the vehicle or vessel used for carriage of goods seized. But, if a person is willing to pay the ﬁne not exceeding the market price on the date of seizure of essential commodities, the vehicle can be released to the owner. A perusal of Section 6-A(1) of EC Act would make it clear that the power of conﬁscation is independent of prosecution being launched. Section 6-D of EC Act further makes it clear that order of conﬁscation by the Collector shall not prevent the inﬂiction of any punishment under the EC Act. The conspectus of Sections 6-A to 6-E (bar of jurisdiction) and Section 7 of EC Act would show that the decision to direct prosecution is nothing to do with the power exercisable under Section 6-A of EC Act. In a given case even where the Collector decides not to confiscate the goods, he can order prosecution. At this stage, it is necessary to extract Sections 6-A(1), 6-D and 7(1) of EC ACT as under. 6-A. Conﬁscation of essential commodity:- (1) Where any essential commodity is seized in pursuance of an order made under Section 3 in relation thereto, a report of such seizure shall, without unreasonable delay, be made to the Collector of the district or the Presidency town in which such essential commodity is seized and whether or not a prosecution is instituted for the contravention of such order, the Collector, may, if he thinks it expedient so to do, direct the essential commodity so seized to be produced for inspection before him, and if he is satisﬁed that there has been a contravention of the order, may order confiscation of (a) the essential commodity so seized; (b) any package, covering or receptacle in which such essential commodity is found; and (c) any animal, vehicle, vessel or other conveyance used in carrying such essential commodity. Provided that without prejudice to any action which may be taken under any other provision of this Act; no foodgrains or edible oilseeds seized in pursuance of an order made under Section 3 in relation thereto from a producer shall, if the seized foodgrains or edible oilseeds have been produced by him, be conﬁscated under this section; Provided further that in the case of any animal, vehicle, vessel or other conveyance used for the carriage of goods or passengers for hire, the owner of such animal, vehicle, vessel or other conveyance shall be given an option to pay, in lieu of its conﬁscation, a ﬁne not exceeding the market price at the date of seizure of the essential commodity sought to be carried by such animal, vehicle, vessel or other conveyance. 6-D. Award of conﬁscation not to interfere with other punishments:- The award of any conﬁscation under this Act by the Collector shall not prevent the inﬂiction of any punishment to which the person affected thereby is liable under this Act. 7. Penalties:- (1) If any person contravenes any order made under Section 3, (a) he shall be punishable, (i) in the case of an order made with reference to Clause (h) or Clause (i) of sub-section (2) of that section, with imprisonment for a term which may extend to one year and shall also be liable to fine; and (ii) in the case of any other order, with imprisonment for a term which shall not be less than three months but which may extend to seven years and shall also be liable to fine. (b) any property in respect of which the order has been contravened shall be forfeited to the Government; (c) any packing, covering or receptacle in which the property is found and any animal, vehicle, vessel or other conveyance used in carrying the commodity shall, if the Court so orders, be forfeited to the Government. An oﬀence created under Section 7 of EC Act is a cognizable oﬀence (Section 10-A of EC Act), which means any person who comes to know about commission of a cognizable oﬀence can seek registration of an oﬀence and can also ﬁle prosecution. Secondly, under Section 11 of EC Act a public servant as deﬁned in Section 21 of the Indian Penal Code, 1860, or any person aggrieved or any recognized consumer association can ﬁle a complaint before a competent criminal Court for taking cognizance of such oﬀence. The Joint Collector is a public servant and if he orders prosecution as is done in this case to initiate action for prosecution, the same cannot be faulted nor it is beyond the authority and power of the Joint Collector. Deviating a little, a reference may also be made to the Andhra Pradesh District Collector’s Powers (Delegation) Act, 1961 (Delegation Act, for brevity), and the orders of the Government in G.O.Ms.No.77, dated 22.01.1968 (amended from time to time), issued thereunder. The Delegation Act enables the State Government by notiﬁcation to authorize any Joint Collector or any other officer of the State Government not below the rank of Deputy Collector to exercise all or any of the powers vested by or under any law in the District Collector. As per the Government Order the subject of “Civil Supplies” including enforcement of various Control Orders made under EC Act is allotted to the Joint Collector. Indeed, as per Appendix – II to G.O.Ms.No.77, enforcement of EC Act is entrusted to Joint Collector. Thus, for all purposes and intent, the Joint Collector, being head of the District for enforcement of EC Act and Control Orders made thereunder, would be well within his powers to issue directions to subordinate oﬃcers, launch prosecution under Section 7 of EC Act, and it is also competent for the Joint Collector to direct RDO to initiate action for cancellation of authorization under Control Order. In this case, by directing initiation of prosecution under Section 7 of EC Act and also initiation of action for cancellation of authorization, the Joint Collector has done precisely same thing, and the same does not in any manner offend Section 6-A of EC Act. The case in Om Parkash (supra) arose under Displaced Persons (Compensation and Rehabilitation) Act, 1954 (Rehabilitation Act, for brevity). One Ram Chander (father of Om Parkash) ﬁled a claim petition in respect of land left behind him in Pakistan. 49.2 Standard acres was allotted to him in Pasina Kalan Village, Punjab. Soon thereafter, the allottee died leaving Om Parkash and Ved Prakash as legal heirs. Therefore, they were conferred with proprietary rights, whereafter, Ved Prakash sold his share to appellants 2 and 3 by registered sale deed. Subsequently, an Oﬃcer of Department of Rehabilitation found that appellants were allotted about 15 Standard acres in excess of their entitlement. The matter was reopened and allotment of excess extent was cancelled. The revision was also rejected by the Central Government. The High Court also dismissed the writ petition. Before the Supreme Court it was contended that Chief Settlement Oﬃcer cannot exercise revisional powers under Section 24 of the Rehabilitation Act. Placing reliance on King Emperor v Sibnath Banerjee[3] the Supreme Court rejected the contention laying down that speciﬁc power conferred is without prejudice to the generality of the general powers already speciﬁed. It is appropriate to excerpt the following. It is therefore contended relying on sub-section (2) that inasmuch as no fraud or false representation or concealment of any material fact has been alleged or proved in this case, the Chief Settlement Commissioner cannot exercise the revisionary power under Section 24. This contention in our view has no validity. It is a well- established proposition of law that where a speciﬁc power is conferred without prejudice to the generality of the general powers already speciﬁed, the particular power is only illustrative and does not in any way restrict the general power. The Federal Court had in Talpade's case indicated the contrary but the Privy Council in King Emperor v. Sibnath Banerjee, 72 Ind App 241 = (AIR 1945 PC 156) observed at page 258: "Their Lordships are unable to agree with the learned Chief Justice of the Federal Court on his statement of the relative positions of sub-sections (1) and (2) of Section 2 of the Defence of India Act, and counsel for the respondents in the present appeal was unable to support that statement, or to maintain that Rule 26 was invalid. In the opinion of their Lordships, the function of sub- section (2) is merely an illustrative one; the rule-making power is conferred by sub-section (1), and "the rules" which are referred to in the opening sentence of sub- section (2), are the rules which are authorized by, and made under, sub-section (1); the provisions of sub- section (2) are not restrictive of sub-section (1), as, indeed is expressly stated by the words "without prejudice to the generality of the powers conferred by sub-section (l)". In Surendra Kumar (supra) the Division Bench of High Court of Patna considered the question whether a Special Judge can take cognizance of the oﬀence under Section 7 of EC Act, when the Collector dropped conﬁscation proceedings initiated under Section 6-A of EC Act. The Government relied on Section 6-D of the Act. Accepting the plea of the Government, the Division Bench of Patna High Court rejected the plea of the petitioner and observed as under. The conﬁscation of essential commodities in a proceeding under Section 6-A cannot be said to be a penalty or punishment. This position is clear from Section 6-D of the E.C.Act. Under the E.C.Act, the Collector has no jurisdiction to impose any penalty on a defaulting person. The power to impose penalty has been given to the Special Court constituted under the E.C.Act and the Special Court in this case is the Additional Sessions Judge. Section 6-O provides that the order of any conﬁscation under the E.C.Act by the Collector shall not prevent the inﬂation of any punishment to which the person affected thereby is liable under the Act… It may also be noticed in this connection that Section 6-D of the E.C.Act, clearly lays down that the award of any conﬁscation under this Act by the Collector shall not prevent the inﬂiction of any punishment to which the person aﬀected thereby is liable under this Act. If this is so, the converse should also be true that dropping of conﬁscation proceeding by the Collector cannot ipso facto be ground for quashing the proceeding of prosecution or order of taking confiscation. To be sure in appropriate cases, the ﬁnding of the Collector arrived in conﬁscation proceeding may be an aspect for consideration by the Special Court while proceeding to take cognizance or at any appropriate stage of prosecution proceeding but certainly, it cannot be conclusive or even decisive. The law laid down by the Single Bench in the case Surendra Kumar Yadav v State of Bihar (1989 PLJR 172), it is respectfully observed, seems to lay down the correct law in this regard. Therefore, the submission of the learned Counsel that the directions issued by the Joint Collector are without jurisdiction, is misconceived. The decision of this Court in Y.Rama Devi (supra) is of no assistance to the Counsel. It is observed therein as under. It appears, coerced by the directives of his superior – the Joint Collector, the respondent issued the impugned order proposing cancellation of the petitioner’s authorization. The order dated 10.06.2005 does not even indicate the charges against the petitioner. No speciﬁcs of date, commodity or other violations are mentioned. The charge is vague and incapable of response. The impugned order constitutes abdication of quasi judicial propriety. The order is accordingly set aside. The respondent is, however, at liberty to issue a fresh notice for cancellation of the petitioner’s authorization, which is more rational and indicative of the charges. This Court hopes and trusts that the respondent would now apply its mind carefully before committing itself to any other disastrous quasi judiciary proceeding. On the ground that the Joint Collector issued directions coerced by a superior, and charges framed were vague and incapable of response, the above observations were made without going into other aspects regarding interplay of Sections 6-A, 6-D and 7 of EC Act. As held by the Supreme Court in Om Parkash (supra), the general power of the Collector to conﬁscate is always available even to order prosecution. The Writ Petition is, therefore, devoid of any merits, and the same is accordingly dismissed. No costs. ____________ (V.V.S.RAO, J) 03.11.2008 Note: 1) LR copy to be marked. 2) Issue CC in one week. B/o. vs To 1. The Joint Collector, R.R.District, at Lakdikapool, Hyderabad. 2. 2CCs to G.P for Civil Supplies, High Court of A.P., Hyderabad. 3. 2CD copies Form-NIC-OGS/WP{JGK} [1] AIR 1971 SC 771 [2] 1991 BIHAR LAW JOURNAL (1) 468 [3] AIR 1945 PC 156