IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.5718 of 2010 1. Pankaj Kumar S/O Ganesh Prasad Choudhary R/O Vill.- Chilmil, P.S.- Brahat, Distt.- Banka Versus 1. The State Of Bihar through The Principal Secretary, Food & Civil Supply Department, Govt. Of Bihar, Patna 2. The Principal Secretary, Food & Civil Supply Department, Govt. Of Bihar, Patna 3. The District Magistrate, Bhagalpur 4. The Sub-Divisional Magistrate, Town, Bhagalpur 5. The Supply Inspector, Bhagalpur 6. The Superintendent Of Police, Bhagalpur 7. The Officer-In-Charge, Babarganj Police Station, Bhagalpur ------------------------- 5 22.09.2011 Heard Mr. N.K. Agrawal, learned Senior counsel for the petitioner and Mr. Shankar Kumar Choudhary, learned A.C. to S.C.4 for the State. The petitioner, a dealer under the provisions of the Essential Commodities Act,1955 (hereinafter referred to as the “Act”) has questioned the order dated 28.12.2009 passed by the District Magistrate, Bhagalpur in confiscation case arising from E.C./(6)A Case No. 161 of 2005-06 as contained in Annexure-1 to the writ petition whereby the prayer of the petitioner for payment of the price of the goods so seized by the respondents and for interest thereon, has been rejected inter alia on grounds of there being absence of such provisions as well as absence of culpability in the delay caused in returning the seized goods resulting in its decomposition and rendering it unfit for sale. A further direction has been prayed requiring the respondents to make payment of price of wheat so seized which according to the petitioner, is to the tune 2 of Rs. 2,42,000/- together with interest as deem fit under the provisions of the Act. Brief facts of the matter, necessary for disposal of the writ petition, is that the wheat of the petitioner purchased from another dealer and being carried by means of two trucks bearing Nos. BR 10A- 8827 and BR 10A- 8064 was seized by the Officer- in-charge of Babarganj Police Station, Bhagalpur on 19.03.2006 inter alia on allegations that the wheat in question belonging to the Food Corporation of India was being transported by the petitioner for sale in black market. The plea of the petitioner at the Police Station to explain the investigating agency that the wheat in question was his own and was a bonafide purchase from Murlidhar Choudhary and Rajendra Choudhary of Barahat, District-Patna, did not convince the police authority. The wheat was seized and an F.I.R. instituted giving rise to Mojahidpur Babarganj P.S. Case No. 43 of 2006 for violation of Sections 414, 420 and 120B of the Indian Penal Code and Section 7 of the Act. It is not in dispute that the wheat so seized was packed in 500 bags weighing 60 Kg. each. Following a report of the Sub- Divisional Magistrate, Town, Bhagalpur dated 25.03.2006 a confiscation proceeding was initiated giving rise to E.C. Case No. 161/2005-06 by the District Magistrate, Bhagalpur. It is again not in dispute that no sooner the Collector, Bhagalpur received the report aforementioned, he by order dated 03.04.2006 contained in Memo No. 809 (Annexure-B) directed the Sub-Divisional Officer, 3 Sadar, Bhagalpur to get the 500 bags of wheat sold and deposit the sale proceed in the District Treasury. It is again not in dispute that the order of the District Magistrate, Bhagalpur was not followed by the Sub-Divisional Officer and the wheat remained in custody of the respondents. The said order was followed by a subsequent order dated 19.12.2006 as contained in Annexure-3 of the writ petition whereby an order of confiscation was passed and again direction was issued to auction the seized goods and deposit the sale proceed in Treasury. Again this order was violated and the goods in question was never sold. The petitioner in the aforementioned circumstances and in the backdrop of the settled legal position that the subject matter of wheat including its movement, price or storage is not controlled under any order either issued by the Central Government or the State Government under Section 3 of the Act, preferred a statutory appeal under Section 6C of the Act giving rise to Criminal Appeal No. 97 of 2007 and the learned Court by order dated 22.08.2007 was pleased to stay the order of confiscation. It is a matter of record that the criminal appeal was subsequently allowed by judgment and order dated 18.12.2007 placed at Annexure-4 to the writ petition and a third order was issued, this time by the appellate authority under the Act, being the District Judge, Bhagalpur, to release the seized wheat in favour of the petitioner. Following the order passed in Appeal on 18.12.2007 the Collector, Bhagalpur by order dated 10.01.2008 passed in the confiscation case ordered for release of the 4 seized trucks and 500 bags of wheat in favour of the petitioner. The order dated 10.01.2008 has been placed at Annexure-5 to the proceedings. It is but obvious that the wheat so seized almost two years back on 21.03.2006 had rotted by that time and which fact was communicated by the Superintendent of Police, Bhagalpur to the District Magistrate by his letter dated 14.01.2008 when he informed the District Magistrate, Bhagalpur that the wheat had rotted by that time and was not fit for human consumption. The letter of the Superintendent of Police is placed at Annexure-6 to the writ proceedings. The petitioner naturally refused to accept the decomposed wheat and instead filed a petition on 29.01.2008 before the District Magistrate-cum-Collector, Bhagalpur with a twin prayer to either release the goods in the condition it was seized or to pay the price thereof together with reasonable interest. The application of the petitioner not being responded to led to filing of a second application on 01.07.2008, copy whereof has been placed at Annexure-7. The second petition was responded to by the District Magistrate-cum-Collector, Bhagalpur who by the impugned order dated 28.12.2009 has rejected the prayer of the petitioner. The order so passed is placed at Annexure-1 to the writ petition. The order of rejection as placed at Annexure-1 coming from statutory authority holding the position as high as a District Magistrate is rather difficult to comprehend. The claim of the petitioner has been rejected inter alia on grounds of absence of 5 provision under the Act, for payment of price of the rotted foodgrains. The District Magistrate further proceeds to hold that the dealer was under an obligation to obtain the foodgrains in whatever condition it was and that he would not be entitled to any price for refusal to accept the same. Another ground taken by the Collector, Bhagalpur is that the foodgrains remained in his custody merely for a period of 8 months and thus there was no culpability of the Collector, Bhagalpur in the rottening of the wheat. On these patently erroneous grounds, the claim of the petitioner has been rejected and the same stand also has been taken by the Collector in his counter affidavit filed in the present proceedings.. The plea taken by the Collector, Bhagalpur in rejecting the claim of the petitioner is only taken to be rejected. The order has been passed without having regard to the stipulations set out in the Act as regarding seizure of essential commodities which are subject to natural decay. The provisions of Sections 6A(1) and 6A(2) in no uncertain terms casts an obligation on the Collector of a District to inspect as to whether the goods so seized is subject to decay and if he considers it appropriate, he should take appropriate steps for disposal of the foodgrains and for deposit of the sale proceeds in the Treasury and which mandatory requirement was not followed by the Collector, Bhagalpur bonafidely and in the manner prescribed. Mere issuance of orders of disposal of the foodgains and for deposit of the sale proceeds in the Treasury on 03.04.2006 (Annexure-B) as well as again on 19.12.2006 would not absolve the 6 District Magistrate of his obligation of ensuring that his orders were duly complied by the Sub-Divisional Officer. The disposal of foodgains having not been done in a period of nine months from the date of its seizure on 21.03.2006 until the passing of the order of confiscation on 19.12.2006, was by itself sufficient for rottening of the wheat in question and its decomposition. The stand of the Collector that he was not culpable for the delay which was attributable to the petitioner for preferring a statutory appeal, is again preposterous for the reason that the order of stay was passed only on 22.08.2007 i.e. 8 months subsequent to the passing of the order of confiscation on 19.12.2006 and 15 months from the date of seizure. It is rather strange that despite the orders of the District Collector requiring the Sub-Divisional Officer to dispose of the wheat being flouted by him, yet the Collector holds the petitioner responsible for the decomposition of the wheat. It is beyond any doubt that the respondent authorities are fully responsible for non disposal of the wheat so seized and for its decomposition and natural decay rendering it unfit for consumption. The petitioner thus is fully entitled for compensation of the price of the goods as also for the statutory interest provided under the Act. The statutory provisions underlying Section 6C as substituted by the State amendment introduced under Bihar Act 9 of 1978 is self eloquent and needs no explanation. Section 6C(2) is being reproduced for the facility of quick reference and in no 7 uncertain terms casts an obligation on the respondent authorities to make not only the payment of the price of goods so seized but also to pay a reasonable amount of interest. “6C.Appeal. (2) where an order under section 6-A is modified or annulled by such judicial authority, or where in a prosecution instituted for the contravention of the order in respect of which an order of confiscation has been made under section 6-A, the person concerned is acquitted; and in either case it is not possible for any reason to [return the essential commodity seized], [such person shall except as provided by sub-section 3 of section 6-A, be paid] the price thereof as if the [essential commodity] had been sold to the Government with reasonable interest calculated from the day of seizure of [the essential commodity], [and such price shall be determined.- (i) in the case of foodgrains, edible oilseeds or edible oils, in accordance with the provisions of sub- section (3-B) of section 3, (ii) in the case of sugar, in accordance with the provisions of sub-section (3-C) of section 3, and (iii) In the case of any other essential commodity, in accordance with the provisions of sub-section (3) of section 3.]” Considering the case of the petitioner in the background of the circumstances as set forth, any objection to his claim as raised by the respondents, is indefensible. The respondents cannot shirk from their responsibility and obligation to make payment of the price of goods seized from the petitioner together with interest. The question which now arises is, what is the price of the wheat payable to the petitioner, as the subject of wheat is neither controlled nor there is any controlled price. This aspect also finds suitably explained under the provisions of Section 6C(2) as amended by the Bihar Act, 9 of 1978 read in conjointness with the provisions of Section 3 of the act as amended under the State 8 amendment. The State amendment to Section 3(2)(f) read in juxtaposition with the State amendment to Section 3(3)(c) in no uncertain terms creates a right on the dealer and an obligation on the respondent authorities to pay the market price of the goods so seized as prevailing on the date of seizure which in the present case is 19.03.2006. For the reasons aforesaid, the writ is allowed. The order dated 28.12.2009 passed in E.C./(6)A Case No. 161 of 2005-06 by the District Magistrate-cum-Collector, Bhagalpur placed at Annexure-1 is quashed and set aside and the matter is remitted back to the District Magistrate, Bhagalpur to determine the market price of the 500 bags of wheat weighing 60 Kg. each, so seized from the petitioner and pay the price thereof together with statutory interest thereon which in the present case would be quantified at the rate of 10% and payable from the date of seizure until the date of payment. The calculation and payment thereof should be made within a period of 3 months from the date of receipt/production of a copy of this order. Bibhash (Jyoti Saran, J.)