IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 877 of 2009 Shailendra Kumar Gupta, son of late Jeet Narain Sah, resident of NH 31, Gulab Bagh, PS : Sadar, Dist : Purnea - Petitioner Versus 1 The State of Bihar 2 The Collector, Purnea - Respondents ----------- 3 28.01.2009 Petitioner is a wholesale dealer of fertilizer having his place of business at Gulab Bagh in the district of Purnea. His premises were inspected on 12.11.2008 by the Subdivisional Officer, Sadar Purnea and District Agriculture Officer, Purnea. The stock registers and cash memos were seized. The stock of fertilizers were seized on the allegation that in comparison to the stock register, there was an alleged shortage of about 76 bags of DAP fertilizer. Stock register showed 970 bags whereas, on physical verification, 894 bags were found. This was apart from other stocks of urea and other fertilizer totaling over 3 thousand bags. On basis of this alleged discrepancy and a report to the Collector, Purnea apart from lodging of first information report, Collector, Purnea initiated confiscated proceedings being E C Act Case No 174 of 2008 and the order initiating confiscation proceeding is dated 11.12.2008 and marked as Annexure-1. Petitioner is aggrieved by the said order by which, while issuing show cause notice to the petitioner itself, the order of confiscation has been passed and the seized stocks have been ordered to be sold and money deposited in Treasury. Mr N K Agrawal, learned Senior Counsel appearing in support of the writ application submits that so far as other stocks of fertilizers are concerned, there is no contravention. The pre-condition of 2 initiation of confiscation proceeding is that there must be contravention in respect of certain goods found. Thus, in respect of other fertilizers, there being no contravention, those could not even be subject matter of confiscation proceeding much less order of sale or confiscation. In my view, this submission has to be accepted. Right to confiscate is only in respect of those goods in respect of which contravention is committed in terms of Sections 6A and 6B of the E C Act. Even otherwise, the Collector has noticed DAP fertilizer as the contravening fertilizer. Secondly, it is submitted that as per the seizure list itself, cash memos have been issued which showed sale of 70 bags of DAP fertilizer. This has not been taken into account. It is well settled that before stocks are made accounts are to be closed taking into account the day’s receipts and sales and then balance has to be struck. This was not done in the case of petitioner and the allegation has been made without closing the accounts. Petitioner submits that if accounts are closed in total by 3 thousand bags, only alleged discrepancies of 6 bags is remaining which is too minor to take such a drastic action. Shri Agrawal, thus, prays that the order for sale of fertilizer and deposit in Government Treasury are liable to be set aside. Having considered the matter, in my view, the matters aforesaid are matters of fact which need to be raised before the Collector in the proceeding. The petitioner has an opportunity to raise all the facts aforesaid before the Collector in the confiscation proceeding and the Collector would decide according to law, as indicated above. In the meantime, the Collector cannot allow confiscation proceedings without 3 even hearing the petitioner. Confiscation is an ultimate order after hearing as contemplated under the scheme of Section 6 of E C Act. Thus, the order impugned cannot be sustained and is set aside. However, petitioner would be obliged to dispose of the fertilizers in question which are present requirement of agriculturist under the supervision of the District Agriculture Officer and he would furnish a bond to the satisfaction of the Collector for the value of the sale proceeds of the said fertilizer which would be subject to the result of the confiscation proceedings. With these directions and observation, the writ application itself stands disposed of with the consent of parties at this stage itself. Let a copy of this order be communicated to the Collector, Purnea by FAX at the cost of petitioner. M.E.H./ (Navaniti Prasad Singh)