Criminal Revision No. 3045 – 3046 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -- Date of decision: 26th February, 2010 1. Criminal Revision No. 3045 of 2009 M/s Rajiv Enterprises ........ petitioner Versus State of Punjab and another .......Respondent(s) 2. Criminal Revision No. 3046 of 2009 M/s Rajiv Enterprises ........ petitioner Versus State of Punjab and another .......Respondent(s) Coram: Hon'ble Ms Justice Nirmaljit Kaur -.- Present: Mr. Rajiv Atma Ram, Senior Advocate with Mr. Jagmohan Bansal, Advocate for the petitioner Ms Reeta kohli, Additional Advocate General, Punjab for the respondent State -.- 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporter or not? 3. Whether the judgement should be reported in the Digest? Nirmaljit Kaur, J. (Oral) This order shall dispose of both the aforementioned Criminal Revision Petitions bearing CRR Nos. 3045 and 3046 of 2009. However, for the sake of reference, the facts are being taken from Criminal Revision No. Criminal Revision No. 3045 – 3046 of 2009 2 3045 of 2009. Both the revision petition are directed against a common judgement dated 17.11.2009 passed by the District Judge, Amritsar who is the Appellate Authority vide which the appeal preferred by the petitioner/appellant seeking quashing of the order dated 06.10.2009 passed by the Deputy Commissioner-cum-Collector, Amritsar, ordering the confiscation of 3650 and 6311 quintals sugar bags. The facts as noticed by the Appellate Authority in his order are as under:- “That the District Administration Amritsar received secret information that at Tarn Taran Road, Amritsar and at M/s K J International Mills, Tarn Taran Road, Amritsar, some stock holders with intent to black market have stocked sugar, which they were to sell at higher price during forthcoming festival season. Resultantly, a joint team of Food and Supplies Department, Excise and Taxation Department and Police Department, was constituted and godown of M/s K J. International Mills, Tarn Taran Road, Amritsar, was raided, from where 6311 quintals of sugar was found stored illegally. Similarly on conducting raid at godown of Shiv Vaishno Dhaba and godown of Market Rame Shah, opposite Vaishno Dhaba, Tarn Taran Road, Amritsar, 2300 bags (2300 quintals of sugar) from first godown and 1350 quintals from the second godown i.e. 900 bags of one quintal each and 900 bags of 50 kilograms each (total 3650 quintals) sugar was found stored illegally. For violation of Section 3 (1) of the Essential Commodities Act was made out against Rajiv Kumar, who was owner of the sugar bags. Resultantly, FIR No. 139 dated 22.09.2009 and FIR No. 140 dated Criminal Revision No. 3045 – 3046 of 2009 3 23.09.2009 were registered at Police Station Sultanwind against Rajiv Kumar son of Raj Kishore, resident of House No. 136, Shaheed Udham Singh Nagar, Jalandhar (Proprietor of M/s Rajiv Enterprises Jalandhar) and the sugar was seized.” Due notice was sent to Rajiv Kumar to file his objections before 04.10.2009. Till 06.10.2009, no objection either from Rajiv Kumar owner of confiscated sugar bags or from any body else were received. On account of non-filing of any objection by any person, including Rajiv Kumar, the District Collector, Amritsar, vide two separate orders dated 06.10.2009 while exercising the powers conferred upon him under Section 6-A of the Essential Commodities Act, 1955, ordered the confiscation of 6311 quintals and 3650 quintals of sugar and for sale of the same through open auction. Aggrieved by the aforesaid orders, the petitioner filed appeal before the District Judge, being the Appellate Authority under Section 6-c of the Essential Commodities Act, 1955 (hereinafter to be referred as the 1955 Act) seeking quashing of the order dated 06.10.2009 passed by the District Collector, Amritsar. The same was dismissed by the Appellate Authority vide judgement dated 17.11.2009. Hence, the present revision petition has been filed. While challenging the impugned order dated 06.10.2009 passed by the District Collector, Amritsar as well as the judgement dated 17.11.2009 passed by the Appellate Authority, Mr. Rajiv Atma Ram, learned Senior Counsel assisted by Mr. Jagmohan Bansal appearing for the petitioner submitted his first argument that under Section 6-A of the 1955 Criminal Revision No. 3045 – 3046 of 2009 4 Act, the Collector has been empowered to confiscate the seized goods and as per Section 3(2) (j) read with Section 4 of the 1995 Act and Clause 11 of the Sugar (Control) Order, 1966, an officer authorise by Government can only exercise power of search and seizure. Whereas, in the present case, the search and seizure was not by an officer authorised by the Central Government. In the present case, the District Magistrate, Amritsar had granted an approval for appointment of officials of the Food and Supplies Department for the purpose of making such entry, search and seizure. The District Magistrate had no authority to make any such appointment as only an officer appointed by the Central Government is actual to search and seize the sugar. It was further submitted that the police has no power to seize the sugar. The police had acted beyond its jurisdiction and seized the sugar. On the other hand, Ms Reeta Kohli, Additional Advocate General, Punjab appearing for the respondent State while meeting the first argument submitted that the Government of India on 13.04.2009 specifically wrote to the Chief Secretary, Punjab that ‘there is a possibility that certain unscrupulous elements could take advantage of the situation of perceived shortage and hoard sugar’. It was also directed in the letter that immediately, a State wise review should be conducted and the concerned officers be asked to take immediate action in the matter. Yet another letter was written on 20.04.2009 by the Secretary Government of India, Ministry of Consumer Affairs, Food and Public Distribution, New Delhi, to the Chief Secretary, Punjab for strictly enforcing stock holding limits and taking stern action against the hoarders under the Essential Commodities Act, 1955. Thereafter, vide letter dated 06.07.2009, the Joint Secretary, Government of Criminal Revision No. 3045 – 3046 of 2009 5 India, Ministry of Consumer Affairs, Food and Public Distribution, New Delhi wrote to the Principal Secretary, Food, Civil Supplies and Consumer Affairs, Punjab seeking information in relation to question No. 49 raised in the Lok Sabha pertaining to the steps taken to check the rising price of sugar including the punitive action against the hoarders and black marketers of sugar. It was in pursuance of these directions that the Government of Punjab issued instructions to check the illegal hoarding of sugar beyond the permissible limit as provided under the Essential Commodities Act, 1995 and instructed the District heads to take stringent action against the persons who indulge in the illegal hoarding of sugar. It was further stated that as many as three cases were registered in Amritsar, three in Ludhiana and one in Patiala against the sugar hoarders. Therefore, a state wide anti hoarding drive was initiated against hoarders, who barely a few days before Diwali by hoarding sugar, were creating an artificial shortage and consequent rise in the price of sugar. Thus, depriving the common man of buying sugar at an affordable price. As such, three different FIRs stand registered against the petitioner for illegally hoarding sugar. Learned State counsel further stated that reference to all the aforesaid communications shows that there was no violation of the provisions of the 1955 Act or the Sugar Control Order, 1966. All these letters written by the Central Government impliedly granted permission to take steps under the Act for strict implementation of the Notification dated 12.03.2009. It was in pursuance of these letters of the Central Government that the District Magistrate had constituted teams and authorised various officials of the Food and Supplies Department to carry out search and Criminal Revision No. 3045 – 3046 of 2009 6 seizure. Learned counsel for the parties are heard. Clause 11 of the Sugar Control Order reads as under:- “Clause 11: Power of inspection, entry, search, sampling seizure etc.- Any officer authorised by the Central Government in this behalf may- a) direct any producer or importer or recognised dealer to maintain such record as he may specify; b) direct any producer or importer or recognised dealer to furnish such information as he may require: c) inspect or authorise any person to inspect any books or any documents or stocks of sugar belonging to or under the control of a producer or importer or a recognised dealer; d) enter and search or authorise any persons to enter and search- i) any place where sugar is manufactured including the machinery installed therein; ii) any place in which there is reason to believe that sugar is stored in contravention of this Order; e) draw or authorise any person to draw, in accordance with the procedure laid down in clause 12, samples for examination- i) from any stock of sugar belonging to, or under the control of a producer or recognised dealer; ii) from any consignment of sugar in the course of its delivery or dispatch by a producer; f) stop and search or authorise any person to stop and search- i) any person transporting sugar; or Criminal Revision No. 3045 – 3046 of 2009 7 ii) any vehicle, vessel or other conveyance used or capable of being used for the transport of sugar, in contravention of this Order; g) seize or authorise the seizure of any sugar in respect of which he has reason to believe that a contravention of this order has been, or is about to be committed, along with the packages coverings or receptacles in which sugar is found or the animals, vehicles, vessels, or other conveyances used in carrying such sugar and thereafter take or authorise the taking of all measures necessary for securing the production of such packages, coverings, receptacles, animals, vehicles, vessels or other conveyances in a court and for their sage custody pending such production: 2) The provisions of sections 102 and 103 of the Code of Criminal Procedure, 1989 (5 of 1998) relating to search and seizure shall, so far as may be, apply to searches and seizures under this clause.” The Central Government in exercise of the powers conferred by Section 3 of the 1955 Act read with Clause 5 of Sugar (control) Order, 1996 issued an order dated 16.07.2009, whereby it was provided that no recognised dealer shall store sugar more than 2000 quintals and shall not hold any stock for a period exceeding 30 days from the date of receipt by him of such stock. The precise question that arises for consideration is whether the search and seizure of sugar in such a situation by the officials duly authorised by the District Magistrate who apparently had the implied authorisation to appoint them but did not have express direction to that effect be considered as bad in law. Criminal Revision No. 3045 – 3046 of 2009 8 Thus, although the above letters may not be a specific order appointing official for seizure of sugar as contemplated under Clause 11 of the Sugar (Control) Order, nevertheless, the legality of the seizure and confiscation of the sugar will have to be seen and appreciated in the peculiar facts and circumstances of the present case. A state wide anti hoarding drive was initiated against hoarders, who barely a few days before Diwali by hoarding sugar were creating an artificial shortage. In view of the rise in price of sugar, some unscrupulous elements were taking advantage of the situation and hoarding the sugar. Due to shortfall in the production of sugar, the Government of India on 13.04.2009 accordingly wrote to the Chief Secretary, Punjab that looking to the present trend in prices of sugar, there was an urgent need to ensure strict implementation of Government’s Notification dated 12.03.2009 and wrote as under:- “7. I would request you to immediately review the situation in your State and to instruct the concerned officers to take immediate action to strictly implement the above notification and to send us the action taken report by 17th April, 2009. I would also request you to periodically review the situation and keep us posted on further developments.” The same was followed by another letter dated 20.04.2009 written by the Secretary, Government of India, Ministry of Consumer Affairs, Food and Public Distribution, Department of Food and Public Distribution to the Chief Secretary, Government of Punjab Chandigarh that they have released a total of 60 lakh tons of non-levy (free sale) sugar for Criminal Revision No. 3045 – 3046 of 2009 9 the quarter April-June, 2009 (of which 22 lakh tons is for the month of April). This is 10 lakh tons more than what was available for the previous quarter and 8 lakh tons more than the release for April-June, 2008. To ensure a continuous supply of sugar throughout the month, sugar mills have been given weekly release orders. Part of the releases is from dismantled buffer stocks, where fortnightly release quotas have been fixed. Sugar mills have been informed that any unsold sugar against the release orders still left with the mill at the end of the week/fortnight as the case may be, shall be converted into levy sugar to be sold through PDS. Appropriate measures to ensure that sugar mills do not withhold stocks and actually sell non levy sugar as per the release orders, are being taken through a vigourous stock checking by officials of Central Excise and the Directorate of Sugar under this Ministry as well as through the mechanism of converting unsold stocks into levy sugar and a direction was issued to take all possible steps to ensure that there was no one took advantage of the situation to hoard sugar and exchange in black marketing. Thereafter, the Joint Secretary, Government of India, Ministry of Consumer Affairs Food and Public Distribution wrote yet another letter dated 06.07.2009 to the Principal Secretary, Punjab requesting that information is urgently required in respect of the Lok Sabha Starred Question No. 49 slated for reply on 07.07.2009 regarding decline in sugar production. The relevant part of the question is reproduced below:- “c) the other steps taken to check the rising price of sugar including the punitive action taken against hoarders and black marketers of sugar.” And it was desired to send details of punitive action taken against the hoarders and black marketers of sugar by return fax by 5.00 p.m. on the Criminal Revision No. 3045 – 3046 of 2009 10 same day positively. It was followed by yet another letter dated 06.07.2009 written by the Joint Secretary, Government of India to the Principle Secretary seeking again the details of the punitive action taken against the hoarders and black marketers of sugar and the same read as under:- “Information is urgently required about the steps taken to check the rising prices of sugar including the punitive action taken against hoarders and black marketeers of sugar. It is requested that details of punitive action taken against hoarders and black marketeers of sugar may be sent by return fax.” In pursuance to the above direction of the Central Government issued vide various letters as detailed above, the District Magistrate, Amritsar vide letter dated 21.09.2009, constituted teams of the officials of the Department of food and Supplies and Consumer Affairs, Amritsar along with police parties to conduct raids at the identified places. It was further directed that if any individual/firm is found to be stocking more than 2000 quintal of sugar as prescribed by the Government of India, police case be registered against that individual/firm as per Section 7 of Essential Commodities Act. Thereafter, the District Controller, Amritsar vide order of even dated, recommended the names of the officials of the Food and Supplies authorising them to enter inside the various premises to search and seize of Sugar to ensure compliance and implementation of the notification dated 12.03.2009 issued by the Government of India to re-impose the stock limits under Section 3(1) of the Essential Commodities Act, 1955. The names of the officials were approved by the District Magistrate, Amritsar. The said officials were appointed for search and seizure 'in the public Criminal Revision No. 3045 – 3046 of 2009 11 interest'. It was in pursuance to the directions of the Central Government as contained in the above letters that the Government of Punjab issued instructions to check illegal hoarding of sugar beyond the permissible limits and the raids were conducted by the official of the respondents duly authorised by the District Controller and approved by District Magistrate. As per Section 10 A of the 1955 Act, the offence is cognisable and is punishable under Section 7 of the Act. Section 10A of the Act reads as under:- 10A. Offences to be cognisable – Notwithstanding anything contained in (the Code of Criminal Procedure, 1973 (2 of 1974) every offence punishable under this Act shall be ‘cognisable’ Thus, firm M/s Rajiv Enterprise prima facie had committed an offence in contravention of provisions of Section 3(1) of the 1955 Act which is punishable under Section 7 of the 1955 Act. The firm had therefore committed a cognisable offence. Two FIRs bearing No. 139 dated 22.09.2009 and FIR No. 140 dated 23.09.2009 were therefore registered against Rajiv Kumar, Proprietor of M/s Rajiv Enterprise, at Police Station Sultanwind, Amritsar. Hon’ble the Supreme Court in the case of Lucknow Development Authority v. M K Gupta reported as AIR 1994 Supreme Court 787 while interpreting the provisions of the Consumer Protection Act (68 of 1986) held that the Act was a social benefit oriented legislation and the provisions should therefore be construed in favour of the consumer and interpretation of the statute should be interpreted in favour of the consumer Criminal Revision No. 3045 – 3046 of 2009 12 to achieve the objective and purpose of the enactment being a socially benefit oriented legislation. Observations made in Para 2 of the judgement are relevant and read as under:- “.....In fact the law meets long felt necessity of protecting the common man from such wrongs for which the remedy under ordinary law for various reasons has become illusory. Various legislations and regulations permitting the State to intervene and protect interest of the consumers have become a haven for unscrupulous ones as the enforcement machinery either does not move or it moves ineffectively, inefficiently and for reasons which are not necessary to be stated. The importance of the Act lies in promoting welfare of the society by enabling the consumer to participate directly in the market economy. It attempts to remove the helplessness of a consumer which he faces against powerful business, described as, 'a network of rackets' or a society in which, 'producers have secured power', to 'rob the rest' and the might of public bodies which are degenerating into store house of inaction where papers do not move from one desk to another as a matter of duty and responsibility but for extraneous consideration leaving the common man helpless, bewildered and shocked. The malady is becoming so rampant, widespread and deep that the society instead of bothering, complaining and fighting for it, is accepting it as part of life. The enactment in these unbelievable yet harsh realities appears to be a silver lining, which may in course of time succeed in checking the rot. A Scrutiny of various definitions such as 'consumer', 'service', 'traders', 'unfair trade practice' indicates that legislature has attempted to Criminal Revision No. 3045 – 3046 of 2009 13 widen the reach of the Act......” In the present case, the non-action on the part of the State would have resulted in defeating the very object of the Act. It would have allowed the anti social element a free hand, leaving the consumer in the ineffective hands of the administration. Waiting for a formal order would have been too late, whereas a cognisable offence already stood committed. Thus, no fault can be found with the seizure of sugar by the official of the Department appointed to seize and search by the District Collector and approved by the District Magistrate pursuant to the communication by Central Government to ensure that notification dated 12.03.2009 under Section 3 (1) of the Act is implemented. It is apparent from various communication of the Central Government that the State had the implied approval to take every step for necessary compliance of the notification dated 12.03.2009 issued by the Government of India under Section 3 (1) of the Essential Commodities Act, 1955, including the authority to appoint the officials to search and seize the sugar. The Essential Commodities Act, 1955 is a beneficial legislation. The District Collector appointed the officials for search and seizure was therefore in 'public interest' and for ensuring compliance of notification dated 12.03.2009 under Section 3 which was urgent need of the hour requiring immediate and urgent action by the State authority in the situation. The seizure of sugar in the facts of the present situation is therefore in order. Besides, the relevant portion of Section 6-A of the 1955 Act reads as under:- “6-A Confiscation of Essential Commodity: Where any essential commodity is seized in Criminal Revision No. 3045 – 3046 of 2009 14 pursuance of an order may 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.” The order to dispose of and auction the seized sugar was admittedly passed by the Collector, being the proper authority under the Act to dispose of the seized goods. Hon’ble the Supreme Court in the case of N Nagendra Rao & Co. v. State of Andhra Pradesh reported as AIR 1994 Supreme Court 2663 while interpreting the provisions of Section 6-A of the Essential Commodities Act, 1955 delved upon the objects of the Act and while holding it to be a social benefit legislation observed as under:- “The purpose of sub Section (2) of S.6A is for protecting the goods seized by the Collector whether they are eatables or they are foodstuffs or they are iron steel, as if Criminal Revision No. 3045 – 3046 of 2009 15 they are spoilt or they deteriorate then it is a loss not only to the owner but to the society. Loss in value of goods or its deterioration in quality and quantity would be in violation of the purpose and spirit of the Act. Even though the section uses and word “may” but keeping in view the objective of the Act and the context in which it has been used it should be read as “shall”, otherwise it would frustrate the objective of the sub section. Therefore, the Collector has to form an opinion if the goods seized are of one or the other category mentioned in S.6A(2) and once he comes to conclusion that they fall in one of the categories mentioned in the sub section then he has no option but to direct their disposal or selling of in the manner provided.” Thus, the District Collector vested with the exclusive jurisdiction to confiscate sugar under Section 6-A of the 1955 Act was duly an authorised officer to order the auction of the seized sugar. As such, no fault can be found with the impugned order passed by the District Collector. Reliance has been placed on the judgements of this Court rendered in the case of State of Punjab v. Acchar Singh reported as 1993(1) RCR (Criminal) 74, Suresh Kumar v. State of