IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.77 of 2009 SURENDRA SAH Versus THE STATE OF BIHAR & ANR ----------- 4/ 04/09/2009 Heard learned counsel for the petitioner and learned counsel for the State. Despite two adjournments no counter affidavit has been filed on behalf of the State. Considering the perishable nature of the commodity of which release is claimed it will not be in the interest of justice to adjourn this matter any further for filing of counter affidavit. Kandwa Chainpur P.S. Case No.30/08 was registered under Section-414 of I.P.C. and under Section-7 of E.C. Act against the petitioner. The allegation was of running the business of sale of fertilizers without license. The F.I.R. states that the shop was closed. The shop was opened in presence of witnesses and an inspection carried out when neither the petitioner nor any other family member produced the license for dealing in fertilizers. For the purposes of the present application, learned counsel for the petitioner relies upon a Government Order dated 17.10.1992 published in the Bihar Gazette on 13.1.1993 which states that a person 2 dealing in sale of fertilizers up to 10 metric ton does not require any license. The seizure effected from the shop of the petitioner was around 6 metric tons of fertilizers in 20 bags only. This is corroborated by the seizure-list. There is, thus, no compulsion upon the petitioner in law to obtain a license. This Court has already noticed above that the commodity in question is perishable. No useful purpose shall be served by allowing the prosecution to retain the seized fertilizers and allow it to deteriorate which shall be to the benefit of none. Even Section-451 Cr.P.C. states that a property subjected to speedy and natural decay may be disposed by the Court appropriately during the pendency of the proceedings. Since the respondents have chosen not to file a counter affidavit, the petitioner cannot be allowed to suffer. Directions are, therefore, issued to the District Magistrate, East Champaran under Section-6.A(6) of the Essential Commodities Act (Bihar Amendment Act-9 of 78) to release the seized 6 metric tons of fertilizers within a maximum period of 4 weeks from the date of receipt/production of a copy of this order after completion of necessary formalities and obtaining adequate security commensurate with the then value of the product, other than cash or bank guarantee. 3 The release shall remain subject to the final orders to be passed in the criminal prosecution or the confiscation proceedings. KC ( Navin Sinha, J.)