IN THE HIGH COURT OF JUDICATURE AT PATNA CR. W.J.C. No.1142 of 2008 1. Suresh Prasad S/o Late Bechan Sah, Resident of Bazar Samiti Road, Narkatiaganj, P.S. Sikarpur, District: West Champaran 2. Manoj Kumar S/o Suresh Prasad, Resident of Bazar Samiti Road, Narkatiaganj, P.S. Sikarpur, District: West Champaran 3. Lalan Prasad @ Lalan Prasad Jaiswal S/o Yadav Lal, Resident of Purani Bazar, Ward No.1, Narkatiaganj, P.S. Sikarpur, District: West Champaran 4. Jai Narayan Prasad @ Jai Narayan Prasad Jaiswal S/o Late Chandrika Prasad, Resident of Purani Bazar, Ward No.1, Narkatiaganj, P.S. Sikarpur, District: West Champaran …… Petitioners Versus 1. The State Of Bihar 2. Block Supply Officer, Narkatiaganj, West Champaran …… Respondents With CR. W.J.C. No.5 of 2009 1. Rameshwar Prasad son of Chhatu Prasad, resident of Purani Bazar ward No.1, Police Station-Shikarpur, District- West Champaran. 2. Vijoy Prasad son of Late Gauri Shankar Prasad, resident of village Bhabhta, Panchayat- Bhabhta, Police Station- Sathi, District-West Champaran ….. Petitioners Versus 1. The State of Bihar through the Collector, West Champaran, Post Office/ Police Station Bettiah, District : West Champaran 2. Sub-Divisional Officer, Narkatiyaganj, Police Station-Shikarpur, District- West Champaran. 3. Block Supply Officer, Narkatiaganj, Police Station Shikarpur, District –West Champaran …… Respondents ----------- For the petitioners: Mr. N. K. Agarwal, Sr. Advocate (Cr. W.J.C. No.1142 of 2008) Mr. Shiva Kumar Dwivedi, Advocate (Cr. W. J.C. No.5 of 2009) For the respondents: Mr. S. N.Rai, A.C. to G.A. 9 (Cr. W.J.C. No.1142 of 2008) Mr. B. Shanker, A.C. to G.P 12 (Cr. W.J.C. No. 5 of 2009) ---------- 5/ 19.03.2009 Both the applications are taken up together as they arise out of the same P.S. case i.e. Shikarpur P.S. case no.357 of 2008 and are being disposed of by this common order. 2 Paddy, wheat, maize and certain other items of the petitioners were seized and a case under section 7 of the Essential Commodities Act was registered on the basis of the written report of the Block Supply Officer. The contention of the petitioners is that Section 7 of the Essential Commodities Act shall apply in a case in which there is violation of an Order made under section 3 of the Essential Commodities Act. The last Order which was enforceable in the State was Bihar Trade Articles (Licenses Unification) Order, 1984, but since 2002 the Central Government abolished all the Control Orders, restrictions etc. on the food grains. There is no violation of any of the Order passed under section 3 of the Act as Section 7 is not applicable. The case of the State is that information was received that petitioners were purchasing paddy at a price other than fixed by the Food Corporation of India from the agriculturists for selling it on a higher price which amounts to black marketing in violation and punishable under the Essential Commodities Act. It is also pointed out that when the poor small farmers are bringing paddy to F.C.I. godown for selling at the support price, there is lot of formalities to be completed by the F.C.I. Officers. There are procedural formalities in procurement of foodgrains from farmers. The cost are also paid only by way of cheque and the poor village agriculturists find it difficult in encashing cheque and in completing other formalities, whereas, the merchants and Mill owners approach them and they pay them price and they need not wait in the F.C.I godown seeking the mercy of F.C.I. officials. Purchasing paddy or food grains at a lower price from the agriculturists cannot be stated to be 3 black-marketing so long as there is no minimum price fixed under the Essential Commodities Act or any other law. Selling goods at the market price and earning profit by the Mill owners or traders are also not black marketing so long as minimum or maximum rate is not fixed under any of the Order passed under the Essential Commodities Act. There is no prohibition of such sales under any law. Even in the counter affidavit filed it is not stated that the petitioner has violated any of the provision of the Control Order passed under Essential Commodities Act. For taking action under section 7 of the Act there should be violation of section 3 of the Essential Commodities Act. Section 7 of the Essential Commodities Act reads as follows : 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; [Provided that the court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than three months] (b) any property in respect of which the order has been contravened shall be forfeited to the Government; (c) any package, 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. (2) If any person to whom a direction is given under clause (b) of sub-section (4) of section 3 fails to comply with the direction, he shall be punishable 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; [Provided that the court may, for any adequate and special reasons to be mentioned in the judgment, 4 impose a sentence of imprisonment for a term of less than three months]. (2A) If any person convicted of an offence under sub-clause (ii) of clause (a) of sub-section(1) or under sub-section (2) is again convicted of an offence under the same provision, he shall be punishable with imprisonment for the second and for every subsequent offence for a term which shall not be less than six months but which may extend to seven years and shall also be liable to fine: [Provided that the court may, for any adequate and special reasons to be mentioned in the judgment impose a sentence of imprisonment for a term of less than six months] (2B) For the purposes of sub-sections (1), (2) and (2A), the fact that an offence under sub-clause (ii) of clause (a) of sub-section (1) or under sub-section (2) has caused no substantial harm to the general public or to any individual, shall be an adequate and special reason for awarding a sentence of imprisonment for a term of less than three months, or six months, as the case may be. (3) Where a person having been convicted of an offence under sub-section (1) is again convicted of an offence under that sub-section for contravention of an order in respect of an essential commodity, the court by which such person is convicted shall, in additional to any penalty which may be imposed on him under that sub- section, by order, direct that that person shall not carry on any business in that essential commodity for such period, not being less than six months, as may be specified by the court in the order.” For attracting punishment under section 7 of the Essential Commodities Act, there should be violation of an Order under section 3 of the Essential Commodities Act. There is no allegation that there is any restriction on sale and purchase of the paddy and food-grains or there is violation of any Order made under the Act. There is also no allegation in the impugned order that the norms of the public distribution system have been violated. Petitioners are not food shop dealer. In spite of the specific averment that there is no ban regarding the sale or purchase of paddy and food-grains under the Essential Commodities Act, there is nothing in the 5 counter affidavit controverting the assertions made by the petitioners. The contention of the State is that under the Act alternative remedy is available to the petitioner. When there is complete lack of jurisdiction in the seizure of paddy and other articles, question of alternative remedy is of no avail. Section 3 authorizes the Government to control production, supply, distribution etc. of essential commodities including foodgrains, but there should be an Order passed under the Act and only if there is violation of the order passed under the Act, action can be taken under section 7 of the Act. It is specifically stated by the writ petitioners that after 2002 the Central Government have abolished all Control Orders and restrictions on foodgrains and there is no Control Order with regard to fixation of price of paddy, wheat or other foodgrains. It is not stated in the complaint or counter affidavit which provision of the Control Order was violated by the petitioners. In absence of Control Order no restriction can be granted as held by this court in Tara Pado Ghosh Vs. The State of Bihar reported in 1990(2) PLJR 602. It was also held that if Control Orders are ceased to exist any action taken thereunder is invalid as held in Chamari Ram Vs. The State of Bihar and another reported in 1980 BLJR 143. It is the Block Supply Officer, who has seized the foodgrains on the basis of the information received on the basis of direction of the district administration that the vendors purchase the paddy at lesser price and sell it at higher price at the Paddy & Procurement Centre at Bazar Samiti, Narkatiaganj. It is not stated that the Officer, who seized the foodgrains, was an authorized officer or Inspector as provided under the Order and whether he was empowered to seize the foodgrains. Authority of the 6 Block Development Officer to seize the food grains is not stated in the counter affidavit. It is further contended that at the time of seizure nobody claimed ownership of the seized goods. It is true that when raid was conducted and seizure list was prepared the owners and purchasers have left the place fearing arrest or intimidation. But the petitioners were made accused after finding that they have purchased the materials and allegations were to that effect. Therefore, State can not contend that ownership is not with the petitioner. Even though the seizure was complete on 22.11.2008, no body had claimed the ownership of the seized materials. If anybody other than the petitioners claims the materials the first respondent can conduct adjudication on the same to determine the ownership of the materials seized. Hence, the present order against the petitioners is set aside. It is stated that the seized paddy and other items have already been sold and the amount has been deposited in the Treasury. If the paddy and other food-grains of the petitioners have not been sold, then it should be returned to the petitioners/owners as the case may be but if it has been sold, then the market value of it should be given to them/owners within a month of production/ receipt of a copy of this order. Both the applications are allowed to the above extent. JA/- (J. B. Koshy, CJ)