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Kashinath Bhimanna Ghante and ors. Vs. State of Maharashtra and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtMumbai High Court
Decided On
Case NumberSpl. Civil Appln. No. 2762 of 1975
Judge
Reported inAIR1980Bom132
ActsEssential Commodities Act, 1955 - Sections 3, 3(2), 6-A and 6-B; Maharashtra Scheduled Articles (Display and Marking of Prices) Order, 1966
AppellantKashinath Bhimanna Ghante and ors.
RespondentState of Maharashtra and anr.
Appellant AdvocateP.S. Patankar, Adv.
Respondent AdvocateC.J. Sawant, Addl. Govt. Pleader and;W.S. Devanani, Asstt. Govt. Pleader
Excerpt:
.....prices) order, 1966 - petitioners alleged of non-compliance of government order as to display of prices of stock - petitioners are members of partnership firm - petitioner contended that failure to give notice to all partners resulted in illegality of proceedings - petitioner is father of two other petitioners - issue of notice to father would be sufficient compliance of section 6b - stock found at residence was stored for sale and not for personal consumption - non inclusion of such stored stock in list of prices is violative of clause 4 of order - order of confiscation made by collector justified. - section 3: [s.b. mhase, d.s. bhosale & a.s. oka, jj] offences of atrocities - complaint under held, merely because the caste of the accused is not mentioned in the fir stating..........contended that all that is required by the order was that in the case of washing soaps and toilet soaps prices of soaps of two manufacturers only had to be displayed and, therefore, the breach of the order must be said to have been committed only in respect of washing and toilet soaps of two manufacturers and what could, therefore, be confiscated was only soap made by two manufacturers. the contention is that the soaps seized from the shop and residential premises of the petitioners were made by more than two manufacturers and, therefore, soaps made by all the manufacturers which were kept by the petitioners for retail sale, could not be confiscated. the power to confiscate is contained in section 6a of the act. under the provision, power has been given to the collector to order the.....
Judgment:

Chandurkar, J.

1. Premises of the petitioners who are running a Provisions Shop at Sholapur, were raided on 25th August 1974. The residential house of the three Petitioners was also raided. According to the Petitioners, the business is carried on by them as the members of a partnership firm. Certain articles were seized from this shop and the house. We are concerned with the soaps which were in the form of cakes or bars and detergents, such as Surf, Rhino, Sway, Rinso, Det etc. The raid was made because it was found that the petitioners had not displayed the prices of soaps as required by the Maharashtra Scheduled Articles (Display and Marking of Prices) Order 1966, (hereinafter referred to as 'the Orders'). This order is made by the State Government in exercise of powers conferred by Section 3(i) read with Clauses (c), (e), (i) and (j) of Sub-section (2) of the Essential Commodities Act, 1955 (hereinafter referred to as 'The Act'). By Clause 3 of this Order, a dealer is required to display and mark prices in respect of certain articles which are specified in Schedule 1 and the prices have to be displayed conspicuously during the hours of business and at a place as near to the entrance of his business premises as possible. The list of prices has to be in the form prescribed in Schedule 1. This list should be printed, typed, painted or written in pencil or with ink or chalk and has to be readable from a reasonable distance. We are concerned with entries Nos. 32 and 33 in Schedule 1 to this Order. These entries are as follows:

Sr. No.Name of ArticleQuality if anyUnit of PricePrice

32Washing soaps of two Manufacturers mentioning size. 33Toilet soaps of two Manufacturers mentioning size andprice.

2. The Collector of Sholapur, within whose jurisdiction seizure was made, went into the question as to whether there was any contravention of the order and found that the petitioners had failed to prove that the prices and stocks of soaps were displayed on the board. The panchanama, which was made at the time of the seizure, shows that there was only one board, which was seized on which prices of soaps as required by the Order were not displayed. The Collector in exercise of his powers under Section 6A of the Act, therefore, made an order that all stock of commodities seized by the Police except Ovaltine, and Shikakai tins should be confiscated and they shall be immediately put to public auction to avoid any deterioration due to passage of time and the sale proceeds were directed to be credited to the Government.

3. Against this order of the Collector, the first and the third Petitioners, who appear to be father and son, filed an appeal. The second petitioner also is a son of the 1st Petitioner but his name is not to be found in the appeal memo filed before the Sessions Judge, Sholapur, Before the Sessions Judge, it was contended that the notice by the Collector was given only to Petitioner No. 1 and since the notice was not given to Petitioner No. 3, the order of confiscation was bad. This contention was negatived by the learned Sessions Judge who held that in the case of a partnership business, each partner is an agent of the other and, therefore, if 3 notice is served on one partner, it must be deemed to have been served on the partnership firm. The second contention which was raised before the Sessions Judge was that under the order, a list of prices had to be displayed only of washing soaps of two manufacturers and toilet soaps of two manufacturers and, therefore, if any breach was committed, soaps of only two manufacturers could have been confiscated. The learned Sessions Judge held that the Petitioners having failed to display the prices as required by the Order on the board, the soaps of all kinds that were seized, were liable to be confiscated and that it was not for the Collector or the Appellate Court to decide which of the two kinds of soaps should have been displayed. The Sessions Judge, therefore, dismissed the appeal of the Petitioners. This Petition is now filed challenging the orders of the Collector and the Sessions Judge.

4. It is contended by Mr. Patankar in this petition that the failure of the Collector to give a notice to Petitioners Nos. 2 and 3 had resulted in an illegality in the proceedings. Now, if as is contended, the business belonged to a partnership firm, consisting of all the three partners, then in view of the legal position that each partner is an agent of other partners, the notice to Petitioner No. 1 would be sufficient compliance with the law. The provision of Section 6-B of the Act which provides for an issue of a show-causenotice before an order of confiscation is made, requires a notice either to the owner of the essential commodities or to the person from whom the commodities are seized. It is not the case of the Petitioners that the articles were not seized from Petitioner No. 1. As a matter of fact, the grievance appears to be that articles were seized also from the house. If Petitioner No.1 is the father of other two Petitioners then it is reasonable to assume that the house was occupied by Petitioner No. 1 also and, therefore, the issue of notice to the father i.e. Petitioner No. 1, would be sufficient compliance with Section 6B of the Act.

5. It is then contended that the order of confiscation, directing confiscation of all the goods seized which included detergents also, is illegal because under the Order, the prices of detergents were not required to be displayed. The basis of this contention is the fact that detergents are not specifically mentioned in the list of articles in Schedule 1, It is true that washing soap has been mentioned and there is no express mention of any detergents of any particular kind or even generally. But a detergent is nothing more than a cleaning agent and where soap powder is sold as a detergent, the detergent will not cease to be washing soap. Detergents which are mentioned in the list of articles seized are admittedly soaps in the form of powder. Soap may take different forms. Washing soap even though it is in the form of powder does not cease to be washing soap, and such powder will be included in the general category of 'Washing Soap'. The object of the Order is to control the price at which the specified articles are sold to the consumers and, therefore, widest possible interpretation will have to be given to the articles which are referred to in the schedule. There is, therefore, no justification for holding that detergents in the form of soap powder will not be included in the category of washing soap mentioned at item No. 32.

6. It was then contended that all that is required by the Order was that In the case of washing soaps and toilet soaps prices of soaps of two manufacturers only had to be displayed and, therefore, the breach of the Order must be said to have been committed only in respect of washing and toilet soaps of two manufacturers and what could, therefore, be confiscated was only soap made by two manufacturers. The contention is that the soaps seized from the shop and residential premises of the Petitioners were made by more than two manufacturers and, therefore, soaps made by all the manufacturers which were kept by the Petitioners for retail sale, could not be confiscated. The power to confiscate is contained in Section 6A of the Act. Under the provision, power has been given to the Collector to order the confiscation of the essential commodities seized, if there is a contravention of the Order, Now, the contravention in the instant case is that a retail dealer was required to display the prices of washing soaps and toilet soaps of two manufacturers. The effect of the contravention is that sale of any soap by the shopkeeper would be in contravention of the order. It is not as if the sale of soaps of only two of the manufacturers will amount to contravention, because the requirement is that In order to sell washing soap or toilet soap in compliance with the order, the prices of soaps of two manufacturers must be displayed. The moment that is not done, there will be breach in respect of the sale or offer for sale of soap of any manufacturer. Thus the breach having been committed in respect of all soaps which have been offered for sale, all soaps were liable to be confiscated. There is no substance in the contention that the order of confiscation should have been restricted only in respect of soaps manufactured by two manufacturers,

7. It was then contended that the articles seized from the residential premises of the Petitioners could not have been seized or confiscated and since no separate record is maintained in respect of the articles seized from the residence, all the articles seized were liable to be released. Now, there is no difficulty in holding that the power to search is a very wide power under Clause 5 of the Order. Clause 5 of the Order empowers an officer or a person authorised by the State Government or by the Collector or any specified Officer 'to inspect any stocks of articles, books of accounts or other documents pertaining to dealings in any articles'. Therefore, if a stock of articles intended for sale is kept in the residential premises, those stocks can be inspected. The power to seize can be exercised in respect of the articles in respect of which the person making a search, believes that any provision made by the order is being contravened. Sub-clause (3) of Clause 5 of the Order provides that such Officer or person (this refers to the Officer or person referred to in Sub-clause (1)) may in the course of such inspection, search for and seize any article in respect of which he has reason to believe that any provision, made by or in pursuance of this order, has been or is being contravened. The object of the order is that the consumers must know the prices of the articles which are being sold and whenever the breach is committed in respect of the obligation to display the price of any articles, all articles which are intended for sale would be seized or confiscated, because those articles belong to the dealer. The word 'Dealer' has been defined in the order in Sub-clause (B) of Clause 2 as meaning'

'A person who carries on the business of selling by retail, or storing for sale by retail, any article, whether or not such business is carried on in addition to any other business, but does not include a hawker or pedlar.'

8. There can be no doubt that the stock of soaps which is (was?) found at the residence of the Petitioners was stored for sale by retail, because it is not the case of the Petitioners that that stock was for their personal consumption or that it was intended for any other purpose such as sale by wholesale. Therefore, by virtue of the definition of 'Dealer', breach must be deemed to have been committed in respect of entire stock of soaps available with the dealer, whether that stock was in the shop premises or stored at the residence. It cannot, therefore, be said that the search or seizure of the stock intended for retail sale maintained at the residential premises, was without any authority of law. This is made more clear by Clause 4 of the Order. The relevant part in Sub-clause (c) reads as follows:

'No dealer shall omit to include in the list of prices any article ordinarily kept or stored for sale by him, or to display in such list the price of any article held by him in stock'.

This provision makes it clear that it is obligatory on the dealer to include in the list of prices any article which is ordinarily kept or stored by him for sale, Thus if the stock of soaps which was held by the Petitioners at the residence was intended for sale, then that stock would also be taken into account for the purposes of breach of the Order.

9. It, therefore, appears to us that the learned Sessions Judge was right in holding that the order of confiscation made by the Collector was not illegal. The Petition must, therefore, fail and is dismissed with costs.

10. Petition dismissed.


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