1. This petition under Article 227 of the Constitution arises out of an action taken against the petitioner under the provisions of the Essential Commodities Act, 1955 (for brevity's sake called 'the Act'). The petitioner is a trader dealing in sale and purchase of foodgrains at Dhulia and holds a valid licence for the same. On Jan. 31, 1975 the Assistant District Supply Officer searched his premises and found 39 bags of wheat and 52 bags of Bajra. On being questioned by the officer, the petitioner informed him that he had purchased the wheat in the market yard and the Bajra belonged to one Narayansing Lotusing Pardeshi of village Rajwal, and he was in possession thereof under an agreement of sale and that the same was brought in Dhulia by the said Pardeshi at about 8-30 p. m. on the previous day, that is, on January 30, 1975. It appears that this import was supported by an octroi receipt and the 52 bags of Bajra brought thereunder were actually brought to the petitioner's shop in the morning of 31st. The petitioner produced the receipts from the Market Committee regarding the purchase of wheat. As far as Bajra was concerned, Pardeshi supported the case of the petitioner. No accounts relating to the said stock were found in possession of the petitioner at the time of the enquiry by the District Supply Officer, He, therefore, took possession thereof and produced them before the Collector for taking action Under Section 6 (2) of the Act for contravention of the provisions of the Maharashtra Schedule Food-grains (Trade Monopoly) Order, 1972; Maharashtra Bajri Procurement (Levy) Order, 1973; and Maharashtra Foodgrains Dealers Licensing Order, 1973; which orders were issued under the provisions of the Act. The Collector thereafter issued a show-cause notice to the petitioner Under Section 6-B of the Act. After giving an opportunity to the petitioner regarding the charges levelled against him. the Collector found that the petitioner had contravened the provisions of the aforesaid Orders, and in this view of the matter, he directed confiscation of the entire stock of Bajra and wheat found in pos- session of the petitioner. Aggrieved by this order, the petitioner preferred an appeal before the learned Sessions Judge Under Section 6-C of the Act. The learned Sessions Judge exonerated the petitioner on all the counts except one. He, however, held that the petitioner was guilty of not writing the daily account as the transaction had taken place on January 30, 1975. Consistent with this finding and having regard to the nature of the evidence before him, the learned Sessions Judge allowed the appeal in part and modified the order of confiscation by directing that only 17 quintals of Bajri and 13 quintals of wheat should be confiscated to the State and the rest of the commodity or its price be given back to the petitioner. This order of the learned Sessions Judge is being challenged before us toy the petitioner.
2. Mr. Kotwal, the learned counsel appearing for the petitioner, submitted that the petitioner had given a reasonable explanation for not writing the account in respect of the transaction which had taken place on January 30, 1975. If regard be had to this explanation which, according to him, has not been rejected wholly by the learned Sessions Judge, the order of confiscation passed by the learned Sessions Judge is wrong in law. We see considerable force in the submission of the counsel so far as the order of confiscation relating to the 17 quintals of bajri is concerned. As regards the order relating to 13 quintals of wheat, however, we do not see any reason to interfere with the view taken by the learned Sessions Judge.
3. It is not disputed that the petitioner was carrying on the business under a valid licence issued to him under the Maharashtra Foodgrains Dealers Licensing Order, 1973. One of the terms of the licence is that the licensee is bound to maintain a register of daily account indicating opening stock of each day, quantities received on each day, showing the place and the source from which received, the quantities delivered to other places, and the closing balance. It is not disputed that the petitioner had maintained the account till Jan. 30, 1975, but had not written the -accounts of the transactions which he did on January 30, 1975. As far as the wheat stock is concerned, it is not disputed toy the petitioner that he had purchased the same in the market .at Dhulia on 30th itself and that he had also sold -a part of the stock to a third party leaving with him balance of 39 bags of wheat which he had purchased on that date. The petitioner seems to have explained the omission to enter these transactions relating to the purchase and 'sale of wheat by saying that 30th January -was & Sankashti Chaturthi Day and he was required to perform certain religious ceremonies and therefore he did not find time to write the account of the transactions of 30th Jan. However, as pointed out by the learned Sessions Judge, the petitioner has not explained as to why on the next day, that is, on 31st January, in the morning, he had not entered the transactions of the previous day before his shop was inspected at 1-30 p.m. on 3let. As per the condition of the licence, the petitioner was required to indicate the opening stock on each day. The petitioner, however, admittedly, failed to note the stock of wheat and the transaction relating thereto which he did on 30th January which were not1 even entered in the morning of 31st. The learned Sessions Judge, therefore, rightly rejected the explanation- of the petitioner so far as the wheat stock is concerned. The total stock of wheat confiscated by the Collector was 39 bags having regard to the nature of the violation committed by the petitioner. The learned Sessions Judge has exercised his discretion in ordering confiscation only of one-third of the stock of the wheat. It has not been shown that the discretion exercised by the learned Sessions Judge is either arbitrary or unjust. We, therefore, uphold the order of confiscation so far as the 13 quintals of wheat is concerned.
4. As regards the transaction relating to Bajri, it appears that the commodity was brought by Narayansingh Pardeshi within the municipal limits of Dhulia on the night of 30th at about 8-30 p.m. It is also seen from the explanation given by the petitioner that the stock actually was delivered to him only in the morning of 31st. According to the petitioner, it was only under an agreement of sale that the stock was taken possession of by him and the transaction was complete. Even if this explanation regarding the transaction, being in the nature of agreement of sale, is not accepted, still the fact remains that the Bajri in question was actually delivered in possession of the petitioner on the morning of 31st. The stock was inspected at 1-30 p.m. It is nobody's case that the petitioner disposed of any part of the bajri which was delivered in possession of the petitioner on the 3lst Having regard to the fact that the stock was inspected at 1-30 p.m., that is, within a few hours after the receipt of the stock by the petitioner and the fact that no part of it was disposed of by the petitioner during the interval, it cannot be said that the petitioner has violated the condition of the licence relating to the maintenance of the account so far as that transaction is concerned. The learned Sessions Judge has not considered this important aspect of the matter. In our view, therefore, the learned Sessions Judge has fallen in a patent error in passing the order of confiscation of 17 quintals of Bajri. If the Bajri stock had been received in the morning of 31st itself, it cannot be said that the petitioner has committed contravention relating to it. The petition succeeds so far as 17 quintals of Bajri are concerned.
5. In the result, the petition is partly allowed; the order of the learned Sessions Judge in so far as the confiscation of 17 quintals of Bajri is concerned is quashed and set aside. However, the order of confiscation in respect of 13 quintals of wheat is maintained. The petitioner would be entitled to get back 17 quintals of Bajri or its price which may have been realised, if sold during the pendency of this proceeding.
6. Rule partly made absolute as above.