Madhava Reddy, J.
1. The petitioners herein were convicted for an offence under Clause (4) of the Andhra Pradesh Rice Procurement (Levy) and Restriction on Sale Order. 1967 read with Sections 3 and 7 of the Essential Commodities Act for having attempted to transport 150 bags of rice from the State of Andhra Pradesh to the State of Madras on the night of 3-6-1969. On samples being taken and sent to the Food Corporation of India for opinion, it was found that the bags contained 33-1/3 per cent, whole rice and 66-2/3 per cent, broken rice. The District Revenue Officer, Nellore who is the competent authority in this behalf directed confiscation of 75 bags thereof holding the accused guilty of contravening Clause (4) of the Andhra Pradesh Rice Procurement (Levy) and Restriction on Sale Order. 1967. On appeal the learned Sessions Judge has confirmed the order of the District Revenue Officer, Nellore but reduced the confiscation to 50 bags only.
2. In this revision petition, it is argued by Mr. N. Subbareddy. learned Counsel for the petitioners that since the major portion of the commodity constituted broken rice i. e. only l/3rd portion was whole rice and 2/3rds portion was broken rice, the whole commodity should be treated as 'broken rice' and not 'Rice' for transport of which no permit is necessary and hence the confiscation order is illegal. Under Clause 2 (h) of the Order 'Rice' is defined as follows:
'Rice' means any variety of rice and includes rice equivalent of paddy held in stock.
Admittedly all the 150 bags which were being transported by the petitioners contained at least 33-1/3 per cent, whole rice as defined under the Order. The further fact that it also contains 66-2/3 per cent, of broken rice does not exclude the commodity from the definition of rice. So long as there is a prohibition under the order against transporting rice, whether mixed with other commodity or not, except under a permit, the mere fact that the rice is mixed with almost the double quantity of broken rice the petitioners are not entitled to transport the same. The Andhra Pradesh Rice Procurement (Levy) and Restriction on Sale Order, 1967 puts an embargo on the transport of rice as such. When once it is found that rice is being transported, the confiscation order would be justified under Clause (8) read with Section 8 of the Essential Commodities Act.
3. It was next contended that since no permit is necessary for transporting broken rice, merely because it is mixed with rice for transporting which permit is necessary, broken rice cannot be confiscated. I find sufficient force in this contention. The petitioners are the owners of the commodities i. e., broken rice as well as rice and they have a right to mix the same in such proportion as they deem fit. Equally when the authorities find that the commodities which require a permit for being transported are being transported without a permit, they have jurisdiction to confiscate that commodity. But the right to confiscate that commodity does not extend to the confiscation of the other commodities which do not require a permit for transport. Therefore, when even according to the petitioner's analysis. 62-2/3 per cent, of the commodity was broken rice for transport of which, no permit is necessary, that much of the quantity cannot be confiscated. It is not as if broken rice cannot be separated from the whole rice. The confiscation of the broken rice is, therefore, illegal and without jurisdiction. That these goods can be separated and only the goods which require permit are liable to be confiscated receives support from a decision of the Supreme Court in Motibhai F. P. & Co. v. Collector, Central Excise. AIR 1970 SC 829. That was a case under Central Excise Rules under which tobacco which was liable to duty was mixed with tobacco which was exempt from payment of any duty in which Their Lordships of the Supreme Court held:
Where a dealer has contravened Rule 40 of the Central Excise Rules (1944), by unlawfully mixing duty-paid tobacco with the non-duty paid tobacco the entire mixture cannot be confiscated but only so much of the mixture as can reasonably represent the value of the non-duty paid tobacco can be confiscated...
Rule 40 relates to forfeiture and is a penal provision. Its scope cannot be extended by reading into it words which are not there. Rule 40 permits the Central Excise Authorities to confiscate only those goods on which duty has not been paid. It is not permissible for the Collector to confiscate the entire tobacco mixture. If by the wrongful act of a party he renders it impossible for the authorities to confiscate under Rule 40 the non-duty paid goods it is open to those authorities to confiscate from out of the goods seized, goods only of the value reasonably representing the value of the non-duty paid goods mixed in the goods seized.
Having regard to the above, the order confiscating 50 bags of rice which contains 66-2/3 per cent, broken rice is in my opinion illegal and without jurisdiction for that does not require a permit for transport.
4. The prosecution has not questioned the order of confiscation made by the District Revenue Officer or by the learned Sessions Judge on appeal and as the order now stands only 50 bags can be confiscated. Out of this 2/3rds is broken rice and that does not require a permit, the order of confiscation of 2/3rds of 50 bags cannot be confiscated. Only the remaining l/3rd portion which comprises of rice can alone be confiscated. The entire quantity of 50 bags has already been disposed of and in view of the above discussion, only l/3rd portion of the price realised by the sale of 50 bags of rice would be liable to be confiscated and the rest of the 2/3rds portion is liable to be refunded.
5. In the result, the Criminal Revision Petition is partly allowed. The order of confiscation passed by the Court below would be confined to only l/3rd of the 50 bags. The value of the 2/3rds of the 50 bags realised by the authorities shall be refunded to the petitioners.