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Vijay Pal Gupta, Delhi Vs. the State and Others - Court Judgment

LegalCrystal Citation
Subject Criminal
CourtDelhi High Court
Decided On
Case NumberCriminal Misc. (Main) No. 594 of 1981 (From order of Addl. Sessions J., Delhi, D/- 8-9-1981)
Judge
Reported in21(1982)DLT436; 1982(3)DRJ270
ActsEssential Commodities Act - Sections 3, 6-A, 6-B, 6-B(1), 6-C; Co-operative Societies Act - Sections 77(2); Delhi Edible Oils (Licensing and Control) Order, 1977
AppellantVijay Pal Gupta, Delhi
RespondentThe State and Others
Advocates: V.K. Jain and; D.R. Sethi, Advs
Cases Referred and Chandeshwar Mahto v. State of Bihar
Excerpt:
.....in appeal. the aggrieved party filed the revision petition in the high court.;that the demands of natural justice are not met even if the very person proceeded against has furnished the informations on which the action is based. the language of clause (b) & (c) of section 6-b(1) of the act is quite explicit and clear and lays down that after the service of the show cause notice, the party concerned should be afforded an opportunity of making a representation jn writing and of being heard. the order was set aside and the case was remanded. - - 10,000/- with one surety in the like amount. however, he can order confiscation only if he is satisfied that there has been a contravention of the order. it is well settled that any infliction of a penalty involves quasi-judicial and not an..........in the matter'. it is manifest on bare reading of this section that it enshrines the principle of natural justice and fair play. there can be no gainsaying the fact that confiscation of seized commodity entails deprivation of ownership right. it is well settled that any infliction of a penalty involves quasi-judicial and not an administrative act and rules of natural justice come into play with a duty to act judicially/fairly. the maxim 'audialteram partem' is one of the fundamental rules of natural justice. this rule has many facets, two of them being, (a) notice of the case to be met and (b) opportunity to explain i.e. he must have an adequate opportunity for meeting that case. evidently, s. 6-b(1) embodies this cardinal principle of natural justice, and the use of the word 'shall'.....
Judgment:
ORDER

1. This revision petition raises a short but an important question relating to the procedure, governing the proceedings before a Collector, under S. 6-A of the Essential Commodities Act (for short, 'the Act'), for confiscation of the essential commodity seized, for contravention of an order made, under S. 3 of the Act in relation thereto. This question has arisen in the background of the following facts :-

2. On 10th March, 1981, at about 8-00 p.m., officials of the special cell (crime branch), Delhi Police, accompanied by the staff of the Food and Supplies Department, Delhi Administration, raided the business premises bearing No. A56/1 Guru Nanak Pura of M/s. Sudha Gupta Store. The petitioner, Vijay Pal Gupta, who is husband of Smt. Sudha Gupta was present there. He opened the lock of the said premises with a key which was with him at the time. On checking 8 quintals 76.5 kgs. edible oils of different varieties were found stocked in the premises. Since it was in excess of the permissible quantity under the provisions of Delhi Edible Oils (Licensing and Control) Order 1977 (for short, Licensing and Control Order) which had been issued under S. 3 of the Act, the whole of it was seized. A case was registered against the petitioner for contravention of the Licensing and Control Order, and a report was also made to the Collector about the seizure as envisaged in S. 6-A of the Act. Thereupon, the proceedings for confiscation of the seized commodities were initiated and a notice was issued to the petitioner to show cause in writing, as to why the aforesaid quantity of edible oil be not confiscated/disposed of under S. 6-A of the Act. He was required to appear personally or through an authorised representative on 8th April, 1981 before the Collector. However, it appears that the said notice was received back unserved with the report of the Postman 'no such person in this premises'. Thereupon, a fresh show cause notice was issued to the petitioner and he was called upon to appear before the Collector on 27th April, 1981 but that notice too was received back unserved. However, on 27th April, 1984, Smt. Sudha Gupta, proprietor of the aforesaid Store, appeared in person and the case was adjourned to 11th May, 1981, at her request. On 8th May, 1981, both the petitioners Vijay Pal and his wife Smt. Sudha Gupta appeared before the Collector in person and the former made a statement that the goods seized belonged to two shops, Sudha Gupta being the owner of one shop and he being the owner of the other shop. So he prayed that the goods seized by the officials of the Department be released in their favor. However, the Collector vide order dated 20th May, 1981, directed that excess quantity of edible oil weighing 3 quintals and 79 kgs (No. 1 (HVO) brand vanaspati oil) be confiscated to the State and the same be disposed of by auction through Nazarat Officer. As for the balance stock, he directed its release in favor of M/s. Sudha Gupta Store on an indemnity bond being furnished in the sum of Rs. 10,000/- with one surety in the like amount. Feeling aggrieved, the petitioner went in appeal to the judicial authority, under S. 6-C of the Act. The same was heard and dismissed by an Additional Sessions Judge vide order dated 8th September, 1981. Hence, this revision petition.

3. The learned counsel for the petitioner has made a double-barrelled attack against the impugned order. His first grievance is that no legal notice as contemplated by the provisions of S. 6-B was ever served on the petitioner even though there is a legislative mandate to do so. Secondly, he was not afforded a reasonable opportunity of being heard. Thus, the order was vitiated, on account of non-compliance with the mandatory provisions of law.

4. Section 6-A of the Act empowers the Collector to confiscate the essential commodity seized for contravention of an order made under S. 3 of the Act in relation thereto. He can exercise this power whether or not the prosecution is instituted against the accused for contravention of the order. However, he can order confiscation only if he is satisfied that there has been a contravention of the order. S. 6-B(1) lays down the procedure which he has to follow for arriving at his satisfaction. It reads at under :

'6-B (1). Issue of show-cause notice before confiscation of foodgrains, etc. - No order confiscating any (essential commodity, package, covering, receptacle, animal, vehicle, vessel or other conveyance) shall be made under Section 6-A unless the owner of such (essential commodity, package, covering, receptacle, animal, vehicle, vessel or other conveyance) or the person from whom (it is seized) -

(a) is given a notice in writing informing him of the grounds on which it is proposed to confiscate the (essential commodity, package, covering, receptacle, animal, vehicle, vessel or other conveyance);

(b) is given an opportunity of making representation in writing within such reasonable time as may be specified in the notice against the ground of confiscation; and

(c) is given a reasonable opportunity of being heard in the matter'.

It is manifest on bare reading of this section that it enshrines the principle of natural justice and fair play. There can be no gainsaying the fact that confiscation of seized commodity entails deprivation of ownership right. It is well settled that any infliction of a penalty involves quasi-judicial and not an administrative act and rules of natural justice come into play with a duty to act judicially/fairly. The maxim 'Audialteram partem' is one of the fundamental rules of natural justice. This rule has many facets, two of them being, (a) notice of the case to be met and (b) opportunity to explain i.e. he must have an adequate opportunity for meeting that case. Evidently, S. 6-B(1) embodies this cardinal principle of natural justice, and the use of the word 'shall' leaves no room for doubt i.e. the legislature intended to make the provisions of this section mandatory and not merely directory. That the Collector was alive to statutory obligation on his part to issue a show cause notice to the petitioner is evident from the fact that such a notice was, in fact, issued to the petitioner. Unfortunately, however, it remained unserved on both the occasions. It appears that the Collector did not take notice of the actual position probably because Smt. Sudha Gupta appeared before him in person on 27th April, 1981, the date for which notice had been issued to the petitioner for the second time. The learned Additional Sessions Judge too seems to have slipped into the same error when he observed that the Collector had issued notice under S. 6-B to the petitioner to show cause as to why the seized quantity of edible oil be not confiscated. Hence, the assumption on which, both the Collector and the Judicial Authority passed the impugned orders being ill-founded, the orders are liable to the quashed on this short ground.

5. Faced with the situation, the learned counsel for the State has urged that even assuming that show-cause notice was not duly served on the petitioner, there can be no room for doubt that he had information of the same and pursuant thereto, his wife Smt. Sudha Gupta and later on both he and his wife put in appearance before the Collector. Under the circumstances, service of show-cause notice would have been just an idle formality, more so, when the petitioner actually made a statement before the Collector on 8th May, 1981, claiming that the seized commodity belonged to two shops, one run by him and the other run by his wife. Thus, by no stretch of reasoning, the petitioner can be said to have been prejudiced due to non-service of show cause notice.

6. It would no doubt appear that the petitioner had somehow come to know of the proceeding pending against him and both he and his wife entered appearance before the Collector. However, that did not absolve the Collector from his legal obligation to give a show cause notice in writing to him as envisaged in clause (a) of S. 6-B(1). The requirement of this clause is a notice in writing of the grounds on which it is proposed to confiscate the essential commodities. So the notice ought to have been given in the context of the proposed action. The mere fact that the petitioner had some kind of information with regard to the nature of proceeding pending against him or even furnishing of information casually by the Collector assuming that he apprised the petitioner of the case against him will not amount to proper notice. Evidently, the purpose of notice is to afford an opportunity to the person concerned by making a representation in writing as contemplated in clause (b) of S. 6-B(1). In Annamunthodo v. Oilfields Workers' T. U. (1961) 3 All ER 621, Lord Denning observed that :-

'Counsel for the respondent union did suggest that a man could not complain of a failure of natural justice unless he could show that he had been prejudiced by it. Their Lordships cannot accept this suggestion. It a domestic tribunal fails to act in accordance with natural justice, the person affected by their decision can always seek redress in the courts. It is a prejudice to any man to be denied justice. He will not, of course, be entitled to damages if he suffered none. But he can always ask for the decision against him to be set aside.'

In Chintapalli Agency Taluk Arrack Sales Co-operative Society Ltd v. Secretary (Food and Agriculture) Government of Andhra Pradesh, : [1978]1SCR563 , was a non-compliance with S. 77(2) of the Co-operative Societies Act which provided that no order prejudicial to any person shall be passed unless said person had been given an opportunity of making his representation. The argument was that since the facts were clear the non-compliance did not matter. It was also said that the appellant had of his own motion made some representation in the matter. The Court rejected the argument observing that :-

'the Government did not give any notice communicating to the appellant about entertainment of the application in revision preferred by the respondents. Even though the appellant had filed some representations in respect of the matter, it would not absolve the Government from giving notice to the appellant to make the representation against the claim of the respondents. The minimal requirement under Section 77(2) is a notice informing the opponent about the application and affording him an opportunity to make his representation against whatever has been alleged in his petition. It is true that a personal hearing is not obligatory but the minimal requirement of the principles of natural justice which are ingrained in Section 77(2) is that the party whose rights are going to be affected and against whom some allegations are made and some prejudicial orders are claimed should have a written notice of the proceedings from the authority disclosing the grounds of complaint or other objection preferably by furnishing a copy of the petition on which action is contemplated in order that a proper and effective representation may be made. This minimal requirement can on no account be dispensed with by relying upon the principle of absence of prejudice or imputation of certain knowledge to the party against whom action is sought for.' Similarly, in Margarita Fuentes v. Robert L. Shevin, (1972) 32 L Ed 2d 556, it was held that :-

'to one who protests against the taking of his property without due process of law, it is no answer to say that in his particular case due process of law would have led to the same result because he had no adequate defense upon the merits.'

It is, thus, manifest that the requirement of natural justice/statutory mandate is met only if an opportunity to represent is given in view of the proposed action. The demands of natural justice are not met even if the very person proceeded against has furnished the information on which the action is based or if it is furnished in casual way or for some other purposes. A reference in this context be also made with advantage to Prem Ratan Mall v. Collector. Ganjam, : 45(1978)CLT121 and Chandeshwar Mahto v. State of Bihar, (Bench decision of Patna High Court). In the former case, it was held by a learned single Judge that :-

'Appearance of the petitioner suo motu cannot be taken to be compliance of notice under S. 6-B of the Act nor can it be a substitution for the same.'

Similarly, in latter authority, it was held that para 12 of (Pat) :-

'Section 6-B enjoins the duty upon the authority to issue a show-cause notice before passing an order of confiscation. Simply because a person has got any knowledge or information aliunde of any confiscation proceeding already initiated by any Collector or authority, that would not absolve the said authority from following the statutory procedure prescribed under S. 6-B.'

Thus, there is no escape from the conclusion that order of the Collector confiscating the seized commodity stands vitiated for non-compliance with this mandatory provision of law and it is liable to be set aside on this short ground.

7. Compliance with the requirement of Clauses (b) and (c) of S. 6-B(1) of the Act was equally imperative for the Collector. The language of both the Clauses is quite explicit and clear and lays down in unmistakable terms that after the service of show cause notice, the party concerned must be afforded an opportunity of making a representation in writing within a reasonable time and thereafter, he should also be given a reasonable opportunity of being heard in the matter. It is true that in the show cause notice, the petitioner was required to make a representation in writing against the proposed action, but unfortunately, he was never served with the notice and the Collector did not take due notice of this fact. In the absence of service of notice on the petitioner, it was, incumbent upon the Collector to have called upon the petitioner to make representation in writing against the proposed action. Even assuming for the sake of argument that the oral statement made by the petitioner before the Collector was tantamount to a representation in writing, there is nothing on the record to suggest even remotely that any opportunity, much less a reasonable opportunity was afforded to him of being heard in the matter. The doctrine of 'fair hearing' is one of the most important aspects of administrative justice. If this is assured by the provision of statute and observed by the administrative bodies even in the absence of prescribed procedure, it will, indeed, be most wholesome. Natural justice obligates administrative tribunals to give an affected party a fair opportunity to meet any evidence obnoxious to his case if it is to be pressed into service against him. This is precisely what the legislature sought to ensure by enacting clauses (b) and (c) of S. 6-B(1). Hence, the Collector was under a statutory duty to give the petitioner an opportunity not only to set up his version or defense but also an opportunity to correct or controvert any evidence in the possession of the Collector which was sought to be relied upon to the prejudice of the petitioner. It is one of the fundamental rules of our constitutional set up that every citizen is protected against exercise of arbitrary authority, by the State or its Officers. Of course, an administrative tribunal like the Collector is matter of its own procedure so long as there is fair play and rules of natural justice which have been given statutory recognition in S. 6-B(1) are duly complied with. Natural justice may always be tailored to a situation. It is well accepted proposition of law that justice must not only be done but should manifestly and undoubtedly be seen to be done. The administrative enquiry of the kind contemplated in S. 6-B(1) of the Act cannot be an exception to this salutary principle. It is, further, unfortunate that the Collector has failed to discharge the statutory duty enjoined upon him by S. 6-B(1), in all these respects. As a natural corollary, even the order made by the Collector which has been confirmed by the judicial authority is liable to be set aside. Hence, I accept this revision petition, set aside both the aforesaid orders and remand the case to the Collector for fresh decision after complying with the statutory requirements as envisaged in S. 6-B(1) in the light of my foregoing observations. The petitioner is directed to appear before the Collector Food and Supplies, Delhi on 31st March, 1982.

8. Revision allowed.


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