Skip to content


Mohmedmiya Mohmed Sadik Vs. the State of Gujarat and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal;Food Adulteration
CourtGujarat High Court
Decided On
Judge
Reported in(1975)16GLR583
AppellantMohmedmiya Mohmed Sadik
RespondentThe State of Gujarat and ors.
Cases ReferredHukum Chand v. Union of India I.L.R.
Excerpt:
- - in case of person like the petitioner, under para 3(b) if the stock held was not less than 10 quintals, the declaration in form a had to be made of the stock held in excess of the specified quantity to the competent authority within 24 hours from the time when such stock exceeded this specified quantity. 6a-where any (essential commodity is seized) in pursuance of an order made under section 3 in relation thereto, (it may) be produced, without any unreasonable delay, before the collector of the district or the presidency-town in which such essential commodity is seized and whether or not a prosecution is instituted for the contravention of such order, the collector, if satisfied that there has been a contravention of the order, may order confiscation of the essential commodity so.....j.b. mehta, j.1. this petition challenges the vires of sections 6a, 6b, 6c of the essential commodities act, 1955, hereinafter referred to as 'the act', as it stood amended by the two amendments by act 25 of 1966 and act 36 of 1967. on march 6,1973, the zonal officer shri malek, raided the residential premises of the petitioner and found that there was undeclared stock of 48 quintal and 60 k. gms. of wheat in breach of the relevant provision of the gujarat foodgrains (declaration of stock) order, 1972. the said stock was, therefore, seized and removed to the government godown at shahibaug. a complaint filed against the petitioner is pending before the city magistrate. a show cause notice was issued to the petitioner by respondent no. 3, collector, on march 30, 1973, to confiscate the.....
Judgment:
J.B. Mehta, J.

1. This petition challenges the vires of Sections 6A, 6B, 6C of the Essential Commodities Act, 1955, hereinafter referred to as 'the Act', as it stood amended by the two amendments by Act 25 of 1966 and Act 36 of 1967. On March 6,1973, the Zonal Officer Shri Malek, raided the residential premises of the petitioner and found that there was undeclared stock of 48 Quintal and 60 K. Gms. of wheat in breach of the relevant provision of the Gujarat Foodgrains (Declaration of Stock) Order, 1972. The said stock was, therefore, seized and removed to the Government godown at Shahibaug. A complaint filed against the petitioner is pending before the City Magistrate. A show cause notice was issued to the petitioner by respondent No. 3, Collector, on March 30, 1973, to confiscate the seized stock. After considering the reply, dated June 23, 1973, submitted by the petitioner and as the petitioner did not remain present even when a notice for personal hearing was served on him, the final order confiscating the excess stock of 38 Quintals 60 K. Gms. was passed on June 30, 1973. In appeal that order was confirmed by the Additional Sessions Court on February 25, 1974, against which a revision application No. 166 of 1974 is pending before this Court. Therefore, the petitioner has meanwhile challenged the vires of these provisions as a person affected, by this separate petition.

2. Mr. Mehta has raised the following three points at the hearing:

1. That it was unguided and uncanalised power of the confiscation of these goods dependent on the sweet will of the authority seizing these goods to produce or not to produce them before the Collector and of the Collector to confiscate in one case and not to confiscate in the other by picking and choosing similarly situated persons.

2. That the confiscation order amounts to acquisition of property without any compensation;

3. That such provisions permitting confiscation amount to unreasonable restriction on the petitioner's right to hold property.

3. On these grounds he has challenged the vires of these provisions under Articles 14 and 19 of the Constitution.

4. At the outset we would set out the relevant provisions of the Act. The preamble of the Act provides that in the interests of the general public, for the control of the production, supply and distribution of, and trade and commerce in, certain commodities, this Act; was enacted. Section 2(a) defines the term 'essential commodity', where in Sub-clause (v) foodstuffs, including edible oilseeds and oils have been mentioned. Section 3(1) deals with powers to control, production, supply, distribution, etc. of essential commodities with a view to securing their equitable distribution and availability at fair prices. Under Sub-clause (2) without prejudice to the generality of the powers, the order may provide for the various items specified therein. In exercise of the said powers under Section 3(1), read with the delegation order of the Government of India, dated June 20, 1967, the Government of Gujarat has with a view to maintaining supplies of foodgrains and for securing their equitable distribution and availability at fair prices promulgated on October 23, 1972, the Gujarat Foodgrains (Declaration of Stock) Order, 1972, which was extended to the whole State with effect from November 1, 1972. Para 2(3) defines 'competent authority.' Para 2(4) defines 'foodgrains' which are specified in the Schedule, where the first item is 'wheat.' Paras 3(a) and (b) make provisions for declaration of stock by agriculturists, dealers and others. In case of person like the petitioner, under para 3(b) if the stock held was not less than 10 quintals, the declaration in form A had to be made of the stock held in excess of the specified quantity to the competent authority within 24 hours from the time when such stock exceeded this specified quantity. Para 5 provides for the power of entry, search and seizure by the Civil Supplies Officer with a view to securing compliance with the provisions of this order or to satisfying himself that the provisions of the order had been complied with, and under Sub-clause (d) he may seize and remove or cause to be seized or removed any stock of foodgrains in respect of which a contravention of the provisions of this order had been committed, together with any container or receptacles of such articles. This power was subject to various safeguards in para 5. Accordingly, the stock in question was seized in case of the petitioner as it was undeclared stock as required by the aforesaid order. Section 5 provides for the delegation of powers of the Central Government under Section 3 to the State Government and under Section 6, any order made under Section 3 had the effect, notwithstanding anything inconsistent therewith, contained in any enactment other than this Act or any instrument having effect by virtue of any enactment other than this Act. The relevant provisions of Sections 6A and 68 which have been introduced by the two Amending Acts are as under:

6A-Where any (essential commodity is seized) in pursuance of an order made under Section 3 in relation thereto, (it may) be produced, without any unreasonable delay, before the Collector of the District or the Presidency-town in which such essential commodity is seized and whether or not a prosecution is instituted for the contravention of such order, the Collector, if satisfied that there has been a contravention of the order, may order confiscation of the essential commodity so seized.

Provided that without prejudice to any action which may be taken under any other provision of this Act, no foodgrains or edible oilseeds seized in pursuance of an order made under Section 3 in relation thereto from a producer shall, if seized foodgrains or edible oilseeds have been produced by him, be confiscated under this section.

6B-N0 order confiscating any essential commodity shall be made under Section 6A unless the owner of such essential commodity 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,

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

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

Section 7(1) deals with penalties. Therefore, the aforesaid scheme of the Act discloses that before the amendment in Section 6A and Section 6B the procedure was of a mere criminal prosecution in cases of contravention of this control order regarding essential commodities. Therefore, these new amendments were introduced in that Act providing for confiscation by the Collectors of the Districts of all these essential commodities. Section 6A in terms provides that this provision extended to all essential commodities and not only to foodgrains, edible oilseeds and oils to which it had originally extended when the first amendment was made. Section 6A contemplates that when any such essential commodity is seized in pursuance of the relevant control order under Section 3 in relation thereto, it may be produced without any unreasonable delay before the Collector of the District or the presidency town in which such essential commodity is seized. The Collector is thereupon given power on his satisfaction that there was a contravention of the order to order confiscation of this essential commodity so seized and this power of confiscation can be exercised whether or not the prosecution is instituted for the contravention of such order, We are not concerned with the proviso to Section 6A. Section 6B lays down a salutary procedure by enacting that no such order of confiscation shall be made under Section 6A unless the person concerned is given a notice in writing informing him of the grounds on which it is proposed to confiscate the essential commodity and is given an opportunity of making a representation in writing within such reasonable period as may be specified in the notice against those grounds and a further reasonable opportunity of being heard in the matter. Therefore, Section 6B ensures the observance of the principles of natural justice by giving a fair opportunity to the person concerned before any such confiscation is ordered by the Collector. A further provision of appeal is enacted in' Section 6C(1) by enacting that an appeal shall lie to any judicial authority appointed by the State Government concerned who shall after giving an opportunity to the appellant to be heard, pass such order as it may think fit, confirming, modifying or annulling the order appealed against. Section 6(c)(2) provides another substantial right to the person concerned by enacting that where an order under Section 6A is modified or annulled by such judicial authority, or where in a prosecution instituted for the contravention of the order in respect of which an order of confiscation has been made under Section 6A, and the person concerned is acquitted, and in that case it is not possible for any reason to return the essential commodity seized, such person shall be paid the price therefor as if the essential commodity had been sold to the Government with reasonable interest calculated from the day of the seizure of the essential commodity and such price shall be determined:

(i) in the case of foodgrains, edible oilfeeds or edible oils, in accordance with the provisions of Sub-section (3B) of Section 3....

Thereafter Section 6D enacts that the award of any confiscation by the Collector shall not prevent the infliction of any punishment to which the person affected is liable under that Act. Therefore, Section 6D makes it clear that the remedy of confiscation is not substitutive in nature but supplementary and that is in terms made clear even under Section 6A by providing that the Collector can order confiscation, whether or not, the prosecution is instituted for the contravention of such order. It is in the light of this salutary scheme that we have now to consider the relevant contentions urged by Mr. Mehta.

5. As regards the first ground Mr. Mehta rightly does not challenge the power of seizure which is a must in such legislation. His only grievance is as regards the confiscatory power of the Collector under Section 6A and he challenges the same as being arbitrary and discriminatory. Mr. Mehta's contention is that the seizing authority may not produce these goods because he has a discretion to produce these goods before the Collector and similarly the confiscatory authority may also pick and choose a person similarly situated as there are no clear guidelines. Therefore, the vires of these provisions in Section 6A is challenged on the ground of discrimination under Article 14.

6. It is the settled legal position that discretion is not discrimination. The power which is conferred for confiscating seized goods on the Collector on his being satisfied that there has been a contravention of the order is a discretionary power. It is applicable to the entire class of such persons without any discrimination as all are equally liable for the exercise of this confiscatory power. Besides, the discretion which is conferred on the Collector is not without any guide lines or arbitrary discretion. The expression 'may' in such a context is always interpreted as a power coupled with duty. In Govindrao v. State of Madhya Pradesh A.I.R. 1965 S.C. 1220, their Lordships had interpreted the words: 'may pass such orders as it deems fit' as no more than that Government must make its orders to fit the occasion, the kind of order to make being determined by the necessity of the occasion. The relevant passage from Maxwell on the Interpretation of Statutes was quoted as under:

Statutes which authorise persons to do acts for the benefit of others, or, as it is some times said, for the public good or the advancement of justice, have given rise to controversy when conferring the authority in terms simply enabling and not mandatory. In enacting that, they 'may' or 'shall', if they think fit', or 'shall have power', or that 'it shall be lawful' for them to do such acts a statute appears to use the language of mere permission, but it has been so often decided as to have become an axiom that in such cases such expressions may have to say the least-a compulsory force, and so would seem to be modified by judicial exposition.

So, the expression 'may' is often read as 'shall' or 'must' when there was something in the nature of the things to be done which-made it the duty of the person on whom the power was conferred to exercise the power. Therefore, when such discretion is invested in an authority, except in those cases where there are grounds for not exercising such power, the authority would be bound to exercise the power. The word 'may' in such context, though apparently discretionary, has to be read as 'must'.

7. We must keep in mind that this power is now an extensive power to be exercised in the context of all essential commodities seized by the authorities. There is a big list of essential commodities in Section 2 of the Act. Therefore, the discretion must be in the authority which seized such essential commodities for production before the Collector without any unreasonable delay. The provision even so far as the seizing authority is concerned would mean that the production must be done so far as it is reasonably practicable and necessary. In fact, that is the safeguard provided by way of a salutary check on the exercise of power of search and seizure by the lower authority. Equally it is a provision made in public interest from the point of view of public good because there is scarcity of essential commodities and that is why the delay in disposal would result in public harm, and defeat the entire purpose of the Act. When there is such scarcity of the essential commodity and the object of the Act is to secure fair and equitable distribution at fair prices to the community, such goods which are seized, have to be produced before the Collector without any unreasonable delay so that he could decide to exercise the power of confiscation in public interest keeping in mind the relevant statutory guidelines of the Act. The whole object of this Control Order so far as these foodstuffs were concerned was that the stock must be declared as required under this Control Order so that supplies of foodgrains can be maintained to the community and, their equitable distribution can be secured and they could be made available at fair price. The object is to prevent any hoarding or black-marketing in the scarce foodstuffs. That is why this relevant power of search and seizure is given in para 5 by seizing and removing such stock of undeclared foodgrains in respect of which there was contravention of the provisions of the order by the seizing authority. Therefore, keeping this perspective in mind, the seizing authority would be bound without any unreasonable delay to produce these goods before the Collector. The discretion, if any, is only to be duly exercised keeping in mind the nature of the essential commodities where their production may not be reasonably practicable or necessary. In some cases, the production may not be actual but symbolic in nature, as for examble, when such foodgrains are kept after seizure in the Government godown. In any event, the discretion in such cases which has to be exercised, as the power coupled with this duty, could never be said to be discriminatory because the guide lines for exercising the relevant statutory discretion are obvious in the scheme of the Act and the relevant Control Order. The same statutory guidelines exist even for the Collector when he exercises his discretion in public interest of confiscating these goods. This is not merely a power but really a public duty of the Collector to confiscate these goods when there is contravention of the Control Order. Therefore, it could never be urged that the Collector had an unguided abritrary power when he had this statutory discretion to be exercised as per the statutory perspective for confiscating the seized goods which were produced before him actually or symbolically by the seizing authority.

8. In Manoharlal v. State of Maharashtra in the context of the Sea Customs Act (1878), it was contended that the authorities had been given discretion to institute a criminal prosecution under Section 167(8) or Section 167(81), and there was also a power of confiscation under Section 187A. At page 1515 their Lordships pointed out that the procedural provision must be read in the light of the object and purpose of the Act. While deciding whether a complaint should be instituted for an offence which was covered both by items 8 and 81 of Section 167, a customs officer must take into account the enormity and magnitude of the contravention and the evidence which was available. It was possible that in certain cases the evidence might not be sufficient for taking the matter to a criminal Court and in view of the entire facts, a complaint might not be lodged for contravention of offence under Item 81 but in all cases the customs officers had to act in a reasonable and bona fide manner and they could not just discriminate between similar cases according to their whim and fancy. For if that was done, it was always open to a person against whom complaint had been instituted to challenge their exercise of discretion in appropriate proceedings. Their Lordships followed the earlier decision in Matajog Dobey v. H.C. Bhari where it was contended that Section 197 of the Criminal Procedure Code vested an absolutely abritrary power in the Government to grant or withhold sanction at their sweet will and pleasure. It was in terms pointed out that if the Government gave sanction against one public servant but declined to do so against another, then the Government servant against whom sanction was given might possibly complain of discrimination. But there was no such discrimination against the complainant in that case. Their Lordships in terms pointed out that a discretionary power was not necessarily a discriminatory power and that abuse of power was not easily to be assumed where the discretion was vested in the Government and not in a minor official. Their Lordships also pointed out that the provisions of the Act sufficiently indicated the guide lines in the exercise of such discretionary power. Therefore, it could not be held that there was any violation of Article 14. This decision would be in terms applicable to the facts of the present case because the petitioner does not challenge any abuse of power in this particular case. What he challenges is the investment of such discretion in such high authority like the Collector. Once it is held that this is discretionary power, which is in the nature of power coupled with the public duty, Mr. Mehta's contention is wholly baseless because such power has to be exercised in the public interest as per the statutory perspective. In the State of Punjab v. Khan Chand their Lordships had in terms pointed out that the vesting of discretion in authorities in exercise of statutory power did not by itself entail contravention of Article 14. What was objectionable was the conferment of arbitrary and uncontrolled discretion without any guidelines whatsoever with regard to the exercise of that discretion. Their Lordships pointed out that considering the complex nature of problems which have to be faced by a modern state, it was but inevitable that the matter of details should be left to the authorities acting under an enactment. Discretion has, therefore, to be given to the authorities concerned for the exercise of the powers vested in them under an enactment. The enactment, however, must prescribe the guidelines for the furtherance of the objects of the enactment and it was within the framework of those guidelines that the authorities could use their discretion in the exercise of the powers conferred upon them. Discretion which was absolute, uncontrolled and without any guide lines in the exercise of the powers could easily degenerate into arbitrariness. When the individuals would be permitted according to their sweet will, there was bound to be an element of 'pick and choose' according to the notions of the individuals. Therefore, it was pointed out that if a legislature bestowed such untrammelled discretion on the authorities acting under an enactment, it abdicated its essential function for such discretion was bound to result in discrimination which was the negation and antithesis of the ideal of equality before law as enshrined In Article 14 of the Constitution. It was in the absence of any principle or policy for the guidance of the authority concerned in the exercise of discretion which vitiated an enactment and made it vulnerable to the attack on the ground of violation of Article 14. In the present case, applying these settled principles, the discretion could never be discriminatory so as to violate Article 14. The guidelines need not be expressly stated in the Act and as per the settled legal position, they may be read even from the preamble and object of the Act and of the Control Order. In Shree Meenakshi Mills v. Union of India their Lordships considered the entire perspective of this Act along with its Control Orders in which distribution and Control was intended to ensure availability of that essential commodity at reasonable or fair price. Profiteering, hoarding, cornering were the evils to be eliminated. Their Lordships observed that they were to be eliminated in public interest. Even elimination of persons who had hoarded or cornered or were unscrupulous in distribution was intended and that is why restriction was a reasonable restriction in public interest as contemplated in Article 19(6). Therefore, if these guidelines or perspective of the Act are kept in mind, it is obvious that this confiscatory power is conferred on the Collector when he is satisfied of the contravention of such Control Order in public interest, so that these scarce commodities are made available in fair and equitable manner to the community at fair price. When discretion to confiscate was given in such context against persons who were evading a just Control Order, it would never suffer from the vice of discrimination because the power in such a case would always be coupled with its public duty. In Pooran Mal v. Director of Inspection etc. , while up-holding the vires of various search and seizure provisions of the Income-tax Act (1961) against all evaders of tax, their Lordships in terms pointed out at page 354 that such drastic measures to get at tax evaders were justified as reasonable restrictions under Article 19(1)(f) and (g) because one could not possibly ignore how such evasions eat into the vitals of the economic life of the community. In the interest of the community, it was only right that the fiscal authorities should have sufficient powers to prevent tax evasion. Their Lordships further pointed out that search and seizure were not a new weapon in the armoury of those whose duty it was to maintain social security in its broadest sense. The process was widely recognised in all civilized countries, especially when such power was hedged down with salutary safeguard against undue and improper exercise and was vested in high officers. At page 359, when Section 132 was attacked as discriminatory so far as such tax evaders were concerned, their Lordships pointed out that all evaders of tax could be proceeded against under Section 132. Only in some cases the search might be useful; in others it might not be. Their Lordships pointed out that an assessee whose property could be seized for the recovery of his tax liabilities did not stand in a different class, as such, but stood in a different situation from those others against whom the search and seizure processes though available were futile. In the nature of thinks, such an enquiry was impossible in the case of tax evaders from whom nothing was or could be seized on a search. That is why it was pointed that in one set of cases the fiscal authorities made sure of recoveries, in the other, they were unable to do so, not because the provisions of Section 132 did not operate on them, but because action under that Section by search and seizure was futile. Therefore, it was in terms pointed out that there was no substance in the contention that two different procedures for assessment were adopted and hence there was a discrimination under Article 14. The plea on behalf of the assessee, in effect only amounted to this, that even though they were tax-evaders, if other tax evaders successfully dodged the collection of tax by causing their concealed income to disappear, they should also have the same facility. Their Lordships refused to accept any such contention by such tax evaders. The same would be the case here when such persons plead discrimination who evade these essential commodities Control Orders and who are liable to be equally dealt with under this relevant provision of Section 6-A in public interest. The discretion which is vested in the statutory authorities in such a context of Section 6-A is not unguided discretion but a discretion which would amount to a power coupled with public duty, so that it would be exercised in public interest against all such evaders of these salutary controls, except when there are grounds for not exercising such power in any appropriate case as per the aforesaid perspective of the Act and the Control Orders.

9. Besides, there are other safeguards provided by the introduction of the principles of natural justice and a fair hearing to the person concerned before exercising this confiscatory power as envisaged in Section 6B, with even a right of appeal to a judicial authority under Section 6C. In view of this statutory perspective for the power to be exercised when such high officer like the Collector is satisfied of the contravention of the orders in case such seized goods which are promptly produced before him and in view of these various safeguards, there is no substance in the first contention of Mr. Mehta that there is any violation on the score of Article 14.

10. As regards the next ground Mr. Mehta could hardly urge this ground in the face of Section 6C(2) which contemplates that if the confiscation order under Section 6A is modified or annulled in appeal under Section 6C, or the person concerned is acquitted, the seized goods would have to be returned or if it is not possible to do so for any reason, the person concerned would be paid the price thereof as if the essential commodity has been sold to the Government with reasonable interest calculated from the date of the seizure of the essential commodity and such price would be determined in accordance with the provisions of Section 3(3B). Mr. Mehta, therefore, could not make a grievance on the second score because the confiscation was only temporary in view of the immediate public interest for expeditious disposal of these essential foodstuffs. A provision was, therefore, made that if the person concerned succeeded in the appeal or was acquitted, he would have the goods returned or would get the price therefor.

11. Finally Mr. Mehta tried to found his attack on the score of Article 19, In the context of such essential commodity Control legislation, when confiscation is contemplated in case of those who evade the Control Orders, and where the power of confiscation is hedged down with such salutary safeguards, and even a right to return of the goods or the price thereof is provided, in case the confiscation order is modified or annulled in appeal by a judicial authority, or of acquittal of the person concerned, the restriction would surely be reasonable in public interest, as found by their Lordships even in the case of Meenaxi Mills. Therefore, even on the third ground, no ground has been made out by Mr. Mehta which would justify any such challenge.

12. Mr. Nanavati to this connection pointed out that the Allahabad High Court in the case of B.R. Jagawath v. District Magistrate, Meerut had upheld the vires of Sections 6A and 6B. It is true that there the question was considered in the context of the discretion of the authority to institute prosecution or to resort to this confiscatory measure. The learned Judge had in this context pointed out that the intention of the legislature was that every person who contravened an order under Section 3 was liable to be prosecuted and punished. However, the learned Judge had borne in mind the relevant aspect that the whole object behind Section 6A was to make provision for the speedy and effective control and disposal of the seized commodities like foodgrains, edible oil-seeds or edible oils etc. as per Section 6A as it stood before the second amendment. Therefore, it was held that the legislature must have well thought that an order of confiscation or forfeiture might be passed initially, and might not wait till the final disposal of the prosecution. To that end, power had been conferred on the Collector to pass suitable orders under Section 6A. Such a provision was not in substitution of Section 7.

13. It was provisional and provided a measure of an interim relief to the commodities in respect of which a contravention had taken place. Therefore, it was held that there was no discrimination between the various dealers who might have contravened an order under Section 3. Similarly in Hukum Chand v. Union of India I.L.R. 1968 (2) Punjab 456 also, the vires of the provisions of Sections 6A and 6B is upheld in the same context as the authority had no discretion to prosecute or to confiscate. In the present case, as earlier pointed out, Mr. Mehta rightly did not attack these provisions on the score of discrimination so far as the authorities had this discretion to institute criminal proceedings and to resort to this confiscatory remedy. We have earlier pointed out that even from the wider angle, such a discretion being in the nature of power coupled with public duty, could never be attacked as discrimination and, therefore, the whole attack on this salutary provisionan the score of Articles 14 and 19 is wholly misconceived.

14. In the result, this petition fails and the rule is discharged with no order as to costs in the circumstances of the case.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //