S.B. Majmudar, J.
1. The petitioner challenges in the present petition the order of confiscation of his goods under Section 6A of the Essential Commodities Act, 1955, hereinafter referred to as 'the Act', as passed by the Collector, Kutch at Bhuj, and as confirmed by the learned Sessions Judge, Kutch at Bhuj in Criminal Appeal No. 61 of 1975.
2. A few facts leading to this petition are as under:
The petitioner is a dealer in certain essential commodities and he carries on his business at village Godpar in Bhuj Taluka. It is a small village having hardly 1000 souls. The petitioner is dealing on a small scale in items of daily requirements of the community. On July 19, 1975, the shop of the petitioner was inspected by the Supply Inspector who was acting under the provisions of the Act and the essential articles dealers regulation order issued thereunder. It is alleged that the petitioner was found in possession of 2360 K.G. of groundnuts and it was also found that certain items were not credited in the regular stock register as required by the relevant order. On the basis of the said inspection, a show cause notice was given to the petitioner on July 29, 1975 by the Collector, Bhuj, alleging that as 18 items of goods listed in the show cause notice were not mentioned in the regular stock register, the petitioner had committed breach of the Essential Articles Dealers (Regulation) Order, 1971. Hence the petitioner was called upon to show cause why such goads listed in the show cause notice should not be confiscated under the provisions of Section 6A of the Act.
3. The petitioner by his reply dated 4-8-75 contended that the groundnuts were of inferior quality and he had sent them to Bhuj for sale but the goods were rejected and, therefore, they had remained with him. As regards the other items he had admitted that he had not maintained any separate stock register as required by the Regulations order but he had started maintaining the registers after the visit of the Inspector and that his mistake may be condoned. Thereafter the Collector, Bhuj, by his order, dated September 6, 1975, after hearing the petitioner held that the petitioner had committed breach of the Gujarat Essential Articles (Regulations) Order, 1971, so far as the other articles were concerned. The Collector held that so far as the groundnuts were concerned, the petitioner had 2360 K. Gms. in stock on 15-1-75 and the said groundnut stock continued upto 24-6-75 unutilised and consequently it clearly showed that condition No. 7 (2) of the dealers licence was committed breach of by the petitioner as he had illegally withheld the said stock from the public and hid created artificial scarcity in the market. So far as the other items were concerned, relying on the admission of the petitioner that he had not maintained separate registers he held that it amounted to clear breach of the relevant Clause of the order and heme all these articles were liable to be confiscated under Section 6A of the Act. The petitioner challenged the said order of the Collector by filing Criminal Appeal No. 61 of 1975 as per the provisions of Section 6C(1) of the Act. The learned Sessions Judge, at Bhuj by his order dated 31-12-1975 dismissal the said appeal. It is the said order of the learned Sessions Judge who has confirmed the order of the Collector, which has been challenged in this petition.
4. When this Special Civil Application came up for admission on 26-4-76 Mr. Justice A.D. Desai had passed the following order;
Rule. Respondents can dispose of the groundnut stock and the price received to be kept in Government treasury till this Special Civil Application is decided. Mr. Mankad does not press this Special Civil Application for claims Nos. 1 to 17 -Vide Annexure A.
5. In view of this the only contention raised by Mr. Mankad is as follows:
So far as groundnuts are concerned, the show cause notice only alleged that the petitioner had not maintained the stock register for the same while the findings of the Collector as well as the Sessions Judge were that the petitioner had committed breach of condition No. 7(2) of the licence as he had withheld the said stock from that public for a period from 15-1-75 to 21-5-75. Thus, these findings were contrary to the show causa notice and were vitiated in the law.
6. So far as this submission of Mr. Mankad is concerned, the show cause notice at Annex. A to the petition clearly mentioned that 18 items which are listed in the show cause notice were not mentioned in the stock register and the petitioner was called upon to show cause why these items of goods should not be confiscated under Section 6A of the Act. So far as groundnuts are concerned at Item No. 18 2355 K. Gms. are mentioned. The only charge so far as groundnuts are concerned is that they are not entered in the stock register and it was on that ground that it was proposed to confiscate them under Section 6A. The petitioner in reply no doubt stated that as the groundnut goods were of inferior quality eventhough he had made attempts to sell them at Bhuj they were not sold but that was beyond his control. But apart from the reply of the petitioner the fact remains that the only charse against him so far as the groundnut stock was concerned was to the limited extent of not entering it in the stock register. It is pertinent to note that there was no charge of withholding the goods from the public. The Collector in his order of confiscation in para 1 clearly states that the admitted position on record was that the groundnut stock mentioned in the stock register was 2360 K. Gms. on 15-1-75 and the same stock has been mentioned as unchanged from 15-1-75 to 24-6-75. On this admitted position it was found by the Collector that the petitioner had committed breach of the condition No. 7 Sub-clause (1) of the licence as he had withheld these commodities from the market. Now it is pertinent to note that the petitioner was not facing any charge of any breach of the condition of the licence. The only charge levelled against him was that he had not entered these groundnuts in the stock register and on an admitted position on record such a charge fell through. The Collector passed an order of confiscation of the groundnut stock on the ground that the petitioner had committed breach of condition No. 7(2) of the licence. But that was no part of the show cause notice and consequently the order of the Collector proceeded on an entirely extraneous ground for which there was no show cause notice. The same error has been continued in the judgment of the learned Sessions Judge. Consequently the order of confiscation of groundnut as passed by the Collector and as confirmed by the learned Sessions Judge suffers from an apparent error of law. As per the provisions of Section 6B of the Act it has been clearly laid down that before any order of confiscation can be passed under Section 6A, the person concerned is required to be served with a notice in writing informing him of the grounds on which it is proposed to confiscate the essential commodity and is required to be given an opportunity of making any representation in wiling within such reasonable time against the grounds of confiscation and is also to be given a reasonable opportunity of being heard in the matter. Under the scheme of the Act before confiscation order of any essential commodity can be passed, the person concerned has to be served with a show cause notice informing him of the ground on which action is proposed to be taken and also a reasonable opportunity of hearing has to be given with respect to that ground. Show cause notice has to clearly mention the ground on which the order of confiscation is proposed to be passed as a condition precedent to the exercise of power under Section 6A of the Act. In the present case, the condition precedent so far as the confiscation of the groundnuts is concerned is lacking. The ground on which the groundnuts were sought to be confiscated was of not mentioning them in the stock register while the order of confiscation is passed on a totally different ground viz. breach of condition No. 7(2) of the licence and withholding the stock from the public. No order of confiscation could have been passed on such an extraneous ground which did not form part of the show cause notice and thus there was clear violation of the mandatory provisions of Sections 6A and 6B of the Act. Consequently the order of confiscation of ground nut 2360 K. Gms. as passed by the Collector and confirmed by the learned Sessions Judge cannot be sustained and will have to be quashed and set aside.
7. So far as this satin in of Mr. Mankad is concerned, the only defense which Mr. J.R. Anabatic, the learned Advocate for the respondent could press in service was that in reply to the show cause notice the petitioner himself had stated that because the ground outs were of inferior quality he had made attempts to sell them at Bhuj but they could not be sold at Bhuj and were not disposed of. The defence of the petitioner cannot change the situation and cannot instil any life in the show cause notice if it is otherwise still born. It is the show cause notice which expressly mentions the ground on which the action is proposed to be taken and action must be based on the same ground and no other. Whatever reply may be given by the person concerned cannot change the nature of the show cause notice. Hence any explanation rendered by the petitioner which is de hors the show cause notice would be of no avail to revive an ex-fade bad order. In the result this Special Civil Application is partly allowed and the order of confiscation of 2369 K.Gms. of groundnut as passed by the Collector, Bhuj, at Ex. D to the petition, dated 6-9-75 as well as the order of the learned Sessions Judge, at Bhuj at Ex. E in Criminal Appeal No. 61/75 are quashed and set aside so far as 2360 K. Gms of groundnuts are concerned. In view of the aforesaid interim order passed by this Court the respondents are directed to return the price of the groundnuts if they hive already been disposed of by the respondents in the meantime and to refund the price to the petitioner at the earliest. Rule is accordingly made absolute to this limited extent with costs.