JUDGMENT
N.L. Tirbrewal, J.
1. In this revision petition, the petitioner firm has challenged the order of confiscation of 7 tins of mustard oil made by the Collector Jhunjhunu under Section 6A of the Essential Commodities Act, 1955 (hereinafter referred to as ‘the Act’) as confirmed in appeal under Section 6C of the Act by the Appellate-Committee of the State Government vide judgment dated, October 15,1991.
2. In order to appreciate the controversy raised before me, necessary facts of the case may be given. On August 21,1991 the Enforcement Inspector Jhunjhunu visited the business premises of the petitioner and noted certain irregularities in relation to conditions of the licence issued in name of the petitioner-firm under the provisions, of Rajasthan Trade Articles (Licencing & Control) Order, 1980 (for Short the Order, 1980′). He seized 7 tins of mustard oil weighing 105 Kgs. on the ground that they were not entered in the stock-register. 20 bags of wheat were also seized, but the seizure of wheat is not related for the purpose of this revision. A seizure-memo of the articles was prepared by him. The seizure of the articles was reported to the Collector, Jhunjhunu under Section 6A of the Act. It may be conveniently stated here that no criminal prosecution has been launched against the petitioner firm or its partners for contravening the order of 1980 which is punishable under Section 7 of the Act. On receipt of the report, the Collector Jhunjhunu, initiated confiscation proceedings under Section 6A of the Act in relation to the seized Articles including 7 tins of mustard oil, which were seized from the business premises of the petitioner- firm. A show cause notice under Section 6B was issued by the Collector to the partners of the Finn for making representation imwriting before him on August 28, 1991 against the grounds of confiscation mentioned in the notice. The ground for confiscation of mustard oil was stated that the seized 7 tins were not entered in the stock register and there was a violation of condition No. 3(A) of the licence issued under the Order of 1980.
3. Upon service of notice, the partners of the firm filed their reply to the show cause notice and pleaded, interalia, that there was no contravention of any condition of the licence, as the tins of mustard oil, in question, were purchased by the firm from M/s Bhagriath Mai Anil Kumar, Chhavni Bazar, Jhunjhunu on 12.8.91 some time before the inspection was made by the Enforcement Inspector. It was also stated that the bill of the mustard oil was not sent by the aforesaid firm along with tins for pressure of work as there was Teej-fair on that day and the petitioner-firm was informed that the bill would be sent very soon. According to them, these facts were intimated to the Enforcement Inspector at the time of checking, but no notice was taken by him in absence of the bill. It was also stated that the entry in stock register about 7 tins of mustard oil could be made before beginning of the transactions of the following day, as such, there was no contravention of the order, 1980. Thus, in short, the plea was that, firstly, there was no violation of any condition of licence and secondly, there was no dis-honest intention on their part in not making an entry of the mustard oil in the stock register. Alonwith the reply, as many as, 17 documents were filed including the bill about purchase of the mustard oil in question, issued by the firm M/s Bhagirath Mal Anil Kumar, on 12.8.91.
4. The Collector did not make any enquiry to the above pleas taken by the partners of the petitioner-firm in their reply. It is also note-worthy that the facts narrated in reply were not controverted by the State and no evidence whatsoever was adduced by it. Even affidavit of the Enforcement Inspector was not filed refuting the above allegations made in reply. The Collector vide impugned order dated 15.10.91 ordered confiscation of 7 tins of mustard oil stating that condition No. 3 of the licence was violated. The pleas taken by partners of the firm were rejected simply on the ground that it was not mentioned in seizure-memo that such pleas were taken. Against the order of confiscation, an appeal was preferred Under Section 6C of the Act and the Appellate Authority upheld the order observing that reply was filed by partners of the firm before the Collector after 16 days of the inspection and the defence taken in reply was belated one Hence, this revision.
5. Mr. Suresh Goyal, learned Counsel appearing for the petitioner-firm, raised three points. Firstly, that there was no violation of condition No. 3 of the licence issued under the order of 1980, as entry about the purchase of 7 tins of mustard oil could be made up to the next day before making any transactions by the firm. Secondly, the defence of the firm that oil tins in question were purchased from M/s Bhagirath Mal Anil Kumar on the day inspection itself, was supported by the bill issued by the said firm and it was placed before the Collector along with the reply, but the Collector, as well as the Appellate-Authority erroneously rejected the said plea and, thirdly, the Collector was not justified in refraining from making an enquiry for deciding the claims of the petitioner-firm. In other words, in. absence of an enquiry the order of confiscation was bad in law, specially, when no criminal prosecution was launched against the firm or its partners.
6. I take the last contention first, as it is a legal question and goes to the root of the case. The question is, whether the Collector ought to have made an enquiry in confiscation proceeding when the confiscation was being challenged by partners of the firm on certain pleas based on facts ? It is not disputed before me that if the plea that 7 tins of mustard oil were purchased by the firm from M/s Bhagirath Mai Anil Kumar on the day inspection, itself is accepted, then, confiscation was not justified simply on the ground that it was not entered in the stock register. The argument of the learned Public Prosecutor is that no enquiry is necessary to be by the Collector before ordering confiscation Under Section 6A of the Act and that the plea taken by the petitioner-firm was an after-thought and rightly rejected by the Collector, as well as, the Appellate Authority.
7. Section 6A was inserted in the Act by amending Act No. 25 of 1966 to provide power to confiscate essential commodity seized for contravention of an order made Under Section 3 of the Act. This Section provides that where any essential commodity is seized in pursuance of an Order made Under Section 3 of the Act, it shall be reported to 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 contravention of the Order, the Collector may, if he thinks expedient so to do, direct the essential commodity, so seized, to be produced for Inspection before him, and if he is satisfied that there has been a contravention of the Order, he may order confiscation. Sub- section (2) of Section 6A empowers the Collector to order the essential Commodities to be sold at the control price or by public auction as the case may be, if the essential commodity is subject to speedy and natural decay or it is otherwise expedient in the public interest so to do. A perusal of Section 6A would make two things clear; that confiscation of the essential commodity was at the discretion of the Collector, if it was expedient to do so and secondly, he must be satisfied before confiscation that there has been a contravention of an order issued under Section 3 of the Act.
8. After initiation of confiscation proceedings Under Section 6A of the Act, the Collector is required to issue notice to the owner of such essential commodity or the person from whom it was seized, giving him an opportunity of making a representation in writing within such reasonable time as the case may be, specified in the notice, against the grounds of confiscation. After representation is filed, the Collector is further required to give a reasonable opportunity of being heard to the concerned person before the goods could be confiscated. It would be useful to quote the provisions of sub-section (1) of Section 6B of the Act, which reads as under:
6.8 Issue of show cause notice before confiscation of essential commodity: (1) No order confiscating any (essential commodity, package, covering, receptacle, animal, vehicle, vessel or other conveyance] shall be made under section 6A 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, vehicle, vessel or other conveyance).
(b) 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.
9. Section 6C(1) makes a provision for an appeal by any person aggrieved from an order of confiscation Under Section 6A of the Act. Section-7 provides penalties for contravention of any order made Under Section 3 on criminal prosecution. Section 6D makes it clear that the award of confiscation Under Section 6A by the Collector shall not prevent the infliction of any punishment to the person affected thereby is liable under the Act. While providing penalties Under Section 7. an order for the forfeiture of the property to the Government can be made by the Court. The provisions of Section 6A and 6C also make clear that in case a criminal prosecution is launched and the person concerned is acquitted, then, the order of confiscation automatically goes away and the seized goods or its price has to be returned to him as provided.
10. In the back-ground of the aforesaid provisions, the question of making an enquiry by the Collector before ordering confiscation has to be examined. The object of giving a notice and the right of making representation by the person concerned, apparently is that he may show to the Collector that there was no violation of any Order or that it was not expedient to confiscate the commodity, for this purpose, he can state certain facts. On the facts pleaded by him, if no violation of any Order issued under Section 3 is made out the Collector gets no jurisdiction to confiscate the commodity. The facts so pleaded by the aggrieved person, which make out a good ground against confiscation, cannot be rejected without making an enquiry and giving an opportunity to both the parties to lead evidence. Of-course, in such proceedings, the enquiry shall be of a summary nature and the rules of evidence will not apply to such an enquiry. Evidence can be taken by way of affidavits and if necessary cross-examination can be permitted to the opposite party to the averments made in the affidavits. If the aggrieved person leads evidence to prove certain facts, if accepted and no order issued Under Section 3 of the Act is found to have been violated and the state fails to controvert those facts, the confiscation proceeding has got to be dropped, unless the Collector is of the opinion that the denial in the representation is such, which even if taken on its face value and accepted in its entirety, cannot effect the grounds of confiscation disclosed in the show cause notice and the report of seizure. Therefore, I am of the confirmed view that in a confiscation proceeding an enquiry is necessary, if the facts narrated in the representation by the concerned person, if accepted, do make out a case of non-confiscation. of the commodity. To take a different view, would be in contrast to the statutory provisions contained in Section 6B which require giving a reasonable opportunity of being heard and making representation against confiscation. The very purpose of giving an opportunity of being heard shall stand defeated if it is held that no enquiry before confiscation would be necessary to the facts taken in the representation which make out a good defence against the confiscation.
11. This aspect can be judged from another angle also, The confiscation proceeding is a quasi-criminal in nature having civil consequences, as the person concerned can be deprived of his property. It would be against the principles of natural justice if he is deprived of his property without making an enquiry on the plea taken by him. It would be more so, if no criminal prosecution is launched against him. As stated earlier, if a criminal prosecution is launched, then, the criminal Court is the final authority to decide whether the goods should be forfeited or not Under Section 7(1)(b) of the Act. In criminal case the person concerned gets an opportunity to show and prove that no Order was violated by him requiring forfeiture of the goods. In the instant case, no criminal prosecution, has been launched against the firm or its partners, as such, the petitioner was being deprived of its property without any enquiry and an opportunity to prove that there was no violation of any Order issued Under Section 3 of the Act. Therefore, I have no hesitation in holding that an enquiry, before ordering confiscation Under Section 6A of the Act by the Collector, was necessary before rejecting the defence taken by the petitioner.
12. I have also considered the case of the petitioner-firm on merits. In support of the piea taken by the petitioner-firm, a bill about the purchase of 7 tins of mustard oil, Issued by the firm M/s Bhagirath mal Anil Kumar, Jhunjhunu on 12.8.91, was filed before the Collector. The Collector has rejected the piea of the firm on the ground that the plea was not mentioned in the seizure-memo, while the Appellate Authority rejected the same on a different ground that the plea taken by the firm was belated. While preparing seizure-memo of the goods there could hardly be any occassion to record the defence plea in it. Further, the concerned officer may record or may not record even of such plea is taken before him. The seizure memo is nothing, but an inventory of the articles seized by the concerned officer and it is not meant to record defence plea. The inference drawn by the Collector from the absence of recording the plea in seizure memo is on its face erroneous. Similarly, the view of the Appellate Authority is also erroneous when it rejected the plea on the ground that representation before the Collector was made by the petitioner after 16 days of the inspection. Suffice is to say that representation Under Section 6B is made only after a notice is given by the Collector asking for making a representation. The representation was taken on record and the same was not rejected by the Collector on the ground that it was not filed in time. Hence, the Appellate Authority also erred in not considering the plea of the petitioner. Thus, judged from any angle, the order of confiscation made by the Collector and confirmed by the Appellate Authority is not sustainable in the eye of law.
13. Consequently, the revision petition is allowed. The impugned order of confiscation of 7 tins of mustard oil passed by the Collector and confirmed by the Appellate Authority is set aside. The seven tins of mustard oil shall be returned to the petitioner-firm. In case they have been sold under sub-section (3) of Section 6A of the Act, the sale price thereof, after reduction of necessary expenses, shall be paid to the petitioner-firm, immediately.