S.Chandrasekaran v. The Ex.Officio Secretary toGovernment

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 27-11-2007CORAMTHE HON'BLE MR.JUSTICE M.JAICHANDREN W.P.No.6373 of 1998S.Chandrasekaran.. Petitioner.Versus1.The Ex.Officio Secretary toGovernment, Co-operative, Food andConsumer Protection Department,Fort. St.George, Madras-600 009.2.The Additional Collector,Salem District, Salem.3.The Special Tahsildar (F.S),Salem... Respondents.Prayer: Petition filed under Article 226 of the Constitution of Indiapraying for the issuance of a Writ of Certiorarified Mandamus,calling for the records, dated 15.9.1995, passed by the 1strespondent in G.O.Ms.No.378, Co-operation Food and ConsumerProtection Department in so far as it relates to the portiondisallowing the appeal against the order, dated 10.10.1992, of the2nd respondent in R.O.C.99855/92/J3 and quash the same andconsequently, direct the respondents to return the bank guaranteefurnished by the petitioner pending enquiry before the 2ndrespondent.For petitioner: Ms.J.Juliet PushpaFor respondents: Mr.V.Manoharan Government AdvocateO R D E RHeard Ms.J.Juliet Pushpa, the learned counsel appearing for thepetitioners and Mr.V.Manoharan, the learned Government Advocateappearing for the respondents.2. It is submitted by the learned counsel appearing for thepetitioner that the lorry bearing Registration No.TNS 2386, which hadbelonged to the petitioner, was seized by the third respondent, on22.7.1992, while it was transporting paddy from Udayakumar Rice Mill https://hcservices.ecourts.gov.in/hcservices/ at Nethimedu, Salem to J.R.Rice Mill, Thiruchengode, alleging thatthe lorry driver was not in possession of any bill regarding thepurchase of paddy and that no trip sheet containing the relevantentries regarding the transport of paddy was in the lorry. A reportwas made by the third respondent to the second respondent, underSection 6-A of the Essential Commodities Act, 1955. On receipt of thesaid report, the 2nd respondent had initiated proceedings against thepetitioner and the owner of the paddy. It was contended by thepetitioner that he had not contravened Clauses 4(1) and 19(1) of theTamil Nadu Essential Trade Article (Regulation of Trade) Order, 1984,read with Section 7(1)(a)(ii) of the Essential Commodities Act, 1955.However, after the completion of the enquiry, the 2nd respondent hadpassed an order, on 10.10.1992, confiscating the entire stock ofpaddy and imposed a fine of Rs.5000/- on the petitioner. Aggrieved bythe said order, an appeal was preferred before the first respondent,wherein the order passed by the 2nd respondent was modified holdingthat 75% of the seized paddy and 75% of the fine imposed on thepetitioner could be confiscated. In all other respects the appeal wasdismissed. Aggrieved by the said order, the present writ petition hasbeen filed, invoking Article 226 of the Constitution of India. 3. In the appeal filed by the petitioner before the firstrespondent, challenging the order of the second respondent, dated10.10.1992, it has been stated that the second respondent had failedto note that the petitioner is the owner of the lorry and the seizedstock of paddy belonged to a licenced wholesale dealer in paddy andrice, having a licence with licence Number T.N.E.T.A.No.1366 and heis the owner of J.R. Rice Mill at Tiruchengode. Further, A.Doraisamywho had sold the consignment of paddy to the owner of J.R.Rice Millis also a licenced wholesale dealer in paddy and rice, having licencein Tamil Nadu Essential Trade Article (Regulation of Trade) Order,1984, No.151/SLM/84-85. Therefore, there is no question of anycontravention of Clauses 4(1) or 19(1) of the Tamil Nadu EssentialTrade Article (Regulation of Trade) Order, 1984. Merely because thelorry carrying the consignment of paddy had been parked near a petrolbunk and since the lorry driver was not in possession of any bill, inrespect of the consignment and that no entries had been made in thetrip sheet, it cannot be concluded that the provisions of the TamilNadu Essential Trade Article (Regulation of Trade) Order, 1984, hadbeen contravened. No mahazar of the seized consignment had beenprepared and given to the driver of the lorry from whose custody theseizures had been made. Such failure to follow the mandatoryrequirement under the proviso to Clause 27(e) of the Tamil NaduEssential Trade Article (Regulation of Trade) Order, 1984, is illegaland therefore, the goods seized in pursuance of an illegal seizure,cannot be ordered to be confiscated. Even though the petitioner hadsubmitted claim applications, stating the circumstances in which thelorry with the consignment of paddy was found parked, near the petrolbunk in Kondalampatty and had enclosed the copy of the bill and thelorry weighment slip in support of his claims, the second respondenthad passed the impugned order without considering the same. https://hcservices.ecourts.gov.in/hcservices/

4. The learned counsel appearing on behalf of the respondentshad submitted that, on 22.7.92, the Special Tahsildar (F.S), Salemhad checked the parked lorry bearing No.TNS 2386 and it was foundthat 130 bags of paddy had been loaded in the lorry and transportedwithout any permit or licence and without any valid documents likebills and without the relevant entries in the trip sheet. Therefore,the lorry had been seized with the consignment and a report had beensent to the Additional Collector, Salem, for taking necessary action,under Sections 4(1) and 19(1) of the Tamil Nadu Essential TradeArticle (Regulation of Trade) Order, 1984. The Additional Collector,Salem, after an enquiry, had ordered confiscation of the 130 bags ofpaddy and had imposed a fine of Rs.5,000/- on the petitioner as theseized stock of 130 bags of paddy had already been releasedtemporarily to the claimant therein on his furnishing a bankguarantee for Rs.42,000/-, being the value of the seizure. The saidamount had been forfeited to the Government. It was held that sincethe lorry driver had not made any entries in the trip sheet, thepetitioner is vicariously liable for the omission on the part of thedriver to record the entries. Therefore, a fine of Rs.5,000/- hadbeen imposed on the petitioner.5. It is further submitted by the learned counsel appearing onbehalf of the respondents that on an appeal filed by the petitioner,the first respondent by its order made in G.O.Ms.No.378, Co-operation, Food and Consumer Protection Department, dated 15.9.95,had amended the order of the Additional Collector, Salem, to theextent that 75% of the seized paddy and 75% of the fine amount on thepetitioner, may be confiscated to the Government and the rest to bereturned to the respective appellants therein. As per the Governmentorder, dated 15.9.95, the appellants therein had deposited a sum ofRs.31,500/- and Rs.3,750/- being the value of 75% of the seized paddyand 75% of the fine imposed on the lorry owner. Therefore, a requesthad been made for the remittance of the said amounts as the bankguarantee certificates produced by the appellants therein had lapsedon 29.9.1973. 6. From the impugned order passed by the first respondent, it isseen that the petitioner had stated that the seizure had taken placewhen the lorry was parked and not while it was moving. It had alsobeen stated that after the loading of the consignment and afterweighing the lorry, a person had gone to collect the bill from therice mill from where the goods had been loaded when the seizure hadtaken place. 7. It had also been contended that Clause 4(1) of the Tamil NaduEssential Trade Article (Regulation of Trade) Order, 1984, does notapply to the petitioner, since the consignment had belonged to thelicenced wholesale dealer. A comparison of weigh bill slip and thebills relating to the goods show the genuineness of the transaction.Since no copy of the mahazar had been given to the driver of thelorry at the time of the seizure, such seizure and confiscation ofthe goods would be invalid. https://hcservices.ecourts.gov.in/hcservices/

8. It is clear from the impugned order that even though thepetitioner had raised various contentions, sufficient evidence hadnot been placed before the first respondent to substantiate thecontentions. Since the petitioner could not show that the impugnedproceedings are contrary to the provisions of law or the principlesof natural justice, the impugned order cannot be said to be illegalor void. 9. Based on the submissions made by the counsels appearing onbehalf of the parties concerned and on a perusal of the recordsavailable before this Court, this Court is of the considered viewthat the petitioner has not shown sufficient cause or reason tointerfere with the impugned proceedings as prayed for in the writpetition. Therefore, the writ petition stands dismissed. No costs.cshSd/-Asst. Registrar./true copy/Sub Asst. Registrar.To1.The Ex.Officio Secretary toGovernment, Co-operative, Food andConsumer Protection Department,Fort. St.George, Madras-600 009.2.The Additional Collector,Salem District, Salem.3.The Special Tahsildar (F.S),Salem.1 cc to Mrs.P.V.Rajeswari, Advocate, SR.70149pvr (co)dv/29.1.W.P.No.6373 of 1998