K.Nallathambi 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.6343 of 1998K.Nallathambi.. 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 ofIndia praying 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. https://hcservices.ecourts.gov.in/hcservices/

2. It is submitted by the learned counsel appearing for thepetitioner that 130 bags of paddy, which had belonged to thepetitioner, was seized by the third respondent, on 22.7.1992, whileit was being transported from Udayakumar Rice Mill at Nethimedu,Salem to J.R.Rice Mill, Thiruchengode, alleging that the lorrydriver was not in possession of any bill regarding the purchase ofpaddy and that no trip sheet containing the relevant entriesregarding the transport of paddy was in the lorry. A report was madeby the third respondent to the second respondent, under Section 6-Aof the Essential Commodities Act, 1955. On receipt of the saidreport, the 2nd respondent had initiated proceedings against thepetitioner and the owner of the lorry. 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 CommoditiesAct, 1955. However, after the completion of the enquiry, the 2ndrespondent had passed an order, on 10.10.1992, confiscating theentire stock of paddy and imposed a fine of Rs.5000/- on the ownerof the lorry. Aggrieved by the said order, an appeal was preferredbefore the first respondent, wherein the order passed by the 2ndrespondent was modified holding that 75% of the seized paddy and 75%of the fine imposed on the owner of the lorry could be confiscated.In all other respects the appeal was dismissed. Aggrieved by thesaid order, the present writ petition has been filed, invokingArticle 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 seized stock ofpaddy and that he is a licenced wholesale dealer in paddy and rice,having a licence with licence Number T.N.E.T.A.No.1366 and he is theowner of J.R.Rice Mill at Tiruchengode. Further, A.Doraisamy who hadsold the consignment of paddy to the petitioner is also a licencedwholesale dealer in paddy and rice, having licence in Tamil NaduEssential 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 apetrol bunk and since the lorry driver was not in possession of anybill in respect of the consignment and that no entries had been madein the trip sheet, it cannot be concluded that the provisions of theTamil Nadu Essential Trade Article (Regulation of Trade) Order,1984, had been contravened. No mahazar of the seized consignment hadbeen prepared and given to the driver of the lorry from whosecustody the seizures had been made. Such failure to follow themandatory requirement under the proviso to Clause 27(e) of the TamilNadu Essential Trade Article (Regulation of Trade) Order, 1984, isillegal and therefore, the goods seized in pursuance of an illegal https://hcservices.ecourts.gov.in/hcservices/ seizure, cannot be ordered to be confiscated. Even though thepetitioner had submitted claim applications, stating thecircumstances in which the lorry with the consignment of paddy wasfound parked near the petrol bunk in Kondalampatty and had enclosedthe copy of the bill and the lorry weighment slip in support of hisclaims, the second respondent had passed the impugned order withoutconsidering the same. 4. The learned counsel appearing on behalf of the respondentshad submitted that, on 22.7.92, the Special Tahsildar (F.S), Salem,had 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 necessaryaction, under Sections 4(1) and 19(1) of the Tamil Nadu EssentialTrade Article (Regulation of Trade) Order, 1984. The AdditionalCollector, Salem, after an enquiry, had ordered confiscation of the130 bags of paddy and had imposed a fine of Rs.5,000/- on the lorryowner as the seized stock of 130 bags of paddy had already beenreleased temporarily to the claimant 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, thelorry owner is vicariously liable for the omission on the part ofthe driver to record the entries. Therefore, a fine of Rs.5,000/-had been imposed on the owner of the lorry. 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 onthe lorry owner, may be confiscated to the Government and the restto be returned to the respective appellants therein. As per theGovernment order, dated 15.9.95, the appellants therein haddeposited a sum of Rs.31,500/- and Rs.3,750/- being the value of 75%of the seized paddy and 75% of the fine imposed on the lorry owner.Therefore, a request had been made for the remittance of the saidamounts as the bank guarantee certificates produced by theappellants therein had lapsed on 29.9.1973. 6. From the impugned order passed by the first respondent, itis seen that the petitioner had stated that the seizure had takenplace when the lorry was parked and not while it was moving. It hadalso been 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. https://hcservices.ecourts.gov.in/hcservices/

7. It had also been contended that Clause 4(1) of the TamilNadu Essential Trade Article (Regulation of Trade) Order, 1984, doesnot apply to the petitioner, since the consignment had belonged tothe licenced wholesale dealer. A comparison of weigh bill slip andthe bills relating to the goods show the genuineness of thetransaction. Since no copy of the mahazar had been given to thedriver of the lorry at the time of the seizure, such seizure andconfiscation of the goods would be invalid. 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.Scd (co)dv/29.1.W.P.No.6343 of 1998