Mr. Muthamsetty Naga Sudhir Vs the State of Ap

Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased toTo issue a Writ, Order or direction, more particularly in the form of Writ of Mandamus, declaring the action of Respondent No. 1 in passing an order under ECP NO. 329/2013 dated 07.03.2017 being modified by the learned Sessions Judge Krishna at Machilipatnam in E.C. Appeal No. 89/2017 dated 09.07.2018 on a complaint by Respondent No.2 ordering confiscation of 20 percent value of seized stock without giving an opportunity of being heard as illegal, arbitrary and against the law and also in violation of the fundamental rights and the constitution guara tees contained in Article 14, 19, Article 300 A of the constitution of India amounting to overreaching of the powers and consequently set aside both the orders in E.C.P.No.329/2013 dated 07.03.2017 E.C. appeal No.89/2017 dated 09.07.2018

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IA NO: 1 OF 2019

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased To suspend the operation of the orders passed in E.C. Appeal No. 89/2017 dated 09.07.2018 passed by the learned Sessions Judge Krishna at Machilipatnam pending disposal of the Writ Petition

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Counsel for the Petitioner(S):

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1.NARASIMHA RAO GUDISEVA

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Counsel for the Respondent(S):

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1.GP FOR CIVIL SUPPLIES (AP)

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The Court made the following ORDER:

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This writ petition is filed under Article 226 of the

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Constitution of India seeking the following relief:

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“....to issue a Writ, Order or direction, more particularly in the form of Writ of Mandamus, declaring the action of Respondent No.1 in passing an order under ECP NO.329/2013 dated 07.03.2017 being modified by the learned Sessions Judge Krishna at Machilipatnam in E.C.Appeal No.89/2017 dated 09.07.2018 on a complaint by Respondent No.2 ordering confiscation of 20% value of seized stock without giving an opportunity of being heard as illegal, arbitrary and against the law and also in violation of the fundamental rights and the constitution guarantees contained in Article14,19, Article 300-A of the constitution of India amounting to overreaching of the powers and consequently set aside both the orders in E.C.P.No.329/2013 dated 07.03.2017 E.C.appeal No.89/2017 dated 09.07.2018....”

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2. Brief facts of the case of the petitioners is that:-

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a. The petitioner No.1 is running the retail and wholesale business of edible oils in packed and loose for the past 25 years.

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b. While the matter being so, the Inspector of Police, Vigilance and Enforcement, Vijayawada, along with vigilance officials, visited the shop of petitioner No.1 on 16.12.2013 at about 4 P.M with an intention to verify the records and other things pertaining to the sales, quantity and quality and other details. At that time, petitioner No.2 was performing his duties as Accountant. The officials have found that as per the books there

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was 3701.50 kgs of oil in different forms and when they physically verified, the available stock was only 3398.09 kgs. As there was a variation of 303.41 kgs of oil, the inspecting officials seized the stock available in the petitioners’ shop. Thereafter, basing on report submitted by the inspecting officials, the Collector issued a show cause notice to the 1^st petitioner as to why the seized stock should not be confiscated to the Government under 6-A of the Essential Commodities Act, 1955 (for short “the Act”) and called upon the petitioner No.1 to submit an explanation within a period of seven days. Accordingly, the 1^st petitioner along with his counsel appeared physically before the Collector(CS) on 26.11.2016 and requested the Collector to direct the officials to hand over a set of papers and also the seized documents so as to enable them to submit a detailed explanation to the show cause notice. But in spite of the same, the Collector (CS) has passed the final orders of confiscation of 20% of the value of the seized stock covered by bank guarantee of Rs.60,000/- which was filed by the petitioners at the time of release of the seized stock in their favour. Challenging the said orders, the petitioners approached the learned Sessions Judge, Krishna at Machilipatnam by way of E.C. Appeal No.89 of 2017 wherein the

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learned Sessions Judge, Krishna partly allowed by reducing the percentage of confiscation from 20 to 15 % challenging which, the present writ petition is filed.

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Learned counsel for the petitioners submits that the orders passed by the Collector and the learned Sessions Judge are contrary to law and against the principles of natural justice. The order passed by the Collector goes to show that the same is passed without discussing the entire case and does not give any reason for arriving at the conclusions for fixing the penalty of 20% of the seized value. The Sessions Court also has not considered the plea of the petitioners that the variation in the stock, if any, is only liable for confiscation but not the entire stock. The learned Sessions Judge though have observed that the notice issued is vague in terms of the edible oil as there was no variation mentioned, contrary to the said observation dismissed the appeal. It is also the case of the petitioner that no opportunity was granted to the petitioners to present their case.

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Heard learned counsel for the petitioner and learned Assistant Government Pleader for Civil Supplies.

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5. Learned Government Pleader for Civil Supplies submits

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that this Court, in exercise of writ jurisdiction, may not ordinarily interfere with findings of fact arrived at by statutory authorities unless they are shown to be patently perverse or without jurisdiction, which is not in the case here. The petitioners were issued a detailed show cause notice by the Collector under Section 6-A of the Essential Commodities Act, 1955, pursuant to seizure of oil stock on 16.12.2013 due to clear discrepancy between recorded and physical stock. Petitioner No.1 appeared along with his counsel before the Collector on 26.11.2016 and sought copies of documents. Due process was followed and the petitioners were given due opportunity. Non-supply of some documents, if any, does not vitiate the proceedings especially when the discrepancy in stock was evident and not rebutted effectively. The learned Sessions Judge has partially allowed the appeal, reducing the confiscation from 20% to 15%, thereby showing that the appellate authority applied its mind and gave partial relief to the petitioners and argued that the writ petition is misconceived and devoid of merit and as such liable to be dismissed.

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6. On a careful perusal of the material placed on record, this

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Court is of the considered opinion that there is no violation of principles of natural justice as the records clearly show that the petitioners were given a notice and were afforded an opportunity to appear, which they availed by appearing before the Collector on 26.11.2016. The mere grievance that certain documents were not handed over and when the shortage was a matter of physical verification, it does not vitiate the entire proceedings. It is wellsettled that confiscation proceedings under Section 6-A of the Act are quasi-judicial in nature, and unless gross illegality or perversity is shown in the orders passed by the authorities, this Court will not exercise writ jurisdiction to re-appreciate facts already examined by statutory authorities. This Court finds that the Collector had jurisdiction to initiate confiscation proceedings upon finding discrepancy in stock of the controlled essential commodity. The action taken is neither arbitrary nor disproportionate, especially when learned Sessions Judge has considered the appeal and modified the confiscation percentage from 20% to 15% showing that the appellate authority applied judicial mind and exercised discretion. In view of the above, this Court finds no merit in the writ petition.

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7. Accordingly, the writ petition is dismissed. No order as to

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costs.

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As a sequel, miscellaneous applications, pending, if any,