1. These two appeals arise from a common interim order dated November 18, 2020, passed by the learned Single Judge. Both the appeals are treated as on day's list by consent of the parties and disposed of by this common order.

2. The officials of Commissionerate of Customs (Preventive) had intercepted 175 trucks loaded with wheat at the parking lots at Ghojadanga Land Custom Station. The customs officials found that the jute bags containing the wheat were bearing the marks and numbers of Food Corporation of India, Government of Haryana and Government of Punjab. It was suspected that the wheat meant for the Public Distribution System was attempted to be diverted to Bangladesh illegally by the appellants along with other unscrupulous businessmen. The said customs officers accordingly lodged a complaint before the concerned police station and upon receipt of such complaint, a case being Basirhat Police Station Case No. 1150 of 2020 dated October 23, 2020 under Section 379/411/413/414 and 120B of the Indian Penal Code was initiated. Subsequently, Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 (E.C. Act for short) was also added.

3. In connection with the case, the investigating agency made a prayer before the learned Additional Chief Judicial Magistrate, Basirhat, District - 24 Parganas (North) for giving direction upon the authority under E.C. Act to confiscate and detain the wheat "as per extant Law" and for taking 'Zimma' after counting and inspection of the wheat loaded in trucks.

4. On that application, the learned Magistrate on October 24, 2020, passed the following order:

"The I.O. has filed a petition for necessary order regarding confiscation for detained wheat which is huge in nature. It is submitted that the said goods is perishable in nature and during puja vacation due to want of khalasi and C&F agents it is not possible for the I.O. to check the same. Under such circumstances the District Collector concerned is directed to confiscate the detained goods after proper inspection. Informed all concerned. To date for compliance report."

5. After the said order was passed on October 29, 2020, a confiscation order was passed by the Sub Divisional Officer, District - 24 Parganas (North). The relevant part of the said order is quoted below:

"In view of the above, I, Dr. VIVEK DATTATRAYA BHASME, IAS, being the Sub Divisional Officer, Basirhat, do hereby order the confiscation of detained wheat stocks totaling 5,101.27 MT loaded on 175 detained trucks that are lying at various parking lots at Ghojadanga under Basirhat PS as per list submitted by Sri Anup Kumar Ghosh, SI of police under Basirhat PS & I.O. of Basirhat PS Case No. 1150/20 dated 23/10/2020 for compliance of the order of the Ld. ACJM, Basirhat Court dated 24/10/2020.

Sri Anup Kumar Ghosh, SI of police under Basirhat PS & I.O. of basirhat PS Case No. 1150/20 dated 23/10/2020 is directed to hand over the detained wheat stocks totaling 5,101.27 MT loaded on the 175 trucks lying at various parking lots at Ghojadanga under Basirhat PS to the DCF&S, North 24 parganas for taking Zimma of the same.

Inspector -in-Charge, Basirhat Police Station is directed to ensure proper guarding of the detained wheat stocks till such time that the wheat stocks are handed over to DCF&S, North 24 Parganas and provide necessary police escort up to the storage point as per requirement of DCF&S, North 24 Parganas."

6. The appellants filed the writ petitions before this Court for quashing the criminal case and to allow the appellants to export the relevant goods.

7. After filing of the writ petitions, a memo dated November 11, 2020, was issued by the Additional District Magistrate (Treasury), 24 - Parganas (North) by which the appellants were intimated that the stock of wheat had been confiscated pursuant to the order dated October 24, 2020, by the learned Magistrate. During the hearing of the writ petitions the said memo was also placed before the learned Single Judge for his consideration.

8. The learned Single Judge by the order impugned held that prima facie, it did not appear that the confiscation order suffer from the jurisdictional error. The learned Single Judge further held that investigation was at initial stage and the Court could not anticipate the result of such investigation. The relief sought for, if granted, would close the case before the investigation was complete. The learned Single Judge refused to pass any interim order and the matter was directed to be heard upon exchanging the affidavits.

9. In course of hearing of these appeals, the State was directed to produce the relevant records including the order of confiscation which were accordingly produced before us. The relevant documents were served upon the appearing parties.

10. The appellants submit that the F.I.R does not disclose that any order under Section 3 of the E.C. Act has been violated and, therefore, no proceedings could have been initiated against the appellants. The appellants rely upon a judgment reported in (Kailash Prasad Yadav -Versus- State of Jharkhand, (2007) 5 SCC 769 [LQ/SC/2007/613] ) in this regard.

11. The appellants further submit that they have not been served with any show-cause notice affording any opportunity of hearing and as such, the order of confiscation is liable to be set aside and the goods confiscated by the said purported order are liable to be returned to the appellants.

12. The State, on the other hand, submits that the appellants did not challenge the order of confiscation in the writ petitions and without challenging the order of confiscation the appellants could not pray for quashing the same. The appellants have their remedy in filing appeal against the order of confiscation.

13. Relying upon the judgment reported at (State of Bihar -Versus- Arvind Kumar, (2012) 12 SCC 395 [LQ/SC/2012/594] ) and (Bishambhar Dayal Chandra Mohan -Versus- State of Uttar Pradesh, (1982) 1 SCC 39 [LQ/SC/1981/421] ) the State submits that there is no provision in the scheme of the E.C. Act for returning the goods when a confiscation proceeding has been initiated. If the appellants fail to get relief in confiscation proceedings before the appropriate authority under the E.C Act, their obvious remedy lies in a suit for damages for wrongful seizure.

14. The State submits that the goods in question have been confiscated following the order of the criminal court. Relying upon the judgment reported at (State of Madhya Pradesh -Versus Rameshwar Rathod, (1990) 4 SCC 21 [LQ/SC/1990/325] ), the State submits that a competent criminal court retains his jurisdiction to entertain a complaint and pass orders in case of violation of provisions of the E.C. Act and, therefore, it cannot be said that the order of criminal court was without jurisdiction. The appellants, according to the State, ought to have challenged the order of the learned Magistrate before the competent criminal court. Writ petition was not maintainable against such order passed by the learned Magistrate.

15. In order to appreciate the controversy it is necessary to look into the provisions relating to confiscation under the scheme of the E.C. Act. Section 6- A and relevant part of Section 6-B of the E.C. Act are quoted below:

"6-A. Confiscation of food grains, edible oilseeds and edible oils. - (1) Where any essential commodity is seized in pursuance of an order made under Section 3 in relation thereto, a report of such seizure shall, without unreasonable delay, be made 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 the contravention of such order, the collector, may, if he thinks it 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 may order confiscation of -

(a)the essential commodity so seized;

(b)any package, covering or receptacle in which such essential commodity is found; and

(c)any animal, vehicle, vessel or other conveyance used in carrying such essential commodity:

Provided that without prejudice to any action which may be taken under any other provision of this Act, no food grains or edible oilseeds seized in pursuance of an order made under Section 3 in relation thereto from a producer shall, if the seized food grains or edible oilseeds have been produced by him, be confiscated under this section:

Provided further that in the case of any animal, vehicle, vessel or other conveyance used for the carriage of goods or passengers for hire, the owner of such animal, vehicle, vessel or other conveyance shall be given an option to pay, in lieu of its confiscation, a fine not exceedi9ng the market price at the date of seizure of the essential commodity sought to be carried by such animal, vehicle, vessel or other conveyance.

(2) Where the Collector, on receiving a report of seizure or on inspection of any essential commodity under sub-section (1), is of the opinion that the essential commodity is subject to speedy and natural decay or it is otherwise expedient in the public interest so to do, he may -

(i) order the same to be sold at the controlled price, if any, fixed for such essential commodity under this Act or under any other law for the time being in force; or

(ii) where no such price is fixed, order the same to be sold by public auction:

Provided that in case of food grains, the collector may, for its equitable distribution and availability at fair prices, order the same to be sold through fair price shops at the price fixed by the Central Government or by the State Government, as the case may be, for the retails sale of such food grains to the public.

(3) Where any essential commodity is sold, as aforesaid, the sale proceeds thereof, after deduction of the expenses of any such sale or auction or other incidental expenses relating thereto, shall -

(a)where no order of confiscation is ultimately passed by the Collector,

(b)where an order passed on appeal under sub-section (1) of Section 6-C so requires, or

(c)where in a prosecution instituted for the contravention of the order in respect of which an order of confiscation has been made under this section, the person concerned is acquitted, be paid to the owner thereof or the person from whom it is seized."

"6-B. 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 6- A 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, animal, vehicle, vessel or other conveyance;

(b) is given an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the ground of confiscation; and

(c) is given a reasonable opportunity of being heard in the matter.

..................."

16. An order of confiscation by itself under the E.C. Act is momentous and deprives a citizen of his right to property. A plain reading of the aforesaid provisions makes it clear that before an order for confiscation is passed the Collector must:

(a) direct the Essential Commodity so seized to be produced before him;

(b) inspect the seized commodity;

(c) arrive at a satisfaction that there has been a contravention of the order passed on Section 3 of the E.C. Act;

(d) give a notice in writing to the owner or the person from whom the goods have been seized, disclosing the grounds for the proposed confiscation;

(e) give an opportunity of making written representation to deal with the grounds of confiscation as mentioned in the show cause notice; and

(f) give a reasonable opportunity of being heard.

17. The facts of the case in hand reveal that the order of confiscation was passed by the relevant officer mechanically only to comply with the order of the learned Magistrate and in passing the order of confiscation the authority did not follow any of the statutory requirements as indicated above. Such order of confiscation, passed in violation of the statutory requirements, deserves to be interfered with in exercise of writ jurisdiction notwithstanding the statutory remedy of appeal available to the appellants.

18. If any person contravenes any order made under Section 3, the investigating agency may prosecute him under Section 7 of the E.C. Act, before the competent criminal court and the property, in respect of which the order has been contravened, may be forfeited to the Government by the order of the said court in terms of Sub-section 1 of Section 7. Sub- section (1) of Section 6- A requires an investigating agency to report to the Collector, without any unreasonable delay, as to a seizure made under the E.C. Act and upon such report being made the concerned Collector may initiate confiscation proceedings, if he is satisfied as to the violation of order passed under Section 3 of the E.C. Act. An order of forfeiture is a judicial order passed by a competent criminal court upon proving of guilt, while confiscation is an administrative action to be undertaken by the Collector. Both the proceedings may run simultaneously. It was, therefore, wholly unnecessary for the investigating agency to approach the learned Magistrate for confiscation of the goods at the investigation stage and it was equally inapposite for the learned Magistrate to direct the State to confiscate the goods.

19. We accept the submission as advanced by the appellants and the judgment relied upon in support of the proposition that before passing an order of confiscation, the Collector has to be satisfied as to the violation of order passed under Section 3 of the E.C Act. We are not, however, at one with the submission of the appellants that the F.I.R does not disclose violation of order passed under Section 3 of the E.C. Act. It has been alleged in the F.I.R that the goods seized are meant for the Public Distribution System and the appellants attempted to divert the same in the garb of exporting. The State must proceed with the investigation against such grave allegation and take it to its logical conclusion.

20. Since we have held that the order of confiscation is not sustainable, the judgments relied upon by the State have no manner of application at this stage.

21. In our view, the learned Single Judge should not have refused to interfere with the order of confiscation holding the same was not without jurisdiction. The learned Single Judge ought to have arrived at his prima facie satisfaction as to whether the condition precedents for passing the confiscation order were followed.

22. The order of confiscation dated October 29, 2020, passed by the Sub Divisional Officer, District - 24 Parganas (North), therefore, is set aside. The State, however, will be at liberty to initiate fresh confiscation proceedings if it so desires adhering to the requirements of Section 6-A of the E.C. Act as discussed above. If such proceeding is initiated, the same should be concluded within a period of eight weeks from the date of passing of this order. Till the confiscation proceeding is concluded, the seized goods shall remain at such place where they have been kept now. Since the seized goods are perishable in nature, subject to the aforesaid directions, parties will be at liberty to approach the learned Single Judge seeking appropriate directions or reliefs during pendency of the writ petitions.

23. For the reasons aforesaid, the appeals and connected applications being MAT No. 756 of 2020 with IA No. CAN 1 of 2020 and MAT No. 757 of 2020 with IA No. CAN 1 of 2020 are disposed of. There will be no order as to costs.

24. Urgent certified website copies of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities.

I agree.