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PETITIONER: MUNSHI RAM RAM NIWAS

       Vs.

RESPONDENT: COLLECTOR, FOOD AND SUPPLIES DEPARTMENT AND ORS.

DATE OF JUDGMENT17/09/1991

BENCH: KASLIWAL, N.M. (J) BENCH: KASLIWAL, N.M. (J) KANIA, M.H. FATHIMA BEEVI, M. (J)

CITATION:  1993 AIR 1203            1991 SCR  Supl. (1) 138  1991 SCC  Supl.  (2) 310 JT 1991 (4)   151  1991 SCALE  (2)563

ACT:     Delhi Sugar Dealers Licensing Order, 1963  Clause 2  (f) (i)--Khandsari  (Sugar) kept in contravention of  Sugar  Li- censing  Order i.e. without licence--Seizure of 80  bags  of sugar  of three varieties---Samples taken from three  varie- ties  of sugar from three bags out of the entire seized  lot of   80   bags---Whether   representative   samples--Analyst Report---Samples containing more than 90 sucrose  confisca- tion  of  entire stock of  sugar--Validity  of  confiscation order.

HEADNOTE:     Under  the provisions of Delhi Sugar  Dealers  Licensing Order 1963, a person was entitled to keep only upto a  maxi- mum of 10 quintals of sugar without licence and sugar  means any form of sugar including Khandsari sugar containing  more than 90% of Sucrose.     The  appellant’s  business premises were raided  and  80 bags  of sugar viz. 53 bags of Khandsari, 18 bags of  Khand- sari (dust) and 9 bags of Khandsari (sulphur) were seized in his presence. Two samples each from all the three  varieties of Khandsari were taken and three samples of sugar were sent for  analysis to the public analyst, who reported  that  the samples contained sucrose 93.5%, 942% and 97.16% respective- ly.   The Collector passed an order confiscating the  entire seized  stock  of  sugar as the same was  kept  without  any licence.  Against the order of the Collector, the  appellant filed  an  appeal before the Lt. Governor, Delhi  which  was dismissed. The writ petition filed against the order of  Lt. Governor  was  dismissed  in limine by the  High  Court.  In appeal  to  this Court, it was contended on  behalf  of  the appellant  that (a) only two samples each out of  the  three bags  were taken from the entire lot of Khandsari  and  this could at the most show that only three quintals of Khandsari was ’sugar’ and the same being less than 10 qtls., there was no  violation of the Licensing Order: (b) it  was  necessary for  the  prosecution  to prove that the  appellant  was  in possession of more than 10 quintals of sugar and this  could only  be done by taking samples from all the bags of  Khand- sari if it wanted to show that other bags of Khandsari  also

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contained  more  than 90% of sucrose;  (c)  the  possibility cannot  be excluded that those bags from which samples  were not taken, did not contain sucrose more than 90%.    Dismissing the appeal, this Court, 139     HELD:  A large quantity of 80 quintals of Khandsari  was found in the appellant’s premises, whereas only 10  quintals of sugar was allowed to be kept without licence. At the time of  seizure of the goods two samples each were  taken  sepa- rately  from three different varieties of Khandsari  at  the instance  of  the  appellant. It was proved  by  the  public analyst  that all the three samples contained  sucrose  more than  90%. it was not disputed by the appellant at the  time of taking samples or thereafter that the samples taken would not represent the correct quantity of sucrose in those  bags of  Khandsari  from  which samples were not  taken.  In  his written reply to the show-cause notice issued by the Collec- tor  no such objection was raised by the appellant.  In  the circumstances  of  the ease if the Collector  was  satisfied that  80  quintals  of sugar was found  in  the  appellant’s premises without licence, it cannot be held that  the  order of  confiscation  passed by the Collector was  arbitrary  or based  on no material. It was quite reasonable for the  Col- lector  to  hold  that there was more than  10  quintals  of Khandsari having more than 90% sucrose and this violated the Sugar  Licensing  Order.  Therefore,  there  was  sufficient justification  for  him to pass the order  of  confiscation. Accordingly, the order of confiscation passed by the Collec- tor is maintained. [142 C, 141 F-H, 142A-C, D]     Suraj Bhan Sharad Kumar v. Delhi Administration Criminal Revision No. 104 of 1980 decided on 25th September, 1980  by Delhi High Court distinguished.     2.  In the instant case more than 10 years have  already elapsed to the alleged commission of the offence. Therefore, it  would  be against the interests of  justice  to  further continue any criminal proceedings in the case.  Accordingly, it  is directed that the criminal proceedings  launched  and pending against the appellant should be dropped. [142 E]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No.2929 of 1986.      From  the  Judgment and Order dated 20.12.1985  of  the Delhi High Court in C.W.P. No. 3120 of 1985 . K.R.  Nagaraja, R.S. Hegde and Mrs. Sushila for  the  Appel- lant. G.Venkatesh Rao and Ms. A. Subhashini for the Respondents. The Judgment of the Court was delivered by     KASLIWAL,  J. This appeal by special leave  is  directed against  the  order of the High Court of  Delhi  dated  20th December, 1985 dismissing in 140 limine the writ petition filed by the appellant against  the order  of the Lt. Governor, Delhi dated 8th November,  1985. This Court by order dated 25th August, 1986 granted  special leave limited to the following question.               "One  of the questions raised by  the  learned               counsel before us is whether the samples taken               from  3 out of 80 bags of Khandsari  could  be               treated  as  representative  samples.  He  has               cited  before us a judgment of the High  Court               where it has been held that they cannot be  so               treated. We grant special leave limited to the

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             question  stated  above. We find no  force  in               other Submissions. In order to decide the above question we would mention facts in brief necessary in this regard.     In  a raid in the business premises of the appellant  on 28th February, 1980, the following bags of Khandsari (sugar) were seized in the presence of Shri Ram Niwas, sole proprie- tor of the firm.         Khandsari                   -    53 bags         Khandsari (dust)            -    18 bags         Khandsari (sulphur)         -    9 bags         Total                     -      80 bags Two  samples each from all the three varieties of  Khandsari were taken and three samples of sugar were sent for analysis to the public analyst. The public analyst reported that  the samples  of  sugar  contained Sucrose---  93.5%,  94.2%  and 97.16%  respectively. The Collector passed an order  confis- cating the entire goods as the same were kept in  contraven- tion  of  the provisions of Delhi  Sugar  Dealers  Licensing Order,  1963  (in short the ’Licensing Order’).  It  is  not necessary to mention the details of this order of  confisca- tion because the matter had gone upto the High Court and the case  was ultimately remanded by the High Court of Delhi  by order  dated 27th March, 1984. The High Court  directed  the Collector for denovo determination of the proceedings  under Section  6A of the Essential Commodities Act, 1955,  in  ac- cordance with law. The Collector (North) after remand gave a fresh  show cause notice to the appellant on 21st May,  1984 setting  forth  the brief sequence of  the  proceedings  and asking  him to show cause as to why the entire stock  of  80 bags of sugar seized in the case, be not confiscated to  the State?  The appellant appeared and Fred a written  reply  to the show cause notice. The case was then heard at length and the Collector again passed an order confiscating the  entire seized  stock  of  80 quintals of  sugar.  An  appeal  fried against the aforesaid order was dismissed by the Lt.  Gover- nor,  Delhi by order dated 8th November, 1985. A writ  peti- tion  filed against the order of the Lt. Governor  was  dis- missed  in  limine  by the High Court by  order  dated  20th December, 1985. Hence this appeal.     141 Clause  2  (f) (i) of the Licensing Order defines  sugar  as under.     "Sugar means any form of sugar including Khandsari sugar containing more than 90% of Sucrose."     Under the Licensing Order a person was entitled to  keep only  upto  a  maximum of 10 quintals of  sugar,  without  a licence.  Admittedly  the appellant was not having  any  li- cence.     It  was  contended on behalf of the  appellant  that  in order to prove that Khandsari was sugar under the  Licensing Order, it was necessary to prove that it contained more than 90%  of Sucrose. It was submitted that the prosecution  only took two samples each out of the three bags from the  entire lot of 80 bags of Khandsari and this could at the most  show that  only  3 quintals of Khandsari was sugar and  the  same being  less than 10 quintals, there was no violation of  the Licensing Order. It was submitted that it was necessary  for the  prosecution to prove that the appellant was in  posses- sion  of more than 10 quintals of sugar and this could  only be done by taking samples from all the bags of Khandsari  if it  wanted  to show that other bags of Khandsari  also  con- tained more than 90% bags of Sucrose. It was also  submitted that the possibility cannot be excluded that those bags from which  samples were not taken, did not contain Sucrose  more

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than 90%. It was argued that the burden lay on the  prosecu- tion to prove that more than 10 quintals of sugar was  found in  the  premises and then alone any order  of  confiscation could  have been passed. In support of the above  contention reliance was placed on a judgment of learned Single Judge of Delhi High Court in Suraj Bhan Sharad Kumar v. Delhi  Admin- istration  (Crl.  Revision No. 104 of 1980 decided  on  25th September, 1980).     In  the facts and circumstances of the present case  the contention  raised on behalf of the appellant has no  force. The  admitted  facts  of the case are that at  the  time  of seizure  of  the goods Shri Ram Niwas was  present  and  the samples  were taken in his presence. Two samples  each  were taken separately from three different varieties of Khandsari at the instance of Shri Ram Niwas himself. It was proved  by the  public  analyst that all the  three  samples  contained Sucrose more than 90%.  It was nowhere disputed nor suggest- ed by Shri Ram Niwas at the time of taking samples or there- after that the samples taken would not represent the correct quantity  of Sucrose in those bags of Khandsari  from  which samples were not taken.  Shri Ram Niwas had filed a reply in writing,  to  show cause notice, but in such reply  also  no objection  was  taken as sought to be raised  now.   In  the facts and circumstances mentioned above if the Collector was satisfied that 80 quintals of sugar were found in the  prem- ises  without licence. it cannot be said that the  order  of confiscation passed by 142 the  Collector  was arbitrary or based on no  material.  The decision of the learned Single Judge of Delhi High Court  in Suraj  Bhan Sharad Kumar v. Delhi Administration (supra)  is totally  distinguishable  as  in that case  the  dealer  was having  licence and the prosecution failed to prove that  he was  in possession of more than 1000 quintals of  sugar.  In the case in hand before us the facts are entirely different.     As  already mentioned above Only two samples  each  were taken  from the three varieties, and all the  three  samples were found to contain more than 90% Sucrose. A large quanti- ty  of 80 quintals of Khandsari was found in  the  premises, whereas  only  10 quintals of sugar was allowed to  be  kept without  licence. Thus it was quite reasonable for the  col- lector  to  hold that there were more than  10  quintals  of Khandsari having more than 90% Sucrose and this violated the Licensing Order.     Thus in the facts and circumstances of the present  case we are fully satisfied that the Collector had enough materi- al  for  his satisfaction that there was  violation  of  the Licensing  Order and there was sufficient justification  for him to pass the order of confiscation. The order of  confis- cation passed by the Collector is maintained and the  appeal is dismissed.     During  the course of arguments learned counsel for  the appellant  submitted that though a criminal  prosecution  is pending  against  the appellant Ram Niwas but  no  effective progress has been made in the case except filing of challan. It  appears to us that the State is not serious in  pursuing the  criminal  proceedings and even otherwise more  than  10 years have already elapsed to the alleged commission of  the offence.  It  would be against the interest  of  justice  to further  continue any criminal proceedings in the case.  We, therefore, direct to drop the criminal proceedings  launched and  pending  against the appellant Shri Ram  Niwas  in  the present matter. T.N.A.                                     Appeal dismissed. 143

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