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Criminal Revision No. 1028 of 1967, decided on 17th January 1968.

cl. 11(b)‑Stock of barley maintained at Mill premises for legitimate purpose of admixture‑Inference that barley was retained at premises for admixture beyond permissible proportion ‑Merely conjectural and anticipatory in nature‑‑Seizure of such stock on vague assump tion that contravention of Order was about or likely to be committed‑Held, wholly unwarranted in circumstances of case.

cl. II (b)‑Provision penal in nature‑To be construed strictly Penal seizure to be confined only to surplus and unaccounted for stock.

Muhammad Ismail Bhatti for Petitioners.

Nemo for the State.

Date of hearing : 17th January 1968.

This Criminal Revision has arisen in the following circumstances:

2. The stocks of the petitioner's flourmills known as Muridke Flourmills were checked by the Enforcement Inspector of the Food Department oil 19th July 1967, which allegedly revealed some irregularities including forging of entries, keeping consignments of wheat in excess of the permissible limits, etc. Consequently, :t case under section 6 of the West Pakistan Foodstuffs (Control) Act of 1958, was registered against them. Besides the initiation of criminal proceedings against the petitioners, their stocks of wheat weighing 3,000 maunds and barley weighing 780 maunds were also seized by the Enforcement Staff in exercise of its powers under clause 11 (b) of the West Pakistan Food grains (Licensing Control) Order of 1957, made under section 3 of the West Pakistan Foodstuffs (Control) Ordinance of 1957 since substituted by the West Pakistan Foodstuffs (Control) Act of 1958. It appears that after seizure of the aforesaid stocks, the authorities concerned contemplated their disposal by means of an open auction and the petitioners applied to the Sub‑Divisional Magistrate, Ferozewala that the permission be granted for the sale of the seized stocks in their favour on an undertaking that they would deposit the purchase price as security as directed by the Court. The applica tion was allowed and its release in installments at different stages, subject to their regular deposits at the stipulated dates was allowed by the learned Sub‑Divisional Magistrate by his order, dated 12th September 1967, which is the impunged order. In the concluding portion of the aforesaid order, it was observed by the learned Sub‑Divisional Magistrate that in the event of the conviction of the petitioners, the entire amount deposited by them as security would be liable to forfeiture.

3. It appears that the petitioners did not abide. by their commitments and the authorities proceeded once again to dispose of the consignments in view of the petitioners' failure to make the necessary deposits of amounts of security as stipulated. Feeling aggrieved, the petitioners filed the present Criminal Revision seeking restoration to them of the stocks seized by the Department on furnishing adequate security. The revision was admitted by me to a full hearing after obtaining a report from the District Food Controller, Sheikhupura, respondent No. 2.

4. The l9arned counsel for the petitioners has raised the following contentions before me:‑

(i) that the seizure of 390 bags (780 maunds) of barley is arbitrary and without legal warrant, there being no restriction on the stock of barley which was being used for the manufacture of flour by the process of admixture within the permissible limit of ten per cent.;

(ii) that since admittedly out of the 3,000 rnaunds of wheat seized by the Department, 1700 maunds were duly accounted for in the relevant record, the seizure, if any, could be made only in respect of the excess of 1300 maunds, regarding which the offence of the contravention of the Licencing Control Order was allegedly committed.

5, Unfortunately, there is nobody to assist me on behalf of the State, and the learned counsel who was supposed to represent the State, has thought it fit to remain absent. However, having given my anxious consideration to the contentions raised by the learned counsel, I am inclined to think that they are not without substance. In the first instance, here is nothing to suggest that the stock of barley could not be maintained at the mills premises beyond a certain limit, there being no restriction imposed in this regard either‑tinder the Act or the Order framed thereunder. On the contrary, in view of the admixture of barley upto the permis sible limit of ten per cent by weight, as admitted in the concluding paragraph of the report submitted by the Department, a certain amount of barley has got to be kept available at the millspremises for the legitimate purposes of admixture. It is not the Depart ment's case that any sample of wheat was found to contain a quantity of barley in excess of the permissible proportion, and as such the inference that the consignment of barley was retained at, the premises with a view to use it for admixture beyond the permissible proportion, is merely conjectural and anticipatory in nature having no basis whatever. In the circumstances, therefore, there is no escape from the position that the seizure of this consignment on the vague assumption that a contravention of the order was about or likely to be committed, would be wholly unwarranted.

6. The next question that falls for determination is whether on a reasonable consideration of the provision contained in clause 11(b) of the Licencing Control Order, it would be competent for the Inspector Food grains to seize the entire stock of 3,000 maunds of wheat, of which 1,700 maunds were duly accounted for by entries in the relevant record. The provision reads as follows:‑

"11. For the more effective enforcement of this order, an Inspector n1ay‑

(a) ..

(b) enter and search any premises and seize any quantity of foodgr4ins in respect of which he has reasons to believe that a contravention of this Order has been, is being, of is about to be committed.

(c) ..

Evidently, the quantity of wheat in respect of which the alleged contravention had taken place, was the one in excess of 1,700 maunds duly accounted for. As such on a proper and reasonable construction of the aforesaid provision which is undoubtedly penal in nature and has got to be strictly construed, one is driven to the irresistible conclusion that the penal seizure has got to beg confined only to the surplus and unaccounted for stock, and not to the whole of it. The seizure of 1,700 maunds, therefore, appears to be equally unwarranted in law.

7. There is, however, one other aspect of the matter which cannot be lost sight of. It could perhaps be argued that the impugned order was passed by the learned Sub‑Divisional Magistrate at the instance of the petitioners themselves, who asked for the sale and agreed to abide by the terms stipulated in the order. It is contended by the learned counsel For the petitioners that in the first instance this was a prayer made in the alternative and secondly even a concession wrongly made by the petitioners could not be so construed as to confer a jurisdiction on the learned Sub‑Divisional Magistrate not otherwise vesting in him under the law. The contention has force and accordingly the mere fact that the petitioners had moved the learned Sub‑Divisional Magistrate for the sale of the seized consign ment in their favour, cannot be allowed to perpetuate an illegal order.

8. The upshot of the discussion, therefore, is that the seizure of 1,700 maunds of wheat and of 780 maunds of barley is illegal and unwarranted in law. It is accordingly directed that these stocks may be released to the petitioners on furnishing adequate security to the satisfaction of the District Food Controller, Sheikhupura.

Petition accepted.

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