Jalim Chand Saraogi vs The State

Thadani, C.J.—This is a revision application under the provisions of Section 439, Criminal P.C. directed against an order passed by the

Magistrate, First Class, Golaghat, dated 8th October 1948, by which in addition to ordering confication of cloths, yarn and sugar, in respect of

which offences u/s 7 of Act XXIV [34] of 1946 (Central) were committed, he confiscated to Government the truck which was used in the

commission of the offence.

It is contended on behalf of the applicant that the order passed by the learned Magistrate purporting to be an order under the provisions -of

Section 517, Criminal P.C., was in reality, an � order passed in pursuance of Section 7 of Act xxiv [31] 1946, which is in these terms:

(1) It nay person contravenes any order made u/s 3, he shall be punishable with imprisonment for a term which may extend to three years or

with fine or with both, and if the order so provides, any Court trying such contravention may direct that any property in respect of which the Qowt

is satisfied that the order has been contravened, shall be forfeited to His Majesty:

It is plain from the language of Section 7 that the order of forfeiture must be directed against any property in respect of which the Court is satisfied

that the order has been contravened, The property in respect of which the order has been contravened, consists of cloths, yarn and sugar, The

vehicle in which these articles were carried, iB not one of the items of property in respect of which an order made under Act xxiv [24] of 1946 has

been contravened.

Previous to the enactment of Act xxiv [34] of 1946, which is an Act of the Indian Legislature and which received the assent of the Governor-

General on 19th November 1946, there was an order passed by the Government of Assam on 27th September 1946 which contained the

following provision:

A. Court trying any contravention of this order may, without prejudice to any other sentence which it may pats, direct that any cloth or yarn in

respect of which it is satisfied that such contravention has occurred, shall be forfeited to His Majesty,

The language of Section 7 of the Central Act, in so far as it relates to forfeiture, is strikingly similar to the Language of Section 20, Assam Cotton

Cloth and Yarn Dealers Licensing Order, 1946, dated 27th September 1946.

Mr. Medhi for the petitioner contends that having regard to the restricted scope of Section 7, which does not empower a court trying a

contravention under Act xxiv [24] of 1946 to forfeit to the State the vehicle in which property which is the subject-matter of the contravention, is

carried, the general provisions of s, 617, Criminal P.C. cannot Berve to over-ride the specific provision contained in Section 7 of Act XXIV [24]

of 1946. In support of his contention, he has referred us to two decisions of the Bombay High court reported in Hansraj v. Emperor A. I. R 1944

Bom. 292 : 1946 Cri. L. J. 482 and Baghunath Krishna v. Emperor AIR 1947 Bom. 839 : I. L. R. (1946) Bom. 1063 and a decision of the

Lahore High Court reported in Abdul Majid v. Emperor AIR 1945 Lab. 149 : 1947 Cri.L.J. 130 . In Hansraj v. Emperor AIR 1944 Bom. 293 :

16 Cri. L. J. 482 Divatia J. observed:

The words ''it the order so provides'' which cannot be regarded as redundant, must be given their plain meaning, and that meaning, in my view, is

that although an order o( confiscation can be made by the Court in its discretion u/s 517, that discretion is not to be exercised in those cases In

which the appropriate authority issuing the order did not think it desirable that such discretion should be used. Rule SI (4) imposes special penalty

for special offence created by that rule consisting in the contravention of any order made under the rule, and when it expressly saya that the order

of confiscation can be made if It is so provided in the order which is being contravened, it must be take to mean that if the order ia silent about it,

no order of confiscation, and in some orders issued before the amendment, the power o disposal of of property can be made.

Lokur J. observed;

Penal statutes have to be strictly construed in favour of the subject. This is particularly so In the case of enactments which create new offences for

meeting an emergency and seek to penalise acts which, in normal times, would not amount to an offence.

In the second case reported in Baghunath Krishna v. Emperor AIR 1947 Bom. 339 : I. L. R. (1946) Bom. 1063 the Division Bench consisting of

Ben and Gajendragad kar JJ., followed the previous decision of the Full Bench of the Bombay High Court reported in Eansraj v. Emperor AIR

1944 Bom 292 : 46 Cri L. J. 482.

The Full Bench of the Lahore High Court, Abdul Majid v. Emperor AIR 1945 Lah. 149 : 47 Cri.L.J. 130 consisting of Harries C. J., Teja

Singh and Khosla JJ,, also took the same view as was taken by the Full Bench of the Bombay High Court. Harries C. J,, obeserved:

It appears to me clear that Section 81, Sub-rule (4), Defence of India Rules, impliedly limits the operation of Section 617, Criminal P.C. To hold

otherwise would be to hold that the words ''if the order so provides'' in Section 81, Sub-rule (4), Defence of India Rules are redundant and

absolutely meaningless. If the learned Magistrate could confiscate this oil, though the order was silent as to confiscation, then the words which I

have referred to, mean nothing whatsoever. On the other hand, if the argument of the petitioner be accepted that confiscation can only be ordered

if the order be provides, then due weight and ''meaning is given to these words. Meaning must be given to every word in a Section, wherever

possible, and the natural construction of Rule 81, Sub-rule (4), Defence of India Rules, is this is that if the older, contravention of which is alleged,

provides for confiscation, then the property which is the subject-matter of the proceedings, can be confiscated. On the other hand, if the order

does not be provide, then their is no power of confiscation,

With respect, we are in agreement with the view expressed by the learned Judges of the Bombay and Lahore High Courts.

The result is that the application is allowed, the order of the learned Magistrate confiscating the track (Ex. l) is set aside.

The security bond furnished by the petitioner is discharged.

The Rule is made absolute.

Ram Labhaya, J.

I agree.