Masnnaji Piraji Bahamani vs State

G.N. Vaidya, J.—In Criminal case No. 626 of 1970 in the Court of the Judicial Magistrate, 1st Class, Dhulia, the petitioner herein was accused No. 3, while accused No. 1 was the driver and accused No. 2, the cleaner of truck No. M. H. B. 3169, which was found to be carrying 99 bags of rice in contravention of the provisions of the Maharashtra Scheduled Foodgrains (Stocks Declaration and Procurement and Disposal, Acquisition, Transport and Price Control) Order 1966, amended as per the Order of 1969. A charge was framed against the three accused u/s 7 of the Essential Commodities Act. During the pendency of the case, on a report of the Police the learned Magistrate had ordered 99 bags of rice to be kept in a Government godown on June 18, 1970. ''On a further report of the Police, the learned Magistrate passed an order on July 3, 1970, directing the sale of the said rice with the permission of the Collector. The rice bags were permitted to be sold to Dhulia District Co-operative Sangh and the said sale proceeds of lis. 9,181.70p. were credited by the Police in this case and were lying in Court.

The learned Magistrate, after convicting the accused and sentencing them directed accused No. 3 to pay the rent of the Government godown for the period during which the rice bags were ordered to be kept in the Government godown, from the sale proceeds of the property and the return of the sale proceeds to accused No. 3 after the appeal period was over. Although the learned Magistrate does not say so in his order, it is clear that the order was an order u/s 517 of the Criminal Procedure Code. Under that section the Court has discretion when an inquiry or trial is concluded to make such order, as he thinks fit, for disposal, destruction, confiscation or delivery to any person claiming to be entitled to possession thereof or otherwise of any property or documents produced before it or in the custody or regarding which any offence has been committed or which has been used for the commission of any offence. The Explanation to section 517 further lays down :

Explanation. - In this section the term ''property'' includes, in the case of property regarding which an offence appears to have been committed, not only such property as has been originally in the possession or under the control of any party, but also any property into or for which the same may have been converted or exchanged, and anything acquired by such conversion or exchange, whether immediately or otherwise.

Feeling aggrieved by the said order the State of Maharashtra filed a revision application u/s 520 of the Criminal Procedure Code and the said revision application came up for hearing before the learned Additional Sessions Judge. Dhulia, who set aside the order passed by the Magistrate on the ground that u/s 7 (11 (b) of the Essential Commodities Act, the normal rule in cases where an offence is proved to have been committed, was that the property in respect of which the offence was committed should be forfeited.- The learned Judge held that the reasons given by the Magistrate, viz., (1) that the accused was a poor businessman ; (2) that he had borrowed a sum of Rs. 15,000 to purchase the rice ; (3) that the price fetched by the sale of rice had already entailed a loss to him and (4) that he had been sufficiently punished because of the heavy fine imposed on him, were not adequate reasons for the Magistrate to depart from the normal rule of forfeiture of the property in respect of which the offence was committed. He held that the fact that the accused was fined was not relevant, for considering the question of forfeiture and observed :

Taking the opponent at his word, his profession of straightened finances, does not sound credible. If he were really poverty stricken, it would have been difficult for him to borrow a sum of Rs 15,000/- . But assuming that he is poor, it should not be forgotten that Rs. 15,000/- were advanced to him because of the expectation that he would be able to repay the loan and make a tidy profit by committing an antisocial offence. The fact that the sale proceeds resulted in a loss was irrelevant. After all. the price paid by the Dhulia purchaser was that fixed by the Government. The fine imposed upon the opponent was merely Rs. 12,000/- . I say nothing about the sufficiency or otherwise of the sentence upon the opponent. But if the sentence imposed is to be a factor in deciding the question of forfeiture, the sentence inflicted upon the opponent vis-a-vis that purchased by (sic) the law, should not be forgotten. Thus viewed, it must be said that the opponent escaped lightly. The quantity of rice imported into Maharashtra was as large as 99 bags. In transporting the rice across the border, opponent took severe risk. I would, therefore, hold that there were no circumstances justifying the order of refraining from forfeiting the property, Mr Shaikh, who appears for the opponent, submitted that the Magistrate had exercised his discretion and normally a discretionary order should not be interfered with. I agree that it is not proper to normally interfere with a discretionary order. But where the discretion has been exercised in a perverse manner, a superior Court is not fettered. Here, the Magistrate has allowed himself to be swayed by the palpably frivolous pleas put forward by the opponent. In the result, the order passed by the Magistrate cannot be sustained.

The entire reasoning adopted by the learned Additional Sessions Judge, in my opinion, is based on the assumption that section 7(1) (b), which requires the Court normally to forfeit the property, in respect of which the Order has been contravened or such part thereof, as the Court may deem fit etc. is applicable to the proceeds of the property. This assumption, in my judgment, is erroneous, because there is no provision in section 7 or anywhere else in the Essential Commodities Act, 1955, similar to the provisions in the Explanation to section 517 of the Criminal Procedure Code. If there was such a provision, then the property referred to In section 7 (1) (b) would include the proceeds of the property. Although the learned Sessions Judge may be right in holding that the reasons given by the learned Magistrate were not proper, if section 7(1) (b) applied to the property before the Court, the finding of the learned Sessions Judge, must be set aside because this assumption is wholly erroneous.

In fact the learned Magistrate passed the order u/s 517 of the Criminal Procedure Code, It is true that the accused had committed an anti-social offence for which he has been convicted and fined. Section 7, which justifies forfeiture of the property, is not applied by Legislature to the proceeds of the property sold in accordance with a law with the permission of the Collector under an order of the Court. The Essential Commodities Act no doubt is an Act enacted for safeguarding interest of the general public and controlling production, supply and distribution of essential commodities. But we cannot read into that Act punishments and penalties, which the Legislature has not imposed. Section 7 (1) (b) refers to forfeiture of only the property in respect of which the Order had been contravened. It cannot be said that any Order was contravened in respect of the proceeds amounting to Rs. 9,181.70p. lying in the Court.

The question, no doubt, still remains as to whether the learned Magistrate was justified in ordering the return of the proceeds to accused No. 3, who was admittedly the owner of 99 bags of rice, which were being illegally transported. Nobody else had any claim to that rice except himself. The rice has been sold under the orders of the Collector as well as the Court, as stated above. Even assuming that there was nothing to support the statement of accused No. 3 that he had purchased rice for Rs. 15,000, commonsense can be relied upon to hold that the sum of Rs. 9,181,70p. which is the price recovered in respect of the sale in respect of 99 bags of rice under the order of the Court must be less than the amount for which rice could have been purchased by him. Even assuming for a moment that accused No. 3 was able to procure rice for less amount than the amount for which it was sold under the order of the Court, the State cannot have any claim to the proceeds before the Court. It is difficult to understand under what provisions of law the State can make a claim in respect of these proceeds. There is no provision in the Essential Commodities Act, and none his been pointed out to me by this Assistant Government Pleader, which would justify the claim of the State to the said proceeds.

For the above reasons the order passed by the Additional Sessions Judge, Dhulia, on September '',9, 1970, is set aside and the order passed by the Magistrate on July 17, 1970, directing return of the sale proceeds of Rs. 9,181.70p. to accused No. 3 is restored.

Rule made absolute.