Singla Brothers Solan vs The Special Tribunal etc.

Chet Ram Thakur, J.—By this petition under Articles 226 and 227 of the Constitution of India the Petitioners have prayed for quashing the order, dated 11-9-1975, whereby the Special Tribunal has ordered the confiscation of 435 bags of rice to the State Government as a result of Conviction and sentence passed on Kamal Kapur and Ishwar Chand partners of Mahavir Trading Co., Solan for having contravened the provisions of Rule 114 of the Defence and Internal Security of India Rules, 1971 (hereinafter called the rules).

According to the Petitioners they had imported 2925 bags of rice from different dealers of Punjab against valid permits of import issued by the State of Punjab and these consignments of rice were received at Railway Station, Solan, on 18th, 21st, 22nd, 27th, and 29th April 1975, and 9th, 16th and 18th May, 1975. The Petitioners had only two godowns at their disposal and because of the arrival of huge quantity of rice they had to hire two additional godowns for the purpose of rice so imported. One of the godowns was taken on lease by the Petitioners from Messrs Mahavir Trading Co., The Mall, Solan. The Petitioners kept 640 bags of rice in the godown leased by them and they had made the relevant entries in the register of food-grains, the copy of which is Annexure ''A'' to the writ petition out of this stock the Petitioners had sold 205 bags and there were only 435 bags of rice left in the godown. A raid was conducted on July 8, 1975, on Messrs Mahavir Trading Co. and a case was registered under Rule 114 of the rules against Messrs Mahavir partners Kamal Kapur and Ishwar Chand. It was averred in that complaint that M/s Mahavir Trading Company and its members had contravened the provisions of the Himachal Pradesh Commodities Price Marketing and Display Order, 1975 (hereinafter called the order). As soon as the case was registered against the aforesaid firm the Petitioners filed an application on July 9, 1975, before the Chief Judicial Magistrate, Solan stating that the stock of 435 bags of rice lying in the premises of Mahavir Trading Co., Solan belonged to the Petitioners and they accordingly applied for the release of the same. The allegations of the prosecution against M/s Mahavir Trading Co. were that 435 bags of rice and 17 bags of salt were found in their godown but the price of the same was not displayed in the price list. The Petitioners made an application before the Tribunal also for the release of 435 bags as the same belonged to them. The Tribunal passed the following order:

The Applicant has not been able to satisfy us about its title to the 435 bags of rice in question and hence we are unable to order the release of rice in his favour. The complainant, if so advised, may get his title established in accordance with law in the proper forum. This application is rejected.

Subsequently after the conclusion of the trial of Kamal Kapur and Ishwar Chand the Tribunal convicted and sentenced them and also passed an order forfeiting the stock of rice consisting of 435 bags. The operative part of the Judgment and order whereby the confiscation order was made while convicting Kamal Kapur and Ishwar Chand reads as under:

435 bags of rice which have already been taken in possession by the police and which are not claimed by the accused shall stand confiscated to the State. An application for release of these 435 bags of rice was moved today by M/s Singla Bros., Solan, and vide order of even date the same has been rejected. A copy of this judgment be forwarded to D.M. Solan who shall make necessary arrangements for immediate disposal of the confiscated rice.

The learned Advocate-General has supported the order of the Tribunal and has further pleaded that the Petitioners have got no locus standi to file this application challenging the order of the Tribunal whereby the rice has been ordered to be confiscated to the State.

The case against the partners of M/s Mahavir Trading Co., Solan was one for having contravened the provisions of the Order, which is punishable under Rule 114(11) of the rules. It was alleged that the Petitioners, though had 435 bags of rice and 17 bags of salt in the godown but they failed to display the price list and as such they had contravened the provisions of Rule 114 of the rules. Para 3 of the Order reads as under:

Every dealer shall from the commencement of this Order:

(a) in respect of the commodities specified in column 3 of Schedule 1, display conspicuously in the form prescribed in Schedule III during the hours of business at a place as near to the enterance of his business premises as possible a list of prices and opening stocks in Devnagri script in Hindi; and

(b) in respect of the commodities in column 3 of Schedule II, mark from time to time the price in the manner prescribed in that Schedule in the script referred to in Clause (a):

Provided that the form of numerical to be used shall be the International form of Indian numerical:

Provided further that a wholesale cloth dealer may, instead of marking, in the manner prescribed in Schedule II, the prices of various varieties of Textiles having specified trade mark and falling within the purview of the aforesaid Schedule, display the price of each such variety in accordance with the provisions of Sub-Clause (a) of this clause:

Provided further that in the case of any commodity which is out of stock instead of writing the price thereof in the list the words "OUT OF STOCK" shall be written in block letters against the commodity:

Provided further that the retail price of any category of essential articles so displayed shall not exceed the retail price, if any, fixed or recommended by the manufacturers or produce in respect of that essential articles.

The submission made by the partners of M/s Mahavir Trading Co. right from the very beginning was that the rice which was in the godown did not belong to them and as such there was no question of display of the price of the same nor there was any question of displaying it as out of stock'' when they had no stock at all. The rice belonged to M/s Singla Bros. The raid on the premises of M/s Mahavir Trading Co. was conducted on 8-7-1975 and on the very next day, i.e. on 9th July, 1975, this rice in question was claimed by Lachhman Dass one of the partners of M/s Singla Bros. by his affidavit, Annexure ''C'' to the petition. It would also be apparent from Annexure ''A'' that he had made entries of the entire stock of rice which he had received from 18th April to 27th April, 1975 from different markets in the Punjab, and, in the column of remarks is written the quantity received on different dates from different markets and were stocked in the godown of M/s Mahavir Trading Co. This was checked by O.P. Bhardwaj, District Food and Supplies Controller, Solan, on 2-7-1975, and the total quantity so checked in the register was found to be 925 bags rice and 330 bags basmati. The Petitioners moved an application on 2nd August, 1975 for the release of 435 bags of rice to them because the same belonged to M/s Singla Bros. and was stored in the godown of M/s Mahavir Trading Co. So that shows the bona fides, of the Petitioners. The partners of'' M/s Mahavir Trading Co. who were arrested and subsequently prosecuted had also disowned the rice. Kamal Kapur and Ishwar Chand had stated while making statements to the charge that the stock of rice did not belong to them, it had been entrusted to them by its owner M/s Singla Bros. for safe custody. Therefore, there is no dispute with regard to the ownership of the rice. The persons, who had been arrested for having contravened the provisions of the Order as also the rules had stated that the rice did not belong to them rather it belonged to M/s Singla Bros. M/s Singla Bros. had also filed an affidavit and claimed the same by their application dated 9th July, 1975, i.e. on the very next following day. Further, the Petitioners have filed the agreement, Annexure ''J'', to show that they had taken the godown from M/s Mahavir Trading Co. on lease on 20th April, 1975. Further, it stands corroborated from Annexure ''L'' and entry in the registers (rokar) of the Petitioners at page 26, dated 4-6-1975, that rice was received by them from Samaria Rice Mills on 24-4-1975. This register also shows the octroi paid at Solan as also the rent for 2 months for the godown of M/s Mahavir Trading Co. The amount of rent shown is Rs. 640/- and this entry is made on 21-7-1975. In these circumstances, especially when the partners of M/s Mahavir Trading Co. have stated that the rice belongs to the Petitioners, there remains no manner of doubt with regard to the ownership of the same and the agreement also supports this contention that they had taken the godown from M/s Mahavir Trading Co. on lease and, therefore, the question that the Petitioners have no locus standi does not appear to be correct.

The Tribunal has passed two contradictory orders and which cannot be reconciled. By the earlier order of the same date it has observed that the Applicant, if so advised, may get his title established in accordance with law in the proper forum, whereas by the latter order of the same date the Tribunal has ordered the confiscation of the same. Therefore, these two orders cannot be reconciled.

Further it would appear that forfeiture of the rice could be ordered only in case the property had been the subject of the offence or where the property has actually been used for the commission of the offence. The offence is only not to have displayed the price or not to have shown that the commodity was out of stock. The Petitioners had already approached the Tribunal and an affidavit had been put up before it that the rice belonged to them and that was the plea taken up by the partners of M/s Mahavir Trading Co. also at the very earliest and, therefore, the same could not be said to be the subject of the offence. The Order does not provide for the confiscation of any commodity. Therefore, these two orders which are irreconcilable cannot be upheld and when the court acts illegally and in an arbitrary fashion the High Court in exercise of its powers of superintendence under Article 227 can interfere in order to bring the Tribunal or the courts below within their proper bounds. Further, it would appear from Sub-section (1) of Section 452 of the Code of Criminal Procedure 1973 that the property regarding which order of confiscation, dismissal or destruction may be made must be that regarding which any offence appears to have been committed or which has been used for the commission of the offence. The present property as would be apparent belongs to the Petitioners, and, there is no question that the commission was committed in respect of that property in view of the aforementioned facts. Therefore, even u/s 452 of the Code no order of confiscation could be made.

In Balamal Matlomal Vs. State of Gujarat, , where the accused was found carrying stolen property in a rickshaw and the trial court on conviction of the accused person ordered the confiscation of the rickshaw, it was held in a revision taken u/s 517(1) of the Code of Criminal Procedure 1898 that the court can exercise this power of confiscation only when it is found that the property has been used in commission of the offence and that the rickshaw in which the stolen property was being carried cannot be said to be used in the commission of the offence and, therefore, the order of the trial court was liable to be set aside. Similarly, in Nanak and Others Vs. The State of U.P., it has been held that the power to confiscate property can be used only with respect to that property which has actually been used for the commission of that offence. Thus, where the accused Applicants were found cutting and collecting wire and were convicted for an offence u/s 379, I.P.C., implements for cutting the wire would fall in that category because it is by their use that the offence would have been committed. But merely because the accused went on their cycles, it cannot be said that the cycles were used for the actual commission of the offence. Here, as already pointed out, the property was not at all the subject matter of the offence because it belonged to the Petitioners who were not a party before the Tribunal. Therefore, this order of confiscation is wholly unwarranted and without jurisdiction and is liable to be quashed in exercise of the powers under Articles 226 and 227 of the Constitution.

The learned Advocate-General had also contended that in view of the provisions of Section 12 of the Defence and Internal Security Act this Court has no authority to revise any order of sentence or to have any jurisdiction of any kind in respect of any proceedings of a special tribunal created u/s 7 of the aforesaid Act. Section 12 relates with regard to the sentences against which an appeal can be filed and the orders against which no appeal, etc. against the order of the special tribunal shall lie. The learned Advocate-General has laid special emphasis on the words "or have any jurisdiction of any kind in respect of any proceedings of a special tribunal". It maybe stated that the powers under Articles 226 and 227 conferred upon the High Court are quite wide enough and these powers can be invoked in case of grave dereliction of duty for which no other remedy is available and which will have serious consequences if not remedied. Therefore, Section 12 of the aforesaid Act does not bar the writ jurisdiction of the High Court, where it finds that the inferior tribunal has acted beyond its jurisdiction. Therefore, in these circumstances the submission made by the learned Advocate-General that this Court in exercise of extraordinary jurisdiction cannot set aside the order or entertain any petition in view of the bar created u/s 12 of the Act is not sustainable.

The second question that crops up is as to whom the property should be delivered. According to the learned Advocate-General the property was taken into possession by the police from the custody of M/s Mahavir Trading Co. and, therefore, on appeal if the order of conviction were to be set aside the property was to be ordered to be delivered to M/s Mahavir Trading Co. But, this submission of his docs not appear to be correct in view of the fact that the godown from where the property was taken into custody by the police was in the possession of the Petitioners as they had taken on lease the premises from M/s Mahavir Trading Co. vide Annexure ''J'', which is an agreement to that effect and this agreement has been executed as back as April 1975 when it could not be anticipated that a raid would be conducted on the premises of M/s Mahavir Trading Co. and that in order to defeat any action to be taken by the police for purposes of hoarding or for breach of any provision of the Order or the rules they should have executed this agreement. Therefore, in these circumstances the property must be restored or released in favour of the Petitioners.