K. Lahiri, J.
1. This is an application under Section 439 read with Section 520 of the Criminal Procedure Code, 1898 (hereinafter referred to as 'the Code').
2.-3. The relevant facts which are necessary for the disposal of this application are the following:
On 29-3-1972, the present petitioner moved an application before the Sub-divisional Magistrate (J) at Kokrajhar, alleging inter alia that on 12-1-1969 the Opposite Party No. 2, the Sub-Inspector of Supply seized some paddy in Kachugaon Bazar and filed a complaint against one Hiralal Prasad Sah of Kachugaon under Section 7(1)(a)(ii) of the Essential Commodities Act. It was stated inter alia that the said accused person did not claim the seized paddy during the course of the proceedings. The petitioner claimed that he was one of the agents of the Food Corporation of India, Branch Kokrajhar and was authorised to purchase paddy on behalf of the said Food Corporation under Gossaigaon Police Station including the forest area of Kachugaon through his employees as per agreement executed between him and the District Manager of the Food Corporation of India at Kokrajhar. It was alleged that the paddy in question was purchased by the petitioner through his employee Jakku Prasad and stacked the same on the road in front of the said accused person. It was further alleged that the said accused did not claim the paddy to be his own and told the officer that he was not the owner of the seized paddy and that the present petitioner was the owner of the same. The petitioner also claimed that he laid claim before the Sub-Inspector orally and the said Inspector asked the petitioner to wait till the disposal of the case. In due course, it was alleged, the prosecution having failed to produce any witness the accused person was discharged, but the learned Magistrate directed confiscation of the paddy. Having learnt that the case has ended in discharge and the seized paddy was directed to be confiscated, the petitioner moved the aforesaid application with a prayer that the order of confiscation be set aside and that the petitioner be delivered the said seized paddy in order to enable him to deliver the same to the Food Corporation of India and if the paddy has been sold in the meantime, the resultant sale price should be paid to the petitioner. A certified copy of the order was also annexed with the application and also an agreement No. 8 dated 20-11-1968 between the Food Corporation of India and the petitioner. The certified copy of the order dated 8-11-1971 reads as follows:
The complaint is absent. None of the witnesses are present. The accusedd is present. The proceeding is dropped. The accused is discharged. The seized paddy may be confiscated.
4. On receipt of this application a proceeding was started by the Sub-Divisional Officer in which several witnesses were examined on behalf of the petitioner and some documents were exhibited. The case was registered as Misc. Case No. 1 of 1972. The learned Sub-Divisional Magistrate, after taking the aforesaid evidence and hearing the parties inter alia held that the claim was not en-tertainable by him as the earlier order was passed by him under Section 517 of the Code and only the Court of Appeal or Revision can modify the order. The learned Magistrate came to the conclusion that in view of the fact that the petitioner was not a party in the case, the order passed by him earlier was proper and the petitioner should go to the Civil Court for his remedy.
5. It may be stated here that there is no finding of the Sub-Divisional Magistrate, Kokrajhar, that the paddy in question was not that of the present petitioner.
6. Being aggrieved by the said order the petitioner moved an application before the Sessions Judge, who, after calling for the records of the case and hearing the parties passed an order rejecting the application inter alia on the score that there was no satisfactory explanation as to why the petitioner did not claim the paddy earlier and as the accused did not claim the paddy and when the original owner was not known it was, a fit case for confiscation. The Sessions Judge directed the petitioner to go to the Civil Court to establish his title over the seized paddy and hence this application.
7. The learned Counsel appearing on behalf of the petitioner has submitted that the petitioner on receipt of the information of the disposal of the case made an application to the trial court alleging inter alia that the order of confiscation of the paddy was illegal and without jurisdiction. The learned Counsel further submits that the petitioner has adduced sufficient evidence before the trial court to show and establish that he was entitled to possession of the property and nobody than the petitioner claimed the property and as such, the learned Magistrate has acted illegally in refusing to deliver the goods to the petitioner.
8. The learned Counsel further contends that the findings of the learned Sessions Judge were perverse and the Sessions Judge ought to have exercised his power under Section 520 of the Code and/or at least should have made a reference to this Court for setting aside the impugned orders. I have heard Shri S.K. Senapati, the learned Counsel appearing on behalf of the petitioner and also the learned Public Prosecutor Dr. M.K. Sarma at length. The admitted facts are the following:
(1) That the paddy was seized by the Supply Inspector in connection with a case under Section 7 of the Essential Commodities Act, 1955;
(2) That the accused of that case was discharged for want of evidence and he did not claim the paddy so seized;
(3) That there was no finding of the trial court that in respect of the paddy in question, any order made under the Essential Commodities Act, 1955 was violated;
(4) That there was no finding of the trial Court as to why out of So many modes of disposal of the property envisaged under Section 517 or 518 of the Code, the learned Sub-Divisional Magistrate, Judicial adopted the mode, namely, the confiscation of the paddy;
(5) That the order of confiscation was made by the Sub-Divisional Magistrate;
(6) That no notice was issued to any person before the order of confiscation was made by the Sub-Divisional Officer nor there is any finding that the Sub-Divisional Officer had the knowledge as to who was the owner of the property;
(7) That there is nothing on record to show as to whether the Sub-Divisional Magistrate acted under Section 517 or under Section 518 of the Code.
9. Having heard the learned Counsel for both the parties it gives me an impression that the order of disposal of the property and the subsequent disposal of the application of the petitioner by the Sub-Divisional Magistrate, Kokrajhar and also the Sessions Judge, Dhubri were all perfunctorily done. As stated already the property was seized by the Inspector of Supply and not by the police and the seizure was made in connection with a case under Section 7 of the Essential Commodities Act, 1955. In that case, the accused person had to be discharged for want of evidence. The accused never claimed the paddy in question to be his. Was there any person claiming the ownership or possession of the paddy There is nothing on record to show that. Therefore, while disposing of the property, admittedly, the trial court did not know as to who was the owner of the property. There is no doubt that the property was produced before the learned Magistrate by the Supply Officer. Further it is clear that the learned Sub-Divisional Magistrate did not issue any notice before the disposal of the property. No reason has been attributed by the learned trial court as to why he adopted the mode of disposal, namely, the confiscation of the paddy.
10. The provisions contained in Chapter XLIII of the Code deals with the power and duties of the Courts to dispose of property. A right to property is one of the most important rights of a citizen of India. It is protected under the Constitution and also under the Code. The scheme of Chapter XLIII is that during the pendency of a proceeding a Court can pass an order as it thinks fit pending the conclusion of the enquiry or trial -- the same is dealt with in Section 516-A. The said section deals with the property at the disposal of the Court which has been produced by the police or by any other person or is in possession of the Court through any other agency. Section 517 of the Code also deals with the disposal of properties produced by any person or authority or which is in its custody or regarding which any offence appears to have been committed or which has been used for the commission of any offence but the disposal can be made after the conclusion of a trial or inquiry. One should not overlook the expression 'the court may make any such order as it thinks fit for the disposal by destruction, confiscation, or delivery to any person claiming to be entitled to possession thereof or otherwise of any property or document....' In my opinion, the expression 'as it thinks fit' must be an exercise of a judicial discretion by the Magistrate and he must give reasons as to why he had directed the destruction of the property if it does so or confiscation of the property as to why he has confiscated the property and while delivering to any person such property, the person must be claiming to be entitled to possession. In the present case we are concerned with the confiscation of the property. It is true that confiscation can be made by the Magistrate under Section 517, but before confiscating the same the court must give reason as to whether it was done as a penalty or for any other reason. Penal Laws provide for confiscation of the properties and Section 7 of the Essential Commodities Act inter alia provides as under:
7. Penalties.- (1) x x x x x x
(b) any property in respect of which the order has been contravened or such part thereof as to the Court may seem fit including any packages, coverings or receptacles in which the property is found and any animal, vehicle, vessel or other conveyance used in carrying the property, shall be forfeited to the Government.
Therefore, the confiscation of property is envisaged in Section 7 of the Essential Commodities Act. In the present case there is nothing to show that anybody claimed the right of possession in respect of the property or the ownership thereof. The property has been confiscated without giving any notice to any person. It is undoubtedly true that there is nothing in Section 517 of the Code to show that any party is entitled to a notice, but the use of the expression 'claiming to be entitled to possession' in Section 517 by implication shows that when the ownership of the property cannot be ascertained, the trial Court should not dispose of the property without giving any notice or without acting under Section 518 of the Code. In my opinion, ordinarily a Court can act under Section 517 of the Code, but if it finds that it was not seized by any police officer and the ownership of the property is not known and that the property is libale to be confiscated or that when he is not certain as to who is the person entitled to possess the property, he must, provided he is not a District Magistrate or a Sub-Divisional Magistrate, refer the matter under Section 518 of the Code to the aforesaid Magistrate. The reason is obvious. If the property is produced by the police after its seizure the Court is bound to proceed Under Section 523 and in a ease in which the owner of the property is unknown, he is bound to take action under Section 523(2) of the Code, which requires service of a general notice in the form of issuance of a proclamation. Therefore, had it been a case of seizure by police, the owner of the property would have been entitled to get a notice under Section 523 of the Code. But how is it that in a case in which a property is produced before the Court by any other authority other than the police officer should be dealt with differently and the same be disposed of without giving any proclamation or notice inviting the owner to come and claim the property. Is there any germ of discrimination in this regard I am of definite view the legislature has properly safeguarded the interest of the owners of the properties which are seized by any other authority other than the police or produced in Court. On a bare perusal of Sections 517 and 518 the position appears to be crystal clear. In my opinion, if a Magistrate, while dealing with a case under Section 517 of the Code finds that somebody is claiming the property he should proceed under that section. But, if he finds that the owner of the property is unknown, then he must enquire as to whether it was case of police seizure or not. In the former case he can act under Section 523 and should dispose of the property after issuance of proclamation under Section 523(2) read with Section 524 of the Code. But, when he finds that the property in question was not produced by the police officer, like the present case and the owner is unknown, as in the present case, he was bound to make a reference under Section 518 of the Code. The reason is obvious. No Magistrate other than a District Magistrate or a Sub-Divisional Magistrate can act under Section 518 of the Code. Section 518 gives power to the aforesaid officers to treat any such case of seizure as if it had been seized by the police and thereafter he can deal with the matter as if it is a case covered by Sections 523 and 524 of the Code. The provisions of Section 518 are quoted hereinbelow:
518. Order may take form of reference to District or Sub-divisional Magistrate. In lieu of itself passing an order under Section 517, the Court may direct the property to be delivered to the District Magistrate or to a Sub-divisional Magistrate, who shall in such cases deal with it as if it had been seized by the police and the seizure had been reported to him in the manner hereinafter mentioned.
11. The said Section gives power to the officers stated therein to treat any property seized to be properties seized by police and to deal with the matter under the subsequent provision contained in the said Chapter including Sections 523 and 524 of the Code. This is indicative of the fact that the legislature was careful enough to consider the cases of seizure other than the seizure made by the police officers and protected the interest of the owners of the properties in a similar manner. This is a reasonable interpretation of the provisions contained in Sections 517, 518, 523 and 524 of the Code. In the present case, as stated already, the ownership of the property was not known and the Magistrate dealing with the case and making the final order of disposal' was a Sub-divisional Officer. In that event in my view, there is no question of making any reference or delivery of the property envisaged under Section 518 of the Code. This opinion is reinforced by a decision reported in (1879) ILR 2 All 276, Empress of India v. Nilambar Babu. Of course, the decision cited above deals with the provisions contained in the earlier Code, namely, the Code of 1872, but in my view, when a case is dealt with by the District Magistrate or the Sub-divisional Magistrate, he can, while dealing with a case, take up the case of disposal and act under Section 518 read with Section 523 of the Code and no separate order is necessary to redeliver the property to itself for making an order of disposal of the property.
12. In the instant case, the order was made by a Sub-divisional Officer purporting to act under Section 518 of the Code. There is no compliance of Section 523 of the Code. Under these circumstances, it must be held that the mandatory provision of Section 523 was not complied with when admittedly the owner of the property seized was unknown. As such, I am of the opinion that the order of confiscation was bad in law as it violated the provisions of Section 523(2) of the Code.
13. In my opinion, the Courts below should be careful and cautious enough to consider all the aspects of the case and then dispose of the property seized as it is likely to affect the fundamental right of a person enshrined in Part III of the Constitution of India, particularly Articles 19(1) (f) and 31 of the Constitution of India. They should not take any chance in such matters and should take all possible precaution. While dealing with a case their Lordships in the Supreme Court in State Bank of India v. Rajendra Kumar Singh, reported in : 1969CriLJ659 observed inter alia as under:
It was, however, contended on behalf of the respondents that there was no provision in Section 520 of the Code of Criminal Procedure for giving notice to the affected parties and the order of the High Court cannot be challenged on the ground that no hearing was given to the appellant. In our opinion, there is no warrant or justification for the argument advanced on behalf of the respondents. It is true that the statute does not expressly require a notice to be issued, or a hearing to be given to the parties adversely affected. But though the statute is silent and does not expressly require issue of any notice there is in the eye of law a necessary implication that the parties adversely affected should be heard before the Court makes an order for return of the seized property.' As such, even in case in which there is no express provision to give notice. Their Lordships in the Supreme Court held that a Court is bound to give notice to the parties, who are likely to be affected by such an order.
14. Therefore, it is clear that objections are taken by their Lordships in the matter of disposal of properties even under Section 517 or 520 of the Code in the absence of due intimation to the party likely to be affected. If the owner is unknown, a general proclamation is very much desirable before a disposal under Section 517 or 520 of the Code is necessary. In my opinion, when the owner is not known, the District Magistrate and the Sub-divisional Magistrate must act under Section 518 read with Sections 523 and 524 of the Code, In the instant case, nothing has been done and as such, the order of confiscation cannot be upheld.
15. Now, the question arises as to whether the order of confiscation made can be recalled or not. In my view, when a Court has got the power to do a certain thing it has the power to undo it or recall it. By virtue of the order of confiscation the property must have gone to somebody. I am not aware nor the position has been made clear to me as to in whose favour the property has been confiscated. There is also nothing on record to show as to who has taken the property. Anybody who must have taken the property must have done so by executing some sort of undertaking and it or he can be directed to return the property in question. If the property has been utilised or sold the value of the property can be well ascertained and as such, the Court should assess the value and direct to deposit the value of the property if in due course, the Magistrate finds that somebody is entitled to possess the property. He has the power to return the sale proceeds to the said person.
16. Another factor which is intriguing me is as to why the confiscation of the property was necessary. The confiscation in a proceeding of this nature can only be done in respect of the property if any order under the Essential Commodities Act had been violated. This is the mandate under Section 7(1)(b) of the said Act. The other powers of confiscation are provided in Sections 6A, 6B of the Act. The order of confiscation was not made under Section 6A read with Section 6B of the Essential Commodities Act nor it was imposed as a penalty under Section 7(1)(b) of the said Act. Therefore, why was it necessary at all No argument has been advanced to persuade me to come to the conclusion that the confiscation was justifiably done by the learned Sub-divisional Magistrate. Under these circumstances, I must hold that the order of confiscation was also without jurisdiction and bad in law.
17. The above findings, of course, do not dispose of the application. The order of confiscation is bad and there is nothing to show that the said order was made in compliance with Section 517 or 518 or 523 read with Section 524 of the Code. The learned Magistrate on receipt of the application by the present petitioner asked him to adduce evidence purporting to act under Section 523 of the Code. He examined the witnesses and after allowing an opportunity under Section 523 of the Code to the petitioner turned around and held ultimately that he had no jurisdiction as the order was already made under Section 517 of the Code. As found already, the order of confiscation was not made by the learned Magistrate nor could have been made by him under the said section. The said order was not made in terms of Section 517 and must have been made under Section 518 or 523 of the Code without issuance of any notice as required under Section 523(2) of the Code.
18. In my opinion, the learned Magistrate was proceeding in a right direction when on receipt of the application from the petitioner he directed him to produce witnesses under Section 523 of the Code, but committed a grave error in holding that he had no jurisdiction to make an order under Section 523 of the Code. In my opinion, the learned Magistrate, should immediately proceed under Section 523 and reissue a proclamation specifying the article and requiring any person who may have claim thereto, to appear before him and establish his or their claim within 6 months from the date of such proclamation. After issuance' of the said proclamation he should consider the case of the petitioner. He should issue notice to the person or authority in whose favour the confiscation order was made. He must hear in the said proceeding the person or authority in whose favour the order of confiscation was made inasmuch as they may be adversely affected by the order. If he finds that, on the facts and circumstances of the case, the petitioner is entitled to get possession, he may be given the property, if that is still there, if not the price thereof may be returned to him. While disposing of this application I make it very clear that the alleged offence has been made an economic offence and the learned Magistrate should be cautious enough to deal with the case. He should also bear in mind all the aspects of the case particularly the effect of the petitioner's claim over the property. If it be held that the petitioner purchased the goods through his employee in accordance with the terms and conditions of the agreement made by him with the Food Corporation of India, Kokrajhar, the property or the price thereof may be returned. However, I leave the entire matter to the learned Magistrate to consider this aspect independently. He should not be in any way affected by any opinion expressed by me on merits of the case. It may not be understood that I am at all inclined to hold that the petitioner is entitled to possession of the property. In fact, I have not at all considered the merit of the claim of the petitioner and I leave the same entirely and exclusively on the learned Magistrate who shall be at liberty to arrive at any conclusion.
19. In the result the petition is allowed and the proceeding is sent down to the Sub-divisional Magistrate, Judicial Kokrajhar for due disposal of the application in accordance with the law and in the light of the observations made here inabove.
20. The petition is allowed to the extent indicated above.