(1) This is a reference under 8. 438, Criminal P. C, by the Sessions Judge, U. A. D. recommending that a certain order of Mr. U. N. Rajkhowa, Magistrate 1st Class, dated 27-6-52 relating to forfeiture of a truck load of rice Under Section 7(2) (b), Essential Supplies (Temporary Powers) Act, 1946 be set aside. What happened was that the Sub-Divisional Officer, Golaghat detected on 25-6-1951 a truck load of rice being carried by the road leading to Negheriting Tea Estate without any permit and at his direction, the Inspector of Supply, Mr. S. Ahmad, seized the rice as the movement of rice was then under control and took the same with one Noporam Kumar in charge of the truck to the Central Trading Cooperative Stores at Golaghat and made over the same to them after the formalities of seizure were completed. The rice was sold through Cheap Grain Shops and the sale proceeds were deposited in the Treasury.
Noporam Komar as well as Mohanlal Sutodla were prosecuted for violation of Sections 3(a) and 11, Assam Foodstuffs Control Order, 1951, on a charge of possessing and carrying the rice without permit on or about 26-6-1951. Accused Mohanlal was discharged as there was no evidence to connect him with the transaction and a charge Under Section 7(21. Essential Supplies (Temporary Powers) Act. 1946. was framed against Nopnram for violating Sections 3fa) and 11. Assam Foodstuffs Control Order, who, however, pleaded not guilty and his defence was that he was not responsible for the movement or possession of the rice in question but he was put in charge of the rice only after it had been seized.
The learned trial Magistrate gave the benefit of doubt to accused Noporam because it was not definitely proved that he was in charge of the truck of rice at the time the offence was detected. In the opinion of the learned Magistrate, the Sub-Divisional Officer, Golaghat, was a material Witness who first detected the offence, and he not havins; been examined and no other witness being produced to show that Noporam carried the rice at his responsibility, he was entitled to acquittal. The Magistrate, however, came to the finding that the rice was moved and possessed without anv authority or permit and there was a clear violation of Sections 3 (a) and 11, Assam Food- stuffs Control Order, 1951, and he accordingly ordered forfeiture of the rice purporting to act Under Section 7(2)(b), Essential Supplies (Temporary Powers) Act, 1946.
(2) When the charge was framed against Nopo-ram, he simply pleaded not guilty but when the tccused entered into his defence, Mohanlal Suto-dia (D. W. 3) proprietor of Satyanarayan Rice Mill of Barpathar claimed to have despatched the rice seized weighing 101 maunds, in pursuance of contract that he had already entered into with She authorities of the Negheriting Tea Estate at a period when the movement of rice to tea gardens was permitted for a time without license, to the lack of supply of foodstuffs to those areas. The period of free movement, however, admittedly expired on 20-6-1951 and this movement took place on the showing of the defence witnesses not earlier than 25-6-1951. The finding of the learned Magistrate Is that the evidence of defence witnesses Mohanlal Sutodia and Sew Narayan showed that Mohanlal or for the matter of that the rice mill of the accused received the information as to the free movement being stopped by the Government on the 23rd or 24th of June. The Magistrate therefore held that Mohanlal or his Munib Noporam had moved the rice in violation of the Foodstuffs Control Order and as such the oSence was committed with respect to the rice.
(3) Against this order of forfeiture passed by fee learned Magistrate, an appeal was filed in the Court of the Sessions Judge, U. A. D., but subsequently having found that an appeal would not be competent the appellant converted the memorandum of appeal to an application for reference Under Section 435, Cr.PC and the learned Sessions Judge having acted thereon made the reference to this Court Under Section 438, Cr.PC for setting aside the order of forfeiture. The construction sought to be put by the learned Sessions Judge on Section 7(2), Essential Supplies (Temporary Powers) Act was that there could be no order of forfeiture under this section unless there was a conviction of a certain individual for the substantive offence of contravening any order Under Section 3 relating to foodstuffs. In the opinion of the learned Sessions Judge, Section 7(2) (b) of the Act was meant only for the purpose of inflicting additional punishment on the accused and in case there was no conviction of the accused, there could neither be any punishment under Clause (a) of Section 7(2) nor any forfeiture under Clause (b) of Section 7(2), Essential Supplies Act.
The learned Sessions Judge further investigated as to whether the order could be supported Under Section 517. Criminal P. C, and he even was inclined to hold that no offence was committed Under Section 7 of the Act. It is unnecessary for us to consider whether this part of the judgment dealing with Section 517. Cr.PC or with regard to the commission of the offence was sound or not because It is no party's case that Section 517. Cr.PC applied to the facts of this case and the learned Sessions Judge obviously had no jurisdiction to examine whether an offence had been committed or not since he was not exercising appellate powers. On the facts as found by the learned Magistrate, it Is clear that an offence Under Section 7(2): was com- mitted with respect to the rice seized—no matter who did it.
(4) We are therefore left with the only question whether the learned Sessions Judge was right in holding that there could be no order for forfeiture Under Section 7(2) (b), Essential Supplies (Temporary Powers) Act, independent of a con-viction of an individual Under Section 7(2) (a) of the Act. In our opinion, the learned Sessions Judge definitely misled himself in holding that there could be no order for forfeiture apart from a conviction. What the Act obviously intended was that in case any person is found to have contravened any order Under Section 3 relating, to fobti-sttifrs, he shall be -punished as prescribed undfer Section 7(2) (a) and the direction as to the disposal of the property is that the property in respect f which the order has been contravened or such. part thereof as the Court may deem fit shall be forfeited to the Government, unless for reasons to be recorded the Court thinks fit that ft is not necessary to direct forfeiture. Were Clause
Reading of Section 7(2) clearly indicates that it If meant to provide in case of violation of Section 3 re lating to foodstuffs this to how the offender should be treated and how the property in respect o which the offence has been committed should be disposed of. In other words, Clause (b) of Section 7(2' stands independent of Clause (a) and the word 'and' connects the two clauses both having relation to the act of contravention of Section 3, Foodstuffs Control Order. In Section 517, Cr.PC there is a genera; provision as to the disposal of the property b} or in respect to which an offence has been committed, .but the Essential Supplies (Temporary Powers) Act being in its very nature a temporary Act, it makes its own provision as to how the property in regard to which an offence has been committed has to be disposed of.
We cannot countenance the view of the learned Sessions Judge that because Section 7 comes under the head of 'penalty' it would automatically suggest that the entire provisions of the section provide or are meant to provide for the punishment of the offender. Clause (b) is intended more for the disposal of the property than for anything else. The wording in Clause (b) is that the Court shall forfeit the property in its entirety or a part thereof as the Court might consider necessary and not that any option has been left with the Court as would have been the case were it meant to be an additional punishment to be inflicted on the accused. In our opinion, therefore, the learned Sessions Judge was entirely wrong in seeking to put the interpretation on Clause (b) of Section 7(2) as he did.
The learned Sessions Judge has further relied in support of his decision on the cases reported in _ 'Kedarnath v. The State' : AIR1951Cal303 and — 'Earn Asrey v. Rex' : AIR1950All150 . The learned Counsel appearing for the accused has also relied on these rulings in this Court but these cases are clearly distinguishable. in — : AIR1951Cal303 ', it was held that there was no 'mens rea' and the learned Chief Justice Harries observed that
once it is held that there was no 'mens rea' on the part of the persons moving the goods, it must be held that the order prohibiting the movement is not contravened and that being so, the goods cannot be confiscated.
In the Allahabad case also, as the learned Sessions Judge himself has observed, the Court found that the accused pleaded ignorance of the existence of the order prohibiting the export of grain outside the district without a permit and the Court believed the defence. Therefore, on toe finding of the Court itself, there was no offence committed with regard to the grain and similar was the finding in the Calcutta case too. In cases where the finding is that no offence was committed, surely Section 7(2) will have no application either as to Clause (a) or as to Clause (b).
The learned Counsel for the accused has not been able to show us any ruling where it was held that even though there was contravention of any order Under Section 3, Essential Supplies Act, relating to foodstuffs or cotton textiles, there can taw no order for forfeiture simply because the man charged with the offence was found to be not guilty. Here, the learned Magistrate definitely found that there was an offence committed in moving the rice even though he could not find the offender. That some person did it is certain. I have already observed that Clause (b) of Section 7(2) stands independently of Clause (a) and, therefore, an order for forfeiture by itself is good with regard ,o articles with reference to which an offence under Section 7, Essential Supplies (Temporary Powers Act, had been committed.
(5) There is another way of looking at It. In offences under the Act usually cases would arise when the offender with a view to escape liability for the commission of the crime, may even disown the foodgrains which were being illegally smuggled or removed and the evidence as to the identity of the offender may be inadequate; yet the fact of the smuggling or illegal removal of the foodgrains, contrary to the provisions of the law, would be there. It would be both unjust and unreasonable to assume that in all such cases the Court would be powerless to make any order as to the forfeiture of the foodgrains because the actual offender could not be found and thereby leave the offender to take possession of the food-grains or other claimants to set up false claims. Such an interpretation would encourage false pleas in defence and defeat the very purpose of the Act which Is enwrap to conserve and ensure the supply and distribution of essential foodstuffs. It must be, therefore, held that irrespective of the Identity of the offender or the punishment to be inflicted on him, where the Court is satisfied, on evidence, that there was a contravention of the Act, the Court could pass an order of forfeiture in respect of the article to which the Offence relates. We therefore see no good grounds for acceptance of the reference & accordingly re-uot the reference made by the learned Sessions Judge. The order of forfeiture as passed by the learned trial Magistrate will stand.
(6) We might only add that the contention on behalf of the defence had been pressed on the ground that the accused had moved the articles in question with an honest intention and without any mala fide in execution of a contract that was existing from before. The learned Magistrate has not accepted that story. We for ourselves, find that though Mohanlal Sutodia made an attempt to prove that there was a contract with Negheriting Tea Estate for supply of rice, no original contract or correspondence on the point had been proved in the trial Court. It appears to us from the record that the accused had prepared this defence after the case had proceeded for sometime and neither Mohanlal nor his employee Noporans Komar came with this story at the outset. It is not difficult to imagine that Mohanlal might have-contacted the authorities of the Negheriting Tea Estate to support him after the prosecution had started and that appears to be the case from the letter written by the Superintendent of the Tea Estate to the Sub-Divisional Officer, Sibsagar, sometime in October 1951 in support of the accused's case (vide Ex. G). We can only say that in our opinion, the learned Magistrate came to correct finding on the evidence on record and he had good reasons to believe that the rice was moved in a clandestine way and in violation of the Foodstuffs Control Order.
(7) The result is that the reference is rejected.
Sarjoo Prosad C.J.
(8) I agree.