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Jalim Chand Saraogi Vs. the State - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantJalim Chand Saraogi
RespondentThe State
Excerpt:
.....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. court trying any contravention of this order may, without prejudice to any other sentence which it may pats, direct..........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.3. previous to the enactment of act xxiv [34] of 1946, which is an act of the indian legislature and which received.....
Judgment:

Thadani, C.J.

1. 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 Under Section 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.

2. 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:

7. (1) It nay person contravenes any order made Under Section 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.

3. 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.

4. 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 (81) 1944 Bom. 292 : 46 Cr. L. J. 482 F. B. and Baghunath Krishna v. Emperor A.I.R. (84) 1947 Bom. 839 : I. L. R. (1946) Bom. 1063 and a decision of the Lahore High Court reported in Abdul Majid v. Emperor A.I.R. (32) 1945 Lab. 149 : 47 Cr.L.J. 130 F. B. In Hansraj v. Emperor A.I.R. (31) 1944 Bom. 293 : 16 Cr. L. J. 482 F. B., 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 Under Section 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 A.I.R. (34) 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 A.I.R. (31) 1944 Bom 292 : 46 Cr. L. J. 482.

5. The Full Bench of the Lahore High Court, Abdul Majid v. Emperor A.I.R. (82) 1945 Lah. 149 : 47 Cr.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,

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

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

8. The security bond furnished by the petitioner is discharged.

9. The Rule is made absolute.

Ram Labhaya, J.

10. I agree.


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