Lakshmi Narain, J.C.
1. K. Tombi Singh has filed this revision petition against the order of the Superintendent of Police passed in his capacity as Magistrate, first class, regarding the suspected property, i.e., some 4 or 6 lorry-loads of. salvage material in the shape of zali and iron posts etc., seized from the possession of his carriers and thereafter delivering its possession to the respondent Ch. Pisak Singh who is the other claimant. The above material was handed over to the respondent without any condition whatsoever.
2. During the proceedings of this petition some adjournments were taken by the parties for compromise but to no effect.
3. The facts disclosed from the record before the court are as follows: two drivers of Tombi Singh who were deputed to bring 2 lorry loads of salvage material from the dump belonging to him reached Imphal on or about 7.3.49 and complained to Tombi Singh that their lorries containing iron scraps, motor vehicle parts, brass scraps etc., were seized by the men of Ch. Pisak Singh respondent on the way beyond Churachandpur & unloaded there. They had, therefore, come back and reached Imphal with empty lorries. It appears that on getting this information Tombi Singh made a written complaint to the S.P. on 8.3.49 which was sent by him to the O/C N.C.C. for enquiry and report. On 12.3.49 Tombi Singh's other 4 lorries bringing alike salvage material were seized by N.C.C. Police. The respondent Ch. Pisak Singh alleged that the material contained in the 4 lorries was stolen by Tombi Singh's men from his dump area and thus he claimed it as his and that it should be handed over to him. Tombi Singh was also making repeated requests by means of his applications to the Section P. that the property belonged to him and it should be restored to him. Thus the rival claimants of the priority were the parties in *this case. Tombi Singh was claiming that it belonged to him and he had brought it from his own dump area, while Ch. Pisak Singh was maintaining that the same was stolen from his dump area. Tombi Singh has been requesting the police either to hand him over the seized property or that the case should be tried for its legal possession.
4. The S.I. of B.P.S. made his report in this matter on 20.4.49 which runs as follows:
In forwarding herewith the petition filed by Sjt. Ch. Pisak Singh of Nambul Mapal Huidrom Leikai and other connected papers I have the honour to report that the following facts have been brought to your kind notice for your kind disposal. That the articles noted in the agreement do not include the words iron scraps. So the 2nd party is not entitled to bring the iron scraps in question seized by the police. If the latter wants to bring them he is to show proper authority to defend his own case. In addition to the above the enclosed C.M.'s order shows that if anybody wants to bring any goods from Burma to Manipur he is to accompany custom certificate. In absence of this it does not clearly show that it was brought from Burma find indirectly shows that it was brought from Burma by unfair means or it was taken from the jurisdiction of the petitioner. The two pesses concerned which were issued to Sjt. Thouchom Ibomcha Singh of Keisambpat under lorries Nos. A.S.M. 276 and A.S.M. No. 488. A.S.M. 276 & A.S.M. 573 show that it does not mention iron scraps. So it appears that iron scraps were brought from somewhere else and not from Burma. Under the circumstances I should say that it apparently shows that those iron scraps were brought by unfair means from somewhere else and not from Burma. In the circumstances I think spot enquiry is not necessary. The seized articles belonged to Sjt. Ch. Pisak Singh. The seized articles may now kindly he returned to Sjt. Ch. Pisak Singh.
('Note:' This is to be noted that this Section T. in the first instance had reported that enquiry in Burma was necessary and also that the case seems to be of civil nature and should be sent to civil court. The last para of his original report was cut down by him (though still decipherable under the cutting) and substituted by a new one probably afterwards as it appears to be in a different ink).
5. On this the S.P. ordered next day, 'Return to Ch. Pisak Singh as recommended'.
6. An application to the Chief Court was filed by Tombi Singh complaining against the delivery of iron parts in a police case without disposal by a court. This was sent to the Section P. in the ordinary routine for report which was made on 19.4.49 and runs as follows:
Your order below. The report of the O/C B.P.S. at flag 'A' will explain the whole thing. K. Tombi Singh had permission to collect motor parts and brass scraps only and had no right to collect the things under dispute. Sjt. Pisak Singh had such right. Hence the seized articles were made over to the latter under Section 523, Cr.P.C. in my capacity as Magistrate first class. The file may be returned after perusal.
7. In the above application it was alleged that he had permission to collect and dispose of iron parts between Tidim Road and Tidim Phalam Road and finally it was prayed that:
It is not desirable that the defendant should get such benefit to get materials in dispute and sell them off before final disposal by court.
Even if the seized articles were handed to the respondent by the S.P.'s order D/- 20.4.49 without any condition inadvertently it was only fit that when he was informed of the intention of the respondent to dispose of the property to someone else, he should have passed some proper order to stay its disposal or take security from him till the decision of some competent court in the matter. Nothing of the kind was done.
8. Tombi Singh gave an application to the S.P. on or about 28.4.49 for obtaining copy of the F.I.R. on the basis of which the above case must have been registered. This was sent by the Section P. to the O/C B.P.S., for compliance who made the following report:
I have consulted this particular case in the F.I.R. but could not find it out any such thing in the F.I.R. I think this case was enquired by O/C (Kogendra Singh) without taking any F.I.R. So I beg to report for doing the needful.
This application with the report on its back is filed by the petitioner with this petition.
9. Tombi Singh again filed an application on 25.6.49 in the Chief Court complaining against the seizure and praying for stay order. This time he filed a copy of the application made by him to the Home Minister to bring salvage goods, such as iron scraps, iron rods, iron beams etc. into the State for export. The order passed by the Home Minister on this application on 8.2.49 runs as follows:
I have no objection if any iron scraps etc. are brought into the State if there is no objection raised by the Burma Government for which the applicant shall be responsible.
The above application along with the aforesaid copy was sent to the S.P. for disposal. This was forwarded by him to the Circle Inspector for comments on 29.8.49 who made the following report on 3.11.49 after enquiry:
I have gone through the record. In the agreement of Military H.Q., Shillong with Chongtham Pisak Singh it is found that he was authorised to collect metal scraps between Manipur Road and Imphal Tamenlong Road whereas in the agreement of Military H.Q., Shillong with Koijam Tombi Singh the latter was authorised to collect scraps, brass and motor parts in the jungles between Tidim Road and Tidim Falam but there is one order dated 8.2.49 of Home Minister authorizing K. Tombi Singh to collect iron scraps, iron rods and iron beams from within his salvage area, on the strength of which he issued permits on 22.2.49 and 23.2.49 to Ng. Thomchow Singh and Th. Ibomcha respectively to collect motor parts and iron rods etc. The permit-holders also said that they accordingly collected iron rods and zali posts and motor parts from the salvage area of K. Tombi Singh and not from the salvage area of Pisak Singh. As they came in lorries loaded with articles along in Tidim Road which is just by the side of Chongtham Pisak's salvage they were not allowed to proceed further with the articles by the alleged labourers of Pisak Singh on the ground that those iron rods and zali posts were picked up from the salvage area of Ch. Pisak Singh who alone could collect such articles and that K. Tombi Singh was not authorised to collect so. What the alleged labourers said is true in the light of the agreement but not tenable in the light of the Home Minister's order. Besides, the alleged labourers of Ch. Pisak Singh did not seize when the articles were picked and loaded in the lorries. Tidim Road is only the road to be used by K. Tombi Singh if any articles are to be brought to Imphal from his salvage. Chungbirong where the articles were seized by the labourers of Pisak Singh lies along this road. Further the permission he sought & obtained on 8.2.49 was followed by his subsequent collection of the articles. As such the collection is found consistent with the permission obtained from Home Minister. In view of these circumstances I am of opinion that the articles appear to have been brought from the salvage area of K. Tombi Singh and as such might be returned to him. However it is submitted (or favour of final orders.
10. On 18.11.49 Ch. Pisak Singh was asked by the Circle Inspector to return the seized articles but he showed his inability to do so on the ground that the same had already been sold away and that was so because he was never directed to keep them in his zimma by the police at the time of returning the articles to him. It is to be noted that at the end of this report it is written 'In the meanwhile he preferred to appeal on this decision', which is not explained. This was sent to the Chief Court for information. The same was sent back again with the remark that the S.P. might take any proper action which he deemed fit in face of the finding of the department. S.P. probably found himself in difficulty as to what to do in face of the disposal of the property by Pisak Singh and that there was no condition attached with regard to ft when the property was ordered to be handed over to him by his predecessor. He thought it fit under the circumstances to stick to the decision of his predecessor and filed the case on 17.12.49. I don't find any order passed by the Chief Judge suggesting the mode of disposal of the seized articles.
11. Tombi Singh again filed an application to the D.M. on 11.4.50 saying that the copy of the final order of the S.P. along with connected papers was not supplied to him though applied for. He prayed that the case should be sent for trial to a competent court. This application was disposed of by the D.M. with the following order dated 22.7.50:
Seen records. The seized articles were returned to one Pisak Singh by order of the S.P. dated 21.4.49. Obviously the dispute is of civil nature. The applicant should seek redress in a civil court.
12. He filed another application to the Deputy Commissioner on 13.6.50 praying tot the grant of copies of the order passed by the S.P. and the report of the S.I. of Police. This was sent to the S.P. to know if he had any objection. He (S.P.) made the following remarks:
There were some confidential notes about the petitioner in regard to his business in iron rods and scraps etc. which are to be treated as secret, and I don't like to give copy of these notes for the interest of work.
This can at once be said that it is obviously wrong. The required copies ought to have been supplied to him. This application was also filed by the petitioner along with this revision petition.
13. The learned P.P. is unable to show to this Court if any report at all was entered with regard to this affair by the police. He is also unable to find out any paper on the record purporting to be an enquiry made by the Magistrate in this case. He presumes that there must have been some enquiry by the Police Magistrate though not on the record. He wants to draw this conclusion only from the order of the Magistrate passed on 19.4.50. This argument is fallacious, and on the face of it wrong.
14. It is clear that the Magistrate took his decision on the report of the O/C B.P.S. in handing over the property to Ch. Pisak Singh1 under Section 523 Cr.P.C. without making any enquiry himself. When there is no evidence or any other cogent proof as to the respondent's ownership of the property, or that it was stolen, it should have been returned to the possessor. Although a Magistrate can make an order without independent enquiry and on police report or papers before him, the report in this case by the S.I. of Police is so vague and unsatisfactory that it ought not to be depended upon. The Rangoon High Court has held that a Magistrate should hold an enquiry before he makes an order for the disposal of the property which has been seized and produced before him: Valliappa Chetty, P.R.V.N. v. S. Joseph AIR 1923 Rang 248. It has been held by the Madras, Rangoon and Bombay High Courts that if the title of the seized property is doubtful it should be returned to the person from whom it was seized: Srinivasa Moorthi v. Narasimhalu Naidu 50 Mad 916 : AIR 1923 Rang 248; Wasappa Timappa v. Secy. Of State AIR 1915 Bom 227. Similarly if the property alleged to be stolen is not proved to belong to the complainant, it should be restored to the person who produced it and the complainant should be referred to Civil Court: Suleman v. Emperor AIR 1924 Lah 588. In case where court orders restitution of certain property, but the property has been disposed of, the court can order payment of equivalent value: Nagendra Nath v. Emperor AIR 1934 Cal 454. If the police seized property from person who is not shown to have committed offence the Magistrate should hold such person as being eftititled to the property. The remedy of the other party claiming it is by way of civil suit Lakshmichand rajmal v. Gopikishan AIR 1936 Bom 171; Karuppanan v. Gurusami AIR 1933 Mad 434 (2); Sattar Ali v. Afzal Mahomed AIR 1927 Cal 532 relied on. The Magistrate deciding a case under Section 523 Cr.P.C. should not decide any question of title, but must be confined only to the question of possession: Husensha v. Mashaksha 12 Bom LR 232. The order under this Section does not conclude the right of any person. The real owner may proceed in the civil court against the holder of the articles for damages: Queen Empress v. Manechand 9 Bom 131. According to Section 110 of the Evidence Act, the presumption is that any person is owner of anything if which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.
15. Under the circumstances the discretion used by the Magistrate is open to correction by this Court as it has been exercised in violation of judicial principle.
16. In the result this revision petition is accepted. The Police Magistrate's file with a copy of this order to be sent to the District Magistrate who will please arrange for the restoration of the property to the person from whose possession it was seized. In case it is not possible, the other party to whom the property was given is to pay its equivalent value. If the other party i.e., the respondent takes the case to a civil court for establishing his right over the property he is to give proper and sufficient security to the satisfaction of the D, M, in the amount of the value of the property to compensate the petitioner (Tombi Singh) in case he (respondent) comes out unsuccessful in his civil case. And in case the property is restored to the petitioner he shall also give security for its return or equivalent value to the D.M. to his satisfaction if the respondent comes out successful in establishing his title thereon in the civil case.