1. The applicant was tried for the offences of boarding a large quantity of foodgrains without a licence and making incorrect returns of his stock in contravention of Clause 3 of the Food Grains Control Order, 1942, issued under Rule 81(2) of the Defence of India Rules, 1939. He was convicted and sentenced for the said offences. The learned Magistrate, instead of passing an order regarding the disposal of the attached property, ordered under Section 518 of the Criminal Procedure Code that the property should be delivered to the District Magistrate for being dealt with in the manner provided in the said section. There was an appeal to the Sessions Court which did not disturb this part of the order. Thereafter there was a revision application (Criminal Revision Application No. 324 of .1944, decided by Divatia and Lokur JJ. on December 18, 1944) to this Court and Mr. Justice Lokur who gave the judgment observed as follows:
The ruling of the full bench Emperor v. Hansraj Astaji (1941) 40 Bom. L.R. 529 has no application to the facts of this case since there is a special provision in Section 7A of the Food Grains Control Order, 1042, empowering the Court trying-an offence under Rule 81(4) of the Defence of India Rules for contravention of any of the provisions of the Food Grains Control Order to forfeit to His Majesty the property in respect of which the offence is committed. It is, therefore, open to the District Magistrate, if he thinks it proper, to pass an order for confiscation under that clause. All that the learned Magistrate has done is to send the property to the District Magistrate in order that he might pass such order as he might deem proper under Section 523 of the Criminal Procedure Code. We, therefore, see no reason to interfere with that order. It will be open to the petitioner to urge before the District Magistrate that an order of confiscation cannot or should not be passed.
The District Magistrate took a serious view of the main offence and he made an order under Section 523 of the Criminal Procedure Code that a small quantity of grain which was specified, should be restored to the applicant for the use of his family and that the remaining quantity should be forfeited to His Majesty, There was an appeal to the Sessions Court which-was summarily dismissed.
2. Clause 7A of the Food Grains Control Order, 1942, reads as follows :-
If any person contravenes the provisions of clause (3) or clause (6) of this Order then without prejudice to any other punishment to which he may be liable, any Court trying the offence may order that any stocks of foodgrains together with packages and coverings thereof in respect of which the Court satisfied that the offence has been committed shall be forfeited to His Majesty.
Under Rule 81(4) of the Defence of India Rules if any person contravenes any order made under the said rule, he is liable to punishment 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 Court is satisfied that the order has been contravened shall be forfeited to His Majesty'. It was held in Emperor v. Hansraj Astaji that the provision that an order for forfeiture can be passed 'if the Order- so provides' shows the clear intention of the Legislature that no order for forfeiture can be made if the Order made under Rule 81(2) does not provide for it and that the words 'if the Order so provides' limit the Court's power to order confiscation under the general provisions of Section 517 of the Criminal Procedure Code. Here there is a distinct provision for forfeiture in Clause 7A of the Food Grains Control Order and there can, therefore, be no question that forfeiture could be ordered in the present case.
3. Mr. Coyajee on behalf of the applicant has contended, firstly, that the said provision supersedes Sections 517 and 518 on the principle of Hansraj's case which dealt no doubt with a case in which there was no such provision, and where, accordingly, it was held that in the absence of such provision no forfeiture could be ordered. His further contention is that the wording of Clause 7A of the Food Grains Control Order shows that it is only the Court 'trying the offence' which may order forfeiture. In the present case the learned District Magistrate, though he has referred to Clause 7A of the Food Grains Control Order, has actually passed the order of forfeiture under Section 523 of the Criminal Procedure Code. Mr. Coyajee's second contention is that as Clause 7A was inserted into the Order on Febniary 5, 1943, by Government of India Notification, Finance Department, No. A.LE. 43, dated February 5, 1943, that is, on a, date after the grant of the licence in this case (in 1942) and as there is no evidence that the authority making the said provision published notice thereof 'in such a manner as in the opinion of such authority was best adapted for informing persons whom the Order concerned' (r. 119 of the Defence of India 'Rules) the principle enunciated in Emperor v. Gwitt (1944) 47 Bom. L.R. 431 applies and that, therefore, no order could properly be passed under Clause 7A even supposing the order in question was passed under the said clause. Thirdly, Mr. Coyajee has contended that the order which was actually passed under Section 523 of the Criminal Procedure Code was at least an improper order, as the said section primarily concerns property seized by the police under Section 51 of the Code and not property in a case in which an offence has been proved. Under Section 518 the District Magistrate is empowered to deal with the property 'as if it had been seized by the police and the seizure had been reported to him in the manner hereinafter mentioned.'
4. In Haiisraj's case Divatia J. observed (p. 537) :
The words, 'if 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 of 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.
Lokur J. observed (p. 539) :
Orders issued under Rule 81 of the Defence of India Rules are aimed at curtailing the natural rights of the subject in respect of free trade, contracts, transport of goods, and the like, as a measure of war emergency, in order to secure the defence of British India, the public safety, the maintenance of public order or the efficient prosecution of -war or to maintain supplies and services essential to the life of the communities. Hence to avoid unnecessary hardships involved in such emergency measures, Rule 81(4) of the Defence of India Rules does not empower confiscation of property in every case, but has expressly restricted it only to such cases as are provided for by the Order contravened. This is undoubtedly a curtailment of the power of confiscation conferred upon criminal Courts by Section 517 of the Criminal Procedure Code and is to that extent inconsistent with that section. But Section 8 of the Defence of India Act provides that any rule made under Section % and any order made under such rule shall have effect notwithstanding anything inconsistent therewith contained in any other enactment. Hence the amended Rule 81(4) the Defence of India Rules must be deemed to have impliedly superseded the provisions of .517 of the Criminal Procedure Code regarding the power of forfeiture.
Bajadhyaksha J. agreed with the view expressed in Emperor v. Purshottam Devji (1943) 46 Bom. L.R. 449 wherein it had been observed (p. 454):-
Where a statute specifies is particular mode of enforcing a new obligation created by it, such obligation can as a general sale be enforced in no other manner than that provided by the statute. The wider power of confiscation conferred by Section 517 of the Code of Criminal Procedure must be regarded as impliedly limited by Rule 81(4) of the Defence of India Rules.
The effect of this decision seiems to us to be this that if the Court wishes to exercise its power of forfeiture, it must be exercised under the specific provision to 'be found in Clause 7A of the Food Grains Control Order and not under Section 517 or Section 5] 8 of the Code of Criminal Procedure. That being so, the trial Court should not have made an order under Section 518 in this case and it was the trying Court which should have passed the order of forfeiture. It is true that in the last order of this Court it was said that it saw no reason to interfere with the order made by the trying Magistrate, but the specific point under consideration not having been argued, the view then expressed must be regarded as tentative. In fact the last sentence in the passage quoted above shows that the question was expressly kept open.
5. The point raised by Mr. Coyajee in his second contention was not raised in the Courts below, but there is no evidence as to the manner of publication which in the opinion of the authority making the Food Grains Control Order, 1942, was best adapted for informing persons whom the Order concerned within the meaning of Rule 119 of the Defence of India Rules. The said Order appears to have been published in the Official Gazettes of the Government of India and the Provincial Government, but there is no evidence that the applicant is a subscriber to either of those Gazettes, or that he came to know of the new Clause 7A, which came into operation after the date of his licence, in any other way. We think that the principle of Gwilt's case clearly applies to this case and that, therefore, even supposing that the order complained against was one passed under Clause 7A, it could not lawfully have been passed against the applicant in this case. That being our view, it is unnecessary to consider the third argument of Mr. Coyajee.
6. The learned Government Pleader has urged that this Court should set aside the order of the learned trial Magistrate under Section 518 of the Criminal Procedure Code and the District Magistrate's order forfeiting the property, and that the matter should now be sent back to the trial Magistrate for passing proper-orders according to law. But if Mr. Coyajee's second contention based on Gwitt's case is valid, as we think it is, it would not be possible for the trial Magistrate to act under Clause 7A of the Food Grains Control Order. The rule must, accordingly, be made absolute and the order passed by the District Magistrate set aside. The property which 'has been ordered to be forfeited to His Majesty should be returned to the petitioner, or if it has already been sold, the nett proceeds of such sale should be refunded to him.