1. This is a reference from the Sessions Judge of Ahmedabad in the case of accused No.1 Lallu Waghji who was convicted of the offence of theft by the First Class Magistrate of Nadiad. Lallu Waghji was the 1st accused in the case before the Magistrate and he and two others were convicted of theft. The two others, accused Nos. 2 and 3, appealed to the Sessions Judge and the Sessions Judge reversed the convictions of accused Nos. 2 and 3 under Section 379. The case of accused No. 1, Lallu Waghji, is referred to this Court, as no appeal lay in his case, the sentence being one of simple imprisonment for three weeks only.
2. The facts out of which the convictions arose are as follows:--Accused Nos. 2 and 3 had made a default in the payment of land revenue and the Mamlatdar proceeded to their house to make a distrait of moveable under Section 154 of the Bombay Land Revenue Code. He found two she-buffaloes belonging to these accused which were being milked by a woman of the defaulters' household. He told her he intended to attach the buffaloes and the woman said that he might do so after she had finished milking them. The Mamlatdar allowed her to finish and then made a panchnama declaring the buffaloes to be under attachment. Accused Nos. 2 and 3 tried to remove the buffaloes on the pretext of watering them, but were prevented from doing so by the Mamlatdar. Subsequently at the instigation of accused No. 1, Lallu Waghji, who is a leading villager, accused Nos. 2 and 3 untied and removed the buffaloes. The Sessions Judge is of opinion that the removal of the buffaloes did not amount to theft, because the buffaloes were not at the time in the possession of the Mamlatdar. He says in his judgment that it is necessary for the person effecting the attachment actually to lay hands on the animals or some fastening thereof, and that until that is done, there is no attachment any more than there is arrest without imposition of hands.
3. We think this statement of law is incorrect. The English common law rule is that, except in case of submission, arrest of person consists of the actual seizure or touching of the body of a person with a view to his detention. This rule would no doubt be followed in India although there is no express authority on the subject but it has no application to distrait of chattels. The attachment was not under the Code of Civil Procedure and therefore the provisions of Order XXIII, Rule 43, which require actual seizure, do not apply. The common law rule as to seizure for distrait of chattels is that the seizure may be either actual or constructive. This is illustrated by the case of Cramer v. Mott (1870) L.R. 5 Q.B. 357 where the refusal of a landlord to allow the owner of a piano let on hire to his tenant to remove the piano until his rent was paid was held to be a sufficient seizure although the landlord had never touched the piano.
4. The point which the Sessions Judge had to consider was whether the buffaloes were in possession of the Mamlatdar. Now physical contact is not necessary to complete physical possession, and possession depends upon the physical possibility of the possessor dealing with the thing exclusively. The facts here found are that the Mamlatdar had a statutory right to take possession, he came to the place where the buffaloes were with the intention of taking possession, he made a declaration and the panchnama that he had taken possession and he exercised the right of possession by forbidding the defaulters from removing them. On these facts we think the Mamlatdar was in possession and that the offence of theft was constituted by the removal of buffaloes.
5. We therefore see no reason to interfere with the conviction and sentences passed by the Magistrate, First Class, of Nadiad, and direct that the record and proceedings be returned.
6. I concur.