1. The four applicants before me have been convicted of an offence under Section 186, Penal Code, and sentenced to various sums of fine. The case for the prosecution is that Mohammad Shafi and his son Qamruddin owned a provision shop in a village in the district of Azamgarh. The District Board used to levy some sort of tax. The tax remained unpaid and an amin went with a warrant of attachment. In pursuance of this warrant of attachment he attached certain moveables. The prosecution case is that he was prevented in removing the attached articles. The defence case is that the accused insisted that the articles should be weighed and a proper inventory given to them. I have looked at the inventory on the record and it appears that the weight of the attached articles was given by approximation only. The question thus arises whether the accused were justified in insisting on the attached articles being weighed or whether the amin was justified in noting the approximate weight of the articles only. Under Section 138, District Boards Act, it is provided in Sub-clause 3:
The distress shall not be excessive, that is to say, the property distrained shall be as nearly as possible equal in value to the amount recoverable under the warrant
2. And in Sub-clouse (4) of the aforesaid section, it is said:
The officer shall on seizing the property forth, with make an inventory thereof, and shall before removing the same give to the person in possession thereof at the time of seizure a copy of the inventory signed by him....
3. If the distress has not to be excessive and if an inventory has got to be given, I doubt very much if the law is satisfied by entering the weight only by approximation. The learned Magistrate says:..the work of the amins or any officer appointed to execute a warrant of attachment would become impracticable if they were supposed to make actual weighments of the moveable specially when they go out to attach grain, etc., on the threshing, floor.
4. The learned Judge says:
It was quite sufficient for the tax collector to note down the approximate weight of the articles. If Mohd. Shafi disagreed with the estimate noted down in the list he could have endorsed a note to this effect or could have made an application to the District Board....
5. To my mind it is the duty of the attaching officer to be as accurate as possible, Irreparable mischief might be done to the owner of the goods attached if only approximate weights are given. I am not concerned with the difficulty of the attaching officer. I have got to see that justice is administered evenly between the accused and the prosecutor and the difficulty of the attaching officer if he is to weigh the goods and to note the weight is more than met by the difficulty of the owner of the goods who later on has to allege and prove that the goods attached were more in weight than noted down by the amin. In this view of the matter, I do not think that any offence was committed by the applicants when they insisted that the goods should be weighed before they were removed. I allow this application, set aside the conviction and the sentence and direct that the fine, if paid,, should be refunded.