M.M. Punchhi, J.
1. This is an appeal against an order passed by the Additional Sessions Judge, Sirsa, rejecting the application of the appellant to return the sale proceeds of 75 quintals of paddy, statedly the case property, in a trial under Section 7 of the Essential Commodities Act, which was ordered to be confiscated to the State in pursuance of the conviction.
2. The facts giving rise thereto and other relevant ancillary facts are these:
On 28-1-1975, Ram Parshad, Head Constable, posted at Bani Barrier, between the States of Haryana and Rajasthan, received a secret information in the evening that one Tribhuvan, resident of Rajasthan, who was a habitual smuggler of paddy to Rajasthan, would be taking a truck load of paddy that night and if intercepted, could be caught red handed On this information, other police officials and government functionaries were gathered at the Barrier at about 5.30 a.m. the following morning. Such a truck came and was intercepted when it was about to enter Rajasthan Border. It was stopped The driver thereof was one B air am; the cleaner one Harbans Lal and Tribhuvan aforesaid was found sitting beside the driver. The accused had no permit to take the paddy to Rajasthan Tribhuvan accused told the police party that the paddy was dearer in Rajasthan than in Haryana; the difference being Rs. 90/- per quintal in Haryana and Rs. 1337- per quintal in Rajasthan and that he was taking paddy to Rajasthan. The police party recovered 75 quintals of paddy from the truck. At the time, the Haryana Paddy Export (Control) Order, 1968 was in force prohibiting paddy to be exported to Rajasthan from Haryana. So the paddy as well as the truck was taken into possession. On these allegations, the prosecution came to Court. The three accused were tried by the Chief Judicial Magistrate, Sirsa, who convicted them under Section 7 of the Essential Commodities Act, 1955. All of them were ordered to be released on their furnishing bonds in the sum of Rs. 3000/- with one surety in the like amount on probation. They were further ordered to pay Rs. 250/- as costs of the proceedings under the Probation of Offenders Act. The driver and the cleaner did not file an appeal. However, Tribhuvan accused did file an appeal which was allowed by the Additional Sessions Judge on 24-9-1980.
2A. The defence adopted by the accused was that the paddy belonged to Gharsi Ram (the present appellant), who as D. W. 7 claimed the paddy as belonging to him. The case of Tribhuvan accused was that he had taken a lift in the truck and there was a Zamindar in the truck to whom belonged the paddy. The learned Additional Sessions Judge commenting on the prosecution case came to the conclusion that it had not been able to prove the case against the accused beyond reasonable doubt. The appeal of Tribhuvan was thus allowed extending to him the benefit of doubt. A reading of the certified copy of that judgment, placed on record, shows that the comments of the learned Judge about the prosecution, case could not be-confined to the benefit of Tribhuvan alone but could well have been attracted towards the acquittal of the driver and the cleaner. The prosecution case, as such, was adversely commented upon and then the benefit of doubt was extended to the only appellant before it. In these circumstances, the point which arises is whether the penalty of forfeiture in respect of the paddy purporting to have been imposed under Section 7(1)(b) of the Act, be maintained and the application of the appellant rejected.
3. On first impressions, it does appear that when convictions of Balram and Harbans Lal, co-accused of Tribhuvan, have not been interfered with and their convictions hold the day, then any property in respect of which they have contravened the Haryana Paddy Export (Control) Order, 1968 shall be forfeited to the government. But when viewed in the light of the order of the Additional Sessions Judge holding the case of the prosecution to be doubtful in the appeal of Tribhuvan, it has to be held that the property in respect of which Tribhuvan accused was said to be not guilty of the aforesaid order cannot be forfeited to the Government on account of his acquittal. Thus, the subtle point for consideration in this appeal is in whose respect (Sic) is the property, the export of which has led to the Export Order of the Government being contravened, which would justify the maintenance of forfeiture to the Government.
4. In this regard, the scope of inquiry, in the nature of things, has initially to confine to the prosecution case and thereafter to be expanded and enlarged, if need be, in the light of the defence adopted. It was the prosecution case itself that Tribhuvan accused was a known smuggler and that he would be exporting paddy to Rajasthan in a truck. The information supplied to the police led to the laying of the picket. Tribhuvan accused was caught red handed. His plea that he had taken a lift in the truck was not accepted as such in so many words by the Additional Sessions Judge; rather it was the prosecution case which was held to be doubtful. He was accordingly acquitted. The order of acquittal affirmed the initial presumption that the accused is presumed to be innocent till found guilty, and if Tribhuvan is to be presumed to be innocent, then the allegation of the prosecution that he was the exporter of the paddy from Haryana to Rajasthan stands belied. And if that is so, there was no property in respect of which the offence, as alleged to have been committed by Tribhuvan, been committed and thus there could be no order for forfeiture to the Government. Therefore the Courts below could not pass any orders for forfeiture of the said property to the Government under Section 7(1)(b) of the Act. It was neither the case of the prosecution nor of the defence or of Harbans Lal and Balram co-accused that the property belonged to them. They were alleged to be mere carriers. It is the appellant alone who as D. W. 7 claimed the property to be belonging to him. So, the property either belonged to Tribhuvan accused or to the appellant Gharsi Ram. Tribhuvan accused being now out of picture, it follows as a consequence that the appellant was the owner of the property. Since Tribhuvan did not commit any offence against that property and the appellant was not arraigned as an accused, the order passed by the Court to forfeit the said property, in the nature of things, would require to be quashed. It is so ordered Since the property stood sold under appropriate orders, let the price thereof be now refunded to the appellant. This appeal thus succeeds in the aforesaid terms.