1. This is an application for refund of the sale proceeds of the guns sold by the District Magistrate, Ramanathapuram at Madhurai.
2. The facts are: There were originally four accused who were charged with offences under the Indian Arms Act. Accused 1 and 2 were charged under Section 19 of the Arms Act of having been in possession of guns without licence and accused 3 and 4, the petitioners before us, who were licensee of the guns were charged under Sections 21 and 22 of the Arms Act with having supplied guns to accused 1 and 2. The Sub-Divisional Magistrate of Srivilliputtur found all the accused guilty as charged and sentenced them to pay a fine of Rs. 50 each. In addition, the two guns were forfeited to Government.
On appeal the sentences and convictions of accused 1 and 2 were confirmed while those against accused 3 and 4 were set aside on the ground that there was no acceptable proof of the delivery of guns by them to accused 1 and 2. The appellate court did not pass any order for the disposal of the two guns and an application was made to the learned Sessions Judge of Ramanathapuram in Cri. M. P. No. 11 of 1952. But the Sessions Judge declined to make an order.
There was a revision to this court in 'Cri. M. P. No. 1262 of 1952 (Mad) (A)' and I passed the following order on 3-9-1952 :
'The guns cannot be returned unless the petitioners are found to be continuing licence holders, otherwise the court will be compelling the petitioners to commit offences under the Indian Anns Act.'
Therefore, the learned Public Prosecutor was requested to contact the District Magistrate of the place and obtain the necessary information.
It was reported on 17-9-1952 that the gun licence of the petitioners had been cancelled on 1-9-1950. Thereupon I passed the following order on 17-9-1952 :
'The gun licence has been cancelled by the District Magistrate Hamanathapuram in September 1950. Till the petitioners obtain a licence for holding the two guns I cannot order the return of guns to any one who has no licence.'
The petitioners applied for licence and the gun licence held by the petitioners has been directed to be restored. The licencees were directed to produce the weapons before the Taluk Magistrate, Srivilliputtur on or before 30-11-1953. But in the meanwhile the guns had been sold and the sale proceeds credited to Government. The petitioners thereupon filed an application for refund of the sale proceeds and this was refused and hence this petition from the order of the District Magistrate, Ramanathapuram.
3. There can be no doubt that in the circumstances of this case a refund of the sale proceeds can be ordered because on the setting aside of the conviction by the learned Sessions Judge, the petitioners were entitled to the return of the guns in the absence of a specific order confirming the order of forfeiture passed by the Sub-Divisional Magistrate, Srivilliputtur. The Sessions Judge could have ordered the return land when he did not do so, he failed to exercise a jurisdiction vested in him. I could not set it aright in revision, at an earlier stage because by that time the licence has been cancelled under the Indian Arms Act and no one can hold a gun without a licence and that is why I pointed out that if the guns were directed to be returned to persons without holding a licence this court would thereby be indirectly compelling the petitioners to commit an offence under the Indian Arms Act. Subsequently the forfeited licence has been restored.
When the petitioners became eligible for the return of the weapons, the weapons had been sold and the proceeds credited to Government in pursuance of the forfeiture order. In such circumstances it is open to this court to order restitution of the amount if justice so requires and as is required in this case. This is on the principle that where a remedy is allowed by law, it must be assumed that the legislature intends that the tribunal invested with jurisdiction shall enforce its order in the manner it considers most suitable even though there is no express provision for doing the same: See --'Badrul Hasan v. Mt. Chamela', : AIR1918Pat304 (B).
Besides the words in S. 520 'make any further (Orders that may be Just' are intended to cover cases of this nature: -- 'Arunachala Thevan v. Vellachami Thevan', AIR 1923 Mad 324 (C); --'Hagu BIswas v. Manmatha Nath Mitra', AIR 1914 Cal 658 (D); -- 'Ma Wet v. Mg Po Taik', AIR 1925 Rang 183 (E); -- 'Bodomal Kishin-chand v. Emperor', 13 Ind Cas 213 (Sind) (F); -- 'Kanshiram V. Emperor', AIR 1924 Lah 75 (G); -- 'Thiraj v. Emperor', AIR 1928 Lah 567 (H); -- 'Emperor v. Gopinath', 4 Cri LJ 370 (I); and -- 'Balaram Gogai v. Chintram Kalita', 9 Cal WN 549 (J). In fact such restitutions have been made by this court in several cases arising under the Foodgrains Control Order, where by the time the confiscation order is set aside in revision, the offending foodgrains being articles of a perishable nature have been sold and the proceeds credited to Government; there are decisions of this court and other High Courts in point and it is enough to refer to the reported decision of -- 'Mehromal Widhomal v. Emperor', AIR 1944 Sind 207 (K) and Cri R. C. No 740 Of 1953 (Mad) (L) (Sornasundaram J.).
4. This petition is allowed and the District Magistrate of Ramanathapuram is directed to refund to the petitioners the proceeds realised by the sale of the guns less any expenses Incurred by the Government in relation to the sale.