Debabrata Mookerjee, J.
1. These five petitioners have been convicted of an offence under Section 406 of the Indian Penal Code and each sentenced to pay a fine of Rs. 80/- in default to suffer rigorous imprisonment for two months. The trial was held by a Magistrate of the 2nd class at Arambagh. Upon conviction the petitioners took an appeal to the Sessions Judge which was dealt with and disposed of by the Additional Sessions Judge who dismissed the appeal. Thereafter the petitioners applied to this Court and obtained the present Rule.
2. The facts briefly stated are that one Indra Maity claimed to be in possession of certain lands and to have grown crops thereon in the year 1360 B.S. The petitioners and others thereafter attempted to cut away the paddy grown by him. It is said that certain proceedings Under Section 144 of the Code of Criminal Procedure were instituted but they do not appear to have been prosecuted. Indra Maity preferred to bring an action before the Civil Court and obtained an order of injunction restraining the petitioners from harvesting the paddy. The case is that despite the order of restraint which had been made, the petitioners cut away the paddy in disobedience of the order. Contemporaneously with these proceedings a certain petition was addressed to the Superintendent of Police, Howrah, who in his turn sent a radiogram and made the petition over to the Arambagh police. On receipt of the radiogram and the petition, it is said, P.W. 2 Debdas Mukherjee, a sub-inspector of police attached to Khannakul P.S., proceeded to the locale and seized a certain quantity of paddy said to have been cut and carried away or about to be carried away by the petitioners. The paddy was seized by the Police and then released on a certain Zimmanama having been executed by the petitioners. Thereafter on the application of Indra Maity order was made requiring the petitioners to deliver the paddy or its equivalent in money; but despite notices issued the petitioners contumaciously refused to honour the Zimmanama whereafter proceedings Under Section 406 I. P. C. were instituted against them.
3. The charge that was framed against the accused persons was that they being entrusted with 11 kahans of straw and paddy worth Rs. 1166/- committed criminal breach of trust in respect of the same.
4. To the charge the petitioners pleaded not guilty and the defence was a denial of execution of the Zimmanama itself. The petitioners further denied that the police had ever seized any straw or paddy and the petitioners' case appears to be that they had been falsely implicated by Indra Maity. Several witnesses were called by the prosecution to prove the case made against the petitioners who were ultimately convicted and sentenced by the Magistrate as stated above.
5. Mr. Mukherjee appearing on behalf of the petitioners has called attention to certain unusual features of this case which require to be taken note of. The petition to the Superintendent of police has not been produced in these proceedings. The radiogram message is not a part of the record and the prosecution took no steps to prove properly the impugned Zimmanama. Mr. Mukherjee emphasised the point that despite the clear defence case of denial of execution of the Zimmanama, the prosecution omitted to call cogent evidence to prove actual execution of the document by the petitioners. I must say that some of these criticisms are of value in the context of the present case.
6. Mr. Sinha appearing on behalf of the State has contended that in view of the fact that there was a Zimmanama covering this stock of paddy which these petitioners contumaciously refused to deliver back or to pay up its value, the petitioners have been rightly convicted of an offence of criminal breach of trust.
7. The evidence given by the Sub-Inspector Debdas Mukherjee seems to be to the effect that the bulk of the seized paddy and straw had already been carried away by the petitioners. There was thus in ordinary sense no entrustment properly so called if the petitioners had held themselves -- even if unlawfully -- the stock of paddy and the straw before the police arrived; and if the sub-inspector thereafter appeared on the scene it could not be said that the petitioners were entrusted with the stock unless it was by means of and through the Zimmanama itself. Therefore it was essential for the prosecution to prove clearly that document. There is, in my view, considerable force in Mr. Mukherjee's contention that despite clear denial of execution of the Zimmanama the prosecution desisted from calling expert evidence to prove execution by the petitioners. It is of course true that the Courts below placed reliance upon other oral testimony of execution which had been produced in the case; but where entrustment depends entirely upon the existence and genuineness of the Zimmanama itself, I think in the special circumstances of this case it was the duty of the prosecution to produce better evidence in proof of execution of the Zimmanama.
8. As has already been observed there could not on the facts be entrustment unless it could be said that the Zimmanama when brought into existence became an active document which operated retrospectively; in other words, it is only when the Zimmanama considered as a document evidencing the prior right of the police to seize the stock and their act of seizing it, that the further rignt to take a document by way of receipt or bond from the persons entrusted can be said to arise. In the context of the evidence in the case it is indeed difficult to say that the Zimmanama could at all have been lawfully taken. Before the Zimmanama could be given by the petitioners and taken by the police officer the paddy and straw had to be seized. I do not think there is any material on the record which would justify seizure of the paddy. It is to be recalled that there was no proved information before the police officer about the commission of a cognizable offence. It could not be said that the police officer was engaged in the investigation of the charge of a cognizable crime. The petition to the Superintendent of police Hoogly has not been produced in the case; the radiogram said to have emanated from the latter was not produced either; nor did the police officer after taking the Zimmanama make it a part of any proceedings in Court in connection with the investigation of any crime. No report even appears to have been made about the seizure of the paddy. In these circumstances, it is impossible to hold that the police officer acted legally in seizing the stock of paddy; and if he did not have the legal authority, to act in the manner in which he did, there can be no question of taking the Zimmanama from the petitioners.
9. Section 523 of the Code of Criminal Procedure provides that the police officer has to report seizure Under Section 51 of the Code to a Magistrate. He has also power to seize allegedly suspected stolen property or articles found in circumstances which create suspicion of the commission of an offence. If the police officer was acting Under Section 523 then of course it would have been his clear duty to make a report to a Magistrate and it was the duty of the latter to make such order as he thought fit with respect to the disposal of such property or the delivery of such property to a person entitled to possession of it. At the moment when the seizure was made there was no investigation pending; there was no charge pending; there was no information of the commission of cognizable offence proved to have been pending before the police officer concerned. That being the position, the seizure of the paddy and the consequent Zimmanama do not appear to have been taken in the course of proceedings which have the countenance of the law.
10. Unless the Zimmanama is considered to be a valid document, validly entrusting the petitioners with the custody of the paddy and straw, the petitioners could not be convicted of a breach of that undertaking of that trust sought to be created by the Zimmanama itself.
11. One very important item of evidence would have been proof of the seizure list itself. That would be a document antecedent to the Zimmanama. The seizure list itself was not produced and the explanation that has been offered by the prosecution is anything but convincing. It is said that the document was mislaid. The seizure list might have shown what exactly was the immediate disposition of the paddy itself before the purported seizure. But in the absence of the seizure list which is really the parent document it is impossible to hold that there was entrustment by virtue of the operation of the Zimmanama.
12. In these circumstances, I must hold that there was no entrustment within the meaning of the law and consequently the convictions of the petitioners Under Section 406 must be set aside.
13. The result is that the Rule is made absolute and the fines, if paid, will be refunded.