ORDER : These two applications are by the State and are directed against an order of the learned Magistrate dated 20th of November, 1959. By this order the learned Magistrate released from attachment the quantity of sugar seized and further ordered that the sugar or its sale proceeds be returned to the person or persons from whom it was seized. 2. The facts, in brief, are that these two cases giving rise to these present applications were initiated on the two reports submitted by the Inspector of supply, Kamrup, on 2nd of October, 1959. The opposite parties of these two cases were licensed dealers in sugar and had stocks being permitted to do so under their respective licenses. The Inspector of Supply visited the premises of the opposite parties and found that the two firms did not maintain accounts properly as required by the terms of their license and he had also received allegations of sale of sugar at high prices in the name of fictitious persons. The Inspector of Supply, therefore, submitted two different reports against the opposite parties to these cases and prayed for issue of warrant against the opposite parties. The Additional District Magistrate, Kamrup, entertained these two complaints and ordered issue of non-bailable warrants against the opposite parties. The opposite parties were accordingly arrested and produced before the court and they were remanded to custody, as the Inspector of supply had prayed for their remand for the purpose of his completing the investigation. At the time of the visit to these two different godowns belonging to the two opposite parties, the Inspector of Supply had seized certain quantity of sugar lying at these two places. In one case 844 bags and in the other 361 bags of sugar were seized on the 1st of October 1959. On the 5th of October 1959 petitions were filed by the Inspector of Supply in the court of the said Magistrate, namely the Additional District Magistrate, Kamrup, for permission to sell the sugar seized for the reason that it was liable to speedy decay and also for the reason that freezing of the stock would put the consumers of the locality within the area to unusual difficulty. This prayer on behalf of the State made by the Inspector of Supply was allowed and the stocks of sugar were sold and the sale proceeds were deposited in court. This prayer on behalf of the State made by the Inspector of Supply was allowed and the stocks of sugar were sold and the sale proceeds were deposited in court. The opposite parties thereupon applied for refund of the sale proceeds to them. The applications filed in this behalf by the two opposite parties in the two different cases were heard on the 20th of November 1959 and the learned Additional District Magistrate after hearing the State passed an order for refund of the money to those persons from whom the stocks had been seized. Against that order applications in revision were preferred to the court of the Sessions Judge and the same were heard by Mr. C. N. Bora, Additional Sessions Judge, and by his judgment dated 19th of March 1960 dismissed those applications, and hence the present applications to this Court. 3. In the order dated 20th of November, 1959, the Additional District Magistrate has recorded as follows:- ".........The learned Advocate for the accused argued that the quantities of sugar seized in this case are not sugar involved in the commission of alleged offence. The sugar was lying in the godown of the accused who are licensed dealer in sugar. There is no allegation that the accused licensee disposed of this sugar or attempted to dispose them of in contravention of the terms and conditions of the license granted to them by the licensing authority. As such the learned Advocate argued that the seized sugar is not liable for forfeiture in this case. The P. I. (Proscuting Inspector) who argued the case for the prosecution conceded to this. I am also convinced of the force of argument of the learned Advocate." And, thereafter he referred to Clause 9(d) of the Assam Sugar Dealers Licensing Order, 1959 and Sec. 7(1) (b) of the Essential Commodities Act, 1955, and came to the conclusion that the sugar seized on the 1st of October 1959 did not come within the mischief of any of these two sections, and therefore, the sugar seized or its price on sale should be returned to the persons from whom the sugar was seized. 4. When the matter went up in revision to the Additional Sessions Judge, it was submitted that the Prosecuting Inspector had not made any concession in favour of the accused persons and that the order mentioning such admission by the prosecution was wrong. 4. When the matter went up in revision to the Additional Sessions Judge, it was submitted that the Prosecuting Inspector had not made any concession in favour of the accused persons and that the order mentioning such admission by the prosecution was wrong. This matter was enquired into and the trial court, namely, the court of the Additional District Magistrate, emphatically denied the allegation now made by the Prosecuting Inspector. It is settled law that if there is difference between the facts recorded in the order-sheet and the statement of any party to the proceeding, the order so recorded must be held to represent the correct state of affairs, and, it must, therefore, be held as has been held by the Additional Sessions Judge that the Prosecuting Inspector did make a concession. 5. In support of the applications Mr. Pathak, the learned junior Government Advocate, submitted two points for consideration of this Court, namely, (1) that the learned Additional District Magistrate, Kamrup, who passed the impugned order, had not taken cognizance of the case on the report dated the 2nd of October 1959, and, therefore, his order for refund dated 20th of November 1959 was an order passed without jurisdiction, and, (2) that even if he had taken cognizance, his order was improper. 6. Section 11 of the Essential Commodities Act (Act 10 of 1955) reads as follows:- "No court shall take cognizance of any offence punishable under this Act except on a report in writing of the facts constituting such offence made by a person who is a public servant as defined in Sec. 21 of the Indian Penal Code." Therefore, in the light of this provision, before a court takes cognizance of an offence punishable under this Act, there must be (1) a report in writing of the fact constituting the offence and (2) made by a person who is a public servant as defined under section 21 of the Indian Penal Code. There is no dispute that the Inspector of Supply was a public servant within this definition. Let us see if there was a report in writing of the fact constituting an offence. Now the petition dated 2nd of October 1959, after mentioning the name of the firm, said as follows:- ".........are licensees under the Assam Sugar Dealers Licensing Order. 1959 holding license no. ...... dated 9-6-59. Let us see if there was a report in writing of the fact constituting an offence. Now the petition dated 2nd of October 1959, after mentioning the name of the firm, said as follows:- ".........are licensees under the Assam Sugar Dealers Licensing Order. 1959 holding license no. ...... dated 9-6-59. During examination of their accounts it has been found that they have not maintained accounts in respect of a large number of consignments of sugar received against Govt. sponsored tenders as required under the license and disposed of the same in contravention of the provisions of the license. Shri Ramgopal Bawri of the above-named firm received between 23-6-59 and 12-9-59 three consignments consisting of 660 bags of sugar and disposed of the same without maintaining any accounts and in violation of the provisions of Assam Sugar Dealers' Licensing Order, 1959. Moreover, this firm disposed of their stock of sugar in violation of the directions of the District Officer and without maintaining accounts as required by the said officer. During scrutinization it has also been detected that their account is not true and correct and cash memos have been found to have been issued in fictitious names. It has also been found during investigation that they used to sell sugar at rates much higher than the Government fixed price. This firm also obstructed S. I. Sri Nanda Barua and others during their inspection of their accounts and verification of stocks ........ In view of the above, I pray that the abovenamed accused persons may be immediately arrested and remanded to judicial custody under Sec. 7 of the Essential Commodities Act, 1955, to enable completion of investigation." 7. Now, within the meaning of Sec. 11 of the aforesaid Act, allegations were made in this petition in writing constituting an offence under Sec. 7 of the Essential Commodities Act, 1955. Section 7 mentions the penalties if any person contravenes any order under Sec. 3 of that Act, and, Section 3 enumerates the powers to control production, supply, distribution etc. of essential commodities. After this petition was filed, the learned Additional District Magistrate on 3rd of October 1959 passed the following order:- "Seen report of the Inspector of Supply. Issue non-bailable warrant against accused ....... under section 7 of the Essential Commodities Act of 1955. Fix 6-10-59 for return of the warrants after execution. of essential commodities. After this petition was filed, the learned Additional District Magistrate on 3rd of October 1959 passed the following order:- "Seen report of the Inspector of Supply. Issue non-bailable warrant against accused ....... under section 7 of the Essential Commodities Act of 1955. Fix 6-10-59 for return of the warrants after execution. I/S (Inspector of Supply) will please submit offence report very early." Thereafter, the petitioner obtained an order of the learned Magistrate on 5th of October 1959 for sale of the sugar seized, and, accordingly, the sugar was sold. In between the 3rd of October 1959 and 16th of February 1960 when the offence reports were submitted by the Inspector of Supply, numerous orders were passed by the learned Magistrate. On the facts and circumstances of the case, it cannot, therefore, be said that the learned Magistrate had not taken cognizance of the case on the 3rd of October 1959. Reference has been made to the case of Narayandas Bhagwandas v. State of West Bengal, reported in AIR 1959 SC 1118 , where their Lordships laid down as follows:- "As to when cognizance is taken of an offence will depend upon the facts and circumstances of each case and it is impossible to attempt to define what is meant by taking cognizance. Issuing of a search warrant for the purpose of an investigation or of a warrant of arrest for that purpose cannot by themselves be regarded as acts by which cognizance was taken of an offence. Obviously, it is only when a Magistrate applies his mind for the purpose of proceeding under Sec. 200 and subsequent sections of Ch. XVI of the Code of Criminal Procedure or under Sec. 204 of Ch. XVII of the Code that it can be positively stated that he had applied his mind and therefore had taken cognizance." In my opinion, however, in the present case this question is purely academic for the reason that even if it is accepted that the Magistrate had not taken cognizance of the offence until after 16th of February 1960 when the offence reports were submitted, the petitioner himself was making applications to the court for necessary orders as to selling or disposing of the goods seized and did, in fact, obtain order upon its petition dated 5th of October 1959; for sale of the sugar. If it had itself applied for directions from the learned Magistrate for the sale of the stocks seized, it does not lie in its mouth to object to the order of the learned Magistrate passed on the 20th of November 1959 ordering release of the stocks seized or refund of its price to the persons from whom the stocks were seized. 8. Mr. Pathak referred to the provision of Sec. 525 of the Code of Criminal Procedure, which reads as follows:- "If the person entitled to the possession of such property is unknown or absent and the property is subject to speedy and natural decay, (or if the Magistrate) to whom its seizure is reported is of opinion that its sale would be for the benefit of the owner (or that the value of such property is less than ten rupees) the Magistrate may at any time direct it to be sold; and the provisions of Ss. 523 and 524 shall, as nearly as may be practicable, apply to the net proceeds of such sale." And, he submitted that the State when it asked for an order for sale of the goods seized, it was under the provisions of Sec. 525. If that be so, then the provisions of Secs. 523 and 524 are automatically attracted, and under Section 523, the Magistrate is empowered to "make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof....." In my judgment, therefore, the learned Magistrate, who was in seisin of the case, whether on that date he had taken cognizance or not, was entitled to pass orders under Sec. 525, and, if that be so, the learned Magistrate who passed the order on the 20th of November 1959 for refund of the sale proceeds to the proper person was well within his powers under Sec. 525 read with Sec. 523 of the Code of Criminal Procedure. In my judgment, there is no substance in the first point. 9. So far as the second point is concerned, on the facts of the case it cannot be said that it was an improper order. In my judgment, there is no substance in the first point. 9. So far as the second point is concerned, on the facts of the case it cannot be said that it was an improper order. Under the provisions of Sec. 3 of the Essential Commodities Act, 1955 read with the Order of the Government of India in the Ministry of Food and Agriculture (Department of Food) No. GSR 1088 dated the 15th of November 1958, the State of Assam had passed the Assam Sugar Dealers Licensing Order, 1959, and, Rule 9 of that Order refers to the powers of entry, search, seizure etc. I quote below the relevant portion of that rule: "(1) The licensing authority or any other officer authorised by the State Government in this behalf may with such assistance, if any, as he thinks fit; * * * * (d) search, seize, and remove stocks of sugar and the animals, vehicles, vessels, or other conveyance used in carrying the said sugar in contravention of the provisions of this Order, or of the conditions of the licences issued thereunder and thereafter take or authorise the taking of all measures necessary for securing the production of stocks of sugar and the animals, vehicles, vessels or other conveyances so seized in a Court and for their safe custody pending such production." I have referred to this particular provision because it was argued on behalf of the State that the stock of sugar in question was seized under section 9(d), and, in answer to my query the learned junior Government Advocate submitted that apart from this there was no other provision for search and seizure. According to the petitioner the offence that was committed by the opposite parties was that they did not keep proper accounts of the stock of sugar and a part of it had been sold to unauthorised dealers in the black market. That is in nut shell the offence charged. Now with reference to that charge it has to be found out whether the sugar in stock seized could be said to be the stock of sugar in respect of which any offence had been committed. It is difficult to say that the stock of sugar remaining had anything to do with the alleged offence of not keeping regular accounts and of selling a part of the stock in the black market. It is difficult to say that the stock of sugar remaining had anything to do with the alleged offence of not keeping regular accounts and of selling a part of the stock in the black market. Whatever offence had been committed must have been committed in relation to the sugar already disposed of, and, Sec. 9(d) authorised search, seizure and removal of stocks of sugar and the animals, vehicles, vessels, or other conveyance used in carrying the said sugar in contravention of the provisions of this Order (the Assam Sugar Dealers Licensing Order, 1959) or of the conditions of the license issued thereunder. In my opinion, the stock of sugar mentioned in sub-clause (d) of Rule 9 cannot but refer to sugar which is being carried or disposed of in contravention of the provisions of this Order or of the conditions of the license and cannot possibly have any reference to the sugar in stock against which no allegations are made of any illicit dealing. Whatever offence is committed it must have reference to the sugar which is being carried or removed from the stock and not to sugar in stock against which no allegations have at all been made or could not possibly be made. Whatever offence is committed it must have reference to the sugar which is being carried or removed from the stock and not to sugar in stock against which no allegations have at all been made or could not possibly be made. It will be a different thing if allegations are made that sugar in stock has already been sold in the black market against the rules of the license or against the law to some persons and if the sugar in stock has not been removed by the buyer and it in that state of affairs search is made and sugar is seized that sugar of course will be subject to the provisions of sub-clause (d) of Rule 9 of the Order; but, so far as the stock of sugar on the 1st of October, 1959 was concerned, there was no allegation of any offence either have been or being committed in respect thereof, and, in my opinion, the court below is quite correct in coming to the conclusion that the stock of sugar seized on the 1st of October 1959 could not be said to be the subject matter of seizure under the provisions of Rule 9(d) of the Order, above referred to, and the provisions of Sec. 7(1) (b) of the Essential Commodities Act providing forfeiture of any property in respect of which the order has been contravened cannot possibly apply to the stock of sugar found on the 1st of October 1959. 10. In my judgment, therefore, the applications are without merit and they must be dismissed. Applications dismissed.