P. GOVINDA PRABHU v. STATE OF MYSORE — 1972 DIGILAW 34 (KAR)

( 1 ) THIS petition is directed against the order dt. 5-8-1971 passed by the sessions Judge, South Kanara, Mangalore, in MC. No. 10 of 1971 dismissing the application filed by the petitioner under S. 520 of the Crpc. against the order passed by the Additional Munsiff-cum-Magistrate, buntwal on 6-2-1971 in CC. No. 1039 of 1970. ( 2 ) AT about 3-00 A. M. on 23-1-1969 the police attached to Food mobile Squad, seized a lorry bearing registration No. MYA 5403 and found that it was transporting 75 quintals of boiled rice in 100 gunny bags. They seized the said lorry on suspicion, that provisions of Mysore Foodgrains (Regulation of Transport of Foodgrains) Order 1968, had been contravened. They registered a case in Crime No. 33 of 1969 for offences under the provisions of the said order and Ss. 3 and 7 of the Essential Commodities act. The foodgrains were produced before the Deputy Commissioner, south Kanara, under S. 6-A of the Essential Commodities Act (hereinafter referred to as the 'act' ). The petitioner appeared before the Deputy commissioner and contended that an order directing return of the boiled rice to him was to be passed. The learned Deputy Commissioner directed forfeiture of the foodgrains i. e. , the boiled rice. The petitioner, aggrieved by the order of the Deputy Commissioner preferred Criminal Appeal No. 40 of 1969 in the Court of the Sessions Judge at South Kanara, Mangalore. The appeal was dismissed. In the meanwhile the learned Deputy Commissioner had got the boiled rice sold. The sale proceeds amounted to Rs. 6,322-48 Ps. The petitioner filed Cr. R. P. No. 70 of 1970 in this Court as against the order passed by the Deputy Commissioner and the judgment passed by the learned Sessions Judge in Cr. A. No. 40 of 1969. Cr. R. P. No. 70 of 1970 was allowed by this Court by its order dated 1-9-1970. It was held therein that the provisions of Ss. 6-A and 6-C of the Act were not applicable to the facts of the case on hand. ( 3 ) IN the meanwhile the Driver and the Conductor of the said truck were prosecuted in the Court of the Additional Munsiff, Buntwal in C. C. Nos. 467/1970 and 1039/1970 respectively. Plea of guilty was put forward in both the cases and the said persons were convicted. In Cr. ( 3 ) IN the meanwhile the Driver and the Conductor of the said truck were prosecuted in the Court of the Additional Munsiff, Buntwal in C. C. Nos. 467/1970 and 1039/1970 respectively. Plea of guilty was put forward in both the cases and the said persons were convicted. In Cr. R. P. 70 of 1970 this Court directed the sale proceeds of boiled rice to be produced before the Magistrate in C. C. No1039/1970. Accordingly the learned deputy Commissioner got the sale proceeds produced before the Magistrate at Buntwal. The petitioner filed an application under S. 516-A and 517 of the Cr. P. C. in the Court of the Additional Munsiff, Buntwal, praying for return of the sale proceeds to him on the ground that he was entitled to the possession of the seized boiled rice bags. The learned magistrate, by his order dated 6-2-1971 directed forfeiture of one-fourth the amount of Rs. 6,322-48 Ps. applying the provisions of S. 7 (1) (b) of the Act. The petitioner filed M. C. No. 10 of 1971 in the Court of the sessions Judge, South Kanara, under S. 520 of the Cr. P. C. The learned sessions Judge, after reading the decision in State of Mysore v. Abdul rasheed, (1967)1 Mys. L. J. 347 has held that the application or appeal under S. 520 Cr. P. C. is not maintainable. It is against this order that the present petition has been filed. ( 4 ) THE Mysore Foodgrains (Regulation of Transport of Foodgrains) order 1966 has been passed by the Mysore Government by virtue of powers vested in it under S. 3 of the Act. S. 6-A of the Act deals with confiscation of foodgrains, edible oil-seeds and edible oil etc. ( 4 ) THE Mysore Foodgrains (Regulation of Transport of Foodgrains) order 1966 has been passed by the Mysore Government by virtue of powers vested in it under S. 3 of the Act. S. 6-A of the Act deals with confiscation of foodgrains, edible oil-seeds and edible oil etc. It lays down that:"where any foodgrains, edible oil seeds or edible oils are seized in pursuance of an order made under section 3 in relation thereto, they may be produced, without any unreasonable delay, before the collector of the District of the Presidency-Town in which the food-grains, edible oilseeds or edible oils are seized and whether or not a prosecution is instituted for the contravention of such order, the Collector, if satisfied that there has been a contravention of the order, may order confiscation of the foodgrains, edible oilseeds or edible oils:"section 6-B of the Act lays down that before confiscation is ordered by the collector a show-cause notice is to be issued to the persons concerned and especially when the person is claiming to be the owner of the articles. S. 6-C of the Act provides Appeal to a judicial authority appointed by the State (in this State such authority is a Sessions Judge) as against the order of the Deputy Commissioner, S. 7 of the Act, deals with penalties. S. 7 (1) (b) provides as follows : "if any person contravenes any order made under Section 3 : (b) any property in respect of which the order has been contravened or such part thereof as to the Court may seem fit "including, in the case of an order relating to foodgrains, any packages, coverings or receptacles in which they are found and any animal, vehicle, vessel or other conveyance used in carrying foodgrains" shall be forfeited to the Government. "proviso: Provided that if the Court is of opinion that it is not necessary to direct forfeiture in respect of the whole or, as the case may be, any part of the property or any packages, coverings or receptacles or any animal, vehicle, vessel or other conveyance, it may, for reasons to be recorded, refrain from doing so. " ( 5 ) THE above are the provisions found enumerated in the Essential commodities Act, dealing with disposal of property seized in contravention of any orders passed under S. 3 of the Act. " ( 5 ) THE above are the provisions found enumerated in the Essential commodities Act, dealing with disposal of property seized in contravention of any orders passed under S. 3 of the Act. On the other hand the general provisions in the Criminal Procedure Code, dealing with powers of Magistrate in regard to the disposal of property seized in connecetion with offences committed or suspected to have been committed, are found ir Ss. 516-A, 523 and 517 Cr. P. C. (hereinafter referred to as the 'code' ). Ss. 516-A and 523 of the Code will have application before the completion of enquiry or trial in a Court. ( 6 ) FROM the above, it is clear, that S. 6-A of the Act, deals with a stage where an enquiry or trial by a Court is not complete. S. 7 (1) (b) of the Act deals with a stage where a Court finds an offender guilty of having committed breach of one of the provisions of the Food Control Orders passed under S. 3 of the Act. ( 7 ) IN the decision State of Mysore v. Abdul Rasheed, the police had seized certain foodgrains on suspicion or breach of provisions of one or the other orders passed under S. 3 of the Act and produced the same before the Magistrate as per the general provisions found in S. 523 of the code. The learned Magistrate directed that in view of the provisions of s. 6-A of the Act the foodgrains seized may be produced before the Deputy commissioner or Collector. The matter reached this Court and this Court held, that in view of the special provisions found in S. 6-A of the Act, the general provisions under S. 523 would not be applicable, and that the order passed by the Magistrate was in accordance with law. This Court has nowhere held in that decision that the powers exercisable by a Magistrate under S. 517 of the Code are no longer exercisable in view of the existence of the provision under S. 6-A of the Act. In fact, it is more than once made clear in this decision that the decision has dealt with the provisions found in S. 6-A of the Act, and, Ss. 516-A and 523 of the Code. In fact, it is more than once made clear in this decision that the decision has dealt with the provisions found in S. 6-A of the Act, and, Ss. 516-A and 523 of the Code. I find that there is no scope for holding that in this decision it has been held by this Court that in a prosecution for breach of provisions of one or the other orders passed under S. 3 of the Act, a Magistrate cannot exercise his powers of disposal of property under S. 517 of the Code after the conclusion of the trial. Moreover, this Court in Cr. R. P. No. 70 of 1970 has held that under the facts and circumstances, of this case the provisions of s. 6-A of the Act, had no application. It is on that basis it allowed the revision petition and directed the Deputy Commissioner to produce the sale proceeds before the Magistrate in C. C. No. 1039 of 1970. ( 8 ) IT appears from the order passed by the learned Sessions Judge, that the public Prosecutor there contended that the Magistrate having passed nis order under S. 7 of the Act, an application or appeal under S. 520 of the Code, would not lie in the Sessions Court. The learned State public Prosecutor, does not subscribe to this view and in my opinion rightly. As already pointed out S. 7 of the Act deals with penalties. S. 7 (1) (b) provides for order of disposal of property in a particular manner when it is held by Court that the offence has been committed. What is laid down by S. 7 (1) (b) of the Act, does not deal with the exercise of powers of disposal of property by a Magistrate. It deals with the nature of the order of disposal of propertv to be passed. The power that is exercised by a Magistrate is one vested in him under S. 517 of the Code. There can be no doubt about this aspect of the position in law. S. 517 of the Code as already pointed out comes into operation when an enquiry or trial in a criminal Court is concluded. The power that is exercised by a Magistrate is one vested in him under S. 517 of the Code. There can be no doubt about this aspect of the position in law. S. 517 of the Code as already pointed out comes into operation when an enquiry or trial in a criminal Court is concluded. It provides that the Court may make such order as it thinks fit for the disposal by destruction, confiscation or delivery of property to any person claiming to be entitled to possession thereof or otherwise of any property or document produced before it or in its custody or regarding which an offence appears to have been committed, or which has been used for the commission of any offence. It is manifest, that as per this provision wide discretion is vested in Courts while passing orders of disposal of the property. S. 7 (1) (b) of the Act, restricts this discretion vested in courts. It mandatorily lays down that an order of forfeiture to the Government is to be passed. The only discretion allowed is by the proviso to S. 7 (1) (b) of the Act. Therefore, I have no hesitation in holding that the order passed by the Additional Magistrate, Buntwal on 6-2-1971 is in exercise of his powers under S. 517 of the Code, but in accordance with the substantial provisions of S. 7 (1) (b) of the Act. In the result, the view expressed by the learned Sessions Judge, South kanara, that the order in question is not one passed under S. 517 of the code and, therefore, an application or appeal under S. 520 of the Code is not maintainable cannot be accepted. ( 9 ) IN view of the foregoing reasons, this petition is allowed, the order passed by the learned Sessions Judge, South Kanara, Mangalore, dated 5-8-1971 in Miscellaneous Case No. 470/1970 is set aside. The records are directed to be remitted to the Court of Sessions at South Kanara for disposal of the case according to law. --- *** --- .