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1982 DIGILAW 266 (CAL)

Subal Chandra Kundu v. State

1982-07-22

B.C.CHAKRABARTI, N.G.CHAUDHURI

body1982
JUDGMENT B.C. Chakrabarti, J. This is an application under Article 227 of the Constitution and is directed against an appellate order dated April 26, 1982 made in Criminal Appeal No. 53 of 1981 by the learned Additional Sessions Judge, First Court, Bankura affirming an order dated September 28, 1981 passed by the learned Sub-divisional Magistrate, Sadar, Bankura. By the said order the learned Sub-divisional Magistrate in exercise of his power under s. 6A(i) of the Essential Commodities Act 1955 confiscated certain seized goods, pulses and edible oils of varying quantities. The learned Sub-divisional Magistrate found that the petitioner was running a shop and trading in those articles without holding a licence issued under the West Bengal Pulses, Edible Oil Seeds and Edible Oils (Dealers Licencing) Order, 1973. The petitioner took a plea that he had a licence and that he had applied for renewal of the licence but the renewed licence was not issued on the date of the seizure. The plea taken by the petitioner was overruled and there was an order confiscating the goods seized. 2. Being aggrieved the petitioner filed an appeal which was disposed of by the Learned Additional Sessions Judge, Bankura. The Learned Additional Sessions Judge dismissed the appeal affirming the order passed by the Learned Sub-divisional Magistrate (Executive). 3. Being dissatisfied with the order the petitioner moved the present revisional application under Article 227 of the Constitution. 4. Mr. Ghosh appearing for the petitioner wanted to make out a case that the appeal against an order of the Executive Magistrate confiscating seized goods lay before the Sessions Judge and that the Sessions Judge though not acting as a persona designata was not competent to transfer the case to an Additional Sessions Judge for disposal. 5. The Learned Public Prosecutor on the other hand argued that the Sessions Judge was competent to transfer the case to an Additional Sessions Judge for disposal. Both parties proceeded on the footing that the appeal lay before the Sessions Judge and was in fact filed before him. 6. If we are to accept the contention of Mr. Ghosh, then the proper course would be to set aside the order passed by the Learned Additional Sessions Judge and remit the appeal to the Sessions Judge for disposal. But such a course seems to be uncalled for. The foundation for the argument both of the Learned Public Prosecutor and Mr. If we are to accept the contention of Mr. Ghosh, then the proper course would be to set aside the order passed by the Learned Additional Sessions Judge and remit the appeal to the Sessions Judge for disposal. But such a course seems to be uncalled for. The foundation for the argument both of the Learned Public Prosecutor and Mr. Ghosh is the belief that the appeal against an order of confiscation lies to the Sessions Judge. But the position in law is otherwise. 7. The provisions for appeal against an order of confiscation is contained in S. 6C of the Essential Commodities Act Under the said Section an appeal lies to the ‘judicial authority” appointed by the State Government in that behalf. The "judicial authority" was appointed by Notification No. 4782-F.S./FS/14-R-195/66 dated 29th June, 1967 which reads as follows :- “In exercise of the power conferred by S. 6C of the Essential Commodities Act, 1955 (Act 19 of 1955), the Governor is pleased hereby to appoint the District Judges as judicial authorities within their respective jurisdiction, for the purpose of the said section, 8. Therefore, we entire foundation of the petitioner's case that the Sessions Judge had to hear the appeal himself falls through. The District Judge and not the Sessions Judge is the appropriate authority to hear an appeal. Even though the same person may combine in himself the functions of the District Judge and the Sessions Judge, yet their spheres of jurisdiction are different. District Judge as defined in the General Clauses Act does not include a Session Judge. 9. We had already indicated that both parties proceeded on the assumption that the appropriate forum for an appeal is the court of the Sessions Judge. This assumption stands dislodged by the notification quoted above. It could not be shown that in super-session of the notification a further notification was issued appointing the Sessions Judge as the "judicial authority" under S. 6C. That being so the appeal filed before the Sessions Judge was incompetent. He had no jurisdiction to entertain the appeal. In such a situation the question whether or not the Sessions Judge was competent to transfer the appeal to an Additional Sessions Judge becomes irrelevant. 10. In this view of the matter, we find that the appeal was incompetently filed before a wrong forum and consequently the appellate order impugned in this application was without jurisdiction. In such a situation the question whether or not the Sessions Judge was competent to transfer the appeal to an Additional Sessions Judge becomes irrelevant. 10. In this view of the matter, we find that the appeal was incompetently filed before a wrong forum and consequently the appellate order impugned in this application was without jurisdiction. The learned Sessions Judge upon receipt of the appeal should have returned the memorandum of appeal for presentation to the appropriate authority. 11. The present revisional application fails and is hereby dismissed. 12. Let the order be communicated to the court below forthwith. N.G. Choudhuri, J. I agree. Appeal dismissed.