DULO RAM Vs. STATE

JUDGEMENT

(1.) This is a refarence made by the learned Sessions.Judge, Kangra, at Dharmashala, recommending the setting aside of an order of attachment issued by Shri I.P. Anand, Judicial Magistrate, 1st Class. Hamirpur, and for remitting the fine imposed upon one Dalo Ram.

(2.) The said Dulo Ram was convicted by the Magistrate, 1st Class Hamirpur, on 29th April, 1966, under section 16(1) of the Prevention of Food Adulteration Act, and was sentenced to six months rigorous im prisonment, and a fine of Rs. 1000.00. or in default to undergo further rigorous imprisonment for 4 months. Dulo Ram had served out the substantive sentence of imorisonment as also the imprisonment default of payment of fine. A notice was issued to Dulo Ram by the Court of the Magistrate, 1st class, for the realisation of the fine,even though he had already served out the substantive imprisonment as well as the imprisonment in default of payment of fine. Dulo Ram pleaded inability to pay. The learned Magistrate directed the Tehsildar to bold an enquiry as regards the property, moveable or immoveble possessed by Dulo Ram. It appears that the Tehsildar, after holding the enquiry, submitted his report to the Magistrate. The learned Magistrate passed an order on 18th April l667, in which he stated that inasmuch as Dalo Ram had undergone imprisonment in default of payment of fine as well, he considered it fair and proper to make enquiries about the means which Dulo Ram possessed for paying the fine in the light of the provision in section 386 of the Criminal Procedure Code, that the said enquiries (apparently referring to the enquiry and report by the Tehslldar) revealed that Dulo Ram was the owner of house and landed property, that it was clear, therefore, that Dulo Ram was possessed of sufficient means to pay up the fine of Rs 1.00/, that what was lacking was not the means but the intention of Dulo Ram to pay the fine and that the CMC was one or comumacious non payment of fine. In the result, the learned Magistrate directed that a warrant for the attachment of the property of Dulo Ram, as per the document supplied by the revenus authorities, be issued.

(3.) Thereapon, Dulo Ram filed a Criminal Revision Application No. 40 of 1967 in the Court of Shri Chet Ram, Sessions Judge, Kangra at Dharmashala. The learned Sessions Jndge considsred the report of the revene authorities and came to the coaclusion that the said report was not correct, and that the finding of the learned Magistrate that Dulo Ram got sufficient means for payment of the fine was also n3t correct. He accordingly passed the order, dated 7th September. 198/, referring the matter to this Court and recommending the setting aside of the order of attachment issued by the learned Magistrate, and also the remittance of the fine imposed upon Dulo Ram