MASNNAJI PIRAJI BAHAMANI Vs. STATE

JUDGEMENT

(1.) In Criminal case No. 626 of 1970 in the Court of the Judicial Magistrate, 1st Class, Dhulia, the petitioner herein was accused No. 3, while accused No. 1 was the driver and accused No. 2, the cleaner of truck No. M. H. B. 3169, which was found to be carrying 99 bags of rice in contravention of the provisions of the Maharashtra Scheduled Foodgrains (Stocks Declaration and Procurement and Disposal, Acquisition, Transport and Price Control) Order 1966, amended as per the Order of 1969. A charge was framed against the three accused under section 7 of the Essential Commodities Act. During the pendency of the case, on a report of the Police the learned Magistrate had ordered 99 bags of rice to be kept in a Government godown on June 18, 1970. 'On a further report of the Police, the learned Magistrate passed an order on July 3, 1970, directing the sale of the said rice with the permission of the Collector. The rice bags were permitted to be sold to Dhulia District Co-operative Sangh and the said sale proceeds of lis. 9,181.70p. were credited by the Police in this case and were lying in Court.

(2.) The learned Magistrate, after convicting the accused and sentencing them directed accused No. 3 to pay the rent of the Government godown for the period during which the rice bags were ordered to be kept in the Government godown, from the sale proceeds of the property and the return of the sale proceeds to accused No. 3 after the appeal period was over. Although the learned Magistrate does not say so in his order, it is clear that the order was an order under section 517 of the Criminal Procedure Code. Under that section the Court has discretion when an inquiry or trial is concluded to make such order, as he thinks fit, for disposal, destruction, confiscation or delivery to any person claiming to be entitled to possession thereof or otherwise of any property or documents produced before it or in the custody or regarding which any offence has been committed or which has been used for the commission of any offence. The Explanation to section 517 further lays down :

(3.) Feeling aggrieved by the said order the State of Maharashtra filed a revision application under section 520 of the Code Criminal Procedure and the said revision application came up for hearing before the learned Additional Sessions Judge. Dhulia, who set aside the order passed by the Magistrate on the ground that under section 7 (11 (b) of the Essential Commodities Act, the normal rule in cases where an offence is proved to have been committed, was that the property in respect of which the offence was committed should be forfeited.- The learned Judge held that the reasons given by the Magistrate, viz., (1) that the accused was a poor businessman ; (2) that he had borrowed a sum of Rs. 15,000 to purchase the rice ; (3) that the price fetched by the sale of rice had already entailed a loss to him and (4) that he had been sufficiently punished because of the heavy fine imposed on him, were not adequate reasons for the Magistrate to depart from the normal rule of forfeiture of the property in respect of which the offence was committed. He held that the fact that the accused was fined was not relevant, for considering the question of forfeiture and observed :