STATE Vs. SOVA RANI DEBI

JUDGEMENT

(1.) THIS is a reference under Section 438 of the Code of Criminal Procedure by Sri R.B. Saha, Sessions Judge, Howrah, recommending that an order dated the 5th of January of 1970, passed by Sri Section K. Banerjee, Magistrate, 1st Class, Howrah, ordering the return of some rice seized in connection with a case under Section 7(1) of the Essential Commodities Act, 1955, to Sm. Sthovaranl Devi, wife of the deceased accused K.C. Chakrabarty of the said case, and a further order dated 5th of May, 1970 rejecting the prayer of the State for reconsideration of the order dated the 5th January, 1970 should be Set aside.

(2.) THE late K.C. Chakrabarty, the husband of Sm. Shovarani Devi, a Railway Guard, was being prosecuted for carrying 61 bags and 12 baskets of rice weighing about 4760 kgs. in the brake -van of the Titagarh -Howrah passenger. The rice was alleged to be smuggled. The said K.C. Chakrabarty died on 24.2.69 and Sri S.M. De. the trying Magistrate dropped the case against him on 31.3.69 and directed the seized rice to be confiscated to the State and to be sold to the Food Department. On 5.1.70 on the prayer of the widow of the said K.C. Chakrabarty. viz. Sm. Shovarani Devi, Sri S.K. Banerjee, the successor Magistrate passed the following order: Seen petition filed by the wife of the deceased K.C. Chakrabarty. As the, case was dropped without proving any judgment the Alamat should not be confiscated but should be returned to the wife of the deceased. CSI to comply.

(3.) MR . Debaprosad Chowdhury appearing on behalf of the State in support of the reference has made a twofold submission. Mr. Chowdihury's first submission is that the order dated 31.3.69 passed by Sri Section M. De is a perfectly valid order in accordance with law. Mr. Chowdhuty's second submission is that the order dated 5.1.70 and all orders subsequent thereto passed by the successor Magistrate are illegal and without jurisdiction.