S.K. GHOSH Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) Suit No. 53 of 1954 under Ordinance XXXVIII of 1944 was started on November 22, 1944, by the Province of Bengal against Sri S.K. Ghosh. His properties were attached by the District Judge's order dated November 2,2, 1944. He made that order absolute on December 4, 1944. He appointed a Receiver for the administration of the attached properties by his order dated December 18, 1944. Sri Ghosh filed a petition before the District Judge for release of his properties from attachment. The learned District Judge by his order No. 1094 dated July 9, 1966, has refused the prayer. It is against that order that Sri Ghosh has filed this appeal. He has also, alternatively, moved against that order in an application under Article 227 of the Constitution giving rise to Cr. Rev. Case No. 1093 of 1966. Both the Criminal Appeal and the Criminal Revision Case rest on the same ground.

(2.) Sec. 10 of the Ordinance No. XXXVIII of 1944 has prescribed the duration of the attachment made under that Ordinance. An order of attachment of property under the Ordinance shall, unless it is withdrawn earlier in accordance with the provisions of this Ordinance, continue in force where a Court has taken cognizance of the alleged scheduled offence whether before or after the time when the order was applied for, until orders arc passed by the District Judge in accordance with the provisions of this Ordinance after the termination of the criminal proceeding. The criminal proceedings started against Sri S. K. Ghosh, after cognizance was taken, has ended in the Supreme Court on December 12, 1956. Sec. 13 of the Ordinance lays down the procedure for disposal of attached. property upon termination of criminal proceedings. Sub -section (1) is that upon termination of any criminal proceedings for any scheduled offence' in respect of which any order of attachment of property has been made under this Ordinance or security given in lieu thereof, the agent of the Provincial Government shall without delay inform the District Judge and shall, where criminal proceedings have been taken in any Court, furnish the District Judge with a copy of the judgment or order of the trying Court and with copies of the judgments or orders, if any, of the Appellate or Revisional Courts thereon. Sri Ghosh was convicted by Special Tribunal on August 31, 1949, and was sentenced to a period of imprisonment and to pay a fine of Rs. 45,00,000. Appeal against that order of conviction and sentence was dismissed by the Supreme Court on December 12, 1956. The Court has evaluated the property procured by the scheduled offence to be Rs. 30,00,000 by order under Sec. 12 of the Ordinance. Sub -section (3) of Sec. 13 of the Ordinance is that where the final judgment or order of the criminal Courts is one of conviction, the District Judge shall order that from the property of the convicted person attached under this Ordinance, or out of the security given in lieu of such attachment, there shall be forfeited to His Majesty such amount or value as is found in the final judgment or order of the criminal Courts in pursuance of Sec. 12 to have been procured by the convicted person by means of the offence, together with the costs of attachment as determined by the District Judge. It is further stated that where the final judgment or order of the criminal Courts has imposed or upheld a sentence or fine on the said person (whether alone or in conjunction with any other punishment), the District Judge may order, without prejudice to any other mode of recovery, that the said fine shall be recovered from the residue of the said attached property or of the security given in lieu of attachment. Sub -section (5) of the Sec. is that if any property under attachment in respect of any scheduled offence or any security given in lieu of such attachment remains with the District Judge after his orders under Sub -sections (3) and (4) have been carried into effect, the order of attachment in respect of such property remaining shall be forthwith withdrawn, or as the case may be, the remainder of the security returned, under the orders of the District Judge. It is clear that the attachment of property of Sri Ghosh made under this Ordinance shall continue until orders are passed by the District Judge under Sec. 13. The Appellant contended before the District Judge, and before us, that the District Judge has not made any orders under Sec. 13 of the Ordinance as the Provincial Government did not informed him as required by Sub -section (1) of Sec. 13. Upon this contention, the Appellant cannot ask for release of the attachment or withdrawal of the order of attachment. The learned District Judge was, therefore, right in refusing the prayer for withdrawal of the attachment.

(3.) The learned District Judge in the end part of his order No. 1084 has held as follows: