SAILABEHARI CHATTERJI Vs. STATE

JUDGEMENT

(1.) THIS revision is against the order of the District Magistrates of Sundargarh forfeiting a sum of Re. 6,600/2/ - recovered from the house of the Petitioner on the ground that the said sum was recovered under such circumstances as would create - a suspicion that it was part of the illegal gratifications received by the Petitioner while discharging his duties as the Sub -divisional Magistrate of Sundargarh.

(2.) THE material facts are these: The Petitioner is a member of the Orissa Administrative Service and is now under suspension. He joined as Subdivisional Magistrate, Sadar, Sundargarh on 19 -11 -48. On 27 -7 -49 his house was searched by the police and sum of Rs. 6.600/2/0 was seized from an almirah was under look and key. During the same search the police recovered twenty marked ten -rupee currency notes and also cash of Rs. 1,074/ from an open drawer in his room. A regular case under 161 I.P.C. (G.R. case no 1/268/115/49) wag started against the Petitioner in respect of the sum recovered from the open drawer. That case ended in his conviction in the Court of District Magistrate, Sundargarh, but on appeal the Sessions Judge set aside that conviction find sentence. The police then started another case under Section 5(2) of the Prevention of Corruption Act (Act II of 1947) in respect of the sum of Rs. 66,00/2/ recovered from the locked up almirah After due investigation Final Report was submitted in that case to the affect that the case was true but the evidence was insufficient. A question then arose about the disposal of the sum of Rs. 6,600/2 and the District Magistrate after giving the Petitioner an opportunity to show cause passed an order of forfeiture on 21 -7 -51. His main ground in support of his order was that the Petitioner started his official career as a Sub -Deputy Collector in 1939 and the total salaries received by him from that date till the date of his suspension when compared with the probable expenditure which he must have incurred during that period would not leave such a heavy balance in his possession. He further held that the Petitioner's explanation to the effect that the said sum was part of the proceeds of the sale of his ancestral house at Bhubaneswar wag not acceptable. He therefore thought that there were reasonable ground to suspect that the said sum was acquired by the Petitioner by way of illegal gratification.

(3.) BUT the question arises whether in the circumstances of this case such an order was a proper one. It is a well -settled rule that where no case in started by the police, properties seized during the investigation stage should ordinarily be returned to the person from whose possession they were recovered. see Kyin Ton v. E Cho, 6 Cri.L.J. 126; Devidan Sowcar v. Janaki : A.I.R. 1932 Mad. 428; In re; Paidi Subbayya, A.I.R. 139 Md. 905 and Babu Ram v. Emperor : A.I.R. 1942 Oudh. 128. Doubtless there may be exceptional cases as in the Nagpur case, A.I.R. 1936 Nag 226 where this general rule may be departed from. The question therefore arises as to whether the recovery in the present case from the house of the Petitioner was of such a nature as to justify the order of forfeiture.