KEDAR RAM Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE petitioner was convicted under Section 7 of the Essential Commodities Act for violation of Rule 3 of the Sugar (Movement Control) Order, 1955, by a Magistrate, Mr. S.C. Gupta, First Class, Baghmara, in the district of Dnanbad in connection with the movement of 91 bags of sugar by a truck. The conviction of the petitioner was maintained by this Court with some modification in the sentence in Criminal Revision No. 564 of 1961 disposed of by me, while sitting singly, on the 18th September, 1961. There was, however, no order passed by the Magistrate, while convicting the petitioner, either for forfeiture of the 91 bags of sugar or any part thereof, as provided in sub clause (b) of Section 7 of the Essential Commodities Act, to be referred to hereafter as the 'Act'. The petitioner, while the aforesaid criminal revision was being heard by me, made a prayer for the refund of the 91 bags of sugar or the price thereof. I then passed an order that it was open to the petitioner to apply for the refund before the trial Court, since that matter was not for consideration before me in the aforesaid criminal revision. The petitioner filed a petition on the, 31st January, 1962 before the trial Court for refund of 91 bags of sugar or the value thereof. The learned Magistrate, by his order, dated the 18th April 1962, rejected the petition and made an order forfeiting the 91 bags of sugar to the State of Bihar. The petitioner then preferred an appeal to the Sessions Judge, who, by his order, dated the 6th July 1962, upheld the Magistrate's order forfeiting the bags of sugar. This application has been filed against the aforesaid order of the learned Sessions Judge.

(2.) MRS . Lall, appearing for the petitioner, has drawn our attention to the provisions of Section 7 of the Act which provides three kinds of penalties for contravention of any order made under Section 3 of the Act : One is imprisonment for a specific term depending on the nature of the offence, the second is fine which is optional, and the third is forfeiture of the property in respect of which the order has been contravened, or a part thereof. It should be noticed that the sentence of imprisonment and forfeiture are mandatory, unless an order to the contrary is made in respect of the either penalty as has been provided under the two provisions - one appearing under the provision of imprisonment and the other appealing under the provision of forfeiture. I may, however, quote the provision relating to forfeiture, as provided in sub clause (b) of Section 7 of the Act :

(3.) SECTION 517 of the Criminal Procedure Code, no doubt, provides for confiscation, amongst other things, of any property after the conclusion of a trial. This, however, is a general provision, and in my opinion, cannot be invoked overriding the special provisions of Section 7 of the Act which itself provides as a mandatory measure for making an order of forfeiture at the time when the judgement is delivered. There are authorities of different High Courts in support of the view. Reference may be made to Raghunath Krishna v. Emperor, AIR 1947 Bombay 239, Pratap Singh v. The State, AIR 1952 Calcutta 90 and Jalim Chand v. The State, AIR 1950 Assam 132. The Bombay case related to Food Grains Control Order, 1942, Clause 7 -A of which also provided for the forfeiture of any food grains in the event of conviction of an accused, and it was held that when the Court wished to exercise its power of forfeiture, it must be exercised under the specific provisions of that clause and not under Section 517 or 518 of the Criminal Procedure Code Such was the view taken also by the Calcutta and Assam High Courts in the cases referred to above.