STATE Vs. ASSAD ULLAH HAJI

JUDGEMENT

(1.) THIS reference is made by learned Chief Judicial Magistrate, Srinagar and he has recommended to quash the order passed by Sub Registrar, Judicial Magistrate, Srinagar, whereby the Judicial Magistrate has released 70 bags of cement in Illat No. 97 of 1981. A case was registered u/s 3/7 Essential Commodities Act read with Cement Control Order No. 647 -3 -4 -58 dated 9 -12 -1973. It was alleged that said Assad Ullah Haji was in unauthoried possession of the cement, During investigation the said Assad Ullah Haji approached Sub Registrar, Judicial Magistrate, Srinagar, who by his order placed the cement in his custody as Superdar. Under the provisions of Essential Commodities Act, it was the Collector who was empowered to pass any order in regard to the custody of the cement etc. Judicial Magistrate had no authority to make any order of the custody of the cement. The applicant Assad Ullah Haji seems to have by passed the Collector and approached the Judl. Magistrate who without looking into the matter has passed the order of custody of the cement in violation of the provision of the Essential Commodities Act.

(2.) THE State came up in revision against the order of the Judicial Magistrate before the Chief Judicial Magistrate who in his order has recommended setting aside the order of Judicial Magistrate whereby custody of cement has been given to Assadullh Haji. Ordinarily no revision would lie in respect of orders parts into custody of property u/s 561 -A or 5!7 Cr. Order. But those sections are not applicable in the present case. The provisions of Essential Commodities Act were applicable which did not give power to Judicial Magistrate to pass any order about the disposal of the property or about its custody. In this view of the matter the order passed by the Judicial Magistrate was without jurisdiction as he could not exercise powers under the provisions of the said Act in respect of the custody of the cement. I, therefore, agree with the learned Chief Judicial Magistrate and accept the reference. The order of the Sub Registrary, Judicial Magistrate, Srinagar is set aside and the custody of the cement with Assad Ullah Haji is declared bad in law The police concerned shall at once recover the cement from him and will refer the matter to the Collector concerned for passing appropriate orders regarding its custody. With these observations this is farence is disposed of.