BHIMJI RAMJI GUJRATHI Vs. EMPEROR

JUDGEMENT

(1.) THE applicant Bhimji was tried along with one Maganlal under Rule 90(2)(e) of the Defence of India Rules and Rule 121 read with Rule 90(2)(a). Under the first count the charge was that of possessing small coins to an amount in excess of their personal or business requirements for the time being, and under the second, for attempting to contravene the provisions of the Defence of India-Rules which prohibit the selling of coins for an amount other than their face value, and the doing of acts preparatory thereto. Maganlal was convicted and sentenced to a fine of Rs. 10 on the first count, and in default rigorous imprisonment for 15 days, and to a fine of Rs. 100 on the second and in default to rigorous imprisonment for 3 months. Bhimji was convicted on the second count and received the same sentence as Maganlal. These convictions and sentences are not challenged. What is challenged here is an order, of confiscation made by the learned trying Magistrate and upheld in appeal.

(2.) THE two convicts are servants of a wealthy firm of jewellers who carry on business at Itwari in Nagpur. It is proved and admitted by the accused, that they were employed in conveying coins to Raipur where it was to be sold by them on behalf of their masters at a profit. One such previous transaction was traced and has been proved. Ragunandanlal (p. W. 1) received 500 whole rupees from Maganlal and paid him Rs. 523-2-0 in notes for the money. He himself then resold the entire Rs. 500 for Rs. 525 in 20 minutes. This shows that 5 per cent, was the prevailing market rate for these illegal sales at that time with a slight discount for large transactions. The books of the accused's employers were seized and they disclose that Rs. 4957 were handed over to Maganlal on 29th December 1943 and Rs. 6535 on 30th December 1943. It is evident then that this illicit traffic in coins was proceeding on a large scale. On the day in question, namely, 31st December 1943, the two accused were arrested at Raipur, soon after their arrival there by the morning passenger, and 6300 one rupee coins and Rs. 132-12.0 in small change were recovered from the possession of the applicant Bhimji. Both made a clean breast of their guilt and stated that they had been sent for selling the larger coins at a profit of Rs. 4-8-0 per hundred and the smaller ones at a profit of Rs. 12 per hundred. The revision is concerned with the order which confiscates these two sets of coins. It is said that the Magistrate had no power to do so. In my opinion he had. Section 517(1), Criminal P.C., confers it.

(3.) IT was argued that the seizure was illegal and that therefore these powers did not exist. That, however, is immaterial. Once the property is there it does not matter how it reached the hands of the Court. The moment the enquiry or trial is at an end, the right to dispose of it under Section 517 at once arises. Whether the power has been exercised along right lines in any particular case is another matter. The right and the power to act is undoubted. In my opinion the matter is similar to the position with which their Lordships of the Privy Council dealt in Prabhu v. Emperor A.I.R. 1943 F.C. 73. There a man had been illegally arrested, or so it was said, and it was contended that the Court had consequently no power to try him. Their Lordships rejected the contention and said that it was immaterial how he came before the Court. Being there the right and the power to try him was undoubted. If that is the position in regard to a human being, how much more is it the case in respect of inanimate matter. The decision in Emperor v. Nagarmal Jankiran A.I.R. 1941 Nag. 338 is to the same effect. Next it was argued that Section 517 is limited to trials under the ordinary laws and in respect of offences under the Penal Code and matters dealt with in the Criminal Procedure Code. It does not extend to the special offences created by the Defence of India Rules. But that is not so.