SEWALRAM AGARWALLA Vs. ABDUL MAJID

JUDGEMENT

(1.) This is a second appeal by the plaintiffs from the decision of the Additional Subordinate Judge, Rangpur, dated 28 August 1936, affirming a decision of the Munsif, Second Court of that place, dated 9 April 1936. The facts of the case are these: Defendant 1 was the Subdivisional Officer of Gaibanda in the year 1933. Defendant 2 was the Assistant Sub- Inspector of Police posted at Gaibanda Police Station in the same year. Defendant 1 received complaints from certain persons about noxious and adulterated mustard oil and ghee being sold and being exposed to sale by several traders in the Gaibanda town. He also received an anonymous petition to the same effect. The plaintiffs firm was named in the petition as one of those dealing in these offensive articles. Defendant 1 thereupon made an order for a search and seizure of these articles at the premises of the plaintiffs firm. He made this order in writing on the body of the anonymous petition. No search warrant however was issued in Form 8 of Schedule 5, Criminal P.C. The order of defendant 1 to search and seize was sent to the Officer in charge of the Gaibanda Police Station who directed defendant 2 to execute it. The latter thereupon seized 457 tins of mustard oil lying in the plaintiffs shop on 7 May 1933 and left them in the custody of the plaintiffs gomasta on his giving a jimba-nama. On 24 May 1933 one Ashutosh, the Sanitary Inspector of the District, who was authorized by the Commissioners of Gaibanda Municipality made a complaint before defendant 1 against plaintiff 1 and his gomasta Hari Prosad under Section 6 Bengal Food Adulteration Act.

(2.) On the basis of this complaint, proceedings under the Food Adulteration Act were started before defendant 1 against the accused. The complainant then applied before defendant 1 for a direction upon the police to make over the seized articles to him in order to enable him to produce them in Court. This prayer was allowed on 11 July 1933 and the police made over the custody of the articles to the complainant on 13 July 1933. While this case was pending, the plaintiffs applied to defendant 1 for release of the articles under seizure stating that their indefinite detention was causing enormous pecuniary loss to them. Defendant 1 thereupon on 18 September 1933 made an order to the effect that the matter would be considered after the disposal of the food adulteration case against them.

(3.) On 5 July 1934 the plaintiffs instituted the present suit out of which this appeal arises to recover Rs. 3000 as damage from defendants 1 and 2 and the Secretary of State for India in Council for wrongful seizure and detention of their articles. Plaintiff 1 and his gomasta were ultimately acquitted by this Court on 30 August) 1934 and the articles were released to the plaintiffs on 25 September 1934. On these facts, the Courts below have dismissed the suit against defendants 1 and 2. They have held that they are protected by the Judicial Officers Protection Act (Act 18 of 1850) for the following reasons: (1) That defendant 1 made the order for search and seizure under Section 96, Criminal P. C, in the bona fide discharge of his duty as a Magistrate as he intended to hold an enquiry into an alleged offence under Section 272, Indian Penal Code, of which he took cognizance under Section 190 (c), Criminal P. C; (2) that the omission by defendant 1 to issue a warrant for the search and seizure of the goods amounted to an illegality but it did not take away the jurisdiction of the Magistrate to order for a search under Section 96, Criminal P.C.; (3) that defendant 1 refused to return the tins of oil to the plaintiffs in the bona fide belief that he had powers under Section 516, Criminal P.C., to detain the goods until the disposal of the food adulteration case; and (4) that defendant 2 executed the order of defendant 1 to search and seize as he took the order to be legal and was bound to execute it.