LAWS(PVC)-1939-2-7

EZEKIEL EPHRAIM EZEKIEL Vs. EMPEROR

Decided On February 08, 1939
EZEKIEL EPHRAIM EZEKIEL Appellant
V/S
EMPEROR Respondents

JUDGEMENT

(1.) In this rule the District Magistrate of the 24 Parganas has been asked to show cause why the order of confiscation passed by the Deputy Magistrate of Alipore in the Gariahat Excise Conspiracy Case in respect of certain stocks of liquor at 4, Lindsay Street, 46, New Park Street, and 17, Mangoe Lane (including the "Excise Bond") and the "Customs Bond" should not be set aside. In Revn. No. 1100 of 1938 (J.E. Gubbey V/s. Emperor) we shall deal with the trying Magistrate's order of confiscation so far as it relates to the stock of liquor at 8, Lindsay Street. In the present; rule, we are concerned with that portion of the order which relates to the stocks of liquor at the other places named above. The circumstances in which the Magistrate passed the order of confiscation are briefly these : On 14 February 1938, immediately after he had delivered judgment in what is known as the Gariahat Excise Conspiracy Case Emperor V/s. C.N. Naidu and Ors. an application was made before him by the Collector of Excise, Calcutta, submitting a list of articles "liable to confiscation under Section 63(1) and (2), Bengal Excise Act, and Section 517(1), Criminal P.C.," and praying that necessary orders of confiscation of the articles be passed. Upon this application, the Magistrate recorded an order that very day in the single word confiscate . The list annexed to the application was a long one and comprised large stocks of liquor at 8, Lindsay Street (Foreign liquor shop and Bottling Godown of James Anderson & Co.), 4, Lindsay Street (Foreign liquor shop of Davidsons Ltd.), 46, New Park Street (another Foreign liquor shop of Davidsons Ltd.), 17, Mangoe Lane (Bottling Godown, Excise Bond, and Customs Bond of Davidsons Ltd.), and several other places. No opportunity to show cause against confiscation was given to any party, except such opportunity as the parties concerned in the conspiracy case had during the case itself.

(2.) The petitioners in the present rule are E.E. Ezekiel and Mrs. Reemah Ezekiel. It will be remembered that the rule is concerned with certain stocks of liquor found at various premises belonging to Davidsons Ltd. E.E. Ezekiel claims that he is the liquidator of this company appointed at a meeting of share-holders and creditors on 27 January 1937 (about 10 or 11 months before the order of confiscation) and Mrs. Reemah Ezekiel claims that as mortgagee and debenture-holder of the company she obtained on 11 April 1938 (about two months after the order of confiscation) a decree from the High Court, whereby the entire assets of the company were vested in her. E.E. Ezekiel appealed against the order of confiscation to the Additional Sessions Judge of Alipore and subsequently Mrs. Reemah Ezekiel joined in the appeal, which the learned Judge dismissed on 22 September, 1938. An important point urged before us on behalf of the petitioners is that no notice was given to the interested parties before the order of confiscation was passed. To discuss this point, we shall assume, as contended in the course of argument by learned Counsel for the petitioners, that the order, so far as we are concerned with it in this rule, was made wholly under the Bengal Excise Act. Now it is undoubtedly true that before a Magistrate can make an order of confiscation under Section 64(1) of this Act, he has to decide that the articles in question are liable to confiscation under Section 63. A decision necessarily implies the hearing of parties and the petitioners grievance is that no parties were heard in this case. In ordinary circumstances, the omission might have been fatal to the order; but as we shall show presently, facts sufficient for a decision of the question of liability to confiscation are stated by the petitioners themselves in the application on which this rule was issued. It is therefore difficult to argue that the omission has caused any real prejudice; and, in any event, since we have ourselves heard the petitioners very fully and since our powers in revision extend to altering or reversing the order as we think fit, any possibility of prejudice disappears.

(3.) We now turn to the admissions in the petitioners application. Para. 3 of the application recites that on and after the first search of the premises of Davidsons Ltd., on 20 October 1935, various suspected liquors were sampled and seized, but the large stock of genuine liquor found on the premises was allowed to be continuously sold down to the end of December 1935, after which date the genuine liquor was collected at various spots upon the premises in the Presidency Town and remained in the control of the Excise Department. Para. 4 sets out the premises upon which liquor was originally found : these were (a) The shop and certain godowns at 3 and 4, Lindsay Street, (b) 5, Lindsay Street. (c) The Bottling and Blending godown at 17, Mangoe Lane, (d) The Customs Bond at 17 Mangoe Lane, (e) The Excise Bond at 17, Mangoe Lane. The same paragraph states that no illicit liquor was found at (b), (d) or (e), but it contains the important admission that illicit liquor was found in (c), the Bottling and Blending godown.