MOHD HANIF Vs. REX

JUDGEMENT

(1.) This is an appln. for revn. of of an order passed by a Magistrate, first class, in the district of Rae Bareli directing confiscation of some parcles of cloth.

(2.) The facts are that on 27.2.1947, two suit cases & two bundles of cloth were discovered in a house belonging to the applicant. A case was started against him for contravention of Section 18, Sub-section (2), Cotton Cloth & Yarn Control Order, 1945 & Section 6, Sub-section (4), Rae Bareli Town Rationing Order, 1945, read with Section 17/7 of Act XXII [24] of 1946, namely, the Essential Supplies (Temporary Powers) Act. On 25-4-1947, Mohammad Hanif pleaded guilty. He was convicted & sentenced to pay a fine of Rs. 100. On the game date a separate order was passed by the learned Magistrate forfeiting the cloth to His Majesty. On 15-10-1947, Mohammad Hanif applied to the District Supply Officer, who was the same gentleman as the Magistrate who had disposed of the case praying for return of the cloth. The file was then before the Ses. J. in connection with an appeal in His Ct. filed by another person. The Supply Officer called for office reports with the necessary rules & on 18-12-1947, after the file had been placed before him, he noted that the order had already been passed on 25-4-1947 & consequently the appln. should be filed. On 29-1-1948, another appln. was, filed by Mohammad Hanif praying for return of the cloth. The file was put up before the Supply Officer & he then noted that orders had already been passed & that the applicant should be informed. Thereafter the appct. moved the Ses. J. of Rae Bareli & contended before him that the order confiscating the cloth having been passed after the judgment was signed & pronounced in open Court was illegal & should not have given effect to it. The learned Ses. J. has rejected this contention on the ground that the confiscation of the cloth is not part of the sentence therefore, Section 369, Cr. P. C., does not apply to it.

(3.) Mohammad Hanif has now come up in revn. & his learned Advocate contends that as a matter of fact, the order passed by the Magistrate was very much subsequent in date to the order convicting Mohammad Hanif. From the record it appears that both the orders were passed on the same date. His contention is, however that the copy supplied to him on 17-5-1947, did not contain the portion of the order relating to confiscation. It is quite possible that this may be so because the copy supplied to the appct. would be a copy of the order for which he had asked namely, copy of the order holding him guilty & sentencing him to pay a fine As I have already stated the order confiscating the cloth is a subsequent order though passed on the same day. I am not prepared to hold that the learned Magistrate has committed a forgery & has ante dated an order which he passed subsequently since there is no foundation for this contention.