- (1.)The applicant was tried for the offences of boarding a large quantity of foodgrains without a licence and making incorrect returns of his stock in contravention of Clause 3 of the Food Grains Control Order, 1942, issued under Rule 81(2) of the Defence of India Rules, 1939. He was convicted and sentenced for the said offences. The learned Magistrate, instead of passing an order regarding the disposal of the attached property, ordered under Section 518 of the Criminal Procedure Code that the property should be delivered to the District Magistrate for being dealt with in the manner provided in the said section. There was an appeal to the Sessions Court which did not disturb this part of the order. Thereafter there was a revision application (Criminal Revision Application No. 324 of .1944, decided by Divatia and Lokur JJ. on December 18, 1944) to this Court and Mr. Justice Lokur who gave the judgment observed as follows:
The ruling of the full bench Emperor v. Hansraj Astaji (1941) 40 Bom. L.R. 529 has no application to the facts of this case since there is a special provision in Section 7A of the Food Grains Control Order, 1042, empowering the Court trying-an offence under Rule 81(4) of the Defence of India Rules for contravention of any of the provisions of the Food Grains Control Order to forfeit to His Majesty the property in respect of which the offence is committed. It is, therefore, open to the District Magistrate, if he thinks it proper, to pass an order for confiscation under that clause. All that the learned Magistrate has done is to send the property to the District Magistrate in order that he might pass such order as he might deem proper under Section 523 of the Criminal Procedure Code. We, therefore, see no reason to interfere with that order. It will be open to the petitioner to urge before the District Magistrate that an order of confiscation cannot or should not be passed.

The District Magistrate took a serious view of the main offence and he made an order under Section 523 of the Criminal Procedure Code that a small quantity of grain which was specified, should be restored to the applicant for the use of his family and that the remaining quantity should be forfeited to His Majesty, There was an appeal to the Sessions Court which-was summarily dismissed.

(2.)Clause 7A of the Food Grains Control Order, 1942, reads as follows :-
If any person contravenes the provisions of clause (3) or clause (6) of this Order then without prejudice to any other punishment to which he may be liable, any Court trying the offence may order that any stocks of foodgrains together with packages and coverings thereof in respect of which the Court satisfied that the offence has been committed shall be forfeited to His Majesty.

Under Rule 81(4) of the Defence of India Rules if any person contravenes any order made under the said rule, he is liable to punishment with imprisonment for a term which may extend to three years or with fine or with both, and "if the order so provides any Court trying such contravention may direct that any property in respect of which the Court is satisfied that the order has been contravened shall be forfeited to His Majesty". It was held in Emperor v. Hansraj Astaji that the provision that an order for forfeiture can be passed "if the Order- so provides" shows the clear intention of the Legislature that no order for forfeiture can be made if the Order made under Rule 81(2) does not provide for it and that the words "if the Order so provides" limit the Court s power to order confiscation under the general provisions of Section 517 of the Criminal Procedure Code. Here there is a distinct provision for forfeiture in Clause 7A of the Food Grains Control Order and there can, therefore, be no question that forfeiture could be ordered in the present case.

(3.)Mr. Coyajee on behalf of the applicant has contended, firstly, that the said provision supersedes Sections 517 and 518 on the principle of Hansraj s case which dealt no doubt with a case in which there was no such provision, and where, accordingly, it was held that in the absence of such provision no forfeiture could be ordered. His further contention is that the wording of Clause 7A of the Food Grains Control Order shows that it is only the Court "trying the offence" which may order forfeiture. In the present case the learned District Magistrate, though he has referred to Clause 7A of the Food Grains Control Order, has actually passed the order of forfeiture under Section 523 of the Criminal Procedure Code. Mr. Coyajee s second contention is that as Clause 7A was inserted into the Order on Febniary 5, 1943, by Government of India Notification, Finance Department, No. A.LE. 43, dated February 5, 1943, that is, on a, date after the grant of the licence in this case (in 1942) and as there is no evidence that the authority making the said provision published notice thereof "in such a manner as in the opinion of such authority was best adapted for informing persons whom the Order concerned" (r. 119 of the Defence of India "Rules) the principle enunciated in Emperor v. Gwitt (1944) 47 Bom. L.R. 431 applies and that, therefore, no order could properly be passed under Clause 7A even supposing the order in question was passed under the said clause. Thirdly, Mr. Coyajee has contended that the order which was actually passed under Section 523 of the Criminal Procedure Code was at least an improper order, as the said section primarily concerns property seized by the police under Section 51 of the Code and not property in a case in which an offence has been proved. Under Section 518 the District Magistrate is empowered to deal with the property "as if it had been seized by the police and the seizure had been reported to him in the manner hereinafter mentioned."
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