Decided on November 30,1960

N R DESAI Appellant

Referred Judgements :-


Cited Judgements :-



BERI, J. - (1.)THIS is a writ petition under Article 226 of the Constitution of India wherein the petitioner prays for a direction that 167 gunny bags of skimmed milk powder seized from him by the Sub-Divisional Officer, Ajmer be restored to him.
(2.)THE facts material for the disposal of this petition as alleged are these. THE petitioner carries on business in dairy products throughout India. On 10. 8. 1960, Shri Kajaria, Proprietor of Konar Enterprises, Jaipur sold and delivered 334 bags of 50 lb. each of skimmed milk powder to the petitioner for Rs. 36,000/-, who obtained a receipt for the payment. THE petitioner, around the midnight of 12th and 13th August, 1960, was carrying this milk powder from Ajmer to Jaipur. In the course of transit 10 miles away from Ajmer, at Gagwana, this consignment of 334 bags was seized by the Sub-Divisional Officer, Ajmer. THE petitioner says that the officer seized his milk powder as he was interested in another party's appointment as dealer in skimmed milk in the District. THE petitioner was released on executing a personal bond and the matter was entrusted by the Sub-Divisional Officer to the police for investigation. THE Petitioner contends that there is no legal authority for the action of the Sub-Divisional Officer. Because his efforts with the District authorities yielded no result the petitioner has moved this Court.
The respondents have filed an affidavit in answer. They contend that Konar Enterprises were appointed as dealers for the distribution of skimmed milk powder by the State of Rajasthan for the District of Ajmer. This milk, which was imported from U. S. A. through the State Trading Corporation (Private) Ltd. , New Delhi, for the whole of India, was intended to reach the consumers at fixed price of 72 N. P. per lb. in small quantity of 2 lb. per individual within the area for which a dealer was appointed by the State. Contrary to these conditions, which Konar Enterprises had undertaken to fulfil, they sold the milk to the petitioner at the rate of Rs. 2/16 per lb. and the milk was being whisked away out of the District of Ajmer and the State of Rajasthan. Shri Kajaria and the petitioner thus appear to have committed offences under sections 406, 411 and 114 I. P. C. for which they have been sent up for trial before a competent court under challan dated 12. 10. 1960.

We have heard Shri Tyagi for the petitioner, Shri Kan Singh for the respondents, Collector, Shri Bhargava for the interveners the residents of the District of Ajmer, and Shri Baijal for the respondent Shri Deena Nath Jain.

Shri Tyagi has urged that Konar Enterprises were the owners of the skimmed milk in question and they could and did sell the same to the petitioner who was a bonafide purchaser for value and, therefore, as an owner entitled to deal with the milk he purchased as he liked. The learned Government Advocate, on the other hand contended that Konar Enterprises held the milk in question in trust for the beneficial use of the people of Ajmer District or they held under an obligation in the nature of a trust and could not legally dispose of the same to the petitioner. Both the learned counsel, however, agree that any opinion or observation on questions such as these is likely to prejudicially affect the pending criminal case in which the petitioner is also an accused. Moreover, neither the State of Rajasthan nor Shri Ram Niranjan Kajaria another accused in the criminal case are parties to this petition. Therefore, we propose saying as little as is absolutely necessary for the decision of this petition regarding matters touching the criminal case.

A reference to Ex. A/14 dated 13. 8. 1960, which is a communication addressed by the Sub-Divisional Officer, Ajmer, to the Deputy Superintendent of police, would show that the Sub-Divisional Officer received information to the effect that skimmed milk entrusted to Konar Industries for distribution to the people of Ajmer district was being taken away out of the District. He accordingly chased the truck in which this milk was being transported. With the help of the Station House Officer, Gegal, Shri Bhoop Singh, he got the truck stopped and interrogated the persons concerned in the transaction and seized the goods, as in his opinion an offence appeared to have been committed in respect of the said consignment of milk. He further directed the Deputy Superintendent of Police to register a case and investigate the matter. Learned counsel for the petitioner contends that the Sub-Divisional Officer, who is also, we might mention, a Magistrate First Glass, had no legal authority to seize the goods. It is urged that the goods were being transported by a purchaser for value and the movement of the commodity being not prohibited under any law it was an exercise on the part of the petitioner of his fundamental rights. He relied on Articles 19 and 301 of the Constitution. In our opinion the contentions of the learned counsel are without substance. The Magistrate who had territorial jurisdiction at Gegal and who was assisted by a police Officer as well as of the opinion that an offence under sec. 406 I. P. C. which is cognizable, appeared to have been committed in respect of the consignment. He could himself have taken cognizance o|f the offence under sec. 190 (i) (c ). Taking cognizance does not involve any formal action. It is taking notice of a case after applying ones mind to a given set of facts, Ex. A/14 is clear evidence of the fact that the Magistrate applied his mind and purported to act under sec. 550 Cr. P. C. Under this section a police Officer is empowered to seize property which is suspected to be stolen. Under sec. 523 Cr. P. C. a safeguard is provided regarding such a seizure. It is to be reported to a Magistrate. In his application dated 2. 9. 1960 before the City Magistrate, the petitioner stated that "on 13. 8. 1960, a truck load of milk powder was seized by police, Ajmer, near Gaigel village from the custody of the applicant. " Stolen property as defined under sec. 410 I. P. C. includes property in respect of which offence of criminal breach of trust has been committed. It is, therefore, apparent that the action of the Sub-Inspector of Police and the Magistrate was not without the authority of law. Whether an offence regarding that consignment has or has not been committed,whether the petitioner could or could not commit an offence of this nature in respect of property which he claimed to be his, exclusively, are matters which should be left to the appropriate criminal courts to decide. Article 19 of the Constitution evidently does not apply. Freedom of trade does not extend to protect actions which are suspected to be offences. Nor does Article 301 of the Constitution authorises what is sought to be justified by the petitioner. In a recent case R. P. Kapur Vs. State of Punjab (l), their Lordships of the Supreme Court have made certain observations regarding the exercise of inherent powers under sec. 561-A of the Criminal Procedure Code. On principle, the same would appear to be the guiding principle when powers are invoked under Article 226 of the Constitution in a case of the kind before us. Their Lordships observed: - "it is well established that inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexi ble rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceedings in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding the High Court would be justified in quashing the proceeding on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category. In exercising its jurisdiction under sec. 561-A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial magistrate, and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained.

None of the conditions calling for an exercise of inherent or extra-ordinary jurisdiction exist in the case before us.

The next contention of the learned counsel is that on 1. 9. 1960 he made an application to the city Magistrate, Ex. P/2 to release the goods to him for being sold as per court's orders. He moved another application under sec. 523 Cr. P. C. Ex. P/6 supported by an affidavit claiming the restoration of his property. No. orders appear to have been passed on these applications. The Collector, however, by his order dated 2. 9. 1960 contained in Ex. A/15 appointed M/s Deena Nath Jain and M/s Jetha Nand Wadhumal of Ajmer as authorised dealers to sell the seized skimmed milk at specified rates and on certain other terms. It was, added the learned counsel, as if in obedience to this order of the Collector that the City Magistrate on 6. 9. 1960 passed an order, Ex. A/16 directing that the skimmed milk, being perishable commodity, should be placed at the disposal of the Collector and the sale proceeds be deposited in the Government Treasury. The City Magistrate argued the learned counsel, abdicated his judicial functions and acted in accordance with a prearranged plan of showing preference to the Collector.

Before we examine this part of the case we would prefer to consider another matter which has some bearing on the complaint of favouratism. The petitioner has stated in his affidavit dated 16. 9. 1960 that Shri Deena Nath Jain is the brother-in-law of Shri R. C. Dhariwal, Minister of Industries Rajasthan. This he has sworn to as being true to his personal knowledge. Shri Deena Nath Jain in his affidavit has categorically contradicted this allegation. When this contradiction was pointed out to the learned counsel for the petitioner he submitted that this was the information which his client received from the landlord of Shri Deena Nath Jain. Earlier, his case was of personal knowledge. No fresh affidavits have been filed. In view of the obvious prevarication, we have no hesitation in disbelieving the petitioner on this point. We strongly condemn the reckless manner in which allegations of this kind are made casting expersions on responsible individuals who are unable to defend themselves in these proceedings. The plea of favouratism, therefore, appears to be baseless.

(3.)COMING now to the order of the Collector dated 2. 9. 1960 which he passed regarding the distribution of the skimmed milk, we are inclined to think that no serious exception could be taken to the order. Presumably the Collector believed that the skimmed milk was allotted to his District for the bonafide consumption of its residents and he had thus control over the goods. He was the person who was giving instructions to Konar Enterprises as well for the milk being brought to Ajmer and distributed in prescribed quantities and at prescribed rates only. He could legitimately believe under the circumstances that the milk powder and its proper distribution was a matter of trust and he accordingly made arrangements for the discharge of this obligation. The city Magistrate on the other hand should be presumed to have been acquainted with the facts surrounding the seizure of the goods as contained in the Sub-Divisional Magistrate's report dated 13. 8. 1962 before he passed orders regarding its disposal on 6. 9. 1960. He had heard the A. P. P. and the correspondence which passed between the Collector and the Deputy Superintendent police on the subject. He, therefore, ordered under sec. 523 that the milk be delivered to the Collector and money deposited in the Government Treasury. On the above facts it is too much to assume that the orders were passed under some pre-arrangement and the City Magistrate did not act judicially.
Now Mr. Tyagi says that the petitioner was not only known to be the owner, but possession having been taken from him and he having applied that the skimmed milk be given to him on terms in accordance with the provisions of sec. 523 the petitioner should have been given over the seized milk powder. Sec. 523 reads: - (1) "the seizure by any police officer of property taken under sec. 51 or alleged on suspected to have been stolen, or found under circumstances which crate. Suspicion of the commission of any offence, shall be forthwith reported to a Magistrate, who shall make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property. (2) "if the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit, If such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation".

For reasons already indicated earlier we refuse to comment on the controversial question whether the petitioner was entitled to the possession of the property or not. The short question which we may consider is whether the city Magistrate was bound under the law to deliver back the milk to the petitioner when he applied for the same. In our opinion he was not. The clause "who shall make such order as he thinks fit respecting the disposal of such property" is wide in its amplitude and confers adequate power on the Magistrate to act as he deems fit having regard to the circumstances of the case. The learned counsel relied upon Purshottam Das Vs. State (2 ). According to this decision the magistrate can return the property to the person entitled to it or dispose it of in such way as he thinks fit. If the magistrate prefers to adopt the latter course he has indeed got the widest discretion. This Court in its extra-ordinary jurisdiction would be slow to interfere in the exercise of discretion vested in the magistrate in a pending case. The word disposal here appears to connote the exercise of ones power of control. It is to determine the fate of the property as the exigencies of the case suggest. What the magistrate did in respect of this perishable commodity was to direct its disposal through a suitable agency.

There remains the application of Deena Nath Jain under sec. 476 of the Code of Criminal Procedure. As already stated he says that he is not a brother-in-law of Shri Dhariwal. We have disbelieved the petitioner for reasons already stated, but we are not inclined to pursue the matter any further. We may, however repeat that we do take a serious view of unfounded allegations of this kind made without due sense of responsibility. We therefore, dismiss this application.


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