G. M. LODHA, J. - (1.) THIS revision petition has been filed against the judgment of the learned Sessions Judge, Jhalawar, dated January 7, 1978, in Criminal Appeal No. 76/77, by which, the order of the Chief Judicial Magistrate, Jhalawar in Criminal Original Case No. 358/75 dated June 2, 1977 forfeiting 11 tins of oil, was upheld.
(2.) IT appears that Ram Swaroop and Rameshwar were prosecuted for offiences under Section 3/7 of the Essential Commodities Act, for not displaying on the board of the stock of oil. The trial court came to the conclusion that the offence against the accused, was not proved, and consequenity, acquitted both Ram Swaroop and Rameshwar. However, while acquitting both the accused with the finding that no offence was proved against them, the stock of 11 tins of oil. which were found in their shop were ordered to be forfeited. This order of forfeiture was challenged before the learned Sessions Judge, Jhalawar in appeal, who upheld the judgment of the Chief Judicial Magistrate. The learned Sessions Judge has held that though both the accused were acquitted, yet, it cannot be said that the offence was not made out, because, the inspection was done in the presence of Vijay Kumar. He was of the opinion that because the acquittal has been made solely on the ground that the accused were not present in their shops therefore, this acquittal cannot bar the forfeiture ordered by the Chief Judicial Magistrate. I have heard the learned counsel for the accused, and also the learned Public Prosecutor for the State. The offence with which the accused were charged was under Section 3/7 of the Essential Commodities Act, read with The Rajasthan (Display of Prices of Essential Commodities) Order, 1966. Under this order, a dealer is required to display the stock, and if he fails to do so, he contravens the order, and thereby becomes guilty under Section 3/7 of the Essential Commodities Act. The offence is against the non-display or failure to display the stock by the dealer. The oil or any commodity in itself is not the subject matter of the offence like an adulterated commodity or stolen property. One can understand even if an accused is acquitted, the stolen property if proved to be stolen, can be returned back to the complainant or adulterated commodity if proved to be adulterated, can be forfeited. However, the failure to display the price or the stock would not make the commodity subject to offence analogous to adulterated food or stolen property or weapons of offence in a criminal case. Unless the Legislature makes a specific provision for forfeiture by the Court, of such a commodity inspite of acquittal, a criminal court cannot forfeit the goods so seized. No such provision was pointed out to me either under the Essential Commodities Actor under any other law. by which the Magistrate while acquitting the accused could forfeit the commodity. The complaint dated August 7,1975 filed in the court of the Chief Judicial Magistrate fails to contain any such prayer. A forfeiture or confiscation of a property is drastic action, which cannot be permitted to be taken except authorised by express provisions or law. Neither the complaint filed before the Chief Judicial Magistrate consists of any such request, nor any such application was made before the Chief Judicial Magistrate, mentioning any provision of law. Then, before this Court, no such provision of law could be pointed under which at the time of acquittal, a commodity or stock found in the possession of a dealer or a businessman could be forfeited by the same Magistrate.
(3.) SECTION 7 of the Essential Commodies Act reads as under : - "7 - A - Forfeiture of certain property used in the commission of the offence-whenever any offence relating to foodstuffs which is punishable under SECTION 7 has been committed, the court shall direct that all the packages, coverings or receptacles in which any property liable to be forfeited under the said section is found and all the animals, vehicles, vessels, or other conveyances used in carrying the said property shall be forfeited to the Government: Provided that if the court is of opinion it is necessary to direct forfeiture in respect of all such packages, coverings, or receptacles or such animals, vehicles, vessels or other conveyances or any of them it may, for reasons to be recorded refrain from doing so. " A bare reading of this Section would show that the contravention of an order made under Sec. 3 can be by the person. Sub-clause (b) of Subsection (1) of section 7 would show that the property can by confiscated only if it is proved that a contravention has been made in respect of it. Since a contravention is only against a person, the moment it is held that no person has contravened any order under sec. 3, and as such, he is liable to acquittal, the forfeiture under sub-clause (b) of Sub-Section (1) of Section 7 cannot be ordered. In this view of the matter, the order of forfeiture passed by the Magistrate and upheld by the learned Sessions Judge while acquitting the accused, is absolutely untenable in law. Separate provision for forfeiture has been made under sec. 6a and the procedure has been laid down in Section 6b. Those provisions authorise the Collector to order confiscation irrespective of the prosecution. It is not necessary for me to decide whether in the instant case an order under Section 6 A should have been passed or not. However, if that order would have been passed by the Collector, then the aggrieved party would have filed an appeal under Section 6c. ;