M.L. Jain, J. - (1.) THIS is an appeal against the judgment of the learned Additional Sessions Judge No. 2. Sriganganagar dated May 8, 1971, by which he convicted and sentenced the appellants as follows: 1. under Section 395 of the Indian Penal Code, to one month rigorous imprisonment and to a fine of Rs. 500/. in default where of to further rigorous imprisonment for one month;
(2.) UNDER Section 353 of the Indian Penal Code, to further rigorous imprisonment for 15 days. Both the sentences were directed to run concurrently. I have heard arguments and perused the record. 2. Briefly stated, the prosecution case was that when any movement of food grains within ten miles of the border of Rajasthan was prohibited, four person, namely, Panjabsingh, Harnamsingh Magarsingh & Meghasingh were found, on 25 -1 -67 by Patwari Hanumandas PW. 2 carrying, gram in four carts within the prohibited area without proper permission. He informed the Tehsildar Bhaironsingh Paowar PW. 9 who accompanied by Assistant Sub Inspector Suraj Prakash PW. 7 of the police station Sadulsahar and two constables Tehkaran PW. 10 and Pratapsingh PW. 8 reached to the spot and was able to intercept the carts at some distance from village Chamarkhera. The Tehsildar took these four carts loaded with gram in his possession and prepared recovery memos Ex. P -15 to Ex. P -18. He then directed the two constables to take these carts to the police station Sadulshahar, while he himself proceeded to intercept some more carts which were alleged to be moving towards the State of Punjab. When the carts so seized by the Tehsildar, had reached the bridge near Chamarkaran at about 9.30 p.m. along with the two constables, accused numbering eight to ten came over and threatened the police constables with untoward consequence if they carried the carts to the police station. The accused with show of force and threat took away the carts out of their possession to village Chamarkhera. The police constables finding themselves helpless in the matter went to police station and are said to have lodged the first information report Ex. P.1 in which they even gave the names of seven persons out of the total of ten. After investigation and challan by the police, the learned Munsif Magistrate, Hanumangarh, committed ten persons for trial to the court of Sessions under Sections 395 and 353 of the Indian Penal Code. The learned Additional Sessions Judge, who tried the case, appears to have acquitted (without expert easily saying so) five of the accused persons and convicted the five appellants in the manner aforementioned. Aggrieved by their convictions and sentence, the appellants have preferred this appeal. The learned Counsel for the appellants assailed the convictions, firstly, on the ground that the seizure of the gram by the Tehsildar was without any authority. He contended that the Rajasthan Foodgrains (Restrictions on Border Movement) Order, 1959, was amended on May 17, I965, vide the Government of India, Ministry of Food and Agriculture, Department of Food notification No. GSR 742 by which, it was provided that nothing contained in the said Order shall apply to the transport of Foodgrains within the district of Sriganganagar. The learned Counsel for the State had no answer to this arguments. I am therefore constrained to uphold the contention that the seizure of the carts of gram from the possession of Panjabsingh and others was not just -fled as there was no ban on the movement on foodgrains on 25 -1 -67 the alleged day of offence. Learned Counsel for the State however drew my attention to the fact that the cartmen, namely, Panjabsingh, Magarsingh, Harnamsingh and Mehngasingh were convicted by the Additional District Magistrate and sentenced to a fine of Rs. 500/ - each for violation of the aforesaid Order under Section 7 of the Essential Commodities Act, 1955, vide Ex. P -12. This fact is also borne out by statements of the prosecution witnesses but that judgment (Ex. P -12) cannot operate so as to make the seizure of the food grains which was otherwise unlawful, legal, in view of the fact that the said restriction on movement of foodgrains did not apply to the district of Sriganganagar where the offence in said to have taken place.
(3.) LEARNED Counsel for the appellant then referred me to Re Chitravelu Thevar and Ors. AIR 1941 Mad 763 Gobaria v. State, 1964 RLW 617 and Mithukhan v. which go to show that where the seizures are illegal, the accused cannot be convicted under Section 395 or Section 353 or both of he Indian Penal Code for taking away, even by show, force the property which in fact and in law belong to them and did not pass into the lawful custody of the Tehsildar and for that matter to the police. On the contrary, they could make avoid claim to right of private defence of property.;