Chairman of The Bankura Municipality Vs.
Lalji Raja and Sons [1953] INSC 17 (12 March 1953)
BHAGWATI, NATWARLAL H.
MAHAJAN, MEHR CHAND
CITATION: 1953 AIR 248 1953 SCR 767
CITATOR INFO :
RF 1977 SC2279 (19)
ACT:
Calcutta High Court Rules, Part 1, Chap. 11,
Rule 9-Juris- diction of Single Judge-"Order of forfeiture of
property"- Forfeiture, meaning of--Order directing disposal of unwholesome
food under Municipal laws-Whether forfeiture- Bengal Municipal Act, 1932, ss. 428,431,
432.
HEADNOTE:
An order of a District Magistrate under ss.
431 and 432 of the Bengal Municipal Act (XV of 1932) for the disposal of an
article of food which has been seized under s. 428 of the said Act is not an
order of forfeiture of property within the meaning of the proviso to rule 9 of
Chap. II of Part II of the Calcutta High Court Rules, and a Single Judge of the
said High Court has jurisdiction to hear a reference from such an order.
Unless the loss or deprivation of property is
by way of penalty or punishment for a crime, offence or breach of engagement it
would not amount to a "forfeiture" of property.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 23 of 1952. Appeal from an Order dated 18th January, 1952, of the High Court of Judicature at Calcutta (Chunder J.) in Criminal Reference Case No.
110 of 1951.
N.C. Talukdar and A. D. Dutt for the
appellant.
Ajit Kumar Dutta, and S. N. Mukherjee for the
respondents.
1953. March 12. The Judgment of the Court was
delivered by BHAGWATI J.-This is an appeal under article 134(c) of the
Constitution and raises the point whether a single Judge of the High Court of
Judicature at Calcutta could bear a reference from an order under sections 431
and 432 of the Bengal Municipal Act XV of 1932.
The jurisdiction of a single Judge of the
High Court in criminal matters is defined in the proviso to 768 rule 9, Chapter
II, Part I of the Rules of the High Court and the relevant portion of the
proviso runs as under:- "Provided that a single Judge may hear any
Ap.peal, Reference, or Application for revision other than the following:- (1
)One relating to an order of sentence of death, transportation, penal
servitude, forfeiture of property or of imprisonment, not being an order of
imprisonment in default of payment of fine.......................... " A
single Judge therefore has no jurisdiction to deal with any reference or
application for revision which relates to an order of forfeiture of property,
and the question that arises in this appeal is whether the order passed by the
learned District Magistrate, Baukura, under sections 431 and 432 of the Bengal
Municipal Act, 1932, amounted to an order of forfeiture of property within the
meaning of the above proviso.
The relevant, facts may be shortly stated as
follows. The respondents are the proprietors of several oil mills in the town
of Bankura within the Bankura Municipality. The Sanitary Inspector of the
Municipality received on 6th March, 1950, information that the Manager of the
Sree Gouranga Oil Mill, belonging to the respondents had deposited about 300
bags of rotten, decomposed, unwholesome mustard seeds in the courtyard of the
Rice Mill of Sree Hanseswar Maji and about 600 bags of unwholesome mustard
seeds in the mill godown of the respondents for sale and for the preparation of
oil there from for sale. On an application made by him in that behalf the
Sub-Divisional Officer, Bankura, duly issued a search warrant and the Sanitary
Inspector on the same day found in possession of the respondents a huge quantity
of mustard seeds which were found to be highly unsound, unwholesome and unfit
for human consumption. He seized the said seeds between the 6th March, 1950,
and the 8th March, 1950, and after the completion of the seizure asked for
written consent of the 769 respondents for destruction of the said mustard
seeds which they refused. The Sanitary Inspector therefore kept all the-bags
thus seized, viz., 951-1/2 bags, in ,the mill godowns of the respondents with
their consent. After several proceedings which it is not necessary to mention
for the purpose of this appeal, the District Magistrate, Bankura, in M. P. No.
58 of 1950 under sections 431 and 432 of the Bengal Municipal Act on the 14th
August, 1951, found that the stock of mustard seeds which was seized on the 6th
March, 1950, was on that date and still was unfit for human consumption. But in
so far as no oil was coming out of the seeds and the seeds were capable of
being used is manure or for cattle-food he would not direct their destruction
but directed that they should be disposed of by the Commissioners of the
Bankura Municipality as manure or as cattle-food ensuring before such disposal
that the stocks in question bad been rendered incapable of being used as human
food. The respondents filed a petition under section 435 of the Criminal
Procedure Code before the Additional Sessions Judge, Bankura, against the order
of the District Magistrate, for a reference to the High Court. The Additional
Sessions Judge held that the seizure of the mustard seeds was illegal and that
there was no evidence to show that the seeds in question were deposited in or
brought to the places for the purpose of their sale or of preparation of oil
for human consumption. He therefore made a reference under section 438 of the
Criminal Procedure Code to the High Court for quashing the proceedings. Chunder
J.
accepted the reference, set aside the order
of the District Magistrate and remanded the case for retrial by some other
Magistrate, as in the opinion of the learned Judge, the District Magistrate had
decided the matter upon his own observations formed during the inspection of
the mustard seeds and not on the material in the record. An application was
made to a Bench of the High Court and leave was allowed on the point whether
Chunder J. had jurisdiction sitting singly to bear the reference in view of the
rule cited above.
770 Sri N.C.Taluqdar for the appellants-urged
that the order made by the District Magistrate, Bankura, under sections 431 and
432 of the Bengal Municipal Act, 1932, was an order for forfeiture of property
within the meaning of the proviso to the rule and Chunder J. had no
jurisdiction to deal with the reference and his order should be quashed.
Section 431 provides:- "(1) Where any
living thing, article of food, drug seized under section 428 is not destroyed
by consent under sub- section (1) of section 429, or where an article of food
so seized which is perishable is not dealt with under sub- section(2) of that
section, it shall be taken before a Magistrate as soon as may be after such
seizure.
(2)If it appears to the Magistrate that any
such living thing is diseased or unsound or that any such food or drug is
unsound, unwholesome or unfit for human food or for medicine, as the case may
be............... he shall cause the same to be destroyed at the expense of the
person in whose possession it was at the time of its seizure, or to be
otherwise disposed of by the Commissioners so as not to be capable of being
used as human food or medicine Section 432 provides : - "When any'
authority directs in exercise of any powers conferred by this chapter, the
destruction of any living thing, food or any drug, or the disposal of the same
so as to prevent its being used as food or medicine, the same shall thereupon
be deemed to be the property of the Commissioners." The word
"forfeiture" is defined in Murray's Oxford Dictionary:-" The
fact of losing or becoming liable to deprivation of goods in consequence of a
crime, offence, or breach of engagement the penalty of the transgression"
or a "punishment for an offence". It was contended that in so far as
section 432 provided for the vesting of the condemned food or drug in the
Commissioners the owner of the property was divested or deprived of the
proprietary 771 rights therein and that the order made by the Magistrate under
section 431 (2) was thus an order of forfeiture of the property.
This contention in our opinion is unsound.
According to the dictionary meaning of the word "forfeiture" the loss
or the deprivation of goods has got to be in consequence of a crime, offence or
breach of engagement or has to be by way of penalty of the transgression or a
punishment for an off once. Unless the loss or deprivation of the goods is by
way of a penalty or punishment for a crime, offence or breach of engagement it
would not come within the definition of forfeiture. What is provided under
section 431(2) is the destruction of the food or drug which is unsound,
unwholesome or unfit for human food or medicine or the otherwise disposal of
the same by the Commissioners so as not to be capable of being used as human
food or medicine.
The vesting of such condemned food or drug in
the Commissioners which is provided by section 432 is with a view to facilitate
the destruction or the otherwise disposal of such food or drug by the
Commissioners and is in no way a forfeiture of such food or drug by the
Municipality. The condemned food or drug by reason of its being found unsound,
unwholesome or unfit for human food or medicine cannot be dealt with by the owner.
It must be destroyed or otherwise disposed of so as to prevent its being used
as human food or medicine. What the Municipal Commissioners are empowered to do
therefore is what the owner himself would be expected to do and what is ordered
to be done therefore cannot amount to a forfeiture of the property. The order
is not a punishment for a crime but is a measure to ensure that the condemned
food or drug is not used as human food or medicine.
That this is the true position is clear from
the pro- visions of Chapter XXIV of the Act which provides for penalties.
Sections 501 to 504 prescribe penalties for specific offences and section 500
prescribes generally penalties for the several offences therein mentioned.
Section 431 however does not figure therein.
100 772 Forfeiture of property is thus not
one of the penalties or punishments for any of the offences mentioned in the
Bengal Municipal Act. In the relevant provision in the rule of the' High Court
an order of sentence of death, transportation, penal servitude, forfeiture of
property or of imprisonment are grouped together. These orders are purely
orders by way of penalty or punishment for the commission of crimes or offences
and the forfeiture of property mentioned there is no other than the one which
is entailed as a consequence of the commission of a crime or offence. In order
that such forfeiture of property would bar the jurisdiction of the single Judge
it has to be a forfeiture of property which is provided by way of penalty or
punishment for the commission of a crime or offence. In spite of his labours
Shri N. C. Taluqdar has not been able to point out to us any provision of the
Bengal Municipal Act, 1932, which constitutes what is contemplated under
section 431(2), a penalty or punishment for the commission of a crime or
offence. The offence that the respondent could be charged with is defined in
section 421 of the Act and the punishment for that offence provided in section
500 is fine and not forfeiture.
We are therefore of the opinion that the order
of the District Magistrate, Bankura, under sections 431 and 432 of the Bengal
Municipal Act, 1932, dated 14th August, 1951, was not an order of forfeiture of
property within the meaning of the proviso to rule 9, Chapter II, Part I, of
the Rules of the High Court, and Chunder J. had the jurisdiction to entertain
and decide the reference. The result is that the appeal fails and is dismissed.
Appeal dismissed.
Agent for the appellant : Sukumar Ghose.
Agent for respondent: B. B. Biswas.
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