Wazir Chand Vs. The State of Himachal
Pradesh [1954] INSC 50 (22 April 1954)
MAHAJAN, MEHAR CHAND (CJ) MUKHERJEA, B.K.
BOSE, VIVIAN BHAGWATI, NATWARLAL H.
AIYYAR, T.L. VENKATARAMA
CITATION: 1954 AIR 415 1955 SCR 408
CITATOR INFO :
R 1957 SC 529 (4) R 1961 SC1570 (14) R 1982
SC 33 (41) RF 1986 SC 872 (82)
ACT:
Constitution of India, articles 19, 31,
370-Code of Criminal Procedure (Act V of 1898) ss. 51, 96, 98, 165, 523
-Whether seizure of property not sanctioned by ss. 51, 96 98 and 165 of the
Code infringes fundamental rights under Arts.
19 and 31 of the Constitution--Effect of
dismissal of application under s. 523 of the Code in such a case-Effect of Art.
370.
HEADNOTE:
The provisions regarding search and seizure
by the Indian police are contained in sections 51 , 96, 98 and 165 of the Code
of Criminal Procedure, 1898. None of these sections had any application to the
facts and circumstances of the case.
Any seizure by the Indian police of any
property of a citizen not sanctioned under the law stated above or under any
other law infringes the fundamental rights of the citizen guaranteed under Art.
19 and Art. 31 of the Constitution of India. This position is not affected even
if the citizen whose goods are so seized files an application under s. 623 of
the Code and his application is dismissed by the Magistrate.
In view of the provisions of Art. 370 it is
doubtful if an offence committed in Jammu and Kashmir could be investigated by
the police in India.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 129 and 130 of 1952.
409 Appeals by Special Leave from the
Judgment and Order dated the 26th December, 1951, of the Court of the Judicial
Commissioner for the State of Himachal Pradesh at Simla in Civil Misc. Petitions
Nos. 12 and 16 of 1951.
Achhru Ram, (P. S. Safeer and Harbans Singh,
with him) for the appellants.
C. K. Daphtary, Solicitor-General for India
(R. Ganapathy Iyer, with him) for respondent No. 1.
1954. April 22. The Judgment of the Court was
delivered by MEHR CHAND MAHAJAN C.J.-These are two connected appeals by special
leave against an order of the Judicial- Commissioner. Himachal Pradesh, dated
the 26th December, 1951, rejecting two applications for the issue of writs of
mandamus and certiorari under article 226 of the Constitution.
The facts giving rise to the two petitions,
out of which these two connected appeals arise, are these: One Trilok Nath was
running a business in Himachal Pradesh under the name and style of
"Himachal Drug Nurseries" for the extraction, collection and export
of medicinal herbs in the year 1949. He was a partner of Messrs. Prabhu Dayal
and Gowri Shanker of Jammu and Kashmir State in timber business carried on in
that State under the name and style of "The Kashmir Woods". It was
alleged by him that the business in Chamba was his exclusive business with
which the partnership firm "The Kashmir Woods" had no concern
whatsoever. Prabhu Dayal's case was that the firm "The Kashmir Woods"
was started by him in 1943 as his sole proprietary concern, that later on he
took Trilok Nath Mahajan as a partner in this concern, that in the year 1949
Sardar Bhagwan Singh induced the partners of this firm to take up the line of
crude drugs and herbs which was his line, that a new firm "Himachal Drug
Nurseries" was started as a child concern of "The Kashmir Woods"
with Bhagwan Singh as one of the partners, that after preliminary investigation
it was decided to take up this work at Chamba and in pursuance of this decision
two leases 53 410 of two forest divisions were taken on behalf of the Jammu
firm, one in the name of Bhagwan Singh and another in the name of Trilok Nath
but the finance for this undertaking was supplied by the parent firm at Jammu.
It was alleged that subsequently Trilok Nath manipulated the Jammu books
showing a bogus investment of his elder brother Wazir Chand amount- ing to Rs.
30,000 in the firm "Kashmir Woods" and that fraudulently and by
manipulating the- books and by entering into certain agreements Trilok Nath
made Wazir Chand the sole owner of "Himachal Drug Nurseries" and
transferred the Chamba concern to him without the knowledge of the other
partners. These assertions were not accepted by Wazir Chand or Trilok Nath.
Their case was, that Trilok Nath was the -sole owner of the Chamba concern,
that he obtained the leases in his own name and not for the Jammu firm from the
Chamba forest department, first in the year 1949, and then in the year 1950,
that as he had no capital of his own, he borrowed a sum of Rs.,30,000 from his
brother and made him a partner with him in this business and that as later on
he was unable to contribute his share of the capital, the part nership was
dissolved on 31st August, 1950, and in consideration of a sum of Rs. 20,000 he,
Trilok Nath, relinquished and transferred by means of a stamped deed of
dissolution made on 10th December, 1950, all ,his, rights in the Chamba concern
to Wazir Chand who thus became the sole owner of all the goods belonging to
this concern in Chamba and came into possession. of the same.
On the 3rd April, 1951, Prabhu Dayal lodged a
report with the police at Jammu that Trilok Nath had prepared duplicate
accounts for production before the income-tax authorities, and that he had
committed an offence of embezzlement under section 406 of the Indian Penal
Code. The Jammu and Kashmir State police took cognizance of the case and
appointed Amar Nath, sub-inspector of police, to make investigation.
During the investigation the Jammu police
came to Chamba on 25th and 26th April, 1951, and with the assistance of the
Chamba police seized 269 411 bags of medicinal herbs worth about Rs. 35,000 and
in actual physical possession of Wazir Chand or his men without reporting to,
or obtaining orders from, any ,magistrate or any other competent authority. The
goods were handed over to different superduper at different stations in the
State of Himachal Pradesh. Wazir Chand vehemently protested against these
seizures alleging that the action taken was illegal and without jurisdiction
and that the goods should be released but his representations had no effect.
In the first week.of July, 1951, the Chamba
police again, at the instance of the Jammu police, seized 25 bags of dhup from
and in the possession of Wazir Chand and these were also handed over to the
some superdars. On the 19th July, 1951, the District Magistrate of Jammu wrote
to the District Magistrate of Chamba asking that the goods seized, from the
"Himachal Drug Nurseries" be handed over to. the Jammu and Kashmir
State police. This request has so far not been complied with.
On the 21st August, 1951, Wazir Chand made-
an application under article 226 of the Constitution of India to the Judicial
Commissioner of the State of Himachal Pradesh at Simla praying for the issue of
one, or more writs in the, nature of mandamus directing the :respondents to
order the release of the seized goods and to refrain from passing any orders
about the extradition of these goods.
During the pendency of this petition another
45 maunds of medicinal herbs were seized by the Chamba police at the instance
of the Jammu police. This seizure was challenged by a second petition on 20th
September, 1951, under article 226 of the Constitution.
The Judicial Commissioner disposed of both
these petitions by a single judgment. He declined to grant any of the reliefs
asked for by the appellant. The ground of the decision appears from the
following quotation from his judgment:- "In order to find whether the,
entries in those books of account were genuine or forged, or what the effect of
those entries on the alleged right of Wazir 412 Chand was, or whether the
agreements set up by Wazir Chand were genuine or for consideration, it would be
necessary that all these persons, and such witnesses as they might deem it
necessary to produce in support of their respective allegations, should appear
in the witness box. A number of affidavits have been filed on behalf of either
party-those of Wazir Chand and certain alleged employees of the Himachal Drug
Nurseries on behalf of the petitioners, and of Prabhu Dayal, Gauri Shankar,
Bhagwan Singh and a head- constable of the Jammu and Kashmir police on behalf
of the respondents;
but the truth or falsity of the contents of
those affidavits cannot be ascertained without the deponents being subjected to
cross-examination...... I would not go so far as to hold that the petitioners
have failed to prove that they, have any right, title or interest in the goods
seized. It will not be fair to do so in the present summary proceedings.
But this much must certainly be said that it
is not possible for this Court, on the material placed before it, or which
could possibly be placed in these summary proceedings, to come to a finding
whether the petitioners have the right to claim the reliefs prayed- for by them
- The proper remedy for them therefore is not by way of a petition under
article 226 of the, Constitution of India, but by any other action, e.g. a
civil suit, which may be open to them." It was contended before us that
the learned Judicial Commissioner was in error in thinking that in order to
determine the legality of the seizures and to determine the point whether there
had been any infringement of the petitioner's fundamental rights it was
necessary to determine the true nature of the title in the goods seized and
that the petitioner could not be granted any relief till he was able to
establish this. It was argued that the good shaving been seized from the actual
possession of the petitioner or his :servants, the Chamba ,concern, being
admittedly under the exclusive control of Trilok Nath or Wazir Chand, the
determination of the question whether Wazir Chand had obtained possession
fraudulently was not relevant to this inquiry, and that the only point that
needed consideration was 413 whether the seizures were under authority of law
or otherwise, and if they were not supported under any provisions of law, a
writ of mandamus should have issued directing the restoration of the goods so
seized.
It seems to us that these, contentions are
well founded.
The Solicitor-General appearing for the
respondents was unable to draw our attention to any provision of the Code of
Criminal Procedure or any other law under the authority of which these goods
could have been seized by the Chamba police at the instance of the Jammu
police. Admittedly these seizures were not made under the orders of any
magistrate. The provisions of the Code of Criminal procedure authorizing the
Chamba police to make a search and seize the goods are contained in sections
51, 96, 98 and 165. None of these sections however has any application to the
facts and circumstances of this case. Section 51 authorizes in certain
circumstances-the search of arrested persons. In this case no report of the
commission of a cognizable offence had been made to the Chamba police and no
complaint had been lodged before any magistrate there and no warrant had been
issued by a Chamba magistrate for making the search or for the ;arrest of any
person. That being so, sections 51, 96 and 98 had no application to the case'.
Section 165 again is not attracted to the
circumstances of this case because it provides that if an officer in charge of
a police station has reasonable grounds for believing that anything necessary
for the purposes of an investigation into any offence which he, is authorized
to investigate, may be found in any place within the limits of the police
station of which he is in charge, or to which he is attached, and that such
thing cannot in his opinion be otherwise obtained without undue delay, such
officer may, after recording in writing the grounds of his belief and
specifying in such writing, so far as possible the thing for which search is to
be made, search or cause search to be made, for such thing in any place within
the limits of such station. The Chamba police was not authorized to investigate
the offence regarding which a report had been made to the Jammu and Kashmir
police. It is doubtful whether in view of the provisions of article 370 of the
Constitution any offence committed in Jammu and Kashmir could be investigated
by 414 an officer in charge of a police station in the Himachal Pradesh. The
-procedure prescribed by the section was not followed. the Jammu and Kashmir
police had no jurisdiction or authority whatsoever to carry out investigation
of an offence committed in Jammu and Kashmir in Himachal territory without the
authority of any law or under the orders of any magistrate passed under
authority of any law. No such authority was cited before us. The whole affair
was a hole- and-corner affair between the officers of the Kashmir police and of
the Chamba police without any reference to any magistrate. It is obvious that
the procedure adopted by the Kashmir and the Chamba police was in utter
violation of the provisions of law and-could not be defended under cover of any
legal authority. That being so, the seizure of these goods from the possession
of the petitioner or his servants amounted to an infringement of his
fundamental rights both under article 19 and article 31 of the Constitution and
relief should have been granted to him under article 226 of the Constitution.
All that the Solicitor-General could urge in
the case was that on the allegation of Prabhu Dayal, the goods seized in Chamba
concerned an offence that had been committed in Jammu and being articles
regarding which an offence had been committed, the police was entitled to seize
them and that Wazir Chand had no legal title in them. Assuming that that was
so, goods in the possession of a person who is not lawfully in possession of
them cannot be seized except under authority of law, and in absence of such
authority, Wazir Chand could not be deprived of them. On the materials placed
on this record it seems clear that unless and until Prabhu Dayal proved his
allegations that the Chamba concern was part and parcel of the Jammu
partnership firm (which fact has been denied) and that Trilok Nath who was
admittedly one of the partners had no right to put Wazir Chand in possession of
the property, no offence even under section 406 could be said to have been
committed about this property. The Jammu police without having challenged any
of the accused before a magistrate in Jammu, and without having obtained any
orders of extradition from a magistrate (if the offence was extraditable) could
not proceed to Chamba 415 and with the help of the Chamba police seize the
goods and attempt to take them to Jammu by a letter of request written by the
District Magistrate of Jammu to the District Magistrate of Chamba.
Lastly it was argued that the petitioner made
an application under section 523, Criminal Procedure Code, to the magistrate
and that application was dismissed and that a petition for revision against
that order was still pending a and that when another remedy had been taken
article 226 could not be availed of. 'This contention cannot be sustained,
firstly in view of the fact that section 523 has no application to the facts
and circumstances of this case, and the magistrate had no jurisdiction to
return these goods to the petitioner. Secondly, the revision application has
been dismissed on the ground that there was no jurisdiction in this case to
grant relief to the petitioner under section 523.
For the reasons given above we allow this
appeal, set aside the order of the Judicial Commissioner and direct an
appropriate writ to issue directing the restoration to the petitioner of the
goods seized by the police. The appellant will have his costs of the appeals
and ,those incurred by him in the Court of Judicial Commissioner.
Appeal allowed.
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