Kasiram Marwari vs Makhanji Dwarka Prasad

James, J.—The petitioner is a trader in Kendu leaves which are used for the manufacture of biris. The opposite party has taken a lease from the zamindar of Kolabira of the right to collect leaves in jungle and waste lands of the zamindari. If any leaves are grown on raiyati land, the raiyats have the right to dispose of them, but it is said that the exclusive right to dispose of the leaves in jungle and waste lands is with the zamindar. There have been frequent quarrels between the petitioner and the monopolist on the question of whether when the petitioner purchases Kendu leaves from raiyats, he is purchasing leaves which are produce of jungle or waste land or he is purchasing leaves which come from raiyati land.

The petitioner was recently prosecuted for theft on account of certain leaves in his possession, but the case ended in acquittal in the Sessions Court. The monopolist had in the meantime applied to the Subdivisional Magistrate to seize the Kendu leaves in the petitioner''s phandis in various villages on the ground that they had been collected from jungle and waste lands. The Police accordingly seized a large number of leaves and the Subdivisional Magistrate finding these leaves in his possession had to decide what must be done with them. He held a formal enquiry as a result of which he came to the conclusion that it could not be proved that the leaves came from jungle and waste land, and he therefore directed that they should be returned to the petitioner. The District Magistrate acting u/s 520, Criminal P.C., set aside this order, directing that the leaves should be sold and that the sale proceeds should be retained in criminal deposit awaiting the derision of a civil Court as to their ownership. The District Magistrate has remarked that a civil suit on these matters is still going on, but it does not appear that that suit has any reference to these Kendu leaves.

Mr. Chaterji on behalf of the monopolist, points out that in order that the District Magistrate should have jurisdiction to dispose of property, it is only necessary that he should find that it appears that an offence has been committed in respect of that property, and he suggests that it is not necessary that the property should be proved to have been stolen. This, as a general statement of law, is true, and cases may from time to time arise where it may be perfectly manifest that property discovered in some search is stolen property, although the actual owner may not be known; but in the present case if the property is stolen property, it properly belongs to the monopolist, and if it is not, it belongs to the petitioner. The person who claims to be the owner is before the Magistrate, and if he desires that the Magistrate should treat anybody as the owner other than the person who was in possession of them, he should prove that the property is his.

The existence of a monopoly of this kind cannot be held to cast upon another person the onus of proving that Kendu leaves in his possession were not taken from the jungle; and if the monopolist is unable to prove that the property is stolen, the presumption of law is that it is not. I consider that that presumption ought to have been applied in the present case, and even if parties talk of going to the civil Court, the Magistrate ought not by the application of Section 520, Criminal P.C., to make an order tantamount to attachment before judgment in a civil suit. The petition is allowed and the leaves may be returned to the petitioner.