Mani Ram and Another vs Emperor

Varma, J.—This is a petition against an order of confiscation of a certain amount of mica u/s 517, Criminal P.C. The petitioners Mani Ram and Babulall Ram of village Chandowari, Police Station Ganwan, District Hazaribagh, are holders of mica miner''s license No. 45(G) on Jharnapahari mine. On 14th November 1935 the Inspector of Mica Accounts visited their godown and on verification of the stock of mica kept therein found that 2 maunds and 6 seers of crude mica had not been entered in the stock book but had been kept in a separate room not ordinarily used for storing mica. He seized the 2 maunds and 6 seers of mica and on the basis of his report the licensees were prosecuted u/s 17(2)(a), Bihar and Orissa Mica Act. They pleaded guilty and were sentenced to pay a fine of Rs. 90 each or in default to suffer one month''s simple imprisonment by the Subdivisional Officer of Giridih. After the disposal of the case the licensees asked for the return of the mica which had been taken into custody but there was opposition by the Inspector of Mica Accounts who asked for its confiscation. The learned Subdivisional Officer ordered the mica to be returned holding that he had no right to confiscate it under any provision of the Mica Act. The Inspector of Mica Accounts then asked for a review of the said order. The learned Subdivisional Officer sent the matter to the Deputy Commissioner of Hazaribagh as he felt he could not review his own order. The learned Deputy Commissioner then passed the order against which the petitioners have moved this Court. The petition of complaint filed by the Inspector of Mica Accounts dated 3rd February 1936 requested the Subdivisional Officer of Giridih to summon the petitioners u/s 17(2)(a), Mica Act, to take their trial according to law. Along with the petition of complaint a copy of the inspection note of the Inspector of Mica Accounts was also attached. The learned Deputy Commissioner while dealing with the question whether the mica in question could be dealt with u/s 517, Criminal P.C., says:

In my opinion the learned Subdivisional Magistrate was wrong in holding that the mica seized by the Inspector of Mica Accounts could be dealt with only under the Bihar and Orissa Mica Act. Section 517, Criminal P.C., refers to the disposal of property regarding which any offence has been committed and certainly applies to the present case which is covered by the phrase ''regarding which any offence appears to have been committed'' occurring in Section 517, Criminal P.C., One of the methods of disposal in Section 517, Criminal P.C., is confiscation. The mica in question can therefore be confiscated under that section.

The questions that we have to consider in this case are, firstly, whether the mica confiscated was a property regarding which any offence appears to have been committed when the complaint was u/s 17(2)(a) and the conviction was also under that section, and secondly, whether it was a fit case in which confiscation should be ordered. Section 17(2)(a) of the Mica Act, runs as follows:

Any licensee or registered proprietor who fails to keep any account required to be kept by Section 10 or keeps an account which does not contain the particulars required by the said section or which is false in any material particular shall on conviction by a Magistrate of the First class be punishable with fine which may extend to five hundred rupees.

In order to understand the nature of the complaint made, one will have to refer to the report of the Inspector of Mica Accounts who incorporated his report as a part of his complaint. From the examination of the accused it appears that a reference to this report was made because the learned Magistrate who examined the accused put the following question: The question was "Do you accept the statement contained in the report of the Inspector?" It also appears that his chief complaint was that the accounts were not properly kept and he gives various instances in which sometimes the stock in the godown was less than what was shown in the accounts and sometimes it was in excess. The report is dated 14th November 1935. On that date he found:

Quantity as per Quantity actually stock book found in the godown M.S. Ch. M.S. Ch. Crude Mica 14 34 12 17 0 12 Out mica (slabs) 3 85 12 3 86 0

On 29th September 1935, according to the report of the Inspector, the closing balance of crude mica should have come to 29 mds. 4 seers instead of 27 mds. 4 seers as had been noted in the stock book. On 1st October 1935, the closing balance of crude mica should have come to 33 mds. 21 seers and 8 chs. instead of 33 mds. 31 seers and 8 chs. as noted in the stock book.

On 15th October 1935 the closing balance should have come to 13 mds. 13 seers instead of 19 mds. 33 seers noted in the stock book. On 2nd November 1935 the closing balance should have been 36 mds. 28 seers only instead of 36 mds. 38 seers as shown in the accounts. In the case of cut mica again, the balance on 24th October 1935 was noted as 9 mds. 36 seers and 14 chs. The balance should have come to 9 mds. 26 seers and 14 chs. The Inspector of Mica Accounts giving these examples, along with the example which is the subject matter of the present case, found on the date of inspection an excess of 2 mds. 6 seers of crude mica. From this it is clear that the complaint of the Inspector of Mica Accounts was chiefly u/s 17(2)(a), Mica Act, with regard to the wrong entry of accounts. Sections 23 and 24, Mica Act are the relevant sections which deal with the seizure, detention and search of mica by any officer authorized in this behalf by the Local Government. They are as follows:

S. 23,--(1) Any officer authorized in this behalf by the Local Government may seize any mica which is removed from any place mentioned in Sub-section (1), Section 14 by a person who does not carry a pass as required by that sub-section or who does not produce such pass when required to do so, and may detain such mica at the nearest police station until the ownership thereof is established to the satisfaction of any Magistrate authorized in this behalf by the District Magistrate. (2) If the ownership of such mica is disputed or if the ownership thereof is not established to the satisfaction of the Magistrate, he shall refer the matter to the District Magistrate. If any claim made to the ownership of such mica is rejected by the District Magistrate or if no claim is made within one month from the date of detention, the mica shall be forfeited to Government: Provided that when any such Claim is rejected, the claimant may, within three months of the order rejecting the claim, apply to the civil Court to set aside such order and the Court, if satisfied that such claimant is the owner of the mica shall make an order for the delivery thereof to him.

S. 24.--(1) Whether any officer authorized in this behalf by the Local Government has reason to believe that an offence punishable under Clause (a), (b), (c) or (d), Sub-section (1), or Clause (b), Sub-section (4), Section 17, or Sub-section (1), Section 18 has been or is being committed in respect of any mica and that such mica is to be found in any building or place, and that a search warrant cannot be obtained without affording the offender an opportunity of concealing or removing such mica, he may after recording the grounds of his belief, at anytime by day or night, enter and search such building or place and seize any mica found therein, in respect of which he has reason to believe that any offence referred to in this sub-section has been or is being committed. Provided that no police officer whose rank is lower than that of an Inspector of Police shall be authorized to exercise the powers conferred by this section.

(2) Every officer seizing any mica under this section shall: (a) prepare a list of the mica so seized and deliver a copy thereof signed by him to the person found in possession of such mica; (b) enclose the mica seized in a package and place on such package a mark indicating that the mica therein contained has been seized; and (c) as soon as may be after such seizure, make a report thereof to the Magistrate having jurisdiction to try the offence on account of which such seizure has been made.

(3) Upon receipt of any such report the Magistrate shall with all convenient despatch take such measures as may be necessary for the arrest and trial of the offender and the disposal of the property according to law.

The power of seizure and search referred to in Section 24, Mica Act, relates to offences punishable under 01. (a), (b), (c) or (d), Sub-section (1), or 01. (b), Sub-section (4), Section 17, or Sub-section (1), Section 18. Neither of these two sections refer to Section 17(2)(a). From a perusal of Section 17(1) and the relevant sub-section it appears that Section 17(1) deals with oases in which persons are held liable for being in possession of mica or for selling mica without proper authority. It is also clear that these sub-sections do not apply to an offence committed u/s 17(2)(a). Now the question is whether Section 520 read with Section 517, Criminal P.C., can be utilized for the purpose of confiscating the mica found in the possession of a person holding a proprietor''s license in excess of the amount shown in his account book. Mr. Baldeo Sahay appearing on behalf of the petitioners urges that Section 517, Criminal P.C., does not apply inasmuch as the origin of possession in this case was not unlawful, and secondly, that even if it did, it was not a case in which confiscation should have been ordered. Section 517, Criminal P.C., refers to any property or document produced before a Court or in its custody or regarding which any offence appears to have been committed or which has been used for the commission of any offence. An offence has been defined in the Criminal Procedure Code as any act or omission made punishable by any law for the time being in force; it also includes any act in respect of which a complaint may be made u/s 20, Cattle Trespass Act, 1871: Section 4, 01. (c), Criminal P.C. Therefore, if the other conditions are satisfied, I see no objection to steps being taken u/s 517, Criminal P.C.

Mr. Baldeo Sahay then refers to various instances in which orders u/s 517 were held to be invalid. In Lakshmi Narayan Dutt v. Inspector Ureagan 9 CWN 597 the accused was convicted u/s 182, I.P.C. for having given false information charging one B with the theft of some ornaments. The ornaments had been found upon search in the accused''s own premises. "Whilst convicting the accused the Magistrate passed an order confiscating the ornaments. This order was set aside by the High Court and in course of their judgment their Lordships observed that the object of the section is to enable the Magistrate to direct property to be given to some person to whom it appears to belong or to'' allow it to continue in the possession of B, the person in whose possession it was found or to make some order of that character,

In Abinash Chandra Bhattacharjee v. Emperor (1907) 34 Cal 986 it was held that a printing press could not be said to have been used for the commission of the offence of sedition inasmuch as the offence was in the publication and not printing, the ''press being a remote instrument. In this case the prosecution alleged that the press was used for the, publication of seditious matters. In Govindaraja Padayachi v. Emperor AIR 1916 Mad 839 a habitual thief was found to be in possession of some property which he claimed to be his own and the Magistrate ordered the confiscation of the property. Their Lordships of the Madras High Court held that as there was no finding that an offence had been committed or that it appeared from the record that an offence had been committed with respect to the property, the order of the Magistrate was wrong.

The learned Assistant Government Advocate on behalf of the Crown urges that u/s 17, 01. (4), Mica Act, the Inspector of Mica Accounts has authority to seize the mica and after seizure, if it was produced before the Court or was in the custody of the Court, the Court could pass any order it thought fit. On that point, I am afraid, the B materials on record are inconclusive. The mica no doubt was seized by the Inspector of Mica Accounts, but the order-sheet does not show that it was made a material exhibit in the case and it could not have been so because no evidence was led in the case.

The only material upon which the learned Assistant Government Advocate relies is an application on behalf of Mani Ram and Babulal Ram, dated the 15th April 1936, where they alleged that 2 maunds and 6 seers of crude mica was seized and "is in custody". This expression may mean that it was in the custody of the Inspector of Mica Accounts, but the more important argument advanced by the Assistant Government Advocate is that the two maunds and 6 seers of mica was a property in regard to which an offence u/s 17(2)(a), Mica Act, was committed because, he says, if this excess quantity was not there the account could not have been found to be false or wrong. But from the wording of Section 17(2)(a) it is clear that the offence it deals with is the offence of keeping wrong accounts and from the report of the Inspector of Mica Accounts it also appears that sometimes the account showed the mica to be in excess of the amount entered and sometimes to be less than the amount entered. So it is clear that an offence u/s 17(2)(a) when committed is in respect to the account book and not in respect to the excess amount of mica found.

He has referred to two or three cases. In Sheik Dawood v. Velayuda Semmanotti AIR 1928 Mad 194 their Lordships of the Madras High Court held that property regarding which an offence had been committed included within its meaning moveable property regarding the possession of which a quarrel or a fight is begun whatever may be the offence that might ultimately be committed in the course of the quarrel or the fight. Here the quarrel was with regard to some boats and nets and it was with regard to this property that the offence had been committed. There is no difficulty in understanding that case. In Philip Spratt and Another Vs. Emperor, certain books belonging to the accused, who were convicted u/s 121-A, Penal Code, were seized from their possession as they supplied materials for writing articles which came under the purview of Section 121-A, Penal Code. In the course of the judgment it was observed:

It is obvious that these works would be works which would supply the material on which the accused could write the articles on Russia which are among the activities of which he had been found guilty.

It appears to me that this decision has gone a little beyond what is contemplated in Section 517, Criminal P.C. Instances may be cited in which the Courts have held that certain property was a property with regard to which an offence was committed and there were such with regard to which an offence was not committed. Just to have one more example, I refer to the case Emperor v. Ilahi Baksh (1904) 1 Cri LJ 38 where the pony, harness and cart of the accused who was convicted u/s 279, Penal Code, were held to be property which would not be dealt with u/s 517, Criminal P.C. In dealing with the question whether the discretionary power of confiscation vested in the Court should be exercised in the present case or not, the learned Deputy Commissioner came to the conclusion that he should exercise this power after making the following observation:

The circumstances of the present case leave no manner of doubt that the mica in question was obtained by illicit means, and this appears to be a fit case in which the discretionary power given by the section should be exercised.

There is no evidence on the point as no evidence was led in the case, and secondly, from the nature of the complaint and the question put to the accused, it is clear that they were not asked to meet a charge of having obtained mica by illicit means. Considering the circumstances of the present case, the offence of which the accused were convicted and the finding of the Deputy Commissioner that the mica was a property with regard to which an offence was committed, I am of opinion, in view of the reasons given above, that on the particular facts of this case the order of confiscation was not proper. I would therefore set aside the order of the learned Deputy Commissioner and restore the order of the Magistrate who ordered the mica to be returned to the accused.

Agarwala, J.

I agree.