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PETITIONER: CHAIRMAN OF THE BANKURA MUNICIPALITY

       Vs.

RESPONDENT: LALJI RAJA AND SONS.

DATE OF JUDGMENT: 12/03/1953

BENCH: BHAGWATI, NATWARLAL H. BENCH: 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.

JUDGMENT: 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

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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  therefrom  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

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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  for.- feiture.   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

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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. 773