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PETITIONER: THAKUR DAS (DEAD) BY L. Rs

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH

DATE OF JUDGMENT14/10/1977

BENCH: DESAI, D.A. BENCH: DESAI, D.A. GOSWAMI, P.K. UNTWALIA, N.L.

CITATION:  1978 AIR    1            1978 SCR  (1) 732  1978 SCC  (1)  27

ACT: Essential Commodities Act, 1955-S.6C-Scope of Sessions Judge appointed  as  an appellate authority Sessions Court  if  an inferior  criminal court in relation to the High Court-If  a revision application would lie to the High Court against  an order made under s.6C-Revisional jurisdiction of High  Court Scope of.

HEADNOTE: Section  6A of the Essential Commodities Act,  1955  confers power  on  the Collector of the District to  confiscate  any essential commodity seized under s.3. Under s. 6C the  State Government  is required to appoint a judicial  authority  to entertain   and   bear   appeals  against   the   order   of confiscation.    The   appellate  against   the   order   of confiscation.   The  appellate  authority  is  empowered  to modify or annul the order of confiscation. On  the ground that the licensee had committed a  number  of irregularities  in  contravention  of  the  Madhya   Pradesh Foodgrains  Dealers  Licensing Order,  1965,  the  licensing authority,  in addition to cancelling the licence issued  to him   and   forfeiting  the   security   deposit,   directed confiscation  of  the foodgrains seized from  the  licensee. Against that part of the order by which the foodgrains  were confiscated, the licensee appealed to the Sessions Judge who was  the judicial authority constituted under s. 6C  of  the Act.  Holding that it was not just to confiscate the  grains the judicial authority directed sale of the seized grains at controlled  rates  and  refund  of the  sale  price  to  the licensee.   On  revision application by the state  the  High Court  held  that  confiscation  was  just  and  proper  and restored the Collector’s order. On  further appeal to this Court it was contended on  behalf of the licensee that (i) the judicial authority  constituted under s. 6C is not an inferior criminal court subordinate to the  High  Court  and, therefore, is  not  amenable  to  its revisional  jurisdiction under s. 435 read with s.  439  Cr. P. C., 1898 and (ii) that the High Court, in exercise of its revisional  jurisdiction, was not justified  in  interfering with the order of the appellate authority merely because it was of opinion that the confiscation was justified. Allowing the appeal,

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HELD : (1) (a) Though the Sessions Judge was appointed as an appellate  authority  what the State Government did  was  to constitute an appellate authority in the Sessions Court over which  the Sessions Judge presides.  The Sessions  Court  is constituted  under  the  Code  of  Criminal  Procedure   and indisputably it is an inferior criminal court in relation to the  High Court.  Therefore, against an order made under  s. 6C,  a revision application would lie to the High Court  and the   High  Court  would  be  entitled  to  entertain   that application under ss. 435 and 439. (fr.  P. C. [739 A-B] (a)  When  the  Sessions  Judge  was  appointed  a  judicial authority it could be said that he was persona designate and was not functioning as a Court. [737 E] (b)  The   expression   ’Judicial’   qualifying   the   word ’authority’  clearly indicates that authority alone  can  be appointed to entertain and hear appeals under s. 6C on which was  conferred  the  judicial  power  of  the  State.    The expression  "judicial power of the State" has to  be  under- stood  in contradistinction to executive power.   Under  the Constitution courts are the repository of judicial power  of the State.  By using the expression "judicial authority"  in s. 6C it was clearly indicated that the appellate  authority must be one such preexisting authority which was  exercising judicial power of  the State. If   any  other authority  was to be constituted as persona designata there was no    purpose in qualifying the word "authority" by the specific adjective "judicial [736 D-F] 733 (c)  Secondly  the concept of appeal inheres  hierarchy  and the  appellate authority, broadly speaking, would be  higher than  the  authority against whose order the appeal  can  be entertained.  Sessions Judge is the highest judicial officer in  the District and this situation would  provide  material for determining appellate authority. [736 G-H]  (d) A look at the legislative history of the Act shows that under the Defence of India Rules, 1962 an appeal against  an order  of seizure of essential commodities lay to the  State Government.  Amending Act 25 of 1966 (by which ss. 6A to  6D were  added)  introduced a basic change which  was  that  an order  of confiscation being penal in character a person  on whom   penalty  is  imposed  is  given  an  opportunity   of approaching   a  judicial  authority.   While   before   the amendment  an appeal lay to the executive forum,  after  the amendment  an  appeal lies to the judicial  authority  which clearly envisages that a pre-existing judicial authority has to be appointed appellate authority under s. 6C. [737 A-C] (e)  A  seizure of an essential commodity on the  allegation that  the relevant licensing order is violated  would  incur three   penalties  :  (1)  cancellation  of   licence;   (2) forfeiture  of  security deposit; and  (3)  confiscation  of seized commodity.  In respect of the first two penalties  an appeal  lies to the State Government but in respect  of  the third,  though prior to the introduction of s. 6C an  appeal lay to the State Government a distinct departure is made  in providing  an  appellate forum which must  qualify  for  the description and satisfy the test of judicial authority. [737 C-D]  (f) Even if the judicial authority appointed under s. 6C is the  Sessions Judge it would only mean the  Judge  presiding over  the  Sessions Court and discharging the  functions  of that  Court.   If by the Sessions Judge is meant  the  Judge presiding over the Sessions Court and that is the  appointed appellate  authority, the conclusion is inescapable that  he was not persona designata which expression is understood  to mean  a person pointed out or described as an individual  as

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opposed to a person ascertained as a member of a class or as filling a particular character. [737 F-G] Central  Talkies Ltd. v. Dwarka Prasad AIR 1961 SC  606  and Ram Chandra v. State of U.P. AIR 1966 SC 1888, referred to. Public  Prosecutor (A.P.) v. L. Ramayya (1975) Criminal  Law Journal 144, approved. State,  of Gujarat v. C. M. Shah 1974 Criminal  Law  Journal 716, State of Madhya Pradesh v. Vasent Kumar (1972) Jabalpur Law  Journal  80, and State of Mysore v. Pandurang  P.  Naik [1971] 1 Mysore Law Journal 401 not approved. (2)  The  High Court was not justified in  interfering  with the order of confiscation.    [741 E] (a)  The  High Court could not have lightly interfered  with the   order  of  the  Sessions  Judge  setting   aside   the confiscation  especially  in  exercise  of  the   revisional jurisdiction  under  s. 439 without marking out any  of  the well  recognised grounds for interfering in exercise of  its revisional jurisdiction. [741 C-D] (b)  For  the  purposes  of  satisfying  itself  as  to  the correctness, legality or propriety of the finding,  sentence or  order passed or recorded etc., by an  interior  criminal court  the High Court, under s. 435 Cr.  P. C. can call  for and examine the record of any proceeding.  While  exercising revisional jurisdiction under s. 439 the High Court has  the same power as is conferred on it as a court of appeal  under s. 423, subject to certain exceptions. [740 B-C] (c)  The revisional jurisdiction of the High Court under  s. 439   appears   to  be  co-extensive  with   the   appellate jurisdiction.  In a number of cases this Court held that the revisional jurisdiction conferred upon the High Court  under s.  439 is not lightly to be exercised but can be  exercised only  in  exceptional  cases where the  interest  of  public justice  requires interference or where there is  a  glaring defect  in  the procedure or there is a  manifest  error  on point  of  law and consequently there has  been  a  flagrant miscarriage of justice. [740 D-E] 734 Dr. Stephens v. Nosibolla (1951) SCR 284; Jagendra Nath  Jha v.  Polai Lal Biswas [1951] SCR 676; K Chinnaswamy Reddy  v. State  of  Andhra Pradesh [1963] 3 SCR 412  and  Amar  Chand Agarwalla  v. Shanti Bose & Another etc. [1973] 3  SCR  179, followed. (d)  In  the instant case the Sessions Judge, in  exercising appellate jurisdiction, examined the penal character of  the confiscation order and held that in the circumstances of the case  confiscation was not just and proper.   The  appellate authority  had  power and jurisdiction to decide  the  same. The  High  Court,  on the other  hand,  took  an  altogether different  view and held that these defaults should  not  be lightly viewed,. [741 A-B]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 109 of 1974. Appeal  by Special Leave from the Judgment and  Order  dated 26-7-73  of the Madhya Pradesh High Court at Indore in  Crl. Revision No. 90/73. S.   K. Gambhir and Miss S. Ramakhini for the Appellants. I.   N. Shroff and H. S.  Parihar for the Respondent. The Judgment of the court was delivered by DESAI,  J.-This appeal by special leave is directed  against the order made by the High Court of Madhya Pradesh, Jabalpur in Criminal Revision No. 90 of 1973 setting aside the  order

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made  by the Sessions Judge, Mandsaur Division  in  Criminal Appeal  No.  104  of  1972 against the  order  made  by  the Collector  of  Mandsaur confiscating the foodgrains  in  the quantity of 484 quintals 74 kg. of wheat and 135 quintals 36 kg.  of rice under section 6A of the  Essential  Commodities Act, 1955. The  petitioner Thakur Das son of Lila Ram Sindhi  who  died pending  the petition, was a licensed dealer  in  foodgrains having   obtained  a  licence  under  the   Madhya   Pradesh Foodgrains  Dealers  Licensing Order, 1965 (for  short  ’the order’) issued under section 3 of the Essential  Commodities Act,  1955  (’Act’ for short).  The licence enabled  him  to store for sale and sell foodgrains set out in Schedule I  to the  Order.   By the terms of the licence the  licensee  was obligated  to maintain a register of daily accounts  in  the prescribed  form  for each of the foodgrains for  which  the licence  was  issued and there was a further  obligation  to complete the accounts for each day on the day to which  they relate  unless prevented by reasonable cause, the burden  of proving  which  would  be upon him.   The  licensee  had  to deposit  at  the  commencement of  licence,  the  amount  of security  deposit  as provided by clause (6) of  the  Order. Clauses (8) and (9) conferred power on the licensing  autho- rity-Collector  of the District in this case--to cancel  the licence  and  to  forfeit  the  security  in  the  event  of contravention of any condition of licence. The  Food Inspector on a visit to the licensed  premises  on 13th  August  1972  found  certain  irregularities  in   the accounts  and submitted a report on the basis of  which  the licensing authority issued notice dated 21st August 1972  to the licensee calling upon him to show cause within 24  hours why  the  licence  should not  be  cancelled,  the  security deposit  may not be forfeited and the seized foodgrains  may not  be  confiscated.  Ultimately  the  licensing  authority directed confiscation of the seized 735 foodgrains,  cancelled the licence issued in favour  of  the licensee and forfeited the security. deposit.  The  licensee appealed to the judicial authority constituted under s.  6C of the Act, being the Sessions Judge, Mandsaur, against that part  of  the  Order by which  the  seized  foodgrains  were ordered  to be confiscated.  The judicial authority  was  of the  opinion that : ’in the facts and circumstances  of  the case  cancellation of the licence and the forfeiture of  the security  deposit is quite sufficient and it is not just  to confiscate  the  grains worth Rs. 50,000/- for  the  alleged contravention’  and directed that the seized  foodgrains  be sold  to  some licensed dealer at controlled price  and  the price so realisee be refunded to the licensee.  The State of Madhya  Pradesh  and  the Licensing  Authority  preferred  a revision application to the High Court against the order  of the  judicial authority.  The High Court disagreed with  the opinion of the Sessions Judge and held that in the facts and circumstances ,of the case confiscation was just and  proper and  accordingly  set  aside  the  order  of  the  appellate authority and restored the order of the Collector. Two  contentions were raised before the High Court  and  the same  were canvassed before us.  It was contended : (1)  the judicial authority constituted by the State Government under s.  6C  of  the Act to hear appeals  against  the  order  of confiscation  that  may be made by the  licensing  authority under  S. 6A not an inferior criminal court  subordinate  to the  High Court and amenable to the revisional  jurisdiction of the High Court under s. 435 read-with s. 439 of the  Code of Criminal Procedure; (2) in the facts and circumstances of

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this  case, the High Court was not justified in  interfering with the order of the appellate authority who had  exercised its discretion one way merely because the High Court took  a different view of the matter, Section  6A  of the Act confers power on  the  Collector  to confiscate  any  essential  commodity  which  is  seized  in pursuance  of an order made under S. 3 in relation  thereto. Clause  II of the Order enables the licensing  authority  to seize   stocks  of  foodgrains  etc.  which  are   held   in contravention  of  the  provisions of the order  or  of  the conditions    of   licence   issued   thereunder.     Before confiscating such seized essential commodity, s. 6B  confers a duty on the licensing authority to give a notice informing the  person to whose detriment the action is proposed to  be taken,  the grounds on which it is proposed  to  confiscate the essential commodity and further give him an  opportunity to make a representation within a reasonable time as may  be specified   in  the  notice  and  also  give  a   reasonable opportunity  of  being  heard in  the  matter.   Section  6C provides  for an appeal against the order  of  confiscation. The  State  Government  is required to  appoint  a  judicial authority to entertain and bear appeals against the order of confiscation.   The appellate authority so  constituted  has power to modify or annul the order of confiscation. Madhya  Pradesh  State Government has appointed  a  judicial authority  for  the purposes of s. 6C but  the  notification constituting  the authority was not placed on  record.   The licensee preferred an appeal in the Court of Sessions Judge, Mandsaur Division, Mandsaur, and no one questioned that  the Sessions Judge presiding over the Sessions Court at Mandsaur was competent judicial authority for the purposes of S. 6C. 736 While  rejecting  the  contention  of  lack  of   revisional jurisdiction,  the High Court observed that "all  the  State Governments obviously following the model notification given by the Centre, have appointed the Sessions Judge as judicial authority  within  the  areas of  that  (sic)  jurisdiction. Accordingly  the  Sessions  Judge  of  Mandsaur  heard   the appeal."  It  therefore,  appears that  the  Sessions  Judge presiding  over the Sessions Court set up for  the  Sessions Division  was appointed judicial authority for the  purposes of S. 6C. If  the Sessions Judge presiding over the Sessions Court  is the  judicial  authority, the question is : would it  be  an inferior  criminal courts subordinate to the High Court  for the  purposes of ss. 435 and 439 of the  Criminal  Procedure Code  ?   At the one and of the spectrum the  submission  is that  the judicial authority appointed under s. 6C would  be person a designata and that if by a fortuitous  circumstance the appointed judicial authority happens to be the  Sessions Judge, while entertaining and heating an appeal under s.  6C it  would not be an inferior criminal court  subordinate  to the  High Court and, therefore, no revision application  can be  entertained against his order by the High Court.   While conferring   power  on  the  State  Government  to   appoint appellate  forum  the  Parliament  clearly  manifested   its intention as to who should be such appellate authority. The expression  "judicial"  qualifying  the   ’authority’ clearly indicates that that authority alone can be appointed to  entertain  and  heat appeals under s. 6C  on  which  was conferred the judicial power of the State.  The expression " judicial  power  of  the  State" has  to  be  understood  in contradistinction  to executive power.  The framers  of  the Constitution  clearly envisaged courts to be the  repository of  the;  judicial  power  of  the  State.   The   appellate

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authority  under  s. 6A must be a  judicial  authority.   By using  the  expression "judicial authority" it  was  clearly indicated that the appellate authority must be one such pre- existing  authority which was exercising judicial  power  of the State.  If any other authority as persona designata  was to  be  constituted there was no purpose In  qualifying  the word authority" by the specific adjective "judicial". A judicial authority exercising judicial power of the  State is  an  authority having its own hierarchy of  superior  and inferior  court, the law of procedure according to which  it would  dispose of matters coming before it  depending  up-on the-  nature  of  jurisdiction exercised  by  it  acting  in judicial manner.  In using the compact expression  "judicial authority"  the legislative intention is clearly  manifested that   from   amongst   several   pre-existing   authorities exercising  judicial  powers of the  State  and  discharging judicial  functions, one such may be appointed as  would  be competent to discharge the appellate functions as  envisaged by  s. 6C.  There is one in built suggestion indicating  who could be appointed.  The concept of appeal inheres hierarchy and the appellate authority broadly speaking would be higher than  the  authority against whose order the appeal  can  be entertained.   Here the appellate authority would  entertain appeal  against the order of Collector, the highest  revenue officer in a district.  Sessions Judge 737 is  the  highest judicial officer in the District  and  this situation would provide material for deter-mining  appellate authority.   In this connection the legislative history  may throw  some light oh what the legislature intended by  using the  expression "judicial authority".  The Defence of  India Rules, 1962, conferred power on certain authorities to seize essential commodities under certain circumstances.   Against the  seizure an appeal was provided to the State  Government whose  order was made final.  By the amending Act No. 25  of 1966  Sections  6A to 6D were introduced in the  Act.   This introduced  a basic change in one respect, namely,  that  an order  of confiscation being penal in character, the  person on  whom  penalty  is imposed is  given  an  opportunity  of approaching  a  judicial  authority.   Earlier  appeal  from executive officer would lie to another executive forum.  The change  is  appeal to judicial  authority.   Therefore,  the expression   clearly  envisages  a   pre-existing   judicial authority  his to be appointed appellate authority under  s. 6C.   When the provision contained in s. 6C is  examined  in the background of another provision made in the order itself it  would become further distinctly clear that  pre-existing judicial  authority  was  to  be  designated  as   appellate authority under s. 6C.  A seizure of essential commodity  on the  allegation  that  the- relevant  licensing  order  is violated, would incur three penalties : (1) cancellation  of licence;  (2)  forfeiture  of  security  deposit;  and   (3) confiscation  of seized essential commodity, apart from  any prosecution  that may be launched under s. 7. In respect  of the  first  two  penalties  an  appeal  lies  to  the  State Government  but in respect of the third though prior to  the introduction  of  s.  6C an appeal would lie  to  the  State Government,  a  distinct departure is made in  providing  an appellate forum which must qualify for the description-  and satisfy the test of judicial authority.  Therefore, when the Sessions  Judge was appointed a judicial authority it  could not  be  said  that he was persona  designata  and  was  not functioning as a Court. Sections  7 and 9 of the Code of Criminal  Procedure,  1898, envisage  division  of  the  State  into  various   Sessions

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Divisions  and  setting up of Sessions Court for  each  such division, and further provides for appointment of a Judge to preside  over  that  court.  The  Sessions  Judge  gets  his designation  as  Sessions  Judge as  he  presides-,over  the Sessions  Court and thereby enjoys the powers and discharges thefunctions conferred by the Code. Therefore, even if the judicialauthority  appointed under s. 6C is  the  Sessions Judge it would onlymean   the  Judge  presiding  over   the Sessions Court and discharging thefunctions of that  Court. If by the Sessions Judge is meant the Judgepresiding  over the  Sessions  Court  and  that  is  the  appoint  appellate authority,  the  conclusion is inescapable that he  was  not Persona  designata which expression is understood to mean  a person pointed out or described as an individual as  opposed to a person ascertained as a member of a class or as filling a particular character (vide Central Talkies Ltd. v.  Dwarka Prasad,(1) and Ram Chandra v. State of U.P.(2) Our  attention  was drawn to a cleavage of  opinion  amongst High Courts on the construction of the expression  "judicial authority" used (1)  A.I.R. 1961 S.C. 606. (2)  A.I.R. 1966 S.C. 1888. 738 in s.6C.  In State of Mysore v. Pandurang  P.  Naik,(1) the Mysore High     Court  was of the opinion that though  a District  and  Sessions Judge was appointed  as  a  judicial authority by the State Government in exercise of the  powers conferred by s. 6C of the Act in that capacity it would  not be an inferior criminal court within the meaning of s.  435. Same  view was taken by the Gujarat High Court in  State  of Gujarat  v. C. M. Shah (2) . The exact specification of  the appellate  authority constituted by the  notification  could not  be gathered from the judgment but it appears  that  the appeal  was  heard by the Additional  Sessions  Judge  which would indicate that even if a District & Sessions Judge  was appointed  as  "judicial authority"  that  expression  would comprehend  the  Additional  Sessions  Judge  also  or   the Sessions Judge could transfer such appeal pending before him to Additional Sessions Judge which was a pointer that he was not  a  persona  designata.   After  referring  to   certain sections of the Code of Criminal Procedure it has been  held that  the Additional Sessions Judge hearing an appeal  under s.  6C is not an inferior criminal court within the  meaning of  s.    435(1).  Our attention was also drawn to State  of Madhya Pradesh v.   Vasant  Kumar. (3) Only a short note  on this judgment appears in 1972 Jabalpur Law Journal 80 but it clearly  transpires that the point under discussion has  not been dealt with by the Court. As  against this, this very question was examined by a  Full Bench of the Andhra Pradesh High Court in Public  Prosecutor (A.P.)  v. L. Ramayya. (4). Two questions were  referred  to the  Full  Bench.  The first was : whether  the  District  & Sessions  Judge  who  is appointed  judicial  authority  for hearing  appeals  under s. 6C is a persona designata  or  an inferior  criminal court, and the second was : whether  even if it is an inferior criminal court, a revision  application against  the order of the appellate authority would  lie  to the High Court ? The Full Bench answered the first  question in  the affirmative.  While summing up its conclusions,  the Court  held that when a judicial authority like  an  officer who  presides  over  a court is  appointed  to  perform  the functions, to judge and decide in accordance with law and as nothing  has been mentioned about the finality or  otherwise of the decisions made by that authority, it is an indication that the authority is to act as a court in which case it  is

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not  necessary to mention whether they are final or  not  as all  the  incidents of exercising jurisdiction  as  a  Court would  necessarily follow.  We are in broad  agreement  with this conclusion. We are accordingly of the opinion that even though the State Government is authorised to appoint all appellate  authority under  S.  6C, the legislature clearly indicated  that  such appellate   authority  must  of  necessity  be  a   judicial authority.   Since under the Constitution the  courts  being the  repository of the judicial power and the officer pre  I siding  over  the  court derives his  designation  from  the nomenclature  of the Court, even if the appointment is  made by the (1)  (1971) 1 Mysore Law Journal 401. (2)  1974.  Criminal Law Journal 716. (3)  1972 Jabalpur Law Journal 80. (4)  (1975) Criminal Law Journal 144. 739 designation of the judicial officer the appellate  authority indicated  is the Court over which he  presides  discharging functions  under  the  relevant  Code  and  placed  in   the hierarchy of courts for the purposes of appeal and revision. Viewed from this angle, the Sessions Judge, though appointed an  appellate authority by the notification, what the  State Government  did was to constitute an appellate authority  in the Secessions Court over which the Sessions Judge presides. The Sessions Court is constituted under the Code of Criminal Procedure and indisputably it is an inferior criminal  court in  relation to High Court.  There fore, against  the  order made  in  exercise of powers conferred by s. 6C  a  revision application  would lie to the High Court and the High  Court would be entitled to entertain a revision application  under ss. 435 and 439 of the Code of Criminal Procedure 1898 which was  in  force  at  the  relevant  time  and  such  revision application would be competent. It was next contended that in the facts and circumstances of this case the High Court should not have interfered with the order  made,  by  the  Sessions  Judge  setting  aside   the confiscation of the seized foodgrains.  Section 6A confers a discretionary  power on the Collector to  confiscate  seized essential  commodity  if  the  seizure  is  on  account   of contravention  or violation of an order made under s.  3  in relation   to   the  commodity.   The  Act   envisages   two independent  proceedings  against  a  person  charged   with contravention  or violation of an order made under s.  3  in relation  to  an  essential  commodity.   Under  s.  6A  the Collector  can confiscate the seized commodity.  Under S.  7 ’such  contravention is made punishable.  As s. 7  stood  at the  relevant time, even where a prosecution is launched  it was not absolutely obligatory upon the court to forfeit  the property  in  respect of which the relevant order  had  been contravened.  It was left to the discretion of the Court  to direct  forfeiture  of the whole or part  of  the  commodity brought  before  the Court in respect of  which  an  offence appeared  to  have  been committed.   Since  the  subsequent amendment in 1974 the discretion of the Court in this behalf is  taken away and it is made obligatory upon the  Court  to forfeit the property in respect of which an offence  appears to  have  been committed under s. 7. Therefore,  either  the Collector  can order the confiscation and yet s. 6D  permits infliction  of any punishment to which the person  convicted thereby  is  liable under the Act irrespective of  the  fact that  the  Collector has ordered confiscation under  s.  6A. The  dichotomy  is that Collector can proceed to  seize  the essential  commodity and cancel the licence and forfeit  the

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security  deposit.   A prosecution can be launched  and  the Court  will  halve  to  deal  both  with  the  question   of punishment  and  forfeiture of the property  in  respect  of which  an offence appears to have been committed.   Further, even if the Collect for confiscated the property it would be still open to the competent authority to launch  prosecution and  the  Court would have to deal with the  person  who  is charged with the offence but in such a situation of question of  forfeiture of the property would not arise  because  the Collector has already confiscated the same. In the case before us the prosecution is not launched.   The Collector  directed confiscation of the  seized  foodgrains. The  Sessions  Judge  set aside the  order  of  confiscation holding that in view of the penalty &cancellation of licence which would deny the licensee an opportunity to. carry 740 on  a business of foodgrains and the forfeiture of  security deposit,  it would be unjust to inflict further  penalty  in the  form of confiscation of foodgrains worth Rs.  50,000/-. It  appears  from the judgment of the High  Court  that  the price  so  worked  out was the price  on  which  confiscated foodgains were sold at the controlled rate. The contention is that if the appellate authority which  had power,  to annul or modify the order has annulled the  order of  confiscation,  would  the High  Court  be  justified  in interfering  with such order in exercise of  its  revisional jurisdiction  merely  because  it was of  the  opinion  that confiscation was justified. Section  435  which confers revisional jurisdiction  on  the High  Court  enables the Court to call for and  examine  the record of any proceedings before any inferior criminal court for the purposes of satisfying itself as to the correctness, legality  or  propriety of the finding, sentence,  or  order recorded or passed, etc.  Under s. 439 the High Court, while exercising revisional jurisdiction, has the same power as is conferred  on  the  High Court as a Court  of  appeal  under s.423, except that in exercise of revisional jurisdiction it cannot  convict  the  person and impose sentence  if  he  is acquitted  by  the subordinate criminal court.   As  s.  439 stands  subject  to  the  exception  mentioned  herein,  the revisional jurisdiction of the High Court appears to be  co- extensive with its appellate jurisdiction but the extent and ambit  of that jurisdiction has been more often examined  by this  Court  it  is  clearly  demarcated.   The   revisional jurisdiction  conferred upon the High Court under s. 439  is not  lightly to be exercised.  It can be exercised  only  in exceptional  cases  where  the interest  of  public  justice requires  interference  for  the correction  of  a  manifest illegality  or  the  prevention of a  gross  miscarriage  of justice.  The jurisdiction is not ordinarily invoked or used merely because the lower Court has taken a wrong view of the law or misapprehension the evidence on the record. (Vide  D. Stephens  v.  Nosibolla,(1) Jogendra Nath Jha v.  Polai  Lal Biswas,(2)  and  K.  Chinnaswamy Reddy v.  State  of  Andhra Pradesh.  (3)  It  must, however, be  confessed  that  these observations  were  in the context of  a  revision  petition filed  by  a private party against the  order  of  acquittal recorded by the trial Court.  The, question again figured in a different context in Amar Chand Agarwalla v. Shanti Bose & Another  etc.,  (4) wherein the High  Court  exercising  the revisional jurisdiction under s. 439 quashed the charges and proceeding on the ground that the complainant had suppressed material  facts.  This power was exercised after  the  trial had  proceeded,  witnesses were examined  and  charges  were framed and the further trial was in progress.  Setting aside

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the judgment of the High Court, this Court observed that the jurisdiction  under  s.  439  is to  be  exercised  only  in exceptional  cases  where there is a glaring defect  in  the procedure  or there is a manifest error of point of law  and consequently  there  has  been  a  flagrant-miscarriage   of justice. (1)  [1951] S.C.R. 284. (2)  [1951] S.C.R. 676. (3)  [1962] 3 S.C.R. 412. (4)  [1973] 3 S.C.R. 179. 741 In the case before us the Sessions Judge after examining the relevant  factors bearing on the, question  of  confiscation exercising    the,   appellate   jurisdiction   held    that confiscation in the facts and circumstances of this case was not justified.  The High Court was of a different opinion as in  the view of the High Court these defaults should not  be lightly viewed because the orders regulating the production, supply and distribution of essential commodities are  issued in  public interest and the regulations are made for  proper enforcement of such orders.  The High Court was also of  the opinion that when there is a breach committed with a view to obtaining monetary profit, the punishment in terms of money should  be equivalent of a stiff and deterrent  multiple  of the  improper  profit the offender is likely or  intends  to make  by the breach.  Confiscation of property is  penal  in character.   The Session Judge examined the penal  character of confiscation order and held that in the circumstances  of the  case  it  was  not  just  and  proper.   The  appellate authority  had power and jurisdiction to decide.  the  same. The  High Court could not have lightly interfered  with  the order of the Sessions Judge setting aside the,  confiscation especially in exercise of the revisional jurisdiction  under s. 439 without making out any of the well recognised grounds for  interfering in exercise of its revisional  jurisdiction and  straightaway proceed to interfere with the order  which would   not   be  correct  exercise   of,   its   revisional jurisdiction. The  facts  are that the licensee is dead and  he  has  left behind minor children and a widow.  The, licence having been cancelled, the business cannot be carried on.  The  security deposit is forfeited, though that by itself would not  have, been a material consideration for our decision.  But keeping in  view all the factors, in our opinion the High Court  was not justified in interfering with the order of confiscation. Accordingly,  this appeal is allowed and the order  made  by the High Court is set aside and the one made by the Sessions Judge is restored. P.B.R.                    Appeal  allowed 742