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PETITIONER: WAZIR CHAND

       Vs.

RESPONDENT: THE STATE OF HIMACHAL PRADESH.(With connected Appeal)

DATE OF JUDGMENT: 22/04/1954

BENCH: MAHAJAN, MEHAR CHAND (CJ) BENCH: 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.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 129 and 130 of 1952. 409

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   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

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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

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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

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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

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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.