M.S. Vaidya, J.
1. This writ petition is directed against an order dated 11-3-1991, passed by the 2nd Additional Sessions Judge, Aurangabad in Criminal Revision Application No. 54 of 1991. dismissing the revision petition filed by the present writ petitioner No. 1. In the aforesaid revision petition, an order dated 14-2-1991 passed by the Judicial Magistrate, First Class, Kannad in C.R. No. 113 of 1990 of Pishore Police Station was challenged.
2. Police-sub-Inspector, Pishore had lodged an F.I.R. on 18-12-1990, stating that on receipt of an information on that day, that the present petitioner No. 1 was purchasing cotton illegally from the agriculturists for the purposes of selling the same outside the State in contravention of the provisions of the Maharashtra Raw Cotton (Procurement, Processing and Marketing) Act, 1791, a raid was organized and it was found at village Padli, that cotton was being weighed and loaded in a truck. The petitioner No. 1 was nothing down the weights and on interrogation, he had told that the cotton was being collected for sale in Madhya Pradesh. The cotton and the truck were, therefore, brought to the Police Station and the F.I.R. was lodged. In course of time, with the permission of the Court, the truck was returned to the truck owner and the cotton in question was sold by the P.S.I. to the Cotton Federation. The amount of sale proceeds then deposited by the P.S.I. in some Bank. No charge-sheet was filed in the Court. Therefore, on 14-12-1991, the present petitioner No. 1 had made an application to the Judicial Magistrate, First Class, Kannad for refund of the amount of sale proceeds, which was held by the P.S.I. in the Bank account, stating therein that he was liable to pay the price of the cotton to the agriculturists from whom he had purchased the cotton, and that, it was not possible for him to pay the agriculturists their amounts, unless the sale proceeds of the cotton were refunded to him. This application was resisted by the learned Assistant Public Prosecutor on the ground that it was the contention of the P.S.I. that, if the amount was refunded, some difficulty was likely to be posed at the time of disposal of the case. It was also contended by the P.S.I. that some adverse effect might be seen on the decision of the case. The learned Magistrate proceeded to reject the application of petitioner No. 1 on the ground that no loss would occur to him if the application was rejected. It was also observed that, if the cash amount was returned, certain further complications might occur at the time of the disposal of the case, because the cotton belonged to certain persons other than the applicant before him. The matter then went in revision, and the learned Additional Sessions Judge proceeded to dismiss the revision petition on the ground that the order in question was an order passed under section 451 of the Code of Criminal Procedure and was therefore, an interlocutory order, against which no revision petition could lie. Aggrieved by this order, the writ petition was originally filed by the revision petitioner No. 1 for quashing of the aforesaid order and for issuance of an appropriate writ or order or direction in the matter. Pending this writ petition, another Application No. 405 of 1991 in this writ petition was made by four others. They were the persons who claimed to be the vendors of the cotton. They had preferred the application for joining them as parties to the present writ petition. To that extent, the application was granted and the aforesaid applicants were joined in this writ petition. Amendment to the prayer clause in the present petition as sought therein was, however, not granted. The Government did not file any return in reply to the writ petition.
3. We have no doubt that the decision of the learned Additional Sessions Judge in this matter, was wrong in law. He had, indeed, not considered the relevant legal provisions before dismissing the revision petition of the present petitioner. The F.I.R. Exhibit A attached to the petition shows that the offence alleged to have been committed was one punishable under sections 17, 19 read with 43 of the Maharashtra Raw Cotton (Procurement, Processing and Marketing) Act, 1971. Section 13 of the Act contains prohibition on carrying on a business of cotton other then the baled cotton and section 15 contains a prohibition on transport of cotton other then baled cotton outside the State. Section 43 make the contravention punishable with an imprisonment for a term which may extend to six months, or with fine, or with both. Sub-section (1-A) to section 43 empowers the Court to direct, without prejudice to any other sentence that might be passed, that the stocks of cotton in respect of which the Court was satisfied that the said provisions had been contravened, and all packages, coverings or receptacles in which such stocks were found and every animal, vehicle, vessel or other conveyance used in carrying such stocks, shall be forfeited to the State Government. Section 44(1) imposes a bar on Courts in taking cognizance of any offence punishable under the Act, except with the previous sanction of the State Government or any officer authorised by it in that behalf. Therefore, unless a proper complaint or charge-sheet with a proper sanction has been filed before the Court, the Court had no jurisdiction what-so-ever to take cognizance of the offence, which was complained of in the present case.
4. No return was filed by the State in this case. Therefore, even after passage of more than six months from the date of the commission of the offence, it is not known whether or not the Government has been moved for a sanction for prosecution in the present case and whether or not, the Government were intending to launch any prosecution in a case of the present acts. Admittedly, in the present case, the purpose of securing the cotton has been fulfilled, because as soon as the cotton was seized by the P.S.I., the same was taken to the cotton Federation, and with the permission of the Court, the same was sold there. It is not known, whether or not the Government has taken any policy decision for the present proceeding or for the cases of present type generally, as to whether the prosecution should be launched against anybody. The learned A.P.P. who argued the matter, was, however, certain that no complaint of charge-sheet was lodged in the Court as yet by any Officer. There was, therefore, no question of issuance of any process also against any of the present petitioners.
5. Section 2(g) of the Code of Criminal Procedure defines the word 'enquiry' so as to mean, every enquiry, other than a trial, conducted under the Code of Criminal Procedure by a Magistrate or Court. The word 'investigation' includes all the proceedings under the Code of Criminal Procedure for the collection of evidence conducted by a Police Officer or by any person (other than a Magistrate) who is authorised by a Magistrate in that behalf. The expression 'trial' is not specifically defined in section 2, but for the purposes of the Code of Criminal Procedure, it means a trial of the accused for an offence conducted before a Court. It is with reference to these definitions that one has to peruse the provisions of sections 451 and 457 of the Code of Criminal Procedure. Section 451 of the Code of Criminal Procedure applies 'when any property is produced before any Criminal Court during any inquiry or trial' and in that event only, the Court can proceed to pass further orders under that section. Eventualities do arise when the Court is required to pass orders regarding the disposal of the property when there is no inquiry or trial pending before the Court. Section 457 of the Code of Criminal Procedure covers such contingencies, because it applies 'whenever the seizure of property by any Police Officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial'. The provisions contained in the sections themselves are clear enough, but the question whether or not, the stage of investigation amounts to an inquiry before the Court had come up before several Courts for decision. In M/s. Mohansingh v. State , it was held that when the matter was in the stage of investigation, it was not a stage of inquiry or trial. Similar view was taken by the Andhra Pradesh High Court in Bharat Heavy Electricals v. State and it was held further, that when the charge-sheet was yet not filed and delivery of the goods seized by police was sought, the delivery could be given under section 457, in-as-much as, the provisions of section 451 of the Code of Criminal Procedure were not attracted at all. It was also held therein that such an order was not an interlocutory order. The expression 'such property is not produced before a Criminal Court during an inquiry or trial' was interpreted also in Ambika Roy v. The State of West Bengal , and the same interpretation was put on the aforesaid provision. In Bharat Mahey v. State of U.P. , under similar circumstances, when the Magistrate had chalked out a scheme for disposal of the seized muddemal, it was held that the order passed by the Magistrate was one under section 457 of the Code of Criminal Procedure and the same was a final order and not merely an interlocutory order.
6. In the present case, the cotton which was allegedly being purchased by petitioner No. 1 from the agriculturists was seized and was sold, with the permission of the Court, to the Cotton Federation. The P.S.I. has been holding only the sale proceeds in his hand and the said amount, as stated by the Magistrate in the order dated 14-2-1991, was lying in a Bank. The offence was registered only against petitioner No. 1 and not against the agriculturists from whom the same was allegedly being purchased. It is not even known, whether or not, the transactions of sale of the cotton with several agriculturists were completed at the time when the cotton was seized. The cotton was seized while it was being loaded and not while it was being transported outside the State. Under these circumstances, the application dated 7-2-1991 ((Exhibit B) attached to the petition) was made to the Magistrate, stating that the cotton was seized only under suspicion and the price of the cotton was to be paid to the agriculturist. There was hardly any justification for refusing the application for return of amount, because if it was cotton belonging to the agriculturists, of which the price was not yet paid, there was no reason what-so-ever to put the agriculturists to hardship and to defeat the very purpose of the Act, which was meant for the benefit of the agriculturists. The prosecution does not contend that any offence was committed by the agriculturists. The learned Magistrate ought to have held an inquiry under section 457 to decide who were the persons entitled to the sale proceeds and to what extent. Indeed, section 457(1) of the Code of Criminal Procedure empowers the Magistrate to hold such an inquiry. The agriculturists were apparently not the applicants before the learned Magistrate, but when the Magistrate was moved by the person from whose custody the cotton was seized to do the needful, the Magistrate should have held an inquiry contemplated by section 457(1) and then he should have passed the orders according to law. The Magistrate's order dated 14-2-1991 below the application of the petitioner No. 1 was passed virtually without application of mind to the issue involved and to the provisions contained in section 457(1). In the like manner, the revision petition also came to be dismissed. That has resulted in miscarriage of justice.
7. As already pointed out, during the pendency of this petition, four persons (petitioner Nos. 2, 3, & 4) were allowed to be joined as petitioners in this proceedings. The learned advocate of the petitioners, therefore, contended that this Court itself should pass the orders for refunding the amount to the petitioners or such of them as would be found to be entitled to get the amount the part thereof. Such a course cannot obviously be followed here, because it is necessary to hold an inquiry under section 457(1) of the Code of Criminal Procedure. It is, therefore, necessary to set aside impugned orders dated 14-2-1991 passed by Judicial Magistrate, First Class, Kannad and 2nd Additional Sessions Judge, respectively and to direct the Magistrate to hold an appropriate inquiry under section 457(1) of the Code of Criminal Procedure in the matter and to pass appropriate orders according to law. Hence the order...
ORDER
The writ petition is allowed.
The impugned orders dated 14-2-1991 and 11-3-1991 passed by the Judicial Magistrate, First Class, Kannad and 2nd Addl. Sessions Judge, Aurangabad are set aside.
The Magistrate is directed to hold on the basis of the application dated 14-2-1991 preferred by petitioner No. 1, an inquiry under section 457(1) of the Code of Criminal Procedure to determine the quantity of each of the agriculturists, whose cotton was allegedly loaded on the truck and to pass appropriate orders according to law for the payment of the amounts which are lying in the bank, by way of the sale proceeds of the cotton, which was sold to the Cotton Federation.
The petitioners Nos. 2 to 4 who were allowed to be joined here as petitioners in the writ petition, shall be at liberty to make an application to the Magistrate under section 457(1) of the Code of Criminal Procedure, for the purpose, stating therein the quantity of cotton belonging to each of them, if any, so as to enable the Magistrate to complete the enquiry expeditiously.
On the request of the advocate for the petitioners, the date of appearance of the petitioners in this application in the Court of Judicial Magistrate, First Class, Kannad is fixed on 4-7-1991. The Magistrate should hold the inquiry and dispose of the same according to law, expeditiously and in any event before 31st July, 1991 and shall submit his report to this Court.
Rule made absolute.
Hamdast allowed for communication of these orders to the Trial Court.