Full Judgment
Abdur Rahim, J.
1. In this case, the accused is found to be a habitual thief and has been bound down for good behaviour. Certain properties, a sum of Rs. 32-2-0, some jewels and a silk towel were found in his possession. The Magistrate who originally tried the case, ordered that the property should be returned to the accused, as it did not appear to him that any offence had been committed with respect to the property and as the accused claimed the property as his own. The District Magistrate, however, ordered that the property should be confiscated to the Government, acting under Section 517(1) 0f the Criminal Procedure Code. But that section empowers him to pass an order as regards the disposal of the property if it appears that any offence has been committed with respect to it or that it has been used for the commission of an offence. There is no finding here that an offence has been committed or that it appeared from the record that an offence has been committed with respect to it. Therefore Section 517(1) has no application in the case and the District Magistrate's order is not covered by that section. His order must, therefore, be set aside and the Sub-Divisional Magistrate's order should be restored, directing that the property be returned to the accused.
Ayling, J.
2. The accused claims the property as his own. There is no evidence as to ownership. I do not think that this is a case in which it can be said that it appears that an offence has been committed in respect of the property; and it is only on that ground that the District Magistrate would be justified in passing the order he did. I agree with my learned brother in the order proposed.