Full Judgment Text
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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