# THAKUR DAS (DEAD) BY L. Rs v. STATE OF MADHYA PRADESH

- **Citation:** [1978] 1 S.C.R. 732
- **Court:** Supreme Court of India
- **Decided:** 1977-10-14
- **Bench:** P. K. Goswami, N. L. Untwalia, D. A. Desai
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/thakur-das-dead-by-l-rs-v-state-of-madhya-pradesh-7313
- **Pages:** 10

## Headnote

Essential Con1n1odities Act, 1955- S.6C-Scope of Sessions Judge appointed as an appellate authority Sessions Court if an inferior criminal court in relation to the Higll Court-If a revision application would lie to the Higli Court
,.
against an order 1nade under s.6C-Revisional jurisdiction of High CvurtScope of.
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 actthority
to entertain and hear 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
<ind 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 appli·
cation 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 crimi·
nal 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 ft was
of opinion that the confiscation was justified.
Allowing the appeal,
HELD : (1) (a) Though the Sessions Judge \Vas appointed as an appellate
authority what the State Government did was to constitute an appellate autho·
rity 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. Cr. P. C. [739 A-BJ
(a) When the Sessions Judge was appointed a judicial authority it could be
said tha<t he was persona designata and was not functioning <is 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
understood in contradistinction to executive power.
Under the
Constitution courts
are the repository of judicial power of the State.
By using the expression "judi·
cial authority" rin s. 6C it was clearly indicated that the appellate
authority
n1ust be one such pre-existing 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]
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THAKUR DAS V. M. P. STATE
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. [

## Text

A
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732
THAKUR DAS (DEAD) BY L. Rs
v.
STATE OF MADHYA PRADESH
October 14, 1977
[P. K. GOSWAMI, N. L. UNTWALIA AND D. A. DESAI, JJ.J
Essential Con1n1odities Act, 1955- S.6C-Scope of Sessions Judge appointed as an appellate authority Sessions Court if an inferior criminal court in relation to the Higll Court-If a revision application would lie to the Higli Court
,.
against an order 1nade under s.6C-Revisional jurisdiction of High CvurtScope of.
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 actthority
to entertain and hear 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
<ind 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 appli·
cation 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 crimi·
nal 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 ft was
of opinion that the confiscation was justified.
Allowing the appeal,
HELD : (1) (a) Though the Sessions Judge \Vas appointed as an appellate
authority what the State Government did was to constitute an appellate autho·
rity 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. Cr. P. C. [739 A-BJ
(a) When the Sessions Judge was appointed a judicial authority it could be
said tha<t he was persona designata and was not functioning <is 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
understood in contradistinction to executive power.
Under the
Constitution courts
are the repository of judicial power of the State.
By using the expression "judi·
cial authority" rin s. 6C it was clearly indicated that the appellate
authority
n1ust be one such pre-existing 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]
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THAKUR DAS V. M. P. STATE
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
A
commodities lay to the State Government.
Amending Act 25 of 1966 (by
B
which ss. 6A to 6D were added) introduced a basic change which was that an
order of confiscation being pen<JJ in character a person on whom penalty is
imposed is given an opportunity of approaching a judicial authority. \\-'bile before the amendment an appeal lay to the executive forum, after the amendment
an aopeal lies to the judicial authority which clearly envisages that a pre-existing
judicial authority has to be appointed appella·te authority under s. 6C.
l737
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 comn1odity.
Jn respect of the first two penalties an appeal lies to the State Governinent but in respect of the third, though prior to the introduction of s. 6C an
appeal Jay 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]
c
(f) Even if the judicial authority ap1=1ointed under s. 6C is the Sessions
D
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 V.'hich
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 fi!ling
a particular character. [737 r-G]
Central Talkies Ltd. v. Dwarka Prasad AIR 1961 SC 606 and Ranz Chandra
v. State of U.P. AIR 1966 SC 1888, referred to.
E
Public Prosecutor (A.P.) v. L. Ran1ayya (1975) Criminal Law Journal 144,
approved.
State of Guiarat v. C. M. Shah, 1974 Criminal Law Journal 716, State of
Madhya Pradesh v. Vasent Kumar (1972) Jabalpur Law
Journal
80.
and
State of M_vsore v. Pandurarl.g P. 1Vaik [1971] 1 Mysore Law Journal 401 not
approved.
(2) The High Court was not justified in interfering with the order of confiscation. (741 El
(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]
F
(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
G
criminal court the High Court, under s. 435 Cr. P. C. can call for and exa1nine
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. revis~onal jurisdiction. of. t~e . High Court under s. 439 appears to
be co-extensive with the appellate JUnsd1chon.
In a number of cases this Court
held that the revisional jurisdiction conferred upon the High Court undef 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]
H
734
SUPREME COURT REPORTS
[1978] 1 S.C.R.
A
Dr. Stephens v. Nosibolla [1951] SCR 284; Jagendra Nath Iha v. Polai Lal
B
c
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Biswas [1951] SCR 676; K Chinnaswamy Reddy v. State of And/Jra Pradesh
."
[1963] 3 SCR 412 and An1ar Chand Agarwal/a v. Shanti BoJe & Another etc.
[1973] 3 SCR 179, followed.
(d) Jn the instant case the Sessions Judge, in exercising appellate jurisdiction,
exan1ined 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-BJ
CRIMINAL APPELI.,ATE 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 Cd. Revision
No. 90/73.
S. K. Gambhir and Miss S. Ramakluni 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, J abalpur in Criminal Revision No. 90 of 1973 setting aside the order 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 licenced 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 stor"
for sale and sell foodgrains set ont 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 authority-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
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THAKUR DAS v. M. P. STATE (Desai, J.)
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 depbsit 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 realised 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 : (!) 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 reacf with s. 439 of the Code of Criminal Procedure;
(2) in the facts and circumstances of 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 11 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
hear 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.
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736
SUPREME COURT REPORTS
[1978) 1 S.C.R.
While rejecting the contention of lack of revisional jurisdiction, the High
Court observed that "all the State Governments obvious,ly 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 subm;ssion is that the judicial authority appointed under s. 6C would be persolla
designata and that if by a fortuitous circumstance the appointed judicial
authority happens to be the Sessions Judge, while entertaining and
hearing 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
whoi
should be such appellate authority.
The expression "judicial" qualifying the 'authority' clearly indicates
that 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 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
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 ln
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 upon 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 .disch.arge the ~pp~llate f1;1n_ctions
as envisaged by s. 6C.
There 1s one m bmlt sugr;est1on md1catmg 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
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THAKUR DAS v. M. P. STATE (Desai, J.)
737
is the highest judicial officer in the District and this situation would
A
provide material for determining appellate authority.
In this coiiiiection the legislative history may thro"'( some light on 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 J 966 Sections 6A
B
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 pi;nalty is imposd 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.
Thfrefore, the expression clearly envisages a pre-existing judicial authority has to be appointed appellate
C
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 essenti<\l commodity on the allegation that the relevant
licensing order is violated, would incur three penalties : ( 1) cancellation al licence;
(2) forfeiture of security deposit; and (3) confiscaD
tion 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
E
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 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
F
Court and thereby enjoys the powers and discharges the functions
conferred by the Code.
Therefore, even if
the
judicial authority
appointed under s. 6C is the Sessions Judge it wouid 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 imd that is the appoi~d appellate authority,
the conclusion is inescapii,ble that he was not persona designata which
G
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,(') and Ram Chandra v. State of U.P.( 2 )
Our attention was drawn to a cleavag~ of opinion amongst High
Courts on the construction of the expression "judicial anthority" used
H
(I) A.l.R. 1961 S.C. 606.
(2) A.l.R. 1966 S.C. 1888.
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738
SUPREME COURT REPORTS
[1978) 1 S.C.R.
in s. 6C.
In State of Mysore v. Pandurang P. Naik,(1) the My'sore
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('). The exact specification of the appellate
authority constituted by the notification could not be gathered from
the judgment but it apgears 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 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 an 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 coμrts being the repository of the. judicial power and the
officer presiding over the court derives' his aesignation
from
the
nomenclature of the Court, even if the appointment is made by the
([) (1971) l Mysore Law Journal 401.
(2) 1974. Criminal Law Journal 716.
(3) 1972 Jabalpur Law Journal 80.
(4) (1975) Criminal Law Journal 144.
•
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THAKUR DAS v. M. P. STATE (Desai, J.)
739
designation of the judici~l officer the appellate authority indicl!_ted is
the Court over which he presides discharging functions
under the
relevant Code and placed in the hierarchy of courts for the purposes
-0f appeal and revision.
Viewed from this angle, the Sessions Judge,
though appointed an appellate authority by the
notification,
what
tile State Govermnent did was to constitute an appellate authority in the
Seessions Court over which the Sessions Judge presides.
The Sessions
Court is constituted under the Code of Criminal Procedure and indis·
putably 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.
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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 ''iolation of an order made under s. 3 in relation to the commodity.
The Act envisages two independent proceedings against a person
D
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. A.s 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
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of the whole or part of the commodity brought before the Court in
re,pect of whlch an offence· appeared to have been committed.
Since
the subsequent amendment in 1974 the discretion of the Court in thls
behalf is taken away and it is made obligatory upon the Court to forfeit
the property in respect of whlch 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 whlch the
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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 security dep-0sit.
A prosecution
can be launched and the Court will have 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 Colle_cG
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 o[ forteiture 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 of cancellation of licence which would deny the licensee an opportunity to carry
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740
SUPREME COURT REPORTS
(!9J8J I S.C.R.
on a business of foodgrains and the forfeiture of security deposit, it
would be unjust to inflict farther penalty in the fonn of confiscation of
foodgrains worth Rs. 50,0001-. It appears from the judgment of the High
Court that the price so worked out was the price on which confiscated
foodgrains 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 1t 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.
439stands 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 misappreciated the evidence on the record. (Vide D. Stephens v. Nosibolla,(')
Jogendra Nath !ha v. Polai Lal Biswas,(') and K. Chinnaswamy Reddy
v. State of Andhra Pradesh.(') 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 Cfwnd Agarwalu1
v. Shanti Bose & Another etc.,( 4 ) wherein the High Court exercising the
revisional jurisdiction under s. 439 quashed the charges and proceediM
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 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) [19511S.C.R.676.
(3) [1962] 3 S.C.R. 412.
(4) [19731 3 S.C.R. 179.
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THAKUR DAS v. M. P. STATE (De~ai, J.)
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 w"'
also of the opinion that when there is a breach committed with a view to
obtaining monetary profit,
the puishment in terms of money should
be equivalent of a stiff and deterrent multiple of tl)e improper profit the
offender is likely or intends to make by the breach.
Conliscation 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 Coitrt 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
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