P L D 1959 Supreme Court (Pak (PLP)

CORNELIUS, J.‑This judgment will dispose of two Criminal Appeals, viz. No. 6‑D of 1959 by Faker Ali and No. 8‑D of 1959, by Golam Panjtan Gazi. Each of these persons has been convicted under section 6 of the East Pakistan Control of Essential Commodities Act, 1956, and has received a sentence of three months' rigorous imprisonment. A fine of Rs. 1,000 has been added in the case of Faker Ali and of Rs. 500 in the case of Golam Panjtan Gazi. Further, as allowed by the Act, orders of confiscation were made in respect of seized, goods. From Faker Ali the goods seized were 300 maunds of paddy, four maunds of dal, 80 maunds of haldi and 485 maunds of jute. The Court directed that all the paddy and four maunds of dal should be confiscated, but as regards the haldi and jute, it was held that the possession of these articles was not subject to any licence, and accordingly these articles were ordered to be released to the accused person. In the case of Golam Panjtan Gazi the Magistrate ordered confiscation of some 170 maunds of paddy found in his possession. Each accused was tried by a Special Magistrate appointed under the aforesaid Act. Appeals were taken before the Sessions Judge, who rightly dismissed them on the ground that the Act made no provision for an appeal from an order of a Special Magistrate. Subsequently, the convicts moved petitions in the High Court of Dacca for issue of writs in the nature of certiorari to call in question the convictions and sentences passed upon them, upon a number of grounds. The petition filed by Faker Ali was summarily dismissed by a Division Bench of the High Court after hearing counsel for the petitioner. That of Golam Panjtan Gazi was decided along with two other similar petitions, and was rejected on the ground that by these writ petitions, relief had been sought on the ground of violation of certain Articles of the late Constitution embodying Fundamental Rights, and following the decisions of the Supreme Court in the case of the State v. Dosso (P L D 1958 S C (Pak.) 533), these petitions must be deemed to have abated. The question whether the decisions of the Special Magistrate required to be revised in certiorari on the ground that the provisions of the law under which the convictions were recorded had not been followed, was not examined .at all. Upon hearing counsel, and examining ‑the facts of these cases, we are clearly of the opinion that in certain important respects the law has not been correctly applied by the Special Magistrate and that revision of the convictions and sentences is clearly necessary on this ground. Thus, in the case of the convict, Faker Ali, it is quite clear that the order directing confiscation of the 4 maunds of dal is without jurisdiction. This has been conceded before us by the learned Advocate‑General of East Pakistan. But the more serious defects appear in relation to the paddy seized and confiscated, in the light of the relevant notifications issued by the Government of East Pakistan under the East Bengal Foodstuffs Price Control and Anti‑Hoarding Order, 1953. Copies of three of these notifications, which are relevant to the present case have been placed before us by the learned Advocate‑General. The first is dated the 22nd March 1957, and purports to be made under clause (7) of the aforesaid Order of 1953. It purports to direct that "no family, being the producer of paddy from its own land, shall keep in its possession or control at a time any quantity of paddy in excess of 50 maunds, including the seed requirements": In the second paragraph the provision is made that if any such family is holding stocks in excess of the prescribed quantity, the bead of the family shall report the fact to a prescribed officer before the 31st March 1957, and the said officer is empowered to take action in respect of the excess quantity in relation to storage, distribution or disposal. The next notification is dated the 29th August 1957, and purports to amend the first‑mentioned notification in relation to "new Aus paddy", the provision being that any excess above the permissible quantity (which still remained at 50 maunds including seed requirements) should be reported by the bead of the family to the prescribed officer by the 15th September 1957 in seven named Districts and by the 30th September 1957, in 10 other Districts which were specified. It was explained that the Aus crop begins to come in about the end of August, and the notification became necessary in order to regularize the possession by the cultivators through harvesting of their Aus crop, of quantities in excess of the prescribed limit of 50 maunds. The order is clearly to be construed in a practical sense. While on the one hand, the possession of any quantity of paddy in excess of 50 maunds is an offence, yet, since it was natural that cultivators should have in their possession at the time of the gathering of the Aus crop, quantities in excess of 50 maunds, the provision was made that the excess could be retained by them. subject to the duty of reporting the excess to the prescribed officer by a prescribed date. It follows that where the maximum limit of possession had been exceeded through possession of new Aus paddy, the cultivator in possession would be allowed a period of grace up to the pres cribed dates during which such possession would not be an offence and it would seem to follow, although the question does not arise in this case, that this immunity would continue until such time as the prescribed officer took action to withdraw the excess quantity reported from the cultivator's possession. The third notification is dated the 31st December 1957, and it is admitted before us that it relates to the period of the harvesting of the Aman crop. This notification, refers to the first‑mentioned notification and repeats the same direction, namely, it prohibits the keeping of a13y quantity of paddy in excess of 50 maunds including the seed requirements, and adds the provision that where any family is holding stocks in excess of 60 maunds, it shall be the duty of the head of the family to report the excess before the 15th January 1958, to the prescribed officer, for such action as the latter may see fit to take. The latter provision is contained in almost precisely the same terms as in the second notification, and must be given the same meaning, viz., that the temporary possession of quantities of paddy in excess of 50 maunds through the gathering of the new Aman crop by the cultivator would not be deemed a violation, provided that it was reported to the prescribed officer by the 15th January, 1958. The period of grace would be deemed to commence from the time when the new paddy began to come in, until the 15th January 1958, and such interval beyond that date as might lapse before the prescribed officer should take action in respect of the excess. Now, in the case of Faker Ali, the quantity of paddy seized was 300 maunds, and it was found by the Special Magistrate that 100 maunds were Aus paddy and the remaining 200 maunds were new Aman paddy. The seizure was effected on the 20th December 1957. Upon the true construction of the notifications, and in particular the last of the three notification, it seems to us to be perfectly, clear that the period of grace for reporting the excess quantity of 200 maunds of Aman paddy had not yet expired on that date. It is true that the quantity of old or Aus paddy being 100 maunds was also in excess of the prescribed maximum, and this should have been reported much earlier, that is to say by the 30th September 1957. There was failure to report this excess and the possession of old paddy on the 20th December 1957, in excess of 50 maunds is clearly an offence punishable under the Act. But the trial proceeded in respect of the full quantity of 300 maunds as if possession of the entire quantity was an offence under the Act, and in awarding sentences, it is clear that this view was enforced, since the 200 maunds of Aman paddy were also confiscated, in addition to a small quantity of dal for the confiscation of which there was no justification whatsoever in law. This is a matter, which in our opinion was a proper matter to be corrected by way of certiorari. As for the conviction of Golam Panjtan Gazi, the position is much less clear, since the quantity of Aus paddy included in the 170 maunds, which was seized has not been ascertained with any degree of exactness by the Special Magistrate. At one place in his judgment he has made an observation which might be understood to mean that even if the quantity of Aus paddy found on the 19th December 1957, (the date of the search) were some what less than 50 maunds‑39 maunds had been suggested by the defence on the strength of a weighment effected on the date following the search this would indicate that at some time after the 30th September 1957, the family had been in possession of a quantity larger than 50 maunds. The conclusion finally reached appears to be that, of the paddy found, 60 maunds were Aus paddy; but for this there is no support in the evidence, and it is argued before us with force that the Court could not on the evidence have found possession of Aus paddy in excess of 39 maunds and as for the larger quantity of Aman paddy, from the new crop, there was still time until the 15th January 1958 for reporting the possession of this paddy to the prescribed officer. In fact, in both cases, further quantities of Aman paddy from the new crop had yet to come in. In the case of Golam Panjtan Gazi, it seems clear that the finding of the Special Magistrate is conjectural and that any conclusion based upon the evidence would necessarily have been that the quantity of Aus paddy found in the accused possession on the 19th December 1957 was a good deal less than 50 maunds. As to the rest of the paddy found, upon the view we have already taken, no offence can be held to have been committed by Golam Panjtan Gazi on the date of the recovery from his possession. In the result, we allow the appeal of Golam Panjtan Gazi and make an order quashing both his conviction as well as his sentence, including the order of confiscation. In the case of Faker Ali we find that the conviction is in order in respect of 100 maunds of Aus paddy and the sentences of imprisonment and fine are also legal, in relation to that offence, but the order of confiscation is without jurisdiction in relation to the 4 maunds of dal and the 200 maunds of Aman paddy and we direct that this order be quashed to that extent. We are informed that the foodstuffs seized under the confiscation orders have probably been disposed of by this time. If that be the case, it would be the concern of the State to give to the two appellants such compensation as may be due to them in lieu of the goods un lawfully confiscated. K. B. A. Order accordingly