1976 P Cr (PLP)

This is a revision application against the order of the learned Special Judge‑cum‑Inquiry Officer, Hyderabad, directing the applicant to deposit an amount of Rs. 5,43,683 in Court till the final disposal of the case pending in his "curt. The applicant is a private limited company carrying on business of import, manufacture, indenting, sale and supply of pesticides, insecticides, sprayers etc. Agha Qamar Hussain who is one of the accused persons was the Director of the Company. He was challaned alongwith four officers of the Agricultural Department of the Government for an, offence under sections 420, 409, P. P. C. and section 5(2) of the Prevention of Corruption Act, 1947. The allegation was that there was a conspiracy between them to deprive and cheat the Government of an amount of' over six lacs. The entire money was withdrawn from the Government treasury and paid to Qamar Hussain. It was alleged to be a shady transaction and the goods worth Rs. 28,392 were supplied by Qamar Hussain while the remaining amount vas misappropriated. The case was registered on 17‑9‑1963 and subsequently challaned in 1965. On 19th October 1969 the learned Special Judge passed the following order :‑ "Mr. Aftab Akhund on behalf of his client accused Agha Qamar Hussain has made a statement at the Bar that the amount of Rs. 5,41,683 is lying with the firm of Messrs G. T. M. C. (General Tractors Machinery) Company Limited, 8, West Wharf Road, Karachi, as the goods ordered could not be delivered and that this amount can be recovered from them, that the goods amounting to Rs. 50,312 were supplied by the said firm to the Agriculture Department, that accused Agha Qamar Hussain was, at the relevant time, one of the Directors of the firm but at present he is no more the Director of it. In view of the statement the query should be made from the said firm." In pursuance of this order a notice was served upon the firm which filed an explanation through their Chief Accountant who personally presented the explanation which reads as under : "In compliance with the orders of the Hon'ble Court, it is submitted that the sum of Rs. 6,36,095 (Rupees six lakhs thirty six thousand ninety‑five) only were received by Messrs General Tractors & Machinery Company Ltd. from the Director Agriculture, Hyderabad Region, Hyderabad, for the supply of certain pesticides etc, The said company supplied pesticides and sprayers worth Rs. 92,412 (Rupees ninety‑two thousand four hundred and twelve) only which were accepted by the said department and for the balance amount of Rs. 5,43,683 (rupees five lakh forty‑three thousand six hundred and eighty‑three) only said pesticides etc. were offered to the concerned department but the Department did not take delivery of the same without assigning any reason. Thus Messrs General Tractors and Machinery Company Ltd. suffered losses for which it merits compensation." "The learned Special Judge, after considering the explanation submitted on behalf of the company passed the impugned order dated 23‑1‑1970. It teas observed by him that it was admitted by the said firm that they were in possession of the amount of Rs. 5,43,683 of Government money and the question as to whether the said goods were offered and refused without any reason was totally separate and could be decided by the Government or whether the said firm was entitled to any compensation. With regard to the contention of the firm that they had sufferred loss it was observed by the learned Special Judge that if the firm had suffered any loss or the department concerned as responsible for the breach of the contract by non‑acceptance of the goods it was open to the firm to prefer their claim to the Government through the Director of Agriculture, Hyderabad for their consideration. The learned counsel for the applicant at the outset urged before me that the only provision of lava under which the learned Special Judge could act was section 94, Cr. P. C. which conferred powers upon him to call for the production of document or other thing which was necessary or desirable for the purpose of any investigation, inquiry, trial or other proceedings under the Code and since the order directing the company to deposit the money in Court was neither necessary nor desirable for any of the aforesaid purposes the learned Special Judge, acted contrary to law. I find no force in this contention. This section contemplates a different situation and does not deal with the property in respect of which an offence is said to have been committed. The learned counsel sought in aid taco authorities one is in the case of 'Bilal Muhammad and others v. The Emperor (A I R 1940 Bom 361) and the other is in the case of E. F. Graves v. Pitomal 0ondamal (A I R 1943 Sinh 51) Both these authorities are inapplicable. In the former authority the application was made by an accused person for the production of statements recorded by the Sub‑Inspector in relation to the offence, while in the second authority the accused persons required that the firm should allow the inspection of a large number of documents or hand over those documents to be produced in Court. On the other hand, the learned Advocate‑General pointed out that the provisions relating to the property in respect of which the offence was said to have been committed were contained in sections 516‑A and 517, Cr. P. C. Both these sections deal with the disposal of the property regarding which: an offence appears to have been committed or which appears to have been used for the commission of any offence. Section 516‑A contemplates the passing of an interim order during the pendency of inquiry or trial for the proper custody of such property, whereas section 517 comes into play when the inquiry or trial is concluded and the final order is passed for the disposal of the property. Of course both these sections reveal that the property in respect of which an order can be passed is produced before the Court while in the present case the money was not before the Court but the learned Special Judge had ordered the company to deposit it. In order to meet this objection the learned Advocate‑General pointed out that the doctrine of implied power was applicable. In this connection reference was, made to page 258 of Craies on Statutes Law, 6th Edition, wherein it was laid down "One of the first principles of law with regard to the effect of an enabling Act is that if the Legislature enables something to be done, it gives power at the same time, by necessary implication, to do every thing which is indispensable for the purpose of carrying out tire purpose in view, "on the principle;" as Parke B. said in Clarence Ry.. v. Great N. of England Ry., that ubi aliquid conceditur, conceditur etiam id sine quo res ipse non esse potest." Similarly it was laid down in Maxwell's Interpretation of Statutes, 1962 Edition, at page 350 : "Whether an act confers jurisdiction, it impliedly also grants the power of doing of such acts, or implying such means as are essentially necessary to its execution." Reference was also made to the authority of the Supreme Court in the case of Moinuddin Moula v. Province of East Pakistan and others (PLD 1962 S C 119) wherein it was observed that the power to grant relief necessarily implies the powers to take all such steps as may be needed to ensure the grant of relief to the plaintiff. From these principles it, therefore, follows that the power to pass an order in respect of the property regarding which an offence has been committed includes ancillary power to call for the money so that the necessary order may be passed for its proper custody during the pendency of the proceeding and final order on the conclusion of the proceedings. No such order can be passed unless the property is before the Court. It was next urged by the learned counsel for the applicant that Agha Qamar Hussain though was the Director of the Company but he had not acted on behalf of the Company but there was a contact between him and the Company whereby he had to receive some commission and, therefore, the Company was not liable for any fraud which may have been committed by him. Apart from the fact this plea lacks proof for the present no such plea was taken in the affidavit which was filed alongwith the application. It was also urged that the company had a separate legal entity and therefore, for anything which had been done by Qamar Hussain the Company could not be held responsible. I find no force in this contention. Admittedly Qamar Hussain was the Director of the Company and while entering into the contract with the Government Officers he had acted on behalf of the Company. The Company is liable for any act which had been done by him for the benefit of the Company. The accusation is that there was a conspiracy between Qamar Hussain as the Director of the Company and the Government servants for the misappropriation of the money and they entered into a shady transaction. There is further allegation that the amount of Rs. 5,50,347 was withdrawn from the treasury without the goods having been supplied, and this amount was paid to Qamar Hussain, and it was subsequently that the goods worth Rs. 28,392 were supplied while the remain ing amount was misappropriated. Lastly, it was argued by the learned counsel for the applicant that the Company was not heard before the impugned order was passed and, therefore, the principles of natural justice were violated and on that account the impugned order was not sustainable. This contention is equally devoid of force. It is clear from the statement of facts that before the impugned order was passed a notice was served upon the Company and in pursuance of that notice an explanation was personally presented by the Chief Accountant of the Company. It, therefore, cannot be said that no opportunity was afforded to the Company. The impugned order was passed: on consideration of that explanation. So by making the query from the Company compliance with the principles of natural justice was made. In this connection reference may be made to the case of Mehrab Khan v. Taj Muhammad and others (P L D 1961 Quetta 1). It was observed by his Lordship that "A personal hearing before deciding a matter is not necessary require ment of the principles of natural justice. All that is necessary id full and fair opportunity of making a representation or show cause. What a full and fair opportunity depends upon the facts of each case. In some cases it may be enough if the party has placed hip point of view and has shown cause for the consideration of the authority, and no prejudice is shown to have been caused." So according to this it is not necessary that there should be a personal hearing, but what is needed is that the party must have an opportunity to present its cases. In the present case admittedly a notice was issued to the Company and its Chief Accountant bad actually appeared in Court and presented a written explanation which was duly considered by the learned Special Judge. Similar view was taken in the case of Dr. Mumtaz Hussain v University of Sind, Hyderabad and others (P L D 1966 Kar. 429). The learned Advocate‑Genera in the case of Abdul Latif Niazi v. Government of West Pakistan (P L D 1967 S C 62). but in that case the facts were somewhat different. In the circumstances no exception can be taken to the order passed by the learned Special Judge. The revision application is, therefore, dismissed. Revision dismissed.