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HIGH COURT OF ORISSA
NARASIMHAM,MOHAPATRA, JJ.
Babulal Agarwalla
Versus
Province of Orissa
First Appeals Nos. 18 and 23 of 1946
Decided On : 21-01-1954
DEFENCE OF INDIA ACT, 1939 - S. 17(1) - FOODGRAINS CONTROL ORDER, 1942 - CL. 3(1) - R. 81(4) - CRIMINAL PROCEDURE CODE, 1898 - SS. 523(1), 550 - POLICE OFFICER - SEIZURE OF FOODGRAINS - GOOD FAITH - PROTECTION UNDER S. 17(1) - CONDITIONS - BURDEN OF PROOF - DAMAGES FOR UNLAWFUL SEIZURE - MEASURE OF DAMAGES - INTEREST - SALE PROCEEDS OF SEIZED FOODGRAINS - RIGHT TO.
Fact of the Case:
Plaintiff, a merchant from Faridpur district in East Bengal, claimed damages for alleged illegal and malicious seizure of several bags of rice on various dates in June and July, 1943. The learned Subordinate Judge decreed his claim for damages in respect of seizure of some bags of rice on three dates (16-7-1943, 22-7-1943 and 27-7-1943); but dismissed his claim in respect of seizure on other dates.
Finding of the Court:
1. The police officers who seized the plaintiff's rice bags on 1st, 4th, 5th and 6th seizures (28-6-1943, 16-7-1943, 22-7-1943 and 27-7-1943) acted without any authority and were liable to pay damages to the plaintiff for the loss sustained by him due to their illegal seizures. 2. The second seizure of 299 bags of rice on 7-7-1943 was made by the police officer during the course of his investigating a cognizable case under Ss. 147 and 341, Penal Code started on a complaint petition filed by the plaintiff himself before the Sub-divisional Magistrate on 3-7-1943. The seizure was therefore lawful under the provisions of the Criminal Procedure Code. 3. The seventh seizure of 151 bags of rice on 27-7-1943 was made by the police officer near about Jatni Railway Station and brought to Jatni police station. The plaintiff was then at Khurda several miles away and none produced any licence before the police officer at the time of the seizure. The police officer had, therefore, reasons to believe that a contravention of clause 3 of the Foodgrains Control order had taken place and he was, therefore, justified in seizing the goods in exercise of the powers conferred on him by S. 550, Criminal P. C. 4. The Assistant Price Control Officer of Khurda played no part in the seizure of any of the goods. He merely called upon the plaintiff to produce his account books and scrutinised the same. This power was conferred on him by an order of the Sub-divisional Magistrate dated 9-4-liHiJ (Ext. H). His action was throughout performed in pursuance of a valid order issued to him by his superior and the suit against him is misconceived. 5. There was no conspiracy between the Government and their officials to unlawfully seize the goods of the plaintiff.
Issues: 1. Whether the police officers who seized the plaintiff's rice bags on 1st, 4th, 5th and 6th seizures (28-6-1943, 16-7-1943, 22-7-1943 and 27-7-1943) acted without any authority and were liable to pay damages to the plaintiff for the loss sustained by him due to their illegal seizures? 2. Whether the second seizure of 299 bags of rice on 7-7-1943 was made by the police officer during the course of his investigating a cognizable case under Ss. 147 and 341, Penal Code started on a complaint petition filed by the plaintiff himself before the Sub-divisional Magistrate on 3-7-1943. The seizure was therefore lawful under the provisions of the Criminal Procedure Code? 3. Whether the seventh seizure of 151 bags of rice on 27-7-1943 was made by the police officer near about Jatni Railway Station and brought to Jatni police station. The plaintiff was then at Khurda several miles away and none produced any licence before the police officer at the time of the seizure. The police officer had, therefore, reasons to believe that a contravention of clause 3 of the Foodgrains Control order had taken place and he was, therefore, justified in seizing the goods in exercise of the powers conferred on him by S. 550, Criminal P. C.? 4. Whether the Assistant Price Control Officer of Khurda played no part in the seizure of any of the goods. He merely called upon the plaintiff to produce his account books and scrutinised the same. This power was conferred on him by an order of the Sub-divisional Magistrate dated 9-4-liHiJ (Ext. H). His action was throughout performed in pursuance of a valid order issued to him by his superior and the suit against him is misconceived? 5. Whether there was a conspiracy between the Government and their officials to unlawfully seize the goods of the plaintiff?
Ratio Decidendi: 1. The police officers who seized the plaintiff's rice bags on 1st, 4th, 5th and 6th seizures (28-6-1943, 16-7-1943, 22-7-1943 and 27-7-1943) acted without any authority and were liable to pay damages to the plaintiff for the loss sustained by him due to their illegal seizures. 2. The second seizure of 299 bags of rice on 7-7-1943 was made by the police officer during the course of his investigating a cognizable case under Ss. 147 and 341, Penal Code started on a complaint petition filed by the plaintiff himself before the Sub-divisional Magistrate on 3-7-1943. The seizure was therefore lawful under the provisions of the Criminal Procedure Code. 3. The seventh seizure of 151 bags of rice on 27-7-1943 was made by the police officer near about Jatni Railway Station and brought to Jatni police station. The plaintiff was then at Khurda several miles away and none produced any licence before the police officer at the time of the seizure. The police officer had, therefore, reasons to believe that a contravention of clause 3 of the Foodgrains Control order had taken place and he was, therefore, justified in seizing the goods in exercise of the powers conferred on him by S. 550, Criminal P. C. 4. The Assistant Price Control Officer of Khurda played no part in the seizure of any of the goods. He merely called upon the plaintiff to produce his account books and scrutinised the same. This power was conferred on him by an order of the Sub-divisional Magistrate dated 9-4-liHiJ (Ext. H). His action was throughout performed in pursuance of a valid order issued to him by his superior and the suit against him is misconceived. 5. There was no conspiracy between the Government and their officials to unlawfully seize the goods of the plaintiff.
Final Decision: F. A. No. 23/46 is dismissed with costs. F. A. No. 18/46 is allowed as against A. S. I. Lokanath Misra (defendant No. 4 and respondent No. 4) with proportionate costs. It is dismissed as against the remaining respondents with costs.
Judgement
NARASIMHAM, J. :- These two appeals arise out of the judgment 1 and decree passed by the Subordinate Judge of Puri in a suit brought by one Babulal Agarwalla, a merchant of Faridpur district in East Bengal, claiming damages for alleged illegal and malicious seizure of several bags of rice on various dates in June and July, 1943. The learned Subordinate judge decreed his claim for damages in respect of seizure of some bags of rice on three dates (16-7-1943, 22-7-1943 and 27-7-1943); but dismissed his claim in respect of seizure on other dates.
F. A. No. 18 of 1946 was filed against that portion of the judgment of the Subordinate Judge which disallowed his claim and F. A. No. 23 of 1946 was filed by two of the police officers against whom the learned Subordinate Judge had given a decree for damages for unlawful seizure. Both the appeals were heard together for the convenience of all concerned and will be dealt with in one judgment.
2. During the year 1943 the second world war was going on with great intensity and the provisions of the Defence of India Act, the Defence of India Rules and the various Control Orders in respect of essential commodities were applied with full rigour in all the States of the territory formerly known as British India. The Control Order with which the Court is concerned in the present litigation is the Foodgrains Control Order, 1942 made by the Central Government in exercise of the powers conferred by sub-rule (2) of R. 81 of the Defence of India Rules. That Order prohibited any person from engaging in any undertaking in respect of purchase, sale, or storage for sale, in wholesale quantities of any foodgrain except under and in accordance with a licence issued in that behalf by a Provincial Government.
The Order defined purchase or sale in wholesale quantities as meaning purchase or sale in quantities exceeding 20 maunas in any one transaction and there was a further provision to the effect that any one who stores foodgrain in quantities exceeding 50 maunds may, unless the contrary is proved, be deemed to store the foodgrain for purposes of sale. There are other provisions in the Order dealing with the conditions under which licences would be granted by the Provincial Governments and the terms of such licences.
In pursuance of this Order various Provincial Governments restricted the export of rice from one Province to another by the issue of licences. But during the great Bengal famine of 1942-43 when there was acute shortage of rice in Bengal the Government of India inserted a second proviso to sub-rule (2) of R. 81, Defence of India Rules by an amending notification No. 5-DC (28)/43, dated 18-5-1943 by which the Provincial Governments of Assam, Bengal, Bihar and Orissa were, in effect, prohibited from restricting movement, transport, distribution, disposal etc. of foodgrains within those four Provinces with effect from 18-5-1943.
By another notification No. C. G. IV(2)/43 dated 29-5-1943 a second proviso was added to clause 3 of the Foodgrains Control Order, 1942, to the following effect :
"Provided further that any licence issued, or deemed to be issued, under this clause in any of the four provinces of Assam, Bengal, Bihar and Orissa and for the time being in force in the province of issue shall be as valid in each of the other three provinces as if it had been issued by the provincial Government of that province."
It is a notorious fact that this privilege of unrestricted inter-provincial movement of foodgrains amongst the said four Provinces though welcomed by Bengal was keenly resented by Orissa and Bihar and after some agitation the Government of India withdraw that privilege by notification No. C. G. 604/2 dated 16-8-1943. The period from 18-5-1943 to 16-8-1943 may conveniently be described as the free trade period during which the various acts of seizure of the rice of the plaintiff took place. The eagerness of the then Provincial Government of Orissa to bring about a speedy termination of t
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