The interpretation of Clause 4 of the Orissa Kendu Leaves Control Order, 1960, and the competence of the Additional District Magistrate to pass final orders in a criminal revision.

JUDGMENT :

Misra, J. - The opposite parties were placed on trial for an offence u/s 10 of the Orissa Essential Articles Control and Requisitioning (Temporary Powers) Act, 1955, for contravention of the provisions of Clause 4 of the Orissa Kendu Leaves Control Order, 1960 made under that Act. On 8-2-1964, Sri B.N. Parija, Magistrate, First Class, discharged the accused u/s 253(1), Code of Criminal Procedure and directed that the seized kendu leaves be forfeited to the State after the appeal was over. Against the order of forfeiture, opposite parties came up in Criminal Revision No. 146 of 1964. This Court set aside the last paragraph of the order of the Magistrate relating to forfeiture. The State of Orissa filed a Criminal Revision on 9-7-1964 against the order of discharge. The learned Additional District Magistrate, Bolangir, has made a reference that the order of discharge is unsupportable in law.

2. Amongst other grounds, the order of discharge is based on the construction of Clause 4 of the Orissa Kendu Leaves Control Order, 1960.

3. Mr. Misra raised 3 preliminary objections:

(i) The revision was filed on 9-7-1964 about five months after the order of discharge dated 10-2-1964.

(ii) u/s 436, Code of Criminal Procedure the Additional District Magistrate had powers to pass final orders and the reference is incompetent.

(iii) That the matter having been dealt with by this Court in Criminal Revision No. 146 of 1964, it cannot be recanvassed.

4. The first contention has some force as under Article 131, Limitation Act, 1963, the period of limitation for filing a revision is 90 days from the date of the order of discharge. Section 5 of the Limitation Act has, however, been made applicable to criminal revision. No such application for condonation of delay was filed by the State. The Learned Additional District Magistrate should have considered this aspect of the matter.

5. u/s 436, Criminal Procedure Code, the Additional District Magistrate on examining the record could have directed the subordinate Magistrate to make further inquiry when any person accused of any offence has been illegally discharged. When he himself could have passed the final order, the order of reference to this Court is incompetent.

6. The third contention has no substance. Criminal Revision No. 146 of 1964 dealt with only the last para both order of the learned Magistrate directing forfeiture. On the Magistrate's own finding that no prima facie case was made out resting in the discharge of the accused, the order of forfeiture could not be maintained. If ultimately, however, the order of discharge is set aside, the order passed iii the criminal revision would not be inconsistent with the ultimate order that would be passed after trial.

7. The result of the aforesaid analysis is that the case must go back to the Additional District Magistrate, Bolangir for disposal of the case finally in exercise of his powers u/s 436, Criminal Procedure Code.

8. In view of the fact that the case is being remanded, it is unnecessary for me to express any opinion on all points on which the order of discharge rests. One matter may, however, be made clear to avoid legal confusion. Clause 4 of the Orissa Kendu Leaves Control Order, 1960, lays down that no-person shall engage in purchase and transport of Kendu Leaves by way of trade or business except under and in accordance with the conditions of a license issued under this Order. The learned Magistrate was of opinion that unless the accused did both the case of purchase and transport, Clause 4 has no application to the accused. His view is wholly conceived. The words "purchase and transport" refer to two different legal concepts. In other words, the conjunction "and" must be construed as disjunctive. If a person makes purchase without a license, even though he does not transport, he comes within the chief of the Clause. He is also liable if he transports Kendu Leaves without purchase.

9. In the result, the reference is discharged not on the