ORDER

Rajeshwari Prasad, J. - This is a petition in revision against an order passed by SDM Orai in case No. 196 of 1963 PS Orai u/s 7 Essential Commodities Act dated 30-4-1964 which was affirmed by the Sessions Judge Orai in revision by the order dated 27-3-1965.

2. It appears that on 17-10-1963, seventy-six bags of wheat each containing 90 kilograms of wheat were recovered from the godown of one Messrs Ram Gopal and Ram Behari. It was alleged that the consignment of wheat was kept by Debi Prasad accused for sale without obtaining a licence therefor. After investigation was made, Debi Prasad was charge sheeted u/s 7 of the Essential Commodities Act.

3. The stand taken by Debi Prasad was that the bags of wheat so recovered did not belong to him; that he was a palledar of Ram Gopal and that the same belonged to one Raja Ram, who was a cultivator or farmer. The learned Magistrate came to the conclusion that the prosecution had (to use his own words) "miserably failed to prove the case u/s 7 of the Essential Commodities Act read with Section 3(1) of the U.P. Food Grains Dealers Licensing Control Order, 1953" against the accused. The accused was, therefore, held not guilty of that offence and was acquitted. The learned Magistrate, however, proceeded to direct that the consignment of 76 bags of wheat so recovered would stand forfeited to the State Government.

4. Raja Ram mentioned above filed a petition in revision before the Sessions Judge Orai against that part of the order of the Magistrate by which it was directed that the grain recovered be forfeited to the State Government. The petition in revision was, however, dismissed by the learned Sessions Judge on account of reasons given in the order. One of the reasons for rejecting the petition in revision given by the learned Sessions Judge is, that Raja Ram was not entitled to recover the consignment of wheat in question and the only person who could do that was the firm Messrs Ram Gopal and Ram Behari from whose godown the grain in question was recovered.

5. Connected with this revision petition is a petition purporting to be u/s 561-A Code of Criminal Procedure on behalf of Messrs Ram Gopal Ram Behari. The object of that petition is to get the order of forfeiture passed by the court below quashed.

6. I have heard the learned Counsel in support of both the petitions and they can be disposed of by a single order.

7. To my mind, the order for forfeiture of the consignment of wheat, recovered in this case is wholly illegal and in excess of jurisdiction provided for Section 7 of the Essential Commodities Act 1955 devotes itself to the question of penalties. Under that section it is enjoined, that, if any person contravenes any order made u/s 3, he shall be punishable as firstly in the case of an order made with reference to Clause (h) or Clause (i) of Sub-section (2) of that section, with imprisonment for a term which may extend to one year and shall also be liable to fine and secondly, in the case of any other order with imprisonment for a term which may extend to three years and shall also be liable to fine. The section proceeds to lay down a proviso, to the effect, that, if the court is of opinion, that a sentence of fine only will meet the ends of justice, it may for reasons to be recorded, refrain from imposing a sentence of imprisonment; and any property in respect of which the order has been contravened or such part thereof as the court may deem fit, shall be forfeited to the Government. A bare perusal of the provision would show that forfeiture of the goods recovered is a punitive act and a part of the punishment for the offence, if established. In the instant case, the only accused has been acquitted and no punishment for the alleged offence has been given to any person. In the absence of any punishment, I fail to see how could the consignment of wheat be forfeited. The conjunction used in the proviso is conjunctive and not disjunctive. If a sentence is to be awarded, it may either