JUDGMENT

Harries, J. - On 25th September 1943 the petitioner Abdul Majid, purchased from one Sant Singh of Chichawatni 108 tins of kerosene oil and 24 tins of diesel oil for lis. 1404, the purchase being at the rate of lis. 11 per tin for kerosene oil and Rs. 9 per tin for diesel oil. Later Sant Singh was prosecuted for an offence under Rule 81, Sub-rule (4), Defence of India Rules. It was alleged against him that he had sold kerosene oil at a price higher than that fixed by an order under Rule 81(4), Defence of India Rules. The main witness for the prosecution was the present petitioner who proved the purchase at the rates which I have stated. Sant Singh was convicted and his conviction was ultimately upheld in this Court. The learned Magistrate, who tried the case, also passed an order confiscating the oil which had been purchased by the petitioner Abdul Majid. The petitioner applied in revision to the learned Sessions Judge, Montgomery, bat the latter declined to interfere. He then preferred the present petition which came before a learned single Judge. The learned Judge was of opinion that the point involved in this case was one of difficulty and importance and referred it for decision by a larger Bench. Thus the present Bench of three Judges was constituted to hear the petition. The only question involved in this petition is whether the trying Magistrate could under Rule 81, Sub-rule (4), Defence of India Rules, as that Sub-rule stood in September 1943, confiscate this oil. Very wide powers have been given to criminal Courts to confiscate property under Section 517, Sub-section (1), Criminal P.C. That Sub-section is in these terms:

When an inquiry or a trial in any criminal Court is concluded the Court may make such order as it thinks fit for the disposal by destruction, confiscation or delivery to any person claiming to be entitled to possession thereof or otherwise of any property or document produced before it or in its custody or regarding which any offence appears to have been committed, or which has been used for the commission of any offence.

2. There can be no doubt that the oil in question in this case was property regarding which the Magistrate held that an offence had been committed. It was, therefore, property that fell within the ambit of Section 517, Criminal P.C., and could in ordinary circumstances have been confiscated. Had the matter rested there the case would have presented no difficulty. Rule 81, Sub-rule (4), Defence of India Rules, as originally promulgated was as follows:

If any person contravenes any order made under this rule, he shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.

3. On 5th February 1948 the following was added to the Sub-rule:

And, if the order so provides, any Court trying such contravention may direct that any property in respect of which the Court is satisfied that the order has been contravened shall be forfeited to His Majesty.

4. The Sub-rule as added governs the present case. It will be seen that the Sub-rule expressly provides that a person contravening any order made under the rule' shall be punishable with imprisonment not exceeding three years and a fine and the property, which was the subject-matter of the proceedings, may also be confiscated if the order so provides, that is the order contravention of which has given rise to the prosecution. In other words, Rule 81, Sub-rule (4), as amended, provided only for confiscation if the order alleged to have been contravened provided for such confiscation. Sant Singh was prosecuted for: contravention of an order made by the learned District Magistrate under Rule 81.'Defence of India Rules. That order was in these terms:

In exercise of the powers conferred upon me by Rule 81(b), Defence of India Rules read with Punjab Government Notification No. 3610-H (M) 2704,S, dated 5th July 1940, I, Abdul Hameed, District Magistrate, Montgomery, hereby direct that with immediate effect ker