Kidwai, J.:— This is an application for revision of an. Order passed by a Magistrate, first class, in the district of Rae Bareli directing confiscation of some parcels of cloth.
The facts are that on the 27th February, 1947, two suit cases and two bundles of cloth were discovered in a house belonging to the applicant. A case was started against him for contravention of section 18 sub-section (2) of the Cotton Cloth and Yarn Control Order 1915 and section 6, sub-section (4) of the Rae Bareli Town Rationing Order, 1945, read with section 17/7 of Act XXIV of 1946, namely, the Essential Supplies (Temporary Powers) Act. On the 25th April, 1947, Mohammad Hanif pleaded guilty. He was convicted and sentended to pay a fine of Rs. 100. On the same date a separate order was passed by the learned Magistrate forfeiting the cloth to His Majesty. On the 15th October, 1947, Mohammad Hanif applied to the District Supply Officer, who was the same gentleman, as the Magistrate who had disposed of the case praying for return of the cloth. The file was then before the Sessions Judge in connection with an appeal in his Court filed by another person. The Supply Officer called for office reports with the necessary rules and on the 18th December, 1947, after the file had been placed before him, he noted that the order had already been passed on the 25th April, 1947 and consequently the application should be filed. On the 29th January, 1948, another application was filed by Mohammad Hanif praying for return of the cloth. The file was put up before the Supply Officer and he then noted that orders had already been passed and that the applicant should be informed. Thereafter the applicant moved the Sessions Judge of Rae Bareli and contended before him that the order confiscating the cloth having been passed after the judgment was signed and pronounced in open court was illegal and should not have given effect to it. The learned Sessions Judge has rejected this contention on the ground that the confiscation of the cloth is not part of the sentence and, therefore, section 369, Criminal Procedure Code, does not apply to it.
Mohammad Hanif has now come up in revision and his learned Advocate contends that, as a matter of fact, the order passed by the Magistrate was very much subsequent in date to the order convicting Mohammad Hanif. From the record it appears that both the orders were passed on the same date. His contention is, however, that the copy supplied to him on the 17th May, 1947, did not contain the portion of the order relating to confiscation. It is quite possible that this may be so because the copy supplied to the applicant would be a copy of the order for which he had asked, namely, copy of the order holding him guilty and sentencing him to pay a fine. As I have already stated the order confiscating the cloth is a subsequent order though passed on the same day. I am not prepared to hold that the learned Magistrate has committed a forgery and has ante-dated an order which he passed subsequently since there is no foundation for this contention.
It is then contended that even if the two orders were passed on the same day the order directing the forfeiture of cloth was passed after the judgment had been signed and thus the provisions of section 369, Criminal Procedure Code, were contravened. This is not so. The forfeiture of the cloth is not part of the sentence passed upon the accused. Section 7 of the Essential Supplies (Temporary Powers) Act of 1946 provides that “if any person contravenes any order made under section 3, he shall be punishable with imprisonment for a term which may extend to three years or with fine or with both, 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.” From a perusal of this section it appears that the order of forfeiture is an order which follows conviction and is not a part of the sentence but is a part of the function of the court under section 517, Criminal Procedure Code, to direct how the property in respect of which a crime has been committed shall be disposed of. This was a case to which section 517, Criminal Procedure Code, applies and that section becomes applicable only when the trial has been concluded. This means that it is only after judgment has been delivered that the court can pass an order under section 517, when in the present case the court passed such an order it did not go beyond its powers and the order was a valid one.
It was then contended that the punishment inflicted on the applicant will become very severe if apart from the sentence imposed upon him, his cloth is also confiscated. This is a matter in which the trial court had discretion. In view of the evils which section 7 is intended to remedy, it cannot be said that the trial court has not exercised its discretion in a proper manner.
This application, therefore, fails and is dismissed.
Application dismissed.