TMI Blog1954 (1) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Rule 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 maunds in any one transa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him about the notification of the Government of India and directing him to take necessary steps to prevent all export of foodgrains and their products to any place outside the province of Orissa except under a permit to be issued by the Provincial Director of Food Supplies, It seems thus a fair inference to say that the Provincial Government and its subordinate officers did not v/ant free trade of foodgrains between Orissa and Bengal and were keen on retaining power to regulate export from Orissa to Bengal by issuing licences. During the 'free trade period' their Hands were tied inasmuch as by virtue of the amendments made by the Government of India to the Defence of India Rules and the Foodgrains Control order any trader who obtained a valid licence under that Order from a competent authority in Bengal was entitled to purchase rice in Orissa and export it to Bengal without any restriction whatsoever. The allegation of the plaintiff is that during the 'free trade period' though the Provincial Government could not directly prevent the transport of rice from Orissa to Bengal it encouraged its subordinate officials to prevent such export by indirect means by harassi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia Act. The police officers also have taken a similar plea. The Assistant Price Control Officer took the plea that he had nothing to do with the seizure of any of the bags and that consequently he was not liable in any view of the case. 4. Before discussing the various questions of law that arise in these appeals I may discuss the evidence regarding the circumstances under which various acts of seizure took place and give my finding thereon. 5. '1st seizure'. -- Admittedly on 28-6-1943 nineteen bags of rice were seized by A.S.I. Lokanath Misra (D. W. 1 and defendant No. 4) at Khurda, about 300 yds. off from the office of the Sub-divisional Magistrate. This A. S. I. has, in his written statement in his evidence in Court, taken the plea that he found two cartmen named Ramnarayan Ram and Fakir Behera in charge of the said nineteen bags of rice and that on demand they could not produce before him any licence. Hence he suspected that there was contravention of the provisions of the Foodgrains Control Order which was punishable under Rule 81 (4) of the Defence of India Rules and that he seized the rice bags. The plaintiff, on the other hand, has examined his companion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the rice bags seized should be returned to the plaintiff. There is, however, no evidence to show what happened subsequently to those rice bags. 8. '2nd seizure', -- Admittedly on 7-7-1943 A. S. I. Purusottam Mohapatra (D. W. 2 and defendant No. 2) who was officer-in-charge of Khurda police station seized 299 bags. On 3-7-1943 the plaintiff had filed a complaint (Ext. E-1) under Sections 147 and 341, I. P. C. against several persons alleging that they wrongfully restrained him from despatching rice in bullock carts to the railway station. The complaint was sent by the Sub-divisional Magistrate to the local police for instituting F. I. R. and investigation. The police officer (D. W. 2) stated that while investigating that case he seized the said 299 bags which were pointed out to him by the complainant (plaintiff) himself and that he kept them in the custody of one Brajakishore Naik. After completing investigation he submitted Final Report (Ext. E-3) in that case. Then the Sub-divisional Magistrate on 5-8-1943 directed the release of these bags to the plaintiff. But on 12-9-1943 after the expiry of the 'free trade period' these bags and one more bag were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iff to implead Bimbadhar or to file a separate suit against him though the trying Magistrate who delivered the rice bags to Bimbadhar by his order dated 15-1-1944 (see Ext. D1) directed the plaintiff to seek his redress against Bimbadhar in the Civil Court, must lead to an adverse inference against him. Bimbadhar is undoubtedly a necessary party so far as the recovery of damages for seizure of these 35 bags of rice is concerned. He had to stand in the dock as an accused in the criminal case (G. R. No. C/36 of 1943) brought by the police in respect of his unauthorised possession of these bags. If the plaintiff was really present at the time of the seizure and had shown his licence to the police officer it is not likely that the police would have omitted to send him up also as one of the co-accused, if not as the only accused. I am therefore not inclined to accept the uncorroborated testimony of P. W. 1 regarding the presence of the plaintiff at the time of the seizure of these bags or the production of his licence before the police officer concerned. I would agree with the learned lower Court that the bags were in the possession of Bimbadhar and as he could not produce any lic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bags of rice at Khurda. As in respect of the previous seizure there is a sharp conflict in the testimony of P. W. 1 and P. W. 3 regarding the circumstances connected with this seizure, the former saying that the plaintiff was present and that he showed his licence and the latter asserting that though the plaintiff was present he was not able to produce either his licence or his daily account register. (After discussion of evidence his Lordship proceeded). In view of these circumstances I would disbelieve the evidence of D. W. 3, accept the evidence of P. W. 1 and hold that the plaintiff was present and that he showed his licence to this police officer at the time of this seizure also. 13. In respect of these two seizures of 22-7-1943 27-7-1943 two criminal cases under Rule 81(4) of the Defence of India Rules were started against the plaintiff (Nos. 47 48 of 1943) in the Court of Sri N.M. Patnaik. But both of them were withdrawn on 15-5-1944 (see Exts. B-1 B-2) and the Magistrate directed that the property should be restored to the owner. But it appears that the rice bags were not taken possession of by the plaintiff. 14. 7th seizure: On 27-7-1943, S. I. Sri Budhinath Da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n and produced his licence; but the police officer refused to release the goods. 16. By virtue of the second proviso to Sub-clause (1) of Clause 3 of the Foodgrains Control Order, 1942 if any person is found in possession of more than 50 maunds of foodgrains he may be presumed to have stored them for the purpose of sale unless the contrary is proved. The definition of storage in wholesale quantities in Clause 2(e) shows that storage for purposes of sale of more than twenty maunds of foodgrains, requires a valid licence. Such storage for the purpose of sale without a valid licence would amount to contravention of Clause 3(1) of that Order and would thus be punishable under Rule 81(4) of the Defence of India Rules. Hence, arises the necessity on the part of a person keeping in his possession more than fifty maunds of foodgrains to produce a valid licence when demanded by any of the competent authorities. Rule 128 of the Defence of India Rules specified the various offences under those Rules which are of a cognizable nature. Rule 81 is not specified in that Rule and consequently it is clear that an offence under Rule 81(4) is a non-cognizable offence, that is to say, a police ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officers have no such powers at all and that the provisions of the Criminal Procedure Code giving them such powers should be deemed to have been impliedly taken away. In taking this view the learned lower Court relied mainly on the fact that under Clause (f) of Sub-rule (2) of Rule 81 of the Defence of India Rules express power was conferred on the appropriate Government to provide in an Order made under Rule 81(2) of the Defence of India Rules for entering, searching and inspecting premises with a view to secure compliance with the Order and to seize suspected articles. By way of analogy it relied on -- 'Purushottam Devji v. Emperor', AIR 1944 Bom 247 (A) 'In re Appukutti Chettair', AIR 1945 Mad 23 (B), and other decisions where it was held that the power of a trying Magistrate to forfeit goods in respect of which contravention of an Order under Rule 81 (4) of the Defence of India Rules was proved, arose only if in the relevant Order express power was conferred on a trying Magistrate to direct such forfeiture. In those decisions the reasoning adopted was that in view of the express provision in Rule 81(4) regarding forfeiture of goods the provisions of Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence of India Rules had not even impliedly taken away that right. The Sub-divisional Magistrate's power under the Criminal Procedure Code to direct search and seizure where there is a reasonable suspicion of contravention of any provision of the Defence of India Rules is equally clear not only by virtue of the general provisions of the Criminal Procedure Code but also by virtue of the express powers conferred by Rule 124 Defence of India Rules. 19. I may now deal with Section 17(1), Defence of India Act on which much reliance has been placed by the defendants. That section is as follows: Section 17(1) : No suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done in pursuance of this Act or any rules made thereunder. The expression 'good faith' used in this section should be construed in the light of the definition given in Section 3(20), General Clauses Act, 1897 which us as follows : A thing shall be deemed to be done in good faith where it is in fact done honestly whether it is done negligently or not. This definition differs fundamentally from the definition of 'goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (D)' and -- 'Newell v. Starkie', (1919) 89 LJ PC 1 (G). These decisions were noticed in the well-known decision reported in -- 'Gurucharan Kaur v. Province of Madras', (H) where statutory protection under Section 270(1), Government of. India Act, 1935 was held to be available to public officials acting under a mistaKen view of fact as to their duty. The question as to how far that protection will be applicable where the mistake was in respect of law as to their duty was left open. 21. Applying the aforesaid principles to the present case we have to see whether any of the various acts of seizure by the public officials was either done or intended to be done in pursuance of any provision of the Defence of India Rules. So far as the 1st, 4th, 5th and 6th seizures are concerned, I have already disbelieved the evidence of the police witnesses to the effect that the plaintiff was present at the time of those seizures and that he showed his licence (Ext. 1) to the police officers concerned (Sic). Hence there was not even a suspicion of contravention of Rule 81(4) of the Defence of India Rules so as to justify the seizure of those articles under Section 550, Crimi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal Magistrate they were released from custody on 5-8-1943. They were again seized by defendant No. 9 on 12-9-1943 under the orders of the Sub-divisional Magistrate. Free trade period had already expired as early as 16-8-1943 and consequently when the plaintiff was in possession of 300 bags of rice on 12-9-1943 in contravention of the provisions of Clause 3 of the Foodgrains Control Order, 1942, (having no valid licence with him then) the Sub-divisional Magistrate was fully justified not only by Rule 124 of the Defence of India Rules taut also by the provisions of the Criminal Procedure Code to direct the seizure of those bags of rice. Hence, the Sub-divisional Magistrate and the police officer who acted under his directions are both fully protected. 23. As regards the seventh seizure, I have already found that 151 bags of rice were seized on 27-7-1943 by D. W. 5 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 or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment of India to re-impose the ban on inter-provincial movement of foodgrains from 16-8-1943. Though there is much force in this argument of the learned Counsel for the plaintiff it will be difficult to infer from these meagre circumstances: that the Government of Orissa either conspired, with their local officials to prevent the plaintiff from exporting rice to Bengal or else that they connived at the actions of the local officials and subsequently ratified the same. It may be that the local officials, knowing the attitude of the Provincial Government on the question of free trade, acted with excessive zeal on. their own initiative in the hope that by preventing the removal of rice from Orissa they were doing a great service to the people by preventing the drain of such an essential commodity as rice. The Sub-divisional Magistrate of Khurda. (D. W. 6) stated in his cross-examination that whatever he did in connection with the seizure of the goods of the plaintiff was done by him bona fide in discharge of his official duties and in accordance with the instructions received by him from the District Magistrate and the Government. From this statement of the Sub-divisional Magis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osed in the present litigation. That decision, however, is clearly distinguishable on facts and, moreover, there are certain observations therein which would go against the contention of Mr. Rao. There the facts found were that certain troops occupied the fisheries of a party and damaged the fish that had been reared in the fish nurseries constructed thereon. The learned Judges of the Assam High Court, after a full discussion of the law regarding the liability of the State for the tortious acts of its servants, held that the occupation of the fisheries by the troops was for the purpose of efficient and successful prosecution of the war and that the Govt. should therefore have requisitioned the fisheries under Rule 75A of the Defence of India Rules and paid compensation to the owner for such requisition. Having failed to so requisition the property the Government were liable for trespass by their servants on the property of an individual where such trespass took place for Government purposes. But they declined to hold the Government liable for the wanton acts of waste and destruction committed by the troops in the fish nurseries, observing that these acts were not for the purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the plaintiff's failure to file an appeal must be construed to mean that he accepted the decision of the Court to the effect that the prevailing price per bag at that time was only ₹ 20/13/2 1/2 pies and that the reasonable compensation that he was entitled to for unauthorised seizure was only 12 per cent per annum. Defendant No. 5 is one of the appellants in F. A. No. 23 of 1946. But the learned Government Advocate who appeared for him was not able to satisfy me that either the price fixed by the lower Court or the rate of interest allowed by way of compensation was abnormally high. I think that, on the whole, the lower Court took a reasonable view taking as the basis the price-list published by the Government themselves in the Orissa Gazette at that time. I would, therefore, affirm the damages fixed by the lower Court against defendant No. 5 for unlawful seizure of 180 bags of rice and against defendant No. 7 for unlawful seizure of 41 bags. 29. In view of my finding, in disagreement with the lower Court, that as regards the first seizure also the police officer concerned (defendant No. 4) was bound to compensate the plaintiff the quantum of damages payable for t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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