Lakshminarayan v. Bhagwati]

two petitions, out of these : One Trilok Nath was running a business in Himachal the name and style of "Himachal Drug Pradesh under the extraction, collection and export Nurseries" for in the year 1949. He was a partner • of medicinal herbs of Messrs. Prabhu Dayal and Gowri Shankar of Jammu and Kashmir State in timber business carried on in the name and style of "The Kashmir that State under Woods". the business in Chamba was his exclusive business with which the had no partnership firm "The Kashmir Woods" concern whatsover. Prabhu Dayal's case was firm "The Kashmir Woods" was started by him later on 1943 as his sole proprietary concern, in this concern, that in the year 1949 Sardar Bhagwan Singh induced the partners of this firm to take up the line that a of crude drugs and herbs which was his line, new firm "Himachal Drug Nurseries" was started as a child concern of "The Kashmir Woods" with Bhagwan that after preliminary Singh as one of the partners, to take up this work at Chamba and in pursuance of this decision two leases took Trilok Nath Mahajan as a partner it was c!ecided ~ investigation ,_ - T ' 1 954 Waz;:ir Chand v. The State of Himachaf Pradesh. Mehr Chand Mahajan C. ]. 410 SUPREME COURT REPORTS [1955} sole owner of the knowledge of It was alleged that the Chamba concern forest divisions were taken on behalf of the of two Jammu firm," one in the name of Bhagwan Singh and another in the name of Trilok Nath but the finance· for this undertaking was supplied by the parent firm at Jammu. subsequently Trilok Nath manipulated the Jammu books showing a bogus investment of his elder brother Wazir Chand amount-· ing to Rs. 30,000 m firm "Kashmir Woods" and that fraudulently and by manipulating the books and into certain agreements Trilok Nath made by entering Wazir Chand "Himachal Drug Nurseries" and transferred the other partners. him without These assertions were not accepted by Wazir Chand or Trilok Nath. Their case was, that Trilok Nath was. the sole owner of that he· the Chamba concern, leases m his own name' and not for the obtained Jammu firm from the Chamba forest department, first in the year 1949, and then in the year 1950, that as he had no capital of his own, he borrowed a sum of Rs. 30,000 from his brother and made him a partner this business and that as later on he was with him m unable to contribute his share of the capital, the part-· nership was dissolved on 31st August, 1950, and in consideration of a sum of Rs. 20,000 he, Trilok Nath, relinquished and transferred by means of a stamped: deed of dissolution made on 10th December, 1950, all his rights to Wazir Chand who thus became the sole owner of all the goods belonging to this concern in Chamba and came into possession of the same. lodged a· On that Trilok Nath had report with prepared duplicate accounts for production before the income-tax authorities, and that he had committed an offence of embezzlement unaer Indian Penal Code. The Jammu and Kashmir State the case and appointed polic.e took cognizance of investi Amar Nath, sub-inspector of police, to make gation. During the Jammu police to Chamba on 25th and 26th April, 1951, and seized 269 the assistance of the Chamba police the 3rd April, 1951, Prabhu Dayal in the Chamba concern the police at Jammu section 406 of investigation • , - - S.C.R. SUPREME COURT REPORTS • 411 to, or obtaining orders bags of medicinal herbs worth about Rs. 35,000 and in actual physical possession of Wazir Chand or his men without reporting from, any ma.zistrate or any other competent authority. The goods were handed over to different superdars at the State of Himachal Pradesh. differmt stations \Vazir Chand vehemently the action taken was i\leeal and seizures alleging the goods ~hould be without released but his representations had no effect. jurisdiction and that protested against Wa.eir Chand 'The State of Hirnucliill Pradesh. Me'.rC.and Ma,,ajan C. J. In the first week of July, 1951, the Chamba poli.ce seized 25 again, at the instance of the Jammu police, the posse;,sion . of Wazir bags of d!mp from and Chand and these were also handed over to the same superdars. On the District to the District Magistrate Magistrate of Jammu wrote of Chamba as!<ing "Himachal Dru.~ Nurseries" be handed over Jammu and Kashmir State police. This request has so far not been complied with. the goods seized from the 19th 1951, July, On respondents the 21st August, 1951, Wazir Chand made an the Constitution of application under article 226 of to the Judicial Commissioner of the State of India issue of Himachal Pradesh at Simla praying for one or more writs in the nature of mandamus directing release of the seized goods and to refrain from passing any orders about the extradition 0£ these goods. During the pendency this petition another 45 maunds of medicinal herbs were seized by the Chamba police at the instance of Jammu police. This seizure was challenged by a second petition on 20th September, 1951, under article 226 or the Constitution. to order The Judicial Commissioner disposed of both these to gra'lt for by the appellant. Th:': following petitions by a single any of ground of quotation from his judgment :- relids asked the <lecision appears judgment. He declined "In order in those find whether books of account were genuine or forged, or what the right of Wazir diect of those eutries on the alleged the entries 8-87 S. C. Inclia/59 1954 f Va.cir Cl1and v. T'lil Stat< of Himacf1al Pradesh. Me/tr Chand Ji1ahajan C. J. • 412 SUPREME COURT REPORTS [1955J respective allegations, should appear Chand was, or whether the agreements set up by Wazir Chand were genuine or for consideration, it would be that all these persons, and such witnesses as necessary in support of they might deem it necessary to produce in the wit ness box. A number of affidavits have been filed on behalf of either party-those of Wazir Chand and cer tain alleged employees of the Himachal Drug Nurseries on behalf of the petitioners, and of Prabhu Dayal, Gauri Shankar, Bhagwan Singh and a head-constable the Jammu and Kashmir police on behalf of the respondents ; but the truth or falsity of the contents of those affidavits cannot be deponents being to cross-examination ...... I would not go so far as to hold that the petitioners have failed title or to prove interest in the goods seized. It will not be fair to do so summary proceedings. But this much in the present must certainly be said is not possible for this Court, on the material placed before it, or which could possibly be placed summary proceedings, the petitioners have the to come to a finding whether for by them. The proper remedy for them therefore is not by way of a petition under article 226 of the Constitution of India, but by any other action, e.g., a civil suit, which may 'be open to them." ascertained without they have any reliefs prayed to claim subjected right, in error the true nature of the title It was contended before us that the learned Judicial Commissioner was in thinking that in order to determine the legality of the seizures and to determine the point whether there had been any infringement of it was necessary to the petitioner's fundamental rights determine in the goods seized and that the petitioner could not be granted any relief till he was able to establish this. It was argued that the goods having been seized from the actual posses the Chamb_a sion of the exclusive control concern, being admittedly under of Trilok Nath or Wazir Chand, the determination of the question whether Wazir Chand had obtained posses inquiry, relevant the only point that needed consideration was fraudulently was not the petitioner or his servants, I - \ - , .. 1954 Wazir Chand v. The State of Himachal Pradesh. Mehr Chand Mahajan C. ]. .. S.C.R. SUPREME COURT REPORTS 413 -<(- ~ .. provision of to us the authority of which "" None of these sections however has any application the seizures were under authority of law or whether otherwise, and they were not supported under any provisions of law, a writ of mandamus should have the restoration of the goods so seized. issued directing these contentions are well It seems founded. The Solicitor-General appearing for the res to any pondents was unable to draw our attention the Code of Criminal Procedure or any these goods other law under could have been seized by the Chamba police at instance of the J ammu police. Admittedly these seizures were not made under the orders of any magistrate. The provisions of the Code of Criminal Procedure authoriz the Chamba police to make a search and seize the goods are contained in sections 51, 96, 98 and 165. the facts and circumstances of this case. Section 51 authorizes in certain circumstances the search of arrest ed persons. In this case no report of the commission of a cognizable offence had been made to the Chamba police and no complaint had been lodged before any there and no warrant had been issued by a magistrate Chamba magistrate for making ~.arrest of any person. That being so, sections 51, 96 to the case. Section 165 and 98 had no application is not attracted to the circumstances of this case because in charge of a police station has reasonable grounds for believing that anything necessary for the purposes of an investigation into any offence which he is authorized to investigate, may in any place within the limits of the police be found to which he is attached, and that such thing cannot in his opinion be otherwise obtained without undue delay, such officer may, after recording in writing the grounds of his belief and specifying in such writing, so far as possible the thing for which search is to be made, search or cause search to be made, for such thing in any place within the limits of such station. The Chamba police was not the offence authorized to investigate regarding which to the Jammu and Kashmir -.a report had been made It is doubtful whether in view of the provisions police. of article 370 of the Constitution any offence commit investigated by in Jammu and Kashmir .could be ;.. station of which he is the search or for in charge, or if an officer it provides 1 '.'54 Wa.:drChand v. The State of Himac ,al Pradesh. Mel1r Ci1and Ma1ajan C. J. 414 SUPREME COURT REPORTS [1955] -) law. No such authority was -' an officer in charge of a police station in the Hima~hal Pradesh. The procedure prescribed by the section was not followed. The Jammu and Kashmir police had no to carry out authority whatsoever jurisdiction or investigation of an offence committed in Jammu and Kashmir in Himachal territory without the authority law or under the orders of any magistrate passed of any under authority of any cited before us. The whole affair was a hole-and-corner the oflic:rs of.the Kashmir police and affair between to any the procedure adcpted magistrate. the Chamba police was in utter by the Kashmir and law and could not be violation of the provisio;15 of legal authority. That defended under being so, to an infringement of his rights both under fundamental article 19 and article 31 of the Constitution and relief should have been granted to him under article 226 of the Constit11tion. the Chamba police without any is obvious the seizure of these goods from the possession • the pet1t1oner or his servants amounted cover of any reference It in Chamba concerned an offence that on the allegation of Prabhu Dayal, All that the Solicitor-General could urge in the case the goods that had been. -, seized committed in Jammu and being articles regarding which an offence had been committed, the police was entitled to . seize that W azir Chand had no legal them anJ title in them. Assuming that that was so, goods in the possession of a person who is not lawfully in possession of them cannot be seized except under authority of law, and in absence of such authority, Wazir Chand could not be deprived of them. On this record it seems clear that unless and until Prabhu that the Chamba concern Dayal proved his allegations was part and parcel of the Jammu partnership that Trilok Nath who (which fact has been denied) and to put was admittedly one of the partners had no right Wazir Chand in possession of the property, no offence even under section 406 could be said to have been Jammu police this property. The committed about without having challanned any of the accused before a "' in Jammu, and without having obtained magistrate from a magistrate (if the any orders of extradition offence was extraditable) could not proceed to Chamba the materials placed on-+ • - ; - - 1c54 W azir C!zaiid v. Ti.e State of Himac.\al Pradesh. Mehr chand ilJahajan C. ]. S.C.R. SUPREME COURT REPORTS 415 -r _... and Lastly to take and with the help of the Chamba police seize the goods and attempt to Jammu by a letter of request written by the District Magistrate of Jammu to the District Magistrate of Chamba. it was argued the petitioner made an application under section 523, Criminal Procedure Code, to the magistrate and that application was dismissed that a petition for revision against that order was still pending, and that when another remedy had been taken, article 226 could not be availed of. This con in view of the fact tention cannot be sustained, firstly that section 523 has no application to the facts and this case, and the magistrate had no circumstances of jurisdiction to the petitioner. the revision application has been dismissed Secondly, that there was no jurisdiction in case to grant relief to the petitioner under section 523. these goods the ground return For the reasons given above we allow this appeal, set aside the order of the Judicial Commissioner and direct an appropriate writ to issue directing the restora tion to the petitioner · of the goods seized by the police. The appellant will have his costs of the appeals and Judicial incurred by him m the Court of .J( r • Commissioner. Appeal allowed. 1954 April 29. VIRENDRA SINGH AND OTHERS 1/. THE ST ATE OF UTT AR PRADESH. [MEHR CHAND MAHAJAN C.J., MuKHF.RJEA, VIVIAN BosE, BHAGWATI and VENKATARAMA AYYAR JJ.] the Constitution-Erst-while Constitution of India, arts. 5, 19(f), 31(1), proviso to art. 131 and art. 363-Efject of Indian States-Forming part of India-Any State Government-Whether can do anything in the nature of act of State-Sovereign-Whether can plead act of State against the citizen-Jagirs and Muafis by Rulers of Indian States having full autonomy and sovereignty prior .,..to the Constitution-Whether can be avoided afte1· the Constitution when not challenged up to the date of the Constitution-Courts furisdiction of-To question the accessions and such grants. --0