http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6

PETITIONER:

WAZIR CHAND

Vs.

RESPONDENT:

THE STATE OF HIMACHAL PRADESH.(With connected Appeal)

DATE OF JUDGMENT:

22/04/1954

BENCH:

MAHAJAN, MEHAR CHAND (CJ)

BENCH:

MAHAJAN, MEHAR CHAND (CJ)

MUKHERJEA, B.K.

BOSE, VIVIAN

BHAGWATI, NATWARLAL H.

AIYYAR, T.L. VENKATARAMA

CITATION:

1954 AIR 415 1955 SCR 408

CITATOR INFO :

R 1957 SC 529 (4)

R 1961 SC1570 (14)

R 1982 SC 33 (41)

RF 1986 SC 872 (82)

ACT:

Constitution of India, articles 19, 31, 370-Code of

Criminal Procedure (Act V of 1898) ss. 51, 96, 98, 165, 523

-Whether seizure of property not sanctioned by ss. 51, 96 98

and 165 of the Code infringes fundamental rights under Arts.

19 and 31 of the Constitution--Effect of dismissal of

application under s. 523 of the Code in such a case-Effect

of Art. 370.

HEADNOTE:

The provisions regarding search and seizure by the

Indian police are contained in sections 51 , 96, 98 and 165

of the Code of Criminal Procedure, 1898. None of these

sections had any application to the facts and circumstances

of the case.

Any seizure by the Indian police of any property of a

citizen not sanctioned under the law stated above or under

any other law infringes the fundamental rights of the

citizen guaranteed under Art. 19 and Art. 31 of the

Constitution of India. This position is not affected even

if the citizen whose goods are so seized files an

application under s. 623 of the Code and his application is

dismissed by the Magistrate.

In view of the provisions of Art. 370 it is doubtful if

an offence committed in Jammu and Kashmir could be

investigated by the

police in India.

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 129 and 130

of 1952.

409

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6

Appeals by Special Leave from the Judgment and Order

dated the 26th December, 1951, of the Court of the Judicial

Commissioner for the State of Himachal Pradesh at Simla in

Civil Misc. Petitions Nos. 12 and 16 of 1951.

Achhru Ram, (P. S. Safeer and Harbans Singh, with him)

for the appellants.

C. K. Daphtary, Solicitor-General for India (R. Ganapathy

Iyer, with him) for respondent No. 1.

1954. April 22. The Judgment of the Court was delivered

by

MEHR CHAND MAHAJAN C.J.-These are two connected appeals

by special leave against an order of the Judicial-

Commissioner. Himachal Pradesh, dated the 26th December,

1951, rejecting two applications for the issue of writs of

mandamus and certiorari under article 226 of the

Constitution.

The facts giving rise to the two petitions, out of which

these two connected appeals arise, are these: One Trilok

Nath was running a business in Himachal Pradesh under the

name and style of "Himachal Drug Nurseries" for the

extraction, collection and export of medicinal herbs in the

year 1949. He was a partner of Messrs. Prabhu Dayal and

Gowri Shanker of Jammu and Kashmir State in timber business

carried on in that State under the name and style of "The

Kashmir Woods". It was alleged by him that the business in

Chamba was his exclusive business with which the partnership

firm "The Kashmir Woods" had no concern whatsoever. Prabhu

Dayal's case was that the firm "The Kashmir Woods" was

started by him in 1943 as his sole proprietary concern, that

later on he took Trilok Nath Mahajan as a partner in this

concern, that in the year 1949 Sardar Bhagwan Singh induced

the partners of this firm to take up the line of crude drugs

and herbs which was his line, that a new firm "Himachal Drug

Nurseries" was started as a child concern of "The Kashmir

Woods" with Bhagwan Singh as one of the partners, that after

preliminary investigation it was decided to take up this

work at Chamba and in pursuance of this decision two leases

53

410

of two forest divisions were taken on behalf of the 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. It was alleged that

subsequently Trilok Nath manipulated the Jammu books showing

a bogus investment of his elder brother Wazir Chand amount-

ing to Rs. 30,000 in the firm "Kashmir Woods" and that

fraudulently and by manipulating the- books and by entering

into certain agreements Trilok Nath made Wazir Chand the

sole owner of "Himachal Drug Nurseries" and transferred the

Chamba concern to him without the knowledge of the other

partners. These assertions were not accepted by Wazir Chand

or Trilok Nath. Their case was, that Trilok Nath was the

-sole owner of the Chamba concern, that he obtained the

leases in his own name and not for the 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 with him in this business and that as later on he

was 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 in

the Chamba concern to Wazir Chand who thus became the sole

owner of all the goods belonging to this concern in Chamba

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6

and came into possession. of the same.

On the 3rd April, 1951, Prabhu Dayal lodged a report with

the police at Jammu that Trilok Nath had prepared duplicate

accounts for production before the income-tax authorities,

and that he had committed an offence of embezzlement under

section 406 of the Indian Penal Code. The Jammu and Kashmir

State police took cognizance of the case and appointed Amar

Nath, sub-inspector of police, to make investigation.

During the investigation the Jammu police came to Chamba on

25th and 26th April, 1951, and with the assistance of the

Chamba police seized 269

411

bags of medicinal herbs worth about Rs. 35,000 and in actual

physical possession of Wazir Chand or his men without

reporting to, or obtaining orders from, any ,magistrate or

any other competent authority. The goods were handed over

to different superduper at different stations in the State

of Himachal Pradesh. Wazir Chand vehemently protested

against these seizures alleging that the action taken was

illegal and without jurisdiction and that the goods should

be released but his representations had no effect.

In the first week.of July, 1951, the Chamba police

again, at the instance of the Jammu police, seized 25 bags

of dhup from and in the possession of Wazir Chand and these

were also handed over to the some superdars. On the 19th

July, 1951, the District Magistrate of Jammu wrote to the

District Magistrate of Chamba asking that the goods seized,

from the "Himachal Drug Nurseries" be handed over to. the

Jammu and Kashmir State police. This request has so far not

been complied with.

On the 21st August, 1951, Wazir Chand made- an

application under article 226 of the Constitution of India

to the Judicial Commissioner of the State of Himachal

Pradesh at Simla praying for the issue of one, or more writs

in the, nature of mandamus directing the :respondents to

order the release of the seized goods and to refrain from

passing any orders about the extradition of these goods.

During the pendency of this petition another 45 maunds of

medicinal herbs were seized by the Chamba police at the

instance of the Jammu police. This seizure was challenged

by a second petition on 20th September, 1951, under article

226 of the Constitution.

The Judicial Commissioner disposed of both these

petitions by a single judgment. He declined to grant any of

the reliefs asked for by the appellant. The ground of the

decision appears from the following quotation from his

judgment:-

"In order to find whether the, entries in those books

of account were genuine or forged, or what the effect of

those entries on the alleged right of Wazir

412

Chand was, or whether the agreements set up by Wazir Chand

were genuine or for consideration, it would be necessary

that all these persons, and such witnesses as they might

deem it necessary to produce in support of their respective

allegations, should appear in the witness box. A number of

affidavits have been filed on behalf of either party-those

of Wazir Chand and certain alleged employees of the Himachal

Drug Nurseries on behalf of the petitioners, and of Prabhu

Dayal, Gauri Shankar, Bhagwan Singh and a head- constable of

the Jammu and Kashmir police on behalf of the respondents;

but the truth or falsity of the contents of those affidavits

cannot be ascertained without the deponents being subjected

to cross-examination...... I would not go so far as to hold

that the petitioners have failed to prove that they, have

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6

any right, title or interest in the goods seized. It will

not be fair to do so in the present summary proceedings.

But this much must certainly be said that it is not possible

for this Court, on the material placed before it, or which

could possibly be placed in these summary proceedings, to

come to a finding whether the petitioners have the right to

claim the reliefs prayed- 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."

It was contended before us that the learned Judicial

Commissioner was in error in thinking that in order to

determine the legality of the seizures and to determine the

point whether there had been any infringement of the

petitioner's fundamental rights it was necessary to

determine the true nature of the title 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

good shaving been seized from the actual possession of the

petitioner or his :servants, the Chamba ,concern, being

admittedly under the exclusive control of Trilok Nath or

Wazir Chand, the determination of the question whether Wazir

Chand had obtained possession fraudulently was not relevant

to this inquiry, and that the only point that needed

consideration was

413

whether the seizures were under authority of law or

otherwise, and if they were not supported under any

provisions of law, a writ of mandamus should have issued

directing the restoration of the goods so seized.

It seems to us that these, contentions are well founded.

The Solicitor-General appearing for the respondents was

unable to draw our attention to any provision of the Code of

Criminal Procedure or any other law under the authority of

which these goods could have been seized by the Chamba

police at the instance of the Jammu police. Admittedly

these seizures were not made under the orders of any

magistrate. The provisions of the Code of Criminal

procedure authorizing the Chamba police to make a search and

seize the goods are contained in sections 51, 96, 98 and

165. None of these sections however has any application to

the facts and circumstances of this case. Section 51

authorizes in certain circumstances-the search of arrested

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 magistrate there and no

warrant had been issued by a Chamba magistrate for making

the search or for the ;arrest of any person. That being so,

sections 51, 96 and 98 had no application to the case'.

Section 165 again is not attracted to the circumstances of

this case because it provides that if an officer 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

be found in any place within the limits of the police

station of which he is in charge, or 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 authorized to

investigate the offence regarding which a report had been

made to the Jammu and Kashmir police. It is doubtful

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6

whether in view of the provisions of article 370 of the

Constitution any offence committed in Jammu and Kashmir

could be investigated by

414

an officer in charge of a police station in the Himachal

Pradesh. The -procedure prescribed by the section was not

followed. the Jammu and Kashmir police had no jurisdiction

or authority whatsoever to carry out investigation of an

offence committed in Jammu and Kashmir in Himachal territory

without the authority of any law or under the orders of any

magistrate passed under authority of any law. No such

authority was cited before us. The whole affair was a hole-

and-corner affair between the officers of the Kashmir police

and of the Chamba police without any reference to any

magistrate. It is obvious that the procedure adopted by the

Kashmir and the Chamba police was in utter violation of the

provisions of law and-could not be defended under cover of

any legal authority. That being so, the seizure of these

goods from the possession of the petitioner or his servants

amounted to an infringement of his fundamental rights both

under article 19 and article 31 of the Constitution and

relief should have been granted to him under article 226 of

the Constitution.

All that the Solicitor-General could urge in the case

was that on the allegation of Prabhu Dayal, the goods seized

in Chamba concerned an offence that had been committed in

Jammu and being articles regarding which an offence had been

committed, the police was entitled to seize them and that

Wazir Chand had no legal 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 the materials

placed on this record it seems clear that unless and until

Prabhu Dayal proved his allegations that the Chamba concern

was part and parcel of the Jammu partnership firm (which

fact has been denied) and that Trilok Nath who was

admittedly one of the partners had no right to put Wazir

Chand in possession of the property, no offence even under

section 406 could be said to have been committed about this

property. The Jammu police without having challenged any of

the accused before a magistrate in Jammu, and without having

obtained any orders of extradition from a magistrate (if the

offence was extraditable) could not proceed to Chamba

415

and with the help of the Chamba police seize the goods and

attempt to take them to Jammu by a letter of request written

by the District Magistrate of Jammu to the District

Magistrate of Chamba.

Lastly it was argued that the petitioner made an

application under section 523, Criminal Procedure Code, to

the magistrate and that application was dismissed and that a

petition for revision against that order was still pending a

and that when another remedy had been taken article 226

could not be availed of. 'This contention cannot be

sustained, firstly in view of the fact that section 523 has

no application to the facts and circumstances of this case,

and the magistrate had no jurisdiction to return these goods

to the petitioner. Secondly, the revision application has

been dismissed on the ground that there was no jurisdiction

in this case to grant relief to the petitioner under section

523.

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 restoration to the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6

petitioner of the goods seized by the police. The appellant

will have his costs of the appeals and ,those incurred by

him in the Court of Judicial Commissioner.

Appeal allowed.