STATE OF WEST BENGAL versus S. K. GHOSH

2 s.c.R.

SUPREME OOUR'r REPOR'l's

I do not see how these observations help the appel-lant. They only state the obvious, ne.mely, the.t if there was law within the meaning of the amended article, no question of infringing -the fundamental right would arise. There is no force in this .argu-ment. This question anyhow does not affect my decision, as I have come to the conclusion that the Press Notes issued by the Government dearly in-fringed the fundamental right of the petitioner.

But, in view of the fact that the period for which licence was asked had run out, the applica-tion in respect thereof has become infructuous and, therefore has to be dismissed. In the result, the appeal is dismissed, but, in the circumstances· of this case, without costs.

STATE OF WEST BENGAL

S. K. GHOSH

(H.P. SINHA, c. J., P. B. GAJENDRAGADKAR, K. N. WANCHOO, N. RAJAGOPALA AYYANGAR and T. L. VENKATARAMA AIYAR, JJ.,)

' Attached Property, Disp(,sal of-TerminatiOn of Orimi..al Proceeding for scheduled offence-Order of District Judge-- Vali· dity-Forfeiture, if penalty-Criminal Law Amendm~nt Ordinance; 1944(38 of 1944), ss. 13(3), 12(1)3.-0riminal Law Amendment Ordinance, 1943 (29 of 1943), aa amended by Cri-minal Law (11143 Amendment) Amending 0, dinance, 1945( 12 of 1945), s.10---0onstitution of India, Art. 20(1)-lndian Penal Gode, 1860(Act 56 of 1860), sa. 120B, 409, 53.

The respondent, who was the Chief Refugee Administrator of Burma Rofugec Orga':'isatfon from November, 1942, to August 25, I 944, was tried under ss. I 20B and 409 of the Indian Penal Code by the Second Special Tribunal, function-ing under the Criminal Law Ordinance No. 29 of 1943 as amr.nded by Criminal Law (1943 Amendment) Amending Ordinance No. I 2 11f I 945. On an application made on

I9BB Da••,.,, of BAimJi Goliil

Joint cM:icontrolu• of Imports 4' Eyor11 Subb• Rao J•

.4pril 16.

S~ rif U'ut B1ngal •• S.K. i·hosli i·hosli

S.K. i·hosli i·hosli

112 SUPREME OOURT REPORTS (1963J

behalf of the Provincial Government under s. 3 of the Crimi-nal Law Amendment Ordinance, ]l;o. 38 of 1944, the District Judge atlachcd cettain properties as having been purchased by the respondent with QJ.Oncy procured by the said offence. The Special Tribunal found the respondl:nt guilty and senten-ced him to rigorous itnprisonment for five years and fine of Rs. 45 lacs as in its view the money procured by the offences exceeded thiit amount. On appeal by the respondent the High Court affirmed the order of conviction and sentence. "fhcrc was further appeal to this Court and this Court affirmed the finding of the High Court that at least Rs. 30 lacs must have been misappropriated and refused to interfere. Thereafter the District Judge, on an application made under s. 1 ~ of the l 944 Ordinance passed the order, out of which the present appeal arose, directing that Rs. 30 lacs together with the co<t of attachment should first be forfeited to the Union of India from the attached properties and thereafter the fine of Rs. 45 lacs was to be recovered from the res.idue of the attached properties and directed the receiver to report as to the valuation and the cost of attachment and manage· ment of the attached properties. The respondent appealed to the High Court and the two Judges of the Division Bench hearing the appeal agreed in quashing the order of the District Judge; one of them on the ground that no order having heen obtained under s. 12(1) of that Ordinance, no application lay under s. 13(3) thereof and the other on the ground that since forfeiti.Jre \\'3S not prescrib<:d as punish-ment hc!ore the 1944 Ordinance and that Ordinance came into force after the offence has Ueen committed, any forfeiture ordered under tne Ordinance would contravene Art. 20(1) of the Constitution. The State of West Bengal appealed.

Held, that the order of the High Court must be set aside and that of the District Judge resorted.

Section 12( 1) of the 1944 Ordinance only required that at the request of the prosecution the court shoUld give finding as to the amount of money or the value of the Pi:<>-pcrty that had been procured by the accused by the com~IS­sion of the offence, no matter whether such representation was by application or oral, and if the court gave the finding that would be sufficient compliance with the section. Where such finding was given under .•· ~ 0 of the 1943 Or~inance as amended in 1945, that finding would also satisfy the requirement of s. 12(1) of the 1944 Ordinance.

Of the two kinds of property contemplated bys. 3 of the l 944 Or;linance for the purpose of attachment, s. 12 wa• ooncerocd only with the determination of the value of such

property alone as had been procured by the offence and the Criminal Court had thereunder to evaluate such property and none others. Since what was attached in this case was not property procured by the commission of the offence, what the Criminal court was required to do was to declare the amount of money procured by the offence. It was for the District Judge to value other propertie• purchased by that money when he considered the question of forfeiture under s. 13(3} and that was what the District Judge did in this case.

Slate of W esl B1n1ol •• S,K, G;osh

The forfeiture provided under s. 18(31 of the 1944

Ordinance was not penalty within the meaning of Art. 20( 1) of the Constitution. Nor could it be equated to forfeiture of property under s. 53 of the Indian Penal Code The Ordinance provided.for no punishment or penalty, but for attachment of the money or property procured by the offence or any other property of the offender in case the above pro· perty was not available, to prevent the disposal or conceal· ment of such property. The forfeiture provided by it was in effect sp"edier method of realising Government money or property than by suit which the Government was entitled to bring without in any way affecting the right to realised the fine imposed by the Criminal Court in connection with the offence. 'fhat section was not concerned with any convic~ tion <r punishment and Art. 20(1) could, therefore, have no applications to orders passed under it.

Rao Shiv Bahadur Singh v. Stat• of Vindha Pradesh, (1953) S.C.R. 1188, referred to.

CRIMINAL APPELLATE JURISDICTION, Crimi-nal Appeal No. 140 of 1959.

Appeal from the judgment and order dated

August ·10/22, 1958, of the Calcutta High Court in Criminal Appeal No. 176 of 1958. '

B. Sen, P. K. Ohatterju and P. K. Bose, for

the appellant.

N. O. Chatterjee and S. 0. Mazumdar, for the respondent. .

0. K. Daphtary, 1Solicitor-General of India, · ,~ B. R. L. lyengar and P. D. JJ!enon, for the Inter. vener,

Stau oj W esl l:fengal •• S.K. Ghosh WanohOfJ J.

1962. April 16. The Judgment of the Court was delivered by

WANCHQO, J.-'This is an _appeal on certifi-eata granted by th() Calcutta. High Court. The res· pon<).ent was appointed the Chief: Refugee Adminis-trator 0£ the Burma Refugee Organisation in~Nov­ember, }942, ann held that post till August 25, .1944 when he was suspended. He was believed to have emb_ezzled large sums of money belonging Govern-mC1ntwhic4 were at his disposal as the Chief Refu-gee Administrator, in conspiracy with certain per-sons. It was in t.hat connection that he was sµspen-ded on 4.ugust 25, ,1944, and investigation into t.he alleged offences began thereafter. In tqat con-nection, the respondent waa arrestell"in Oc:tober, 1944, and was bailed out. Eventually, on July 21, 1945. the resp01;1dent was prosecuted under ss. 120-B and 409 of the Indian Penal Code "before the Second Special Tribunal constituted under the Criminal Law. Amendment Urdinance, No. 29 of 194.; (hereinafter refnre<l to as the 1943-0rdi-nanC'e). In the mean time, the Criminal Law Amendment Ordinance No. 38 of 1944 (hereinafter referred to as the L944-0rdinance) was passed. The object of this Ordinance was to prevent the dis-posal or concealment of money or other property procur1id by means of certain schodnled offences punishable uncler th" Tndian Penal. Code, and one or the offenoos to which this Ordinance applied was s. 409 of t])e Indian Penal Code, and any conspiracy to commit suuh offen0e. Section 3 of this ·Ordi-nance provided that whPTe tho Provincial Govern-ment had reason ,to belir.ve that any person had committed (whbth-.r after t4o commencement. of this Ordinance or not) any scheduled offence~ the Provincial Governmc·nt was empnwer~d (whether or not thP. Court had taken cognizance of the off. ence) to make an application to th" District Judge within thH Jorn,] limits of whose jurisdict.ion the r

2 ~.C.R.

said person ordinarily resided or carried on his business, for the attachment of the money or other property which the Provincial Government believed the said perdon to have procured by means of the offence. But if for some reason such money ·or propertJI could not be attached, the Provincial Government was given power to apply for the att· achment of other property of the said person of value as nearly as might be equivalent to that of the aforesaid money or property. Section 3 there· fo:re provided for something like what is attach-ment before judgment in civil. court, and the Pfovincial Government was authorised to apply for attachment either of the money or property with respect to which the offence was said to have been committed and if that was not available, other property of equal° value could be attached even though no offence had be<>n committed with respect to that other property. Consequently on Noveip.ber 21, I 944, an application was made on be· half of the Provincial Government before the District Judge for att~chment of certain properties under s. 3 of the 1944-0rdinanoe on the ground that these properties had been purchased by the respondent with moneys procured by him by committing offfnces under ss. 120-B and 409 of the Indian Penal Cude. On February 22, 1945, another application was made for attachment of certain. other properties. The District Judge ordered attachment of these two sets of properties after hearing the respondent and the orders of attachment have been extended from time to · t.ime. This took place even before the case of the. respondent was sent up for trial before the Special Tribunal.The respondent was eventually convicted by the Special Tribunal after protracted trial on August 31, 194'9. Io the meantime, the Criminal Law ( 1943 Amendment) Amending Ordinance, NC>. 12 of 1945, (hereinafter referred to as the 1945

81°'6 of West Bengal v. S K. G.los\ w.nehoo J,

19et ..

Stdt~ •J lt'1st Btng!l/ .. S. X. Glrosh Wanc:hoo J

116 SUPREME COURT .REPORTS [1963)

Or.dinance) came into force on May 12, 1945. By this Ordinance, s. 10 of the l!l4:! Ordinance was amended and the amended section was in these terms:-

"When any person charged before : Special Trihunal with an off Pnce specified i , the Schldule is found guilty of that offencu, the t'pecial Tribunal shall. notwithstandir!<; an:vthing contained in the Indian Penal Cocle (XLV of 1860), whether or not it impcses sentence of imprisonment, impo•e sentence of fine which shall not be less in amount than the amount of money or value of other pro-perty found to have been procured by the offender by means of the offence."

Therefore, when the Special Tribunal found the respondent guilty of the offences undflr BB. 120-B and 409 of the Indian Penal Corle it sentenced him to rigorous imprisonment for five years and fine of :k~. 4} lacs on the charge of conspiracy, and the reason why the fine was fixed at Rs. 45 lace was that in the view of the Special Tribunal, the money procured by the respondent by means o( the offence was over R~. 45 lacs. The respondent went in appeal to the High Court from his conviction and the High Court upheld the conviction as well as the sentence of fine. The Hi~h Court however found that 1ho money prorured by the respondent by the commission of the offence of conspiracy was at least Rs. 30 lacs. Even so, the High Court did not interfere with the sentence of fine imposed by the Special Trihunal as it was of the view thats. 10 of tho 1943·0rdinance as amended in 1945 prescri· bed the minimum limit of fine only and it was open to the Special Tribunal under the ordinary law to impose any amount of fine. The respondent then came in appeal to this Court. which was dismiBSed. This Court held that on the finding it was clear that at least Rs. 30 lacs had been misappropriated by the respondent as result of the oonspiracy and the

minimum fine therefore had to be of that order; but considering the serious nature of the defalcation made by the respondent and the posilion of trust in which he had been placed, this Court found it impossible to interfere with the sentence. Judg· ment of this Co'· ·: was delivered en December 12, 1956.

Star~ of lf es' Bengal

S. K. Ghosh W .. nc.~oo J.

On January 8, 1957, an aµplioadon was made to the District Judge concerned under s. 13 of the 194!-0rdinance, and it was prayed that as it had been found by the courts that the respondent had procured at least sum of Rs. 30 lacd by corl!lJlitting thll offences specified .in the Schedule to the 1943· · Ordinance, the properties attached under s. 3 of the 19<l4-0rdinance, which were in the hands of receiver, might be confiscated and receiver be order-ed to hand over all the properties in his hands to the Government of India. An ex parte order was passed by the District Judge nllowing the applica· tion on January 10, 1957. Thereafter, applications were made by the respondent and his wife for vacat-ing this ex parte order and on May 11, 1957, the ex parte order was vacated. Finally, on March 22,1958, the District Judge passed the order which is now under appeal, after hearing the respondent and his wife. The main objection taken before the District Judge appears to have been that there was no find-ing under s. 12 of the 1914-0rdinance and therefore it was not open to the District Judge to take action under s. 13 of the 1944-0rdinance. The District Judge repelled this objection and held on construc-tion of ss. 12 and 13 (a) of the 1914-0rdinance that the amount of .Rs. 30 111.cs together with the cost of s.ttabhment had first to be forfeited to th., Union 1>f India from the properties attached and thereafter 'he fine of Rs. 45 laos was to be recovered from the Tesidue of the said attached properties. As however it was not possible to forfeit pre1pertJes to the

1961 8falc •f w "' &ogol •• S.IL GA06A iv""'""" J.

value of Ra. 30 lacs without valuation of the p110-pertiea, the District Judge directed the receiver to report as to the coat of attachme_ni including the C05t of management of the properties attached. He also directed the parties to submit their e~t imat ea ae to the value of the propertteA attached, with the proviso that, if there was no agreement between them, a. valun would be appointed by the court to evaluate the propertie~ under attachment.

The resvondent then went in appeal to the High Court and challenged the order of the District J uage. This appeal we.~ beard by a. Division Bench of the-High l.Jourt conai•tiug of Mitter and Bhattacha.ry .. , JJ. .l wo pointa were urged before the High Cou1t in thi~ cOllllt:ction. The first we.a that a.a no proccedmga under a. J 2 ot the 1944· Ordinllllce ha.d been ta.ken as to the money which had been procured by the commie:;ion of th" offence and no finding had betin arrived a.t under that sec· Lion, it we.a not open to the District Judge to take vroceedinga unaer a. 13 of the llH4-0rdina.nce. l:)eeondly, 1t was urged that even if it were open to the Dititrict Judge to take proceedings under s. 13, the proceeuings could not go on in vww of Art. zO( 1) of the Constitution.

Mitter, ,)., on construction of llS. 12 and 13

of the 1944-0idma.nce held that only if an order s. l:l had been obtained, it would Ile open to take acuon under s. 13; t..ut a.a in hia view no order under a. 12 had been obti>ined, and a.II that had been found wae that the r :ispondent had obta.mea at lea.at Ha. aO lacs by the commission of the offence under s. 10 of the 194::! Ordinance a.a a.mended in 1945, th"t wl>B not what we.a required under 8. I :l. Therefore, he held that no proceedings under 8. 13 could be taken for forfeiture of Ha. ;JO is.ca worth of properties and a.II that could be done was only to recover the fine of .!:ts. 45 la.cs. In vew of this finding, Mitter, J., ;.

2 S.C.R. SUPREME COURT REPORTS

did not expre~s any opinion as to the applicability of Art. 20(1} of the C<•nstitution.

Bhattacharya J. on the other hand did not agree with the view expressed by Mitter J. on the interpretation of ss. 12 and 13 of the 1944-0rdinance. In his opinion, the District Judge had jurisdiction to forfeit properties worth Rs. 30 lacs under s. 13. But he was of opinion that s. , 53 of the Indian Penal Code refers to forfeiture as punish-ment as distinct from fine and as the punishment of forfeiture, as contemplated by the 1944-0rdinance had yet to take place, Art. 20(1) of the Constitution would apply. His reason for coming to this conclusion was that the 1944-0rdinance came into force on Augu~t 23, 1944, while the real aud effective period during which the offences were committed ended with July 1944. Therefore, accor,ding to him, as forfeiture was not prescribed as punishment before the 1944-0rdinance and as that Ordinance came into force after the offences with which the respondent was charged had been committed, no forfeiture could be ordered under the 1944-0rdinance as that would be violative of Art. 20(1) of the Constitution. He therefore agreed with Mitter J. that the order of the District Judge should be quashed but for different reason. Thereafter, the State of West Bengal applied for certificate, which was granted; and that is how the matter has come up before us.

The contention of the appellant is that the view of Mitter J. that specific order in terms of s. 12 of the 1944-0rdinance was required in this case was .not correct, and that in any case an order under s. 12 had been passed in substance in this case by the court trying the respondent and there-fore the Distriot Judge would have jurisdiction to forfeit properties up to the value of Rs. 30 lacs under s. 1 3. Incidentally, Mitter J. had also held

State of Wist Btntal

S. K, Ghosh Wanchoo J.

J~&I S1e1e of Wu• Bengal •• S.K. GllH/o Wenchoo J.

120 SliPREME OOOR.T REPORTS [1963)

that it was the duty of the court trying the reapon · dent to value properties attached under s. 12, a.nd as tha.t had not been <lone it was another ground for holding tha.t no action could be taken und•·r s. 13. This view of Mitter J. is also challenged by the appellant. The appellant further challenges the view of Bhattacharya J. that Art. 20( 1) applies in the circum;tances of this ca.se, and it is contend· cd that the provision in s. 13 ,,f the 1944-0rdinance for forfeiture is not punishment but m•~rely !\ method of realising money of the Government which had been embezzled by the respondent and therefore Art. 20(1) had no application. It is urged th1t it would have been open t,0 Governmont to file suit to recover the money or the property embezzled and that s. 13 only provides speedier remedy for attaining the Ma.me object. Learned counsel for the respondents on the other hand supports the viow taken by the High Court on both points a.nd Url!~S that there is no rea.son to interfere with the order passed by the High Court.

We shall first consider the view of Mitter J. as to the interpretation of ss. 12 and 13 of the I !l4t. Ordinance. The two sections read as follows : -

Criminal Courts w evaluate property

• '] 2.

procured /,y scheduled offence.:-

( I) Where before judgment is pronounced

in any criminal trial for scheduled offence it is representi:d to the Court that an order of attachment of property has been passed under this Ordinance in oonni:ction with such offence, the Court shall, if it is convicting the ac<;Used, record finding as to thl'I amount of money or value of other property procured by the a.ccus· ed by means of the offence.

(2) In any appeal or revisional proceed-

inge against such conviction, the apJ>6llate or

2 s.c.R. SUPREME COURT REPORTS

revisional court shall, unless it sets aside the conviction, either confirm suuh finding or modify it in such manner as it thinks proper.

. (:3) In any appeal or. revisional proceed· ings against an order of acquittal in trial such as is referred to in sub-section ( lJ, the appellate or revisioual Court, if it convicts the accused, shall record finding such as is referred to in that sub-section.

13. Disposal of attached property upon

t.ermination of criminal proceeriings :-

( 1) Upon the termination of any criminal proceeding~ for any scheduled offence in respect of which any order of attachment of property has been made under this Ordinance or secul'ity given i11 lieu thereof, the agent of the Provincial Government ~hall without delay inform the District Judge, and shall where criminal proceedings have been taken in any · Court, furnish the District Judge with copy of the judgment or order of the trJ·ing Court and with copies of the judgments or orders, if any, of the appellate or revisiorial Courts thereon. ·

(2) Where it is reported to the District Judge under sub section (l) that cognizance of the alleged scheduled offence has not been t>:iken or where the final judgment or order of the criminal Courts is one of acquittal, the District Judge shall forthwith withd.raw any orders of attachment of property made in connection with the offence, or whf1re security has been given in lieu of such attachment order such security to be returned. '

(3) Where the final judgment or order of the Criminal Courts is one of conviction the District Judge shall order that from th~

1961 ..

Stale 11/rV~st Beng,t

S. K. Ghosh Wanch•o J.

S la/1 oJ U'1.C Bent'l v. S. Ir Ghosh WGllchoo J•

SCPREME COURT REPORTS [1963)

property of the convicted person attached und..r this Or<liuanc:e or out of the security given in lieu of such attachment, the-re shall b1• forfeited to His Majesty fiuch amount or value as is found in the final judgment or order of the cri.m inal Courts in purHuance of section i 2 to h1wo been proc\lr"d by the con· victed pnreon by means of the offence, tcige-ther "ith the cost of attachment ae determin· ed by the District Judge; a.nd where th" final jn<lgmPnt or order of the r,riminal Courts has impo~ed or upheld sentence of fine on the said person (whether alone or in conjunct ion with any other punishment), the District Judge ma.y order, without prejudice to any other mode of recovery, that the said fine shall bfl recovered from the residue of the said a.t tached prope1 ty or of the security given in lieu of attachment.

(4) Where the a.mounts ordered to be forfeited or recovered under su !.-section ( 3) P.Xceed the value of the property of the con-victed person attached, and where the pro-perty ofauy trausforee of the convicted person hl\8 been attached under section 6 the District Judge shall order that the balance of the amount nrdered to be forfeited under sub-section (ii) together with the cost of attach-ment of the tra.nsferee'o property as. determin· ed by the District ,Jurlge shall be forfeit<'d to His Majesty from tho attached property of the transferee or out of the security given in lieu of such attaohment ; and the DiRtrict Judge may order, without prt'judice to any other modo of recovery, that any fine referred to in sub.section (3) or any portion thereof not recovt'red under the sub-section shall be recovered from the attached property of the

2 S.C.R. SUPREME COURT RFl'ORTS

traMferee or out of the security given in lieu of such attachment.

(5) If any property remains under aUach-ment in respect of any scheduled offence or any security given in lieu of mch attachment remains with the District Judge after his ordf'rs under eub-section (3) and (4) have been carried into effect, the order of attachment in respect of such prnperty remaining 'shall be forthwith withdrawn, or as the case may be, the remainder of the. security returned, under the orders of the Di:!trict Judge."

We have already pointed out that the provision for making an application for attachment iH contained in B. 3 of the Aot. tlection 5 then provides for investigation of objections to attachment and under sub-s. \3) thereof th"' District Judge is authorised to pass an order making the attachment absolnt!) or varying its by releasing portion of the property from attachment or withdrawing the order. In the presertt case, the Distt-ict Judge made t.be order absolute and the properties have continued under attachment ever since. It may be mentioned that under 's. 3 two kinds of properties may be attached; namely, (i) the property which has been procured by the commission of the offence, whether it be in the form of money or in the form of movable or immoval property, and (ii) properties other than the above. In this case, the charge against the respondent was that be had embezzled money. The reason why the application for attachment under s. 3 was made was that he had used the money prucured by commissiou of the offence in purch11.s-it;g certain properties. Therefore, the properties attached in this case were not actually the proper-ties procured b.v the offence but other properties. -' But s. 13 applies whether the property attached is of one kind or the other, and the Diatriot Judge would have jurisdiction to deal with the prop<:irty

1962 State •J Weft Be11gal •• s. K. Ghosh Wanehoo J.

19fll S.•lt of Wt.s1 B1ngol •• I!. E. GJ..,~ WatUAu J,

SUPREME COUHT REPORTS [1963]

attar.bed under s. 13 for the purpose of forfeiture provided a. 12 bas been complied with.

The qutation therefore that falls for oonside-ratiou is the meani11g of s. 12( I). The sub-section lays down that before the judgment is Jironounced by the court trying the offender if it is represented to the court that an order of attachment of property hau been passed under s. 3 in connection \Ii th such offence, the court shall, if it is convicting the accused, n·cord finding aa to the amount of money or value of other property procured by "the accused by means of the offence. Clearly all that a. 12( If requires is that the co11rt trying the offender should be asked to record finding as to the amount of mouey or value of other property procured by the accused before it by means of the olfenco fc.,r which he is being tried. There is no procedure provided for making the representation to the court to record finding ..a to the amount of money or value of other prvperty prucured by the offence. In our view, all thats. 12(1) requires ia that at the request of the prosecution the court should give findi as to the amount of mon.ey or V<l.iue of other p: ,,_ pcrty procured by the accused. H.eprel!eutation may be.by application or even oral so Jong as the court gives a. finding aa to the a.mount of money or value of other property procured by the offence that would in our opinion be sufficient oomplia.nce with s. 12( l ). It ia not neceaaary that the court when it gives. finding as to the amount of money or value of other propert.y procured by means of the offence should say in so many words in passing the order that it is making th>1.t finding on repre-a1mtation under s. Ii ( 1). ia true that under a. 10 of the HJ43·0rdinance as amended in 1945 the court when imposing fine has to give finding aa to the a.mount of money or value of other property found to have been procured by the offender by means of the offence in order that it

2 S.C.R. SUPREME COURT REPORTS

may comply with the provisions of s. IO as to the minimum fine to be imposed. We see no reason however why finding given for the purpose of s. IO determining the amount of money or the value of other p~operty found to have been procured by the offender by means of the offence should not· also be taken as finding under s. 12( l) of the 19!4-0rdinance. The result of the two findings in our opinion is exactly the same, the only deffere-nce being that under s. 10 of 1943-0rdinance, as amended in 1945, the court may do this suo mote while under s. 12 (1) of the 1944-0rdinance it has to be done on the 1 epresentation made by the prosecution. The result however in either case is that finding as to the amount of money or the value of other property procured by the offender by means of the offence is given. That is what both s. 10 of the 1943-0rdinance, as amended in 1945, ands. 12(1) of the 1944-0rdina-nce require. It is true that in this case ~here was no written application by the prosecution under s. 12(1) of the 1914-0rdinance, but it may very well be that the court. may have been asked orally to determine the amount of money or value of property procured by ·the offence. In any case so long as finding is there as to the amount of money or value of other property found to have buen procur-ed by means of the offence that will satisfy the requirement of s.i3(1) of the 1944-0rdinance. We are therefore of opinion that the view taken by Bhattacharya J. is the· correct view and the view taken by Mitter J. is not correct.

F,irther whats. 13(3) of the 194-i-Ordinance which provides for forfeiture requires is that there should be in· the final judgment of the criminal court finding as to the amount of money or value of property in pursuance of s. 12. As soon as .-( that finding is there, the District Judge would know the amount he is to forfeit, and the purpose of the

State ofWest B1ttgal v. S. K. Ghosh Won,hoo J,

St.11 oj W1a1 Btng.Z .. S, E. Ghosh Wonchoa J.

finding is that if the District Judge is a~ked to make fo1feiture under s. 13 (3) he should know exactly the amount which he is require to forfeit . So long therefore as the criminal court trying an offender has given finding as the amount of money or value of other propnty prorured by means of tho offence in the judgment that in our opinion is sufficient compliance withs. 12( l) of tbe I 944·0rdinance and the rPquirement therein that it should be o" the representation of the prosecution is mere formality. Obviously, even d~t~rmination under s. IO of the 1943.0rdinance as amended in 1945 of the amount procured by the offence must be at the instance of the proMcution, for it is the pro~ecution which will T·rovide the material for that determination which in turn will be the basis on which thf· fine will be determined by the court unckr s. IO. The view taken therefore hy Mitter J. that. thne must. be specific finding in terms to the tfFPrt that on the representation of the prosecu-tic>n the court finds under s. 12(1) that such and ~uch amount was procured by means of the offence i• not corr!'ct. In our opinion, there w11s finding in this case bv the criminal court about the amount of money procured by the rc~pondent hy means of th•' offonce. namrly at l•'ast Rs. 30 lacs. Thrrefor.,, the District Judge would have jurisdiction on the basis of the finding to proceed to forfeit the pro-perty a.ttar·hcd up t,o that value.

We are fnl'ther of opinion that the view taken

b.v Mittnr ,J. that the property attached uu<l"r &. 3 of the 1944 Ordinance has to be valuer! by the criminal court is ohviou~ly incorrect and is not born out by the terms .of a. 12(1 ). We have poinlf·d ont that under s.~ an application can be made for attaching two kinds of property, namely. (i) the moiliiy or otlier Property procured by meam; of the offence; and (ii) property other than the above. What a. 12(1) requires is that where m• ney has

2 s.c.R.

been procured by the offence, the Criminal Court -J shall determine the amount of that money. Where instead of money some other property, say, for example, diamonds or rubies, have been procured bv means of the offence, the Criminal court shall value that other property. But under s. 12(1) only the amount of money procured by means of the offence or the value of the property procured by means of the offence has to be determined by the criminal court. Section 12 has notbine to do .\-'" , with the determination of the value of the property other than that procured by the offence and the criminal court has not to eyalnate thie other pro-perty, which comes under the second head under s. 3 mentioned above. We have already pointed out that in this case, the property procured by the offence was only money and therefore all that the criminal court had to do was to declare the amount of money procured by the offence and that it has done by finding that it was at least Rs. 30 lacs. ,.._,, Property attached under_ s. 3 in this caso was not the property procured by the commission of the offence. The two applications under s. 3 themselves show that the respondent had procured money by means of the offer1ce and had later converted that money into this property. The property attached in this case therefore was not property which had been procured by the commission of the offence and .., there was therefore no question of the valuation of \ the property attached under s. 3 by the criminal court under s. 12. With rE'spect, the error in which • Mitter J. seems to have fallen is to confuse the pro-perty which was procured by the commission of the offence with the other property which was not procured by the commission of the offence and which could also be attached under s. 3. This other property has not to be valued by the criminal court.; it will be valued by the District Judge when he -l comes to consider the question of forfeiture under s, 13(3) and this is exactly what the District Judge

1962 Slat~ of We.rt Biy gal v. 8. K. Ch1ah

IHI State oJ .,.,,, &ngal v. S. li'. Ghosh

has ordered in this case. We must therefore hold that the District Judge had jurisdiction to order forfeiture out of the property attached to the extent of Rs. 30 la.cs, as that was amount found by the criminal court to have been procured hy the com· mis•ion of the offence, and in order to effect forfei-ture he would naturally have juri>diction to have the propei:ty attached valued in order to enable him to forfeit it under s. 19(:1) to the extent of the a.mount procured by means of the offence.

This brings us to the oontention whioh found favour with Bhattacharya J., namely, that the pro-vision of s. 13{3) is punishment a.nd that as the l 944·0rdinance was not in force at the time when the offence was committed s. 13(3) could not be a.ppli!'d to the respondent inasmuch as Art. 20( 1) lays down that no person shall be s•1bjectl'd to penalty grPater than that which might have been inflicted under the law in force a.t the time of the commi;sion of the offence. Two arguments have been urged on behalf of the appellant in this con-nection. 1n the first place, it is urged that the respondent remained in office till August 25, 1944 while the Ordinance came into force on August 23, 19a and therefore the conspiracy by mean• of which the money was procured continued till after the Ordinance had come into force and thflrefore Art.20( l) can ha.ve no application, for it cannot be said that the respondent wRS being subjected to penalty greater than that which might have been inflict rd under the law in force at the time of the commission of the offence. In the second place, it is urged that the forfeiture provideri bys. 13(3) is not penalty at all within the meaning of Art. 2t:( I J, lout is merely method of recovering money belonging to the Government which had been embazzl•·d. It is urged that the Government could file suit tu recover the money embezzled and· s. 13(3) only ,. provides speedier remedy for that purpose and

2 s.c.R.

the forfeiture provided therein is not a. penalty within the meaning of Art. 20(1).

We do not think it necessary for the purpose

of this appeal to decide whether the facts that the respondent continued in office till August 25, 1944 and the Ordinance came into force on Augnst 23, 1944, would take the case out of the ambit of Art. 20(1)1 for we have come to the conclusion tha.t the forfeiture provided under s, 13(3) is not penalty at all within the meaning of Art. 20(1) and the second argument urged on behalf of the appel· lant must prevail. Now the 1944-0rdinance is a.n independent Ordinance and is not an amendment to the 1943-0rdinance. It is true that the Ordinance is termed "The Criminal Law Amendment ordinan· ce": but its provisions will show that it deals mainly with recovery of money or property belonging to Goverpment procured by the offender by means of the offence. An analysis of provisions of the 1944 Ordinance will show this clearly. Section 3 provides for application for attachment of property; s. 4 provides for an ad interim attachment; s. 5 provides for investigation of objections to attachment; s. 6 provides for attachment of property of mala /id~ transferees; s. 7 provides for execution of orders of attachment and s. 8 for security in lieu of attach-ment; s. 9 for administration of attached property and s. IO for the duration of attachment. Section 11 provides for appeals. . Then come ss. 12 and 13. Lastly there ares. 14 which bars certain procee· dings and s. 15 which protects certain actions taken in pursuance of the Ordinance. It will therefore be clear that the Ordinance provides for no punishment or penalty; all that it provides is attachment of the money or property procured by the offence or any other property of the offender ifthe above property is not available and the. purpose of the attachment -\ is to prevent the disposal or concealment of such

State of W esl Yo S.K. Gh,sh

IHJ SW, of Wm lhnl•I •• S.lr.GhHl W-4ooJ.

i3o SUPREME OOURT REPORTS [1963]

property. Section 13(3) with which we a.re pa.rticu-la.rly concerned la.ya down tha.t the District Judge eha.ll order that from the property of the convicted person a.tta.ohe~ under this Ordinance or out of tho' security given in lieu of rnch atta.chment, there shall be forfeited to His Majesty such amount or value a.a is found in the final judgment or order of the criminal courts in pursuance of s. 12 to have been procured by the convicted person by, means of the offence, together with the costs of attachment as determined by the District Judge. It is further proTided that where the final judgmt!l1t or order of the criminal court bas imposed ur upheld ·~sentence of fine on the said ptrsc.in, the District Judge may order without prejudice to any ether mode of reco-very, that the said fine shall be recon·red from the residue of tho said attached property or of the security given in lieu of attachment. The forfeiture by the District Judges. 13 (3) cannot in our opinion be equated to forfeiture of property which is provi-ded in s. 53 of the Indian Penal Code. The forfeiture provided in s. 53 ia undoubtedly penalty or punishment within the meaning of Art. 20( l ); but that order of forfeiture has to be pa6sed by the court trying the offence, wbt re there is provision for forfeiture in the aecton concerned in the Indian Penal Code. There is nothing however in tho 1944-0rdinance to show that it provides for any kind of punishment for a.ny offenct>. Further it is clear tha.t the Court of District Judge which is principal oourt of civil jurisdiction can have no jurisdiction to try an offence under the Indian Pena.I Code. The order of forfeiture therefor~ by the District Judge under s. 13(3) cannot bo equa.t<d to the infliction of penalty within tho meaning of A1t. 20(1}. Article 20(1) dee.ls with conviction of persons for offences and for subjection of them to penalties. It provides firstly that "no person shall be convicted of a.ny offence except for violation of a. law in foroe at the •

time of the commission of the act charged as an offence". Secondly, it provides that no person shall be "subjected to penalty greater than that which might have been inflicted under the law-in force at the time of the commission of the offence". Clearly, therefore Art. 20 is dealing with punish-ment for offences and provides two safeguards, namely, (I) that no one shall be punished for an act which was not an offence under the law in force when it was committed, and:~i) that no one shall -11 be subjected to greater penalty for an offence than what was provided under the ·1aw in force when the offence was committed. The provision for forfeiture under s. 13(3) has nothing to do with the infliction of any penalty on any person for an offence. If the forfeiture provided in s. 13(3) were really penalty 011 convicted person for commis-sion of an offence we should have found it provided in the Hl43-0rdinande and that penalty of forfeiture would have been inflicted by the-criminal court trying the offenqer.

The argument for the respondent is appearen-

tly based on the use of the word "forfeited" in s. 13(3) and also on the use of the word "forfeiture" in s. 53 of the Indian Penal Code. There is no doubt that forfeiture in a. 53 of the Indian Penal Code is ii penalty but when s. 13(3) speaks of forfei-ting to His Majesty the amount of money or value the other property procured by the accused by means of the offence, it in effect provides for reco-ve~y by ~he Government of .the property belonging to 1t, which the accused might have procured by embezzlement etc. The mere use of the word "forfeited" would not necessarily make it penalty. The word "forfeiture" bas been used in other laws without .importing the idea of penalty or punishment within the meaning of Art. 20( 1). ReferP.nce in this -< connection may be made to s. IH (g) of the Transfer of Property Act (No. 4 of 1882) which talks of

Slott ofW<SI B:ogol y, s. Ir. Gn0sA w ... boJ,

IHJ St.u•/ W111 .... ,.1 .. S. K. G/losh w •Ml>J.

determination of lease by forfeiture. We a.re therefore of opinion that forfeiture provided in s.13(3) in oase of offences which involve the embezz . lement eto. of government money or property is really speedier method of realising Government money or property as compared to suit which it is not disputed the Government could bring for realising the money or property and is not punish-ment or pennlty within the meaning of Art. 20( I). Such &llit could ordinarily be brought without in any way affecting the right to realise the fine that ' may have been imposed by criminal court in connection with the offence.

We may iR this connection refer to Rao Shiv Balw.dur Singh v. Tlte State of Vindhya Pradesh (1) where Art. 20(1) came to be considered. In that case it was held that_ "the prohibition contained in Art. 20 of the Constitution against convicticms and subjections to penalty under ex post facto laws is not confined in its operation to post-Constitution laws but applies also to ex post facto laws passed befor~ the Constitution in their application to pending proceedings." This Court further held that Art. 20 prohibits only conviction or sentence under an ex post facto law, and not the trial th,reof. Such trial under procedure different from what obtained at the time of the offence or by court dilrerent from that which had competence at that time can-not ipso /Mi-0 be held to be unconstitutional. ThMefore, this case shows that it is only conviction and fnni.shment as defined in s. 53 of the Indian Pena Code which are included within Art. 20(1) and conviction under an ex post /aero law or punishment under an ex post facto law would be hit by Art. 20( I); but the provisions of s. 13 ( 3) with which we are concerned ill the present appeal have nothing to do with oonviotion or pnni.shment and

(I) [1953] S.C.R. 1188.

2 S.C.R.

therefore Art. 20(1) in our opinion can have no application to the orders passed under s. 13 (3).

Learned counsel for the respondent however drew our attention to the Criminal Law (194:-1 Amendment) Amending Ordinance, No. 7 of 1946, by which s. 10. f)f the 1943-0rdinance was further amended. It is not disputed that the Ordinance of 1946 by which s. IO was further amended had no application to the trial of the respondent. This will clear from the judgment of the High Court in appeal filed by the respondent from hie conviction. In that appeal the High Court held that a. 10, as a.mended by the 1946-0rrlinance, could not apply to the case, which was pending before the tribunal on the date when the 1946-0rdinance became law. Therefore, the respondent cannot take advantage of the provisions of s. IO, 11~ amended by the 1946-0rdinance and his case must be governed by s. 10 as it was after the amendment of 1945. It is clear that though s. 10 of the 1943-ordinance, as amended in 1945, provided for minimum fine, it still left it open to the criminal court to pass a.ny fine above the minimum. Further the fine as paSBed under a.IO, as it was in 1945, was one fine and not divided into two parts as was the case under the Ordinance of 1946. Again, as the High Court pointed out in the appeal of the respondent from bis conviction, "the liability to fine in addition to sentence of imprisonment for an offence of criminal breach of trust by public servant, or for an offence of criminal conspiracy to commit an offence. under section 409 of the Indian Penal Code was thus not created for the first time by section 10 of the Ordinance. The liability was already there under the Indian Penal Code. But while under the Penal Code, it was discretionary for the court to pass , sentence of fine, in addition to term of imprison-_, ment, section 10 of the Ordinance (the 1943-0rdina-pce) inade it coinpulliory for the court to Plll!ll

"" Slal1o/Wut 8'og•I •• s. Ir. 9lwh w ... ,.,,. J.

134 SUPREME OOURT REPORTS [1963]

Jiff

sentence of fine also-" and fixed the minimum. But it was always open to a. Court of Session under the Pena.I Code to &ward u11y a.mount of fine .. nd there was no statutory upper limit to such imposi-tion except that it shall not be excessive (see s. 63 of the Indian Penni Code l. Therefore, the fine of Rs. 45 la.es imposed in this case has nothing to do with the amount to be forfeit<><l under s. 13(3) and simply because that fiue was imposed after ta.king int-0 account the amount embezzled would make no difference so far as s. 13(3) is concorne<l. That section clearly cnntemplaks that the District Judge will first forfeit the 'lttacbcd properties upto the amount of money determined under s. 12 and thereafter if any further preperties are left tho fine imposed by the criminal court may be realised from those properties. The fact that the fine imposed by the criminal ~n irt ml\y have taken into account under s. IO of the lll43.01·dinanoo the amount of money procured by means of the offence makes no difference to the interpretation of s. 13(3}. There-fore, the District Judge wa.s right in holding that out of the properties attached he had first to forfeit properties up to the v.tlue of Rs. 30 lacs under 1. 13(3) and thereafter if any proporties are left, it will be open to Government to n·alise the fine of Rs. 45 lacs from such properties. The respondent therefore cannot take advantage of the amendment of s. 10 of the 1943-0rdinauco by the 1946-0rdina.-nce, and on the law as it stood in 1945 and as applicable to the rc~pomlent, the order of the District Judge is in our opinion correct.

St«lt ef Wist •.nt•l

S. IC. <Jlosl

We therefore allow the appeal and setting

aside the order of the High court restore the order of the District Judge who will now take further steps in aceorda'lw with law.

Appeal allowed. •