ORDER
Wagle, J.
1. Since these two revision applications raise an exactly similar point, these two applications are being disposed of by one judgment although the incidents are different and the accused are also different.
Criminal Revision Application No. 249 of 1969.
2. The prosecution case was that upon in. formation received by P. S. I. Dixit of Savantwadi that rice being transported from Kolhapur District to Savantwadi, a truck MYD 4482 was stopped at the Octroi Naka within Savantwadi limits on September 9, 1967 at about 4 am. On a search being made, it was found that the truck contained 80 bags of rice, Those bags were attached after a panchanama there. of was made and the three persons in the truck accused No. 1 who was driver, accused . No. 2 who wag the cleaner and accused No. 8 who was sitting by the side of the driver-were put under arrest, The three accused were then charged under Section 7 (i)(a)(ii) of the Essential commodities Act, 1955, read with Clause 12 of the Maharashtra Scheduled Foodgrains (Stocks Declaration and Procurement and Disposal, Acquisition, Transport and Price Control) Order, 1966 (hereinafter referred to as “the said Order”).
3. Clause 12 of the said Order on which the charge was framed reads as follows:
No person, other than a recognised dealer, shall transport, attempt to transport or abet the transport of-
(a) rice from any village or any municipal or cantonment area in the State to any area in the State outside it, or vice versa.
(b) other foodgrains from any taluka in the State to any area in the State outside it, or vice versa except under and in accordance with an authorisation granted by the Collector of the district within which or from which such transport is to take place, or by any officer authorised by such Collector.
There are certain, provisos to this clause with which, however, we are not concerned. In the instant case neither of the three accused had any authorisation for removal of rice from any part of State to any part of the State.
4. The defence of the accused was that the goods were loaded at Belgaum and they were being taken to Banda, a place in Savantwadi Taluka in the Bitnagiri District.
5. Evidence was led by the prosecution upon which the learned Magistrate came to the conclusion that the prosecution had proved the contravention of 01. 12 of the said order and held accused Nos. 1 and 2 guilty under Section 7 (1) (a) (ii) of the Essential Commodities Act. Accused No. 8 was acquitted. An appeal filed by the accused was dismissed.
6. Mr. Mandrekar appearing for the petitioners, original accused Nos, 1 and 2, contended that the petitioners had in fact not committed any offence. It was pointed out by Mr. Mandrekar that a finding was given by the learned appellate Judge as follows : “Therefore on the evidence as it stands the truck came from Belgaum loaded with rice and had entered the Ratnagiri District at Amboli after crossing the Kolhapur District., The Octroi Naka clerk at Amboli, Amdoakar (Exh. 88) corroborates the fact that this truck entered the Ratnagiri District on 9th September 1967 and he also states that the accused told him that they had come from Belgaum.” The fact therefore found was that the rice was loaded at Belgaum and it had entered Ratnagiri District on September 9, 1967. Mr. Mandrekar’s contention was that for rice which was brought from outside the State, the provisions of Clause 12 of the said order would not apply. Clause 12, the relevant part of which I have quoted above, refers to “transport, attempt to transport or abet the transport” of rice or food-grains. The, word “transport” is defined in Clause 2 (p) of the said order. The definition is as follows:
‘transport’ means movement from one place to another within the State.
7. What was urged by Mr. Mandrekar was that unless there was transport or attempt to transport or abetment of transport, the provisions of Clause 12 would not operate. The definition of “transport” showed that two destinations had to be pointed out, one from which it started and the other at which it was to end and within the definition of Clause 2 (p) of the said order, both these destinations had to be “within the State.” Unless therefore those requirements were satisfied that the transport began from some place in the State and was to end at some place in the State, the provisions of Clause 12 of the said order would not apply to anything that was being removed.
8. In the instant case, Mr. Mandrekar pointed out that a fact was found by the learned Sessions Judge concurring with the finding given by the learned Magistrate that goods were coming from Belgaum to within Batnagiri District. The rice therefore was not being transported from one place within the State to another place within the State, Mr. Mandrekar then referred to a decision of this Court in Emperor v. Dagadu Shetiba 39 Bom L R 1062 : AIR 1938 Bom 43, which dealt with the Bombay Abkari Act. While considering the point regarding transport from place “A” to place “B”, the learned Chief Justice observed as follows:
But merely passing through a place in the course of a journey does not, in my judgment, amount to transport to that place. In the present case, on the finding of the Magistrate, the accused was going to Poona and was merely passing through Bombay. That being so, I think the Magistrate was right in acquitting the accused, and the appeal is dismissed.
What was urged by Mr. Mandrekar was that these observations are clear enough to indicate that places in transit cannot be considered either as the start of a transport or the end of transport. If the rice had come in transit to a place in Kolhapur District and thereafter another place in Ratnagiri District, neither of these places could be considered either as places from where the transport begins or the places where the transport ends. Mr. Mandrekar’s argument therefore based upon the interpretation of the expression “transport” was that the ingredients of Clause 12 of the said order are not satisfied in the instant case. A clear finding is given that the transport began in Belgaum. The rest of the places were places in transit and the destination was certainly within a District in the State. But even if the destination was within the State – itself, the transport not having begun from a place in the State, the ingredients of Clause 12 of the said order are not satisfied by the prosecution. It must therefore be held that there was no contravention of Clause 12 of the said Pood Grains Control Order by those persons who were transporting the goods in the instant case. The conviction therefore has necessarily to be set aside.
9. Upon the goods being attached, the same were sold and by the order of conviction, the sale proceeds of rice were forfeited to Government under Section 517 of the Criminal P. C. read with Section 7 (1) (a) (ii) of the Essential Commodities Act, 1955. Since the accused are not proved to have committed an offence, the order of forfeiture must also be set aside and the State has to be directed to return to the accused the amount of sale proceedings re. covered by it.
ORDER
10. Rule made absolute. The order of conviction of the accused Nos. 1 and 2 under Section 7 (1) (a) (ii) of the Essential Commodities Act, 1955 read with Clause 12 of the Maharashtra Scheduled Foodgraina (Stocks Declaration and Procurement and Disposal, Acquisition, Transport and Price Control) Order, 1966, is set aside and the accused are acquitted. Their bail-bonds are cancelled.
11. The order of forfeiture of the sale proceeds is also set aside and the State is directed to refund to accused No. 1 the sale price recovered by it.
12. Fine if paid is ordered to be refunded.
Criminal Revision Application No. 306 of 1969.
13. As the point was similar, this application was heard along with the revision application No. 249 of 1969. The facts of this case are that on September 14, 1967 truck No. G-DT 6099 was halted by the police within the municipal limits of Savantwadi but on the Upral Municipal Octroi Nakal The Upral Naka is on the road from Savantwadi to Kudal. On enquiries it was learnt that the goods were coming from Belgaum and proceeding to Kudal, a village within the Taluka of Savantwadi. It was the case of the prosecution that 71 bags of rice were loaded in the truck. On the allegations that an offence under Section 7 (1) (a) (ii) of the Essential Commodities Act read with Clause 12 of the Maharashtra Scheduled Foodgrains (Stocks Declaration and Procurement and Disposal, Acquisition, Transport and Price Control) Order, 1966, the evidence was led. On the evidence the learned Magistrate came to the conclusion that the accused had committed the offence. Against the order of conviction, an appeal was filed but the same was dismissed.
14. The short point that arises in this petition is whether an offence under Clause 12 of the Bald Order was” committed on facts which were found that the rice was sent from Belgaum to Kudal. Except for the fact that the destination of the rice in the instant case was Kudal whereas in revision Application No. 249 of 1969 the destination was Banda there is no difference in regard to the operation of Clause 12, I have in details dealt with this point in the other revision application. I have held therein that unless both the termini are within the State, Clause 12 of the said Order does not operate. In view of that position, the accused in this case also have to be acquitted.
15. The 71 bags of rice which were attached were sold by the State and an order of forfeiture of the sale-proceeds was passed by the Magistrate. This order was also confirmed by the appellate Court. In view of the fact that the prosecution failed to establish that any offence was committed, the order of forfeiture will also have to be set aside.
ORDER
16. Rule made absolute. The order of conviction and sentence passed against the accused is set aside and they are acquitted. The order of the forfeiture is also get aside and the State is directed to refund the amount of sale-proceeds to accused No. 1. Fine if paid is ordered to be refunded. Bail-bonds are cancelled.