Wazir Chand vs The State Of Himachal Pradesh

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Civil Appeals Nos. 129 and 130 of 1952

Decision Date: 22 April 1954

Coram: Mehar Chand Mahajan, B.K. Mukherjea, Vivian Bose, Natwarlal H. Bhagwati

In this case, the Supreme Court of India recorded that the petition titled Wazir Chand versus The State of Himachal Pradesh was decided on 22 April 1954. The judgment was authored by Chief Justice Mehar Chand Mahajan and the bench also comprised Justices B.K. Mukherjea, Vivian Bose, Natwarlal H. Bhagwati, Natwarlal H. Aiyyur and T.L. Venkatarama. The parties were identified as the petitioner Wazir Chand and the respondent The State of Himachal Pradesh, with the appeal connected to the original petition. The official citation of the decision appears as 1954 AIR 415 and 1955 SCR 408, and further citation references include R 1957 SC 529 (4), R 1961 SC 1570 (14), R 1982 SC 33 (41), RF 1986 SC 872 (82). The constitutional provisions under consideration were Articles 19, 31 and 370 of the Constitution of India, together with sections 51, 96, 98, 165 and 523 of the Code of Criminal Procedure, 1898. The central issue was whether a seizure of property by police that was not authorized by sections 51, 96, 98 or 165 infringed the fundamental rights guaranteed by Articles 19 and 31, and what the legal effect would be of a dismissed application under section 523. The headnote explained that the statutory provisions governing search and seizure are limited to the cited sections of the Code, and that any police seizure of a citizen’s property outside those provisions violates the fundamental rights in Articles 19 and 31. It further noted that such a violation persists even if the aggrieved citizen files an application under section 623 and the magistrate dismisses it. The headnote also raised a question of jurisdiction, observing that Article 370 creates doubt as to whether an offence committed in Jammu and Kashmir could be investigated by police operating in the rest of India. The judgment section indicated that the civil appellate jurisdiction involved Civil Appeals Nos. 129 and 130 of 1952, which were special leave appeals from the order dated 26 December 1951 of the Judicial Commissioner for Himachal Pradesh at Simla, concerning Civil Miscellaneous Petitions Nos. 12 and 16 of 1951. The appellants were represented by counsel, while the respondent, designated as No. 1, was represented by the Solicitor‑General for India. The judgment was delivered on 22 April 1954 by Chief Justice Mehar Chand Mahajan.

In the proceedings, the Court described that in 1949 Trilok Nath operated a business in Himachal Pradesh under the name “Himachal Drug Nurseries,” engaged in the collection and export of medicinal herbs. He was also a partner in the timber firm of Messrs. Prabhu Dayal and Gowri Shanker, which conducted its operations in the State of Jammu and Kashmir under the style “The Kashmir Woods.” Trilok Nath claimed that his Chamba enterprise was his exclusive concern and that the partnership firm “The Kashmir Woods” had no interest in it. By contrast, Prabhu Dayal asserted that he had founded “The Kashmir Woods” in 1943 as a sole proprietorship, later admitting Trilok Nath as a partner. He further alleged that in 1949 Sardar Bhagwan Singh persuaded the partners to expand into the crude‑drug and herb trade, which was his own line of business, and that a new entity called “Himachal Drug Nurseries” was established as a subsidiary of “The Kashmir Woods” with Bhagwan Singh as one of its partners. According to this version, after an initial investigation the partners decided to pursue the work at Chamba, resulting in the procurement of two forest‑division leases on behalf of the Jammu firm—one lease registered in Bhagwan Singh’s name and the other in Trilok Nath’s name—with the capital for the venture supplied by the parent firm in Jammu. It was further alleged that Trilok Nath later falsified the Jammu accounts to show a fictitious investment by his elder brother Wazir Chand amounting to Rs 30,000 in “The Kashmir Woods,” and that by manipulating the books and entering into certain agreements he fraudulently made Wazir Chand the sole owner of “Himachal Drug Nurseries,” thereby transferring the Chamba concern to him without the knowledge or consent of the other partners. Wazir Chand and Trilok Nath rejected these assertions. Their defence contended that Trilok Nath was the sole proprietor of the Chamba concern, that he obtained the leases in his own name—not on behalf of the Jammu firm—from the Chamba forest department in 1949 and again in 1950, and that, lacking his own capital, he borrowed Rs 30,000 from his brother and admitted him as a partner in the venture. They further maintained that when Trilok Nath could not meet his share of the capital, the partnership was dissolved on 31 August 1950, and that, in consideration of Rs 20,000, Trilok Nath relinquished and transferred all his rights in the Chamba concern to Wazir Chand by means of a stamped deed of dissolution dated 10 December 1950, thereby making Wazir Chand the sole owner of all goods belonging to the concern in Chamba, which subsequently came into his possession. On 3 April 1951 Prabhu Dayal filed a police report in Jammu alleging that Trilok Nath had prepared duplicate accounts for submission to the income‑tax authorities and had committed an offence of embezzlement punishable under section 406 of the Indian Penal Code.

The alleged offence was punishable under the Indian Penal Code. The Jammu and Kashmir State police took cognizance of the matter and assigned Amar Nath, a sub‑inspector of police, to conduct the investigation. During the investigation the Jammu police travelled to Chamba on the 25th and 26th of April, 1951. With assistance from the Chamba police they seized two hundred sixty‑nine bags of medicinal herbs, valued at approximately Rs. 35,000, which were in the actual physical possession of Wazir Chand or his attendants. The seizure was carried out without any report to, or order from, a magistrate or any other competent authority. After the seizure the goods were delivered to different officials at various stations within the State of Himachal Pradesh.

Wazir Chand protested the seizures strongly, asserting that the actions were illegal, beyond the jurisdiction of the authorities, and that the goods should be released. Despite his representations, no relief was granted. In the first week of July 1951, acting on instructions from the Jammu police, the Chamba police again seized twenty‑five bags of dhup that were in the possession of Wazir Chand; these bags were likewise handed over to certain officials.

On 19 July 1951 the District Magistrate of Jammu wrote to the District Magistrate of Chamba requesting that the goods seized from the “Himachal Drug Nurseries” be transferred to the Jammu and Kashmir State police. That request has not been complied with. On 21 August 1951 Wazir Chand filed an application under article 226 of the Constitution of India before the Judicial Commissioner of the State of Himachal Pradesh at Shimla. He prayed for one or more writs of mandamus directing the respondents to order the release of the seized goods and to refrain from issuing any orders concerning the extradition of those goods.

While the petition was pending, the Chamba police, again on the direction of the Jammu police, seized an additional forty‑five maunds of medicinal herbs. This later seizure was challenged by a second petition filed on 20 September 1951, also under article 226 of the Constitution. The Judicial Commissioner disposed of both petitions in a single judgment and declined to grant any of the reliefs sought by the petitioner. In his reasoning he observed that to determine whether the entries in the books of account were genuine or forged, what effect those entries had on the alleged right of Wazir Chand, and whether the agreements entered into by him were authentic or merely for consideration, it would be necessary for all relevant persons and any witnesses they wished to produce to appear in court. He noted that affidavits had been filed on both sides—by Wazir Chand and certain alleged employees of the Himachal Drug Nurseries for the petitioners, and by Prabhu Dayal, Gauri Shankar, Bhagwan Singh and a head constable of the Jammu and Kashmir police for the respondents—but the veracity of those affidavits could not be ascertained without cross‑examination.

The Court observed that the affidavits filed by the parties could not be evaluated for truth or falsehood unless the persons who made those statements were examined by cross‑examination. Consequently, the Court refrained from concluding that the petitioners had proved any right, title, or interest in the seized goods. The Court held that such a conclusion would be unjust in the limited context of summary proceedings. Moreover, the Court stated that, based on the material presently before it and on any material that could possibly be introduced in these summary proceedings, it was impossible to determine whether the petitioners were entitled to the reliefs they sought. Accordingly, the Court indicated that the appropriate avenue for the petitioners was not a writ petition under article 226 of the Constitution of India, but rather a regular civil suit or any other suitable action that lay open to them.

The Court noted that counsel for the petitioners contended that the Judicial Commissioner had erred in holding that, in order to decide the legality of the seizures and any possible infringement of fundamental rights, it was necessary to first resolve the true nature of the title to the seized goods. The petitioners argued that because the goods had been taken from the actual possession of the petitioner or his servants, and because the Chamba concern was undeniably under the exclusive control of either Trilok Nath or Wazir Chand, the question of whether Wazir Chand had obtained possession fraudulently was irrelevant to the inquiry. They further maintained that the only issue requiring consideration was whether the seizures were authorized by law, and if they were not, a writ of mandamus should be issued ordering the restoration of the goods. The Court found these contentions to be well founded. The Solicitor‑General appearing for the respondents could not point to any provision of the Code of Criminal Procedure or any other statute that empowered the Chamba police, acting on a request from the Jammu police, to seize the goods. The Court observed that the seizures had not been made under any magistrate’s order. While sections 51, 96, 98, and 165 of the Code of Criminal Procedure provide the police with powers to conduct searches and seizures, none of these sections applied to the facts of the present case. Section 51, for example, permits the search of arrested persons, but in this instance no cognizable offence had been reported to the Chamba police, no complaint had been lodged before any magistrate, and no warrant had been issued by a Chamba magistrate for either a search or an arrest. Accordingly, sections 51, 96, and 98 could not be invoked in the present circumstances.

The Court observed that Section 165 of the Code of Criminal Procedure did not apply to the facts of this case because it authorises a police‑station officer to search only when he has reasonable grounds to believe that material necessary for an investigation of an offence within his jurisdiction may be found in a place under his charge and that such material cannot be obtained elsewhere without undue delay. The Court noted that the Chamba police were not authorised to investigate the offence for which a report had been lodged with the Jammu and Kashmir police. Moreover, the Court expressed doubt that, under Article 370 of the Constitution, an offence committed in Jammu and Kashmir could be investigated by a police‑station officer belonging to Himachal Pradesh. The procedural requirements of Section 165, including the written recording of the officer’s belief and the specification of the article to be searched, were not satisfied. The Court further held that the Jammu and Kashmir police possessed no jurisdiction or lawful authority to conduct an investigation of a crime alleged to have occurred in Jammu and Kashmir while operating in Himachal territory without any statutory provision or magistrate’s order authorising such action. No such authority was cited before the Court. Consequently, the Court described the entire episode as a “hole‑and‑corner affair” carried out jointly by officers of the Kashmir police and the Chamba police without any reference to a magistrate, thereby violating the law.

The Court concluded that the seizure of the goods from the petitioner’s—or his servants’—possession infringed his fundamental rights guaranteed under Article 19 and Article 31 of the Constitution and therefore warranted relief under Article 226. The Solicitor‑General contended that, based on the allegation of Prabhu Dayal, the seized articles in Chamba related to an offence committed in Jammu, and that because the petitioner lacked a legal title to those articles, the police were entitled to seize them. Assuming that premise were correct, the Court noted that goods possessed by a person who does not hold lawful title may be seized only under a valid legal authority; in the absence of such authority, the petitioner could not be deprived of them. The Court further observed that, from the material placed on record, it appears clear that unless and until Prabhu Dayal proves his allegation that the Chamba concern formed an integral part of the Jammu partnership firm, the seizure lacks a legal basis.

The Court observed that the allegation that Trilok Nath, who had admitted being a partner in the firm, possessed the authority to place Wazir Chand in possession of the disputed property was denied. Consequently, the Court held that no offence, not even one punishable under section 406 of the Indian Penal Code, could be said to have been committed in relation to that property. The Court further noted that the police of Jammu had proceeded to Chamba without first presenting any of the accused before a magistrate in Jammu and without obtaining any extradition order from a magistrate, should the alleged offence have been extraditable. In the absence of such judicial authorization, the Court found that the Jammu police could not lawfully move to Chamba, nor could they, with the assistance of the Chamba police, seize the goods and attempt to convey them to Jammu on the basis of a letter of request issued by the District Magistrate of Jammu to the District Magistrate of Chamba.

The petitioner's contention was that he had filed an application under section 523 of the Code of Criminal Procedure before a magistrate, that this application had been dismissed, and that a petition for revision of that dismissal was pending. The petitioner further argued that because another remedy had been pursued, he could not invoke the jurisdiction of article 226 of the Constitution. The Court rejected this argument on two grounds. First, the Court held that section 523 did not apply to the facts and circumstances of the present case, and that the magistrate therefore lacked jurisdiction to order the return of the seized goods to the petitioner. Second, the Court observed that the revision petition had been dismissed on the basis that the magistrate had no jurisdiction to grant relief under section 523. Having set out these reasons, the Court allowed the appeal, set aside the order of the Judicial Commissioner, and directed that an appropriate writ be issued to direct the restoration of the goods seized by the police to the petitioner. The Court further ordered that the appellant be awarded his costs of the appeals, including those incurred in the Court of the Judicial Commissioner. The appeal was thereby allowed.