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Criminal Reference No. 30 of 1954, decided on 14th December, 1954 under section 438 of the Cr. P. C.

S. 562 (IA) --Not applicable to cases under Baluchistan Foodgrains (Movement Control) Order, 1952.

Ss. 438 and 439-Reference under S. 438-In case of enhancement accused has right to show cause against conviction.

A reference under section 438, Criminal P. C. will, in the event of acceptance, be followed by an order under section 439, Criminal P. C. If an order of enhancement or substitu tion of sentence is to be passed. In that event the case is at large before the revisional Court and subsection (6) of section 439 of the Criminal P. C. gives opportunity to the accused to show cause against his conviction.

Muhammad Ashraf, for the Crown.

Karam Elahi, for Respondent.

-The learned Sessions Judge in Baluchistan has referred this case under section 438, Criminal P. C. on the grounds that the order passed by the Magistrate is illegal.

The facts of the case indicate that the respondent was challaned in the Court of the Treasury Officer and Magistrate First Class, Quaetta for committing an offence purporting to fall under the provisions of the Foodgrains (Movement Control) Order, 1952, in that he was transporting 22 bags of rice without a permit.

The learned Magistrate found him guilty, admonished him under section 562 (1A), Criminal P. C. and directed him to obtain a movement permit within fifteen days.

Section 562 (1A) of the Criminal P. C. has no application to this case since it relates to only certain specific offences defined in the P. P. C. Equally, iii accordance with section 11,4 of the Baluchistan Foodgrains (Movement Control) Order, 1952, it is mandatory upon a Court to forfeit such foodgrains unless reasons are recorded for not so ordering.

In these circumstances the sentence passed is illegal and it remains for me to decide what sentence should be substituted in accordance with the powers vested in me under section 439 Criminal P. C.

Learned counsel for the respondent claims that the respondent's case has been. prejudiced, in that he had not appealed in view of the light punishment of admonition. I must make it clear, however, that a reference under section 438, Criminal P. C. will, in the event of acceptance, be followed by an order under section 439, Criminal P. C. lean order of enhancement or substitution of sentence is to be passed. In that event the case is at large before the revisional Court and subsection (6) of section 439 of the B Criminal P. C. gives opportunity to show cause against his conviction. Neither the respondent .nor his counsel has done so.

I accept the reference, set aside the order of the lower Court and direct that the respondent should be fined Rs. 50, or in default shall undergo one month's simple imprisonment. I further order that the rice shall be c9nfis cated to Government

A. H. Reference accepted.

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