Bhawani Das vs The State

Sen, J.—This is a revisional application against the conviction of the Petitioners Bhawani Das and Fulchand Agarwalla u/s 7(1) of Act XXIV of 1946 for contravention of para. 4(2) of West Bengal Cotton Cloth and Yarn Movement Control Order, 1950. The facts of the case were briefly as follows:

S.I. Kalyari Kumar Banerjee attached to the District Enforcement Branch, Sealdah, was on duty at the Sealdah Railway Station on January 11, 1952. He had information that some, merchants werelikely to take Indian Mill-made cotton cloths by train from Sealdah Station towards Burdwan side. Accordingly, with a force he remained ready to search the outgoing trains. At about 10-30 p.m. that day he found the two accused Bhawani and Eulchand near a compartment next to the brake-van of a through train, viz., Assam Link Express, in platform No. 5; a railway ticket for Burdwan was found with one of the accused. They had three holdalls, one steel suit case and a haversack with them. These things were being loaded by coolies. The officer asked the coolies who were the owners of the articles and the coolies pointed out the two, accused who were standing near the compartment. The police officer then arrested the two accused and searched the holdalls, the steel suit case and the haversack and they were found to contain 179 1/2 pairs of Indian mill-made cotton dhotis and saris. The police officer asked the two accused whether they had the necessary authority for taking the aforesaid goods out of Calcutta by train and the accused could not produce any such permit. The two accused were then taken under custody and the goods were also seized. In due course a complaint was made against them in respect of offence u/s 7(1) of the Essential Supplies Act for contravention of para. 4(2) of West Bengal Cotton Cloth and Yarn Movement Control Order, 1950.

The accused pleaded not guilty but made no definite case and did not seek to explain the possession of such a large quantity of Indian mill-made cotton cloths at the railway station although they were asked by the learned magistrate to do so. On behalf of the defence it was urged that it was not proved satisfactorily by the prosecution that the articles in question were Indian mill-made cloths that the accused were trying to take the same out of Calcutta without having obtained the necessary permit and that para. 4(2) of the West Bengal Cotton Cloth and Tarn Movement Control Order, 1950, was vltra vires of the State Government as being repugnant to the Central Government Order, viz., Cotton Textile (Control of Movement) Order, 1948. The learned magistrate found that the cloths were Indian mill-made cloths and that the accused were trying to take them out of Calcutta in contravention of para. 4(2) of West Bengal Cotton Cloth and Tarn Movement Control Order, 1950. He also found that para. 4(2) of the West Bengal Cotton Cloth and Tarn Movement Control Order, 1950, was not repugnant to the Central Government order referred to.-Accordingly, the learned magistrate convicted the Petitioners u/s 7(1) of the Essential, Supplies Act and sentenced each of them to for six months and to pay a fine of Rs. 1,000 in default t0 suffer rigorous imprisonment for six months more. There was an appeal to the Sessions Judge of 24-Pargands and the appeal was heard by Shri J.C. Lodh, Additional Sessions Judge, The learned Additional Sessions Judge confirmed the findings of the learned magistrate on all the three points and also confirmed the conviction and sentence passed on the Petitioners.

In this Court Mr. A.K. Dutt appearing on behalf of the Petitioners has urged the same three points. An expert was examined in this case to prove that the cloth seized was Indian mill-made cotton cloth. A point was taken in this Court that there was no evidence to show that the samples which were sent to the expert had been taken out of the stock seized at the Sealdah Railway Station on January 11, 1952 in the circumstances alleged by the prosecution. To meet this point the trial court was directed to record further evidence so that the lacuna might be removed and the defence was given the opportunity of cross-examining the witnesses who might be examined after remand by the prosecution. The prosecution after remand further examined only two of the witnesses who had already been examined, namely P.W. 4, A.P. Maitra, technical officer, textiles, and P.W. 7, S. Gupta, sub-inspector of G.R.P.S., P.W. 7, S. Gupta, proved that the entire seized cloth was sent to court on April 17, 1952 through constable Baijnath Misra and they were kept in court malkhana and entered into the thana malkhana register, and that he took 10 items of cloth from the malkhana after signing the thana malkhana register and sent the 10 items of cloth on June 19, 1953 to the textile expert for examination. He identified the pieces of cloth which he sent to the textile expert for examination. They were marked exs. I to X. The expert P.W. 4, A.P. Maitra, also deposed that he received 10 pieces of cloth from S. Gupta, S.I., Sealdah G.R.P.S. on June 19, 1953 and he gave details of the 10 pieces of cloth which he examined, the description tallying with the description given by the sub-inspector in question: the expert also identified exs. I-X as the samples sent to him.

Mr. Dutta has objected that the S.I. ought to have made out a seizure list when he took out the 10 pieces of cloth from the malkhana. The absence of a seizure list, however, does not affect the case for the prosecution. The evidence of the S.I., that he took out ten pieces of cloth and he identified the pieces of cloth which he sent to the expert after signing the malkhana register and which had been received back from the expert after examination. In the circumstances there can be no possible doubt as to the identity of the cloths. They were 10 pieces of cloth out of the lot seized at the Sealdah railway station in the circumstances already detailed.

On the question whether para. 4(2) of the said Order was repugnant as being contrary to the Order of the Central Government, we must also agree with the findings of the courts below. The particular provision of the Cotton Textile (Control of Movement) Order, 1948, which is alleged to have been violated by the State Order is Clause (3) of the general permit annexed to the Cotton Textile (Control of Movement) Order, 1948. Under Clause (3) it is provided that any person may transport by rail, road, air, sea or inland navigation from any place in India to any other place therein any cloth, yarn from any place in any zone described in para. (1) to any other place in the same zone. In para. (1) West Bengal is described as one zone. It is, therefore, urged that in view of para. (3) of the general permit any person may transport cotton or yarn from one place in West-Bengal to any other place without any permit or restriction and that the Order of the State Government imposing prohibition or restriction is therefore, repugnant to the Central Order. But there is a proviso to para. 3 of the general permit, namely, that the permission contained in this paragraph is subject to the restrictions which may be imposed from time to time by any Order of the Provincial or State Government. Thus there is a scope for any restriction by the State Government in para. 3. Therefore, the restriction imposed by the State Government by para. 4(2) of the West Bengal Cotton Cloth and Tarn Movement Control Order. 1950, must be held to be legal and not repugnant to the provision of the Central Order referred to Paragraph 4(2) only requires that no person shall move by air, rail, road or water any cloth or yarn from any place within any of the areas specified in column 1 of the schedule to this Order to any place outside that area but within West Bengal, without having the Forwarding Note or any other document for the transport of such cloth or yarn containing the particulars which are usually contained in a Forwarding Note, countersigned by the officer specified in the corresponding entry in column 2 of the said schedule. The schedule mentions Calcutta and Howrah Municipal area as one area and for sending cotton cloth and yarn to any other place within West Bengal, counter-signature of the Director of Textiles is required. This is merely restriction of the transport of cotton cloth or yarn and not prohibition. A total prohibition might be repugnant to the Central Government, but this is only a restriction so that the authorities should have a check on the movement of cloth and take steps to see that the cloth so moved did not go underground for black-marketing. We must find that this provision is not repugnant to the Central Order and, therefore, valid.

It is next urged by Mr. Dutt that the evidence to prove that the cloth seized was Indian mill-made cloth was not sufficient. In this connection he has referred to Order No. 3033 S.D. August 20, 1951, by which the West Bengal Government exempted the power-loom cloth from the operation of the sub-para. (2) of para, 4 of the West Bengal Cotton Cloth and Tarn Movement Control Order, 1950. It has been urged that the prosecution did not adduce any evidence to show what is power-loom cloth and did not distinguish the same from the mill-made cloth.

It is true that there is no such evidence on the record. But power-loom cloth clearly means cloth which is made by a weaver individually on a power loom and where there is no mass-production as in a mill. The cloths seized in this case which were examined by the expert were clearly the manufacture of various Indian mills like Kesoram Cotton Mills, Hirjee Mills Ltd., Pratap Spinning and Weaving Mills Company Ltd., Sitaram Mills Ltd., Bengal Luxmi Cotton Mills Ltd. and the Narsingh Girji Mills, Sholapur, vide the evidence of the expert. There can be no doubt, therefore, that the cloths seized were Indian mill-made-cloth and not the production of power loom which is exempted, under the Notification by Government referred to by Mr. Dutt. As to the question of fact, namely, whether the accused were actually trying to transport this quantity of cloth without having-complied with para, 4(2) of the State Order there is sufficient evidence on the record and on this point there is the concurrent finding of both the courts and in view, of the fact that there is sufficient evidence to support the finding, this finding cannot be challenged.

Lastly, it was urged that the sentence is too severe. It appears that the occurrence took place on January 11, 1952 and the ban imposed by the State Government Movement Control Order was lifted on May 2, 1952 that is less than 4 months after the occurrence had taken place. It has been urged that in the circumstances it is not necessary that the accused should serve out substantive terms of imprisonment. In view of the fact that the ban was lifted about 4 months after the occurrence we are inclined to hold that a substantive sentence of imprisonment was not called for in this case. But as a large quantity of cloth was repetitiously sought to be taken out of Calcutta, the fine of Rs. 1,000 in default R.I. for 6 months must remain.

It is, therefore, ordered that the. conviction of the Petitioners u/s 8/7(1), of Act XXIV of 1946 be maintained but the sentence is reduced to a fine of Rs. 1,000 each, ;in default to undergo rigorous imprisonment for six months each, the substantive sentence of imprisonment imposed on the Petitioners being set aside. The order of forfeiture will stand.

The Rule is disposed of accordingly.

Mitter, J.

I agree.