Chhotan Lal and Another vs Emperor

Varma, J.—The petitioners, Chhotan Lal and Gulzari Lal Marwari, have been convicted under Rule 81(4) of the Defence of India Rules and sentenced to four months'' rigorous imprisonment each. The case for the prosecution is that on 31st May 1944 at 11 P.M. the Sub-Inspector, B.N. Chatterji, with a junior Sub-Inspector (P.W. 2) along with certain other officers visited the dhaura in Kenduadih on getting some information that the petitioners had brought a goods-truck with a view to smuggle dal to Bengal from the house of Maksudan Singh, who has been acquitted by the appellate Court. When they went to the place, they saw a military truck loaded with food stuffs, and sitting on that truck were these two petitioners. Seeing the police party they fled but the police succeeded in catching Chhotan. The dhaura, which is said to belong to Maksudan, who was a co-accused, was found to contain 79 bags of masoor dal, each bag weighing about 2 1/2 maunds. The case for the prosecution further is that out of these 79 bags about 50 bags were brought by Gulzari and Chhotan from the shop of one Rachhpal Marwari in Jharia and they have no licence for storing or hoarding dal. The charge against the present petitioners as well as Maksudan was as follows:

That you, on or about 31st day of May 1944 at Kenduadih without being a licensed dealer under Foodgrains Control Order of 1942 and without any authority from District Magistrate, Dhanbad, kept 79 bags of masoor dal in the premises in the occupation of Maksudan Singh and contravened the Bihar Essential Foodgrains (Possession and Storage) Order, 1943, published in the Notification No. 12726--P.C. dated 17th September 1943 and thereby committed an offence punishable under Rule 81(4) of the Defence of India Rules and within my cognizance.

The case for the defence as it appears from their statement u/s 342, Criminal P.C., was that they were not guilty, and there was only one suggestion in the course of cross-examination that Gulzari was implicated because he happened to be a nephew of one Phulchand. The fact that 79 bags of masoor dal were recovered from one of the rooms of the dhaura is not denied, and it is also admitted that neither the petitioners nor Maksudan had any licence as contemplated by the Notification. The learned Judge formulated the questions to be decided in this case as follows:

The simple question that has to be decided in this case is whether the appellants stored these bags of masoor dal or not. In the case of Maksudan, however, a further question will arise whether one of the rooms in the dhaura from where the dal was recovered was in possession of appellant Maksudan.

Having formulated these questions the learned Judge went into the question as to how far the petitioners, Gulzari and Chhotan, had a hand in the various transactions beginning from the purchase till the dal was stored in the room from where it was recovered, because the learned Judge has referred to the fact that these people were responsible for the transport of the dal from the place where it was purchased. Now, the finding of the learned Judge, after referring to certain circumstances is as follows:

This taken with the fact that Gulzari was sitting on the truck near the dhaura and that he ran away when chased by the police is a circumstance to support the prosecution case that Gulzari had a hand in the purchase of the dal from this firm.

There is another finding, after referring to the evidence of the cartmen, which is as follows:

These circumstances can leave no manner of doubt that Gulzari certainly was storing these bags of masoor dal and since he had no licence to do so there can be no doubt that he had committed the offence with which he has been charged.

Chhotan''s name, of course, does not appear in the first information report; but the learned Judge is satisfied that so far as Chhotan was concerned the charge was proved against him also. Then, after dealing with the case of Maksudan he acquitted Maksudan. I have quoted the charge above to show that the trial was for the contravention of the Notification referred to in that charge. The relevant paragraph of the Notification is as follows:

No person other than a producer of any essential foodgrain or a dealer licensed under the Food-grains Control Order, 1942, shall keep or store in any premises occupied by him, or permit any other person to keep or store in any such premises, a total quantity of essential, foodgrains exceeding 25 standard maunds unless he has obtained a written permit from the District Magistrate of the district in which he resides authorising him to do so. Every such permit shall specify the quantity of the essential commodity which may be kept or stored in excess of the permissible maximum.

Explanation.--For the purposes of this paragraph the members of a family shall be deemed to be one person.

In dealing with the case of these petitioners, although the learned Judge has carefully-analysed the evidence that was led in the case, he has not focussed his attention upon that part of the paragraph of the Notification, which says,

shall keep or store in any premises occupied by him, or permit any other person to keep or store in any such premises.

The findings which the learned Judge arrived at go to show only that the petitioners were engaged in getting and storing the dal in one of the rooms of the dhaura. Whether they were the occupiers of the room where the dal was found has not been considered by the learned Judge, and on the charge as framed, it is the occupier of the premises who is held responsible under the Notification. In the judgment of the learned Judge there is no finding that the petitioners were the occupiers of the room. Mr. H.R. Kazimi, appearing on behalf of the Crown, has pointed out that if the room was empty and the petitioners have been found to have been the persons responsible for the depositing of these bags of masoor dal in that empty room, then the petitioners should be held to be the occupiers of that room. This would have been a good argument in support of the prosecution if the charge had been different. The person who has been mentioned as the occupier of the premises is Maksudan Singh and the trial itself was conducted on the basis that the premises were occupied by Maksudan Singh, and he has been acquitted by the appellate Court. The petitioners, therefore, may be guilty of some other offence, but on the charge as framed, I am afraid the charge has not been established. Their convictions and sentences must, therefore, be set aside.

Shearer, J.

I agree to the order proposed. In law the petitioners cannot, possibly, be said to have been the occupiers of the premises. It may be that, in taking the grain to these premises, they did an act preparatory to a contravention of the Order, and are liable to punishment under Rule 121 of the Defence of India Rules; but they were not so charged and the point is not so clear that the conviction can now be altered in revision.