Gadai Sahu @ Gadadhar Sahu and Another vs Emperor

Manohar Lall, J.—This is an application in revision by Gadai Sahu alias Gadadhar Sahu and Alekha Sahu, two brothers, who have been convicted under Rule 90(3), Defence of India Rules, 1939. The former has been sentenced to six months rigorous imprisonment and a fine of Rs. 50 and the latter to three months rigorous imprisonment and a fine of Rs. 50. The prosecution was started as a result of a search conducted on 1st October 1942 by a Sub-Inspector in the grocery shop of the petitioners who live jointly and have a joint business, including the grocery shop which is situated in the local Charchika Bazar. The Sub-Inspector recovered a number of small coins of different denominations which were kept in a gunny bag inside a tin which was covered with waste papers. The learned Judge finds that in the gunny bag there were over 3300 copper pices, over 2600 copper half-pices and over 900 pie pieces, besides a small amount of nickel and silver coins. The learned advocate for the petitioner has given us details of these coins which show that the copper pices were of the value of Rs. 52 odd, half-pices of the value of Rs. 21 odd and the copper pies of the value of Rs. 5 odd, and the rest were small bits of the total value of Rs. 2 odd. On these facts, the Courts below have come to the con-elusion that it is impossible to believe that these accused could really require these amounts of copper coins for their business although they have the largest shop in Banki, and accordingly took the view that "the purpose of the accused in keeping these coins was to hoard in the expectation of selling them for profit." It is convenient to quote Rule 90(2)(d). It is in these words:

No person shall acquire coin to an amount in excess of his personal or business requirements for the time being....

The other part of the rule is not necessary to quote here as it concerns the case of an acquisition of coin from the currency office or treasury. This rule came into force by D.C. Department Notification No. 494-or/40 dated 31st August 1940. It will be noticed that the rule forbids a person from acquiring coins. It is well settled that a new Act or statute which penalises what otherwise is not an offence must be so construed as to make it strike at future acts or omissions unless the Legislature has clearly said so. In Doolubdassa Pettamberdass v. Ramloll Thackoorseydass (1851) 5 M.I.A. 109 , after certain wager contracts had been entered into between the plaintiffs and the defendants, a new Act was passed which provided that

all agreements, whether made in speaking, writing or otherwise, by way of gaming or wagering, shall be null and void; and no suit shall be allowed in any Court of law or equity for recovering any sum of money or valuable thing alleged to be won on any wager, or entrusted to any person to abide the event of any game, or on which any wager is made.

Their Lordships of the Judicial Committee held that this Legislative Act was not to be construed as affecting existing contracts and that they did not find any words in the Act sufficient to show the intention of the Legislature to affect existing rights. Their Lordships expressed agreement with the judgment of the majority of the Court of Exchequer in Moon v. Durden (1848) 2 Ex. 22 . I do not find any indication in the rule from which I can be coerced to hold that Rule 90 is intended to strike at past acquisitions and would therefore hold that the rule forbids acquisitions after 31st August 1940. There is no finding in the present case that the accused acquired these coins since 31st August 1940. On the other hand, as was pointed out by my learned brother in the course of the argument to the learned Advocate. General who appeared in support of the conviction, there is the finding of the trial Court that the colour of the copper coins at the time of recovery was green and some of them were found sticking to the others by the Sub-Inspector. The trial Court observes:

During my examination in Court, I also found; them rusted, greenish and some of them sticking to others. From the state of the coins one may presume that they were kept hoarded for some unusual time.

I agree with these observations. The prosecution therefore must affirmatively satisfy us that the accused hoarded the coins--which appear to have been kept for an unusual time--after August 1940. There is no evidence whatsoever to support the inference which we were asked to draw by the learned Advocate-General that the accused hoarded the coins after the relevant date. It was argued by him that the circumstantial evidence in the case irresistibly leads to the conclusion that the accused hoarded the coins and that the onus was upon him to prove that he was in possession of these coins before 31st August 1940. With respect I do not agree with this contention. The onus is always on the prosecution to make out its case. I quote from the observations of Viscount Sankey in the well-known case of Woolmington v. Director of Public Prosecution (1935) 1935 A.C. 462 :

But while the prosecution must prove the guilt of the prisoner, there is no such burden laid on the prisoner to prove his innocence and it is sufficient for him to raise a doubt as to his guilt; he is not bound to satisfy the jury of his innocence. This is the real result of the perplexing case of Rex. v. Abramovitch (1914) 84 L.J.K.B. 396 which lays down the same proposition, although perhaps in somewhat involved language. Juries are always told that, if conviction there is to be, the prosecution must prove the case beyond reasonable doubt. This statement cannot mean that in order to be acquitted the prisoner must ''satisfy'' the jury.... Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner''s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception.... No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.

Viscount Hailsham L.C. took the same view in the case reported in Attygalle v. The King AIR 1936 P.C. 169 . In that case accused 1 was prosecuted for performing an illegal operation, and accused 2 for abetting in that crime before the Supreme Court of the Island of Ceylon. The learned Judge in his charge to the jury observed:

There is a Section of the Evidence Ordinance which, I think, is really the basis of circumstantial evidence so far as it occurs in Ceylon; that Section says when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Miss Maye (that is the person upon whom the operation was alleged to have been performed) was unconscious arid what took place in that room that three-quarters of an hour that she was under chloroform is a fact specially within the knowledge of these two accused who were there. The burden of proving that fact, the law says, is upon them, namely that no criminal operation took place, but that what took place was this speculum examination.

Their Lordships of the Judicial Committee held that this direction did not correctly state the law and observed at p. 341 that it is not the law of Ceylon that the burden is cast upon an accused person of proving that no crime has been committed. What are the circumstances which have been found in this case? Nothing beyond the fact that the accused were found in possession of small coins of the value of Rs. 82 odd in excess of their business requirements.

But this was no more than an anti-social act. I am unable to find, as I have stated above, any evidence, direct or circumstantial, from which I can conclude that the accused acquired these coins in excess of their business requirements after 31st August 1940. It may be that the accused were in possession of these coins from before that date and having heard that the authorities were preventing the hoarding of coins they withdrew these coins from circulation from their business and kept them concealed inside a tin and released only some part of it which they used for their business requirements. But what the rule strikes at is the acquisition from the date of the rule and not the continuing to keep or retain possession of coins already acquired.

For these reasons I am of opinion that the conviction of the petitioners must be set aside. They must be set at liberty, and if they are on bail they must be discharged from their bail bonds. Fines, if paid, must be refunded. I desire to observe that the Courts below have not considered the case of each accused separately. There is no finding that both the accused were in charge of the business. Only one of the accused was the karta or the managing member, and he alone would have been held responsible for the offence of acquiring coins in excess of the business requirements if I had accepted the prosecution case.

Brough, J.

I agree.