Raghubar Lal vs Emperor

Rowland, J.—The petitioner has been convicted and sentenced to a fine of Rs. 75 u/s 81(4), Defence of India Rules. That clause runs as follows: "If any person contravenes any order made under this rule, he shall be punishable with imprisonment for a term which may extend to three years or with fine or with both." The order under this rule which is said to have been contravened, is the Food Grains Control Order which was issued in May 1942, by the Central Government. The relevant clause of this Order is Clause (3): "No person shall engage in any undertaking which involves the purchase, sale or storage for sale in wholesale quantities of any food grain except under and in accordance with a license issued in that behalf by the Provincial Government.

There is a proviso with which we are not concerned'' saving licenses issued by the Provincial Government independently of this Food Grains Control Order and there are definitions in Clause (2) indicating that wholesale quantities mean quantities exceeding 20 mds. sold or purchased in one transaction. The Food Grains Control Order has annexed to it a schedule of grains to which it applies and they include rice, both in the husk: and husked and gram any variety. The last clause of the Food Grains Control Order says that: "Nothing in this Order shall apply to the sale or storage for sale by any person of any food grain produced by himself or by Ms tenant." It may be noticed that what is prohibited by Clause (3) is the engaging in a business of, wholesale purchase and sale. Now I turn to the facts of this case and the charge framed. The price Control Officer at Gaya on 6th July 1943 visited the shop belonging to the petitioner. He found the following stock of grains. Rice 25 mds., Gram 47 mds. 20 seers., Khesari about 150mds. As already noticed rice and gram are food grains referred to in the Food Grains Control Order, but Khesari is not. The charge framed recites that the accused was found in possession of the above-mentioned quantities of all three kinds of crops "without a license under the Food Grains Control Order framed u/s 81(2) of 1 the Defence of India Rules.

In framing the charge the Magistrate seems not to have noticed that the Food Grains Control Order did not prohibit possession without a license, but prohibited the engaging in business without a license. Mere possession not for purposes of sale does not appear to be touched by Clause (3), Food Grains Control Order; but the charge does riot say that the petitioner was in possession of the commodities for [purposes of sale. Unless it was shown that he held the commodities for sale or in the course of a business with which he was engaged, possession would not amount to an offence under the Food Grains Control Order. The Magistrate who tried the case and the appellate Court have, however, both considered whether the grains wag or sale and both have thought that the circumstances suggested the inference that it was meant for sale. When the accused was examined, however, the Magistrate never asked him for what purpose he had stored the grains. No evidence was led to show that the accused was in fact a dealer in grains. His own statement was that he is not a grain merchant, but a seller of gold, silver and brass articles. The procedure in the Courts below was thus defective in not directing attention to the ingredients which the prosecution ought to prove in order to support a conviction.

But assuming that the finding of the grains in the accused''s place of business was enough to support a presumptive inference that the grain was kept there for sale, there remains the question whether the accused''s other defence that the grain was agricultural produce of his own land could rightly be rejected on the ground (that he had not adduced evidence to prove this, when the Crown on its part had not produced any evidence to show that the food grain had not been produced by the accused himself or by his tenant. It has been suggested for the Crown that this being a matter within the special knowledge of the accused, the burden of proof was on him to establish it u/s 106, Evidence Act. It was also suggested that as Clause (8), Food Grains Control Order, is by way of being an exception taking certain cases out of the operation of the order, the burden of proof would be on the accused u/s 105, Evidence Act, to show that he is within the scope of the exception.

As regards special knowledge, I think that before the accused can be required to prove the matter within his special knowledge, there must at ''least be some prima facie evidence which, if unrebutted would establish all the ingredients comprising the offence; for instance, in a case of alleged murder, the intention to cause death or the knowledge that death is likely to result is an ingredient in the offence. It will not therefore do for the prosecution to say that it is for the accused to prove the absence of such intention; though if the circumstances are such as to point strongly to a criminal intention it may then be for the accused to rebut the natural presumption drawn from the facts. This I think is in agreement both with the statute law in India and with the English law as explained in Woolmington v. Derector of Punblic Prosections 1935 A.C. 462.

Similarly, with regard to possession of stolen property, the prosecution have in the first instance to bring evidence from which it can be inferred that the possession was dishonest. Only then is it incumbent on the accused to repel the inference which is to be drawn from such evidence and that I think agrees with the Indian statute and the decision of the Court of Criminal Appeal in Rex. Schama (1915) 84 L.J.K.B. 396. I need not here say from what circumstances a Court may be entitled to infer that the food grains found in a person''s possession are not home produced. No such special circumstances were put forward in this case. The above discussion seems to me to be sufficient to establish the result that the conviction in this case cannot be supported.

I should, however, I think refer to the other contentions raised for the petitioner and for the Crown. For the Crown it was pointed out that it was not necessary that the prosecution should adduce direct evidence to establish that possession of the food grains was for the purpose of sale because by an amendment to the Food Grains Control Order which was notified in the Bihar Gazette Extra-ordinary on 4th June 1943 any person who stores food grain in quantities exceeding 50 mds. may unless the contrary is proved be deemed to store the food grain for purposes of sale. That amendment was in force at the date of the alleged offence and the petitioner had 82� mds. of food grains in his possession when his shop was inspected; it could therefore be presumed that the food grains were kept there for sale; but such a presumption would not have assisted the prosecution in this case because, as I have said, there was no mention in the charge framed against him that he had possessed this stock for purposes of sale.

On the other hand, it is contended for the accused that the restrictions on possession of stocks of food grain were all removed by a Notification No. 7261 P.C. published in the Bihar Gazette Extraordinary on 24th May 1943 making an amendment in Rule 81 of the Defence of India Rules. Rule 81(2) as it stood before the notification, had given the Central Government or Provincial Government power to make orders for purposes specified in Sub-clauses (a) and (b). Orders under Sub-clause (a) could regulate or prohibit the keeping, transport, acquisition, inter alia, of commodities. By a proviso inserted in May 1943 such orders were not to have effect so as to prohibit or restrict export of commodities to any place outside India. The proviso also declared that no order made by the Provincial Government of Bihar should have effect so as to prohibit or restrict the movement, transport, distribution disposal or acquisition of any food grains or their products. Sub-clause (b) of Rule 81(2) gave the Local Government powers to control prices of any kind of articles but the proviso introduced in May 1943 declared that the powers conferred by this clause on the Provincial Government of Bihar should not be exercisable in relation to any food grains or their products. Clauses (2) and (3) of this proviso were rescinded in August 1943. The occurrence in this case was in July 1943 and it is contended that during the period between May and August of that year there was no control or restriction at all in force on possession and dealings with food grains or their products.

So it is argued for the defence that the effect of this notification was to remove all restrictions on possession and dealing with food grains. The answer is that the effect of the proviso while it was in force was to remove restrictions placed by the Local Government on dealing with food grains. The notification did not refer to the Food Grains Control Order which is an Order of the Central Government, and did not in any way affect the operation of that Order.

Thus, there is so far as this case is concerned no substance in the defence argument regarding Notification No. 7261 P.C. dated 24th May 1943. The result is that the application is allowed, the conviction set aside and the fine, if paid, will be refunded. I do not pass an order of acquittal because the accused has never been placed on his trial on a properly framed charge.