Ramnarain Kedia and Another vs Emperor

Beevor, J.—The two petitioners have been convicted under Rule 81(4), Defence of India Rules, read with Clauses 13(1)(c) and 14(1)(c), Cotton Cloth Control Order, 1943, and have been sentenced to a fine of Rs. 200 each, for being in possession of two saris which did not bear the requisite marks or stamps. The two petitioners are owners of a cloth shop in Ranchi and petitioner 2 is the managing proprietor. The cloth in question consisted of two saris which were recovered from a wooden box in a room behind the shop or the main portion of the shop and separated from that main portion by another room which was empty. Although at first a suggestion was made before me on behalf of the petitioners that it had not been established that the saris in question did not bear the requisite marks although the law did require any particular marks to be placed on these saris this point was later abandoned. By Clause 13(1)(c), Cotton Cloth Control Order, 1943, no person other than a manufacturer shall, after 31st December 1943, have in his possession or under his control any such cloth or yarn which is not so marked unless it be for bona fide personal requirements. The petitioners put forward a case that these saris were required for bona fide personal requirements of members of their family. They produced two defence witnesses, but it is clear that those witnesses were not believed by the lower Courts and although I have heard the learned advocate for the petitioners in some detail regarding the actual circumstances as disclosed in the evidence, I am not satisfied that there is any reason for doubting the conclusion which the lower Courts have reached, viz., that these saris were not kept for bona fide personal requirements of members of the family of the petitioners.

There remains the question whether the petitioners had in their possession or under their control these saris. Petitioner 2 was the managing proprietor of the shop and it appears that he was present when the Cloth Inspector went there and I have no doubt that the circumstances established that the two saris were under his control if not actually in his possession.

As regards petitioner 1, I consider that the position is different. No doubt the phrase "under his control" may be wider than "in his possession," but there are, no doubt, definite limits to this phrase "under his control" and I think it is quite clear that not everything which is found on premises belonging to a man is necessarily under his control. I do not think that the exact limits of this phrase "under his control" are at all clear But in the present case all that is found against petitioner 1 is that he was one of the co-proprietors in the cloth firm and that in a. room behind the shop of that firm was found this cloth.

Now had the shop been in the hands of a manager other than the managing proprietor it is possible that the proprietors might have been criminally liable for the acts of their manager committed within the ordinary scope of his employment in the case of some criminal offences which involved no mens rea.

It is not at all clear to me, however, that that principal can be applied as between co-proprietors so as to make petitioner 1 liable for the acts of his co-proprietor petitioner 2 and I am not satisfied that the circumstances proved in this case disclose that petitioner 1 either knew that this offence was being committed or was likely to be committed or that he had any reason to suppose that this unstamped cloth was on his premises or was likely to be there. I am, therefore, not satisfied that the two saris were actually under the control of petitioner 1.

On these findings the conviction and sentence passed on petitioner 1 are set aside but the petition of petitioner 2 is dismissed.