Swarath Sao vs Emperor

Beevor, J.—The petitioner has been convicted u/s 81(4), Defence of India Rules for attempting to smuggle 187 bags of maize from Bihar to Bengal. He has been sentenced to rigorous imprisonment for four months and a fine of Rs. 200 or in default, three months'' further rigorous imprisonment on that charge; and an order of forfeiture of the 187 bags of maize had been passed. He was also convicted under the same rule for contravening the Foodgrains Control Order by being in possession of grains, namely the said 187 bags of maize, for the purpose of sale without a licence, but no separate sentence has been passed for this offence.

It is undisputed that 187 bags of maize belonging to the petitioner were found in a boat anchored at Nougachhia Diara on the north ''bank of the Ganges, and that the petitioner was on the boat. The prosecution examined a number of witnesses, but not one "of the prosecution witnesses seems to have given any evidence to show that the petitioner intended to take these bags of maize to Bengal, except for one statement of the Assistant Sub-Inspector, P.W. 1, that he was told by the boatman that the maize was being taken to Bengal. This is hearsay evidence and inadmissible against the petitioner. The petitioner has, however, been convicted because in his evidence he alleged that the bags of maize in the boat were being taken from Bhagalpur on the west to Mangalhat on the east, both on the south bank of the Ganges, and it is in evidence that Nougachhia Diara is to the east of Mangalhat. The lower Courts have taken this to prove that the defence story was false. Now, it is well-known that owing to sand banks and such like it is frequently necessary, When navigating the Ganges, for a boat to proceed beyond the point at which it is seeking to reach.

There is no evidence on the record to show how far east of Mangalhat lies the spot in Nougachhia Diara where the boat was anchored. There was one defence witness, who is a boatman, who gave evidence in support of this defence story, and no question was put to him suggesting that if the boat was going to Mangalhat it was unreasonable or unnecessary to anchor at Nougachhia Diara, and no explanation was asked from the petitioner himself when he was examined. In the circumstances it may be that the defence version was not adequately proved, but on the other hand, it cannot be said that it has been established that that story was false. I find, therefore, no evidence on which the conviction of the petitioner on the first charge can properly be based.

With regard to the second charge on which no separate sentence was passed, this charge was added by the trial Court at a late stage of the trial. Under Rule 130, Defence of India Rules

no Court or Tribunal shall take cognizance of any alleged contravention of these rules, except on a report in writing of the facts constituting such contravention, made by a public servant.

The Court took cognizance in this case on the charge-sheet. The only details are given in the sentence: "On 5-10-43 at 12-80 A.M. the accused persons were found smuggling maize from Bihar to Bengal." This contains no allegation that the petitioner was keeping grains for sale. Even the report of the Assistant Sub-Inspector to the Sub-Inspector of Police, which is Ex. 1, contains no such allegation. I find, therefore, that the Court could not legally take cognizance of the alleged offence of keeping grain for sale without a licence.

The petition is, therefore, allowed. Both convictions and the sentence passed on the petitioner are set-aside, and so is the order of forfeiture. The petitioner will now be discharged from his bail. The fine, if paid, must be refunded.