(1.) THE Wireless Inspector, Cannanore has come up in appeal against the order of acquittal passed by the Sub Divisional Magistrate, hosdrug on the accused who was prosecuted before the Second Class Magistrate, kasaragod under S. 20a of the Indian Telegraph Act, 1885, and S. 3 and 6 of the indian Wireless Telegraphy Act, 1933 for using a broadcast radio against the conditions of the licence possessed by him. THE licence issued to the accused was licence No. P79556 dated 2-3-63 which gave him the authority to use the radio for domestic purposes only. But in contravention of this condition of the licence, he was found using the radio for commercial purposes in the Ajmeera hotel from 6-1-54 to 9-1-64. THE offence was detected by Pwl the wireless licence Inspector attached to the head post office, Cannanore. On 9-1-64 when he visited the Ajmeera Hotel it was found that the accused was operating the radio set there, for commercial purposes. Accordingly a case was taken under the above sections of the Indian Telegraph Act and the Indian Wirless telegraphy Act.
(2.) THE accused admitting the possession of the radio under a licence, stated that it was never operated from the hotel; but it is true that the radio was kept in the hotel. It was taken for repair some days back and after repair, instead of taking it home it was taken to the hotel and so it happened to be there when Pwl went there. In other words, the allegation that the radio was used for commercial purposes was alone denied. THE learned magistrate accepted the case of the prosecution, convicted the accused under s. 20a of the Indian Telegraph Act and S. 3 and 6 of the Indian Wireless telegraphy Act and sentenced him to pay a fine of Rs 100/- under the former act; but no separate sentence was awarded under the latter Act. In appeal to the Sub Divisional Magistrate, Hosdrug, the conviction and sentence were set aside on the short ground that the prosecution has not succeeded in showing that any of the conditions of the licence was violated. In the lower appellate court the accused took up the position that the burden is on the prosecution to show that any of the conditions of the licence was violated, by the production and proof of the said conditions before court. THE prosecution on the other hand maintained that the conditions are printed on the reverse of the licence itself and so long as the licence is with the accused and it is not produced by him, it is not possible for them to prove the fact. THEy relied on other materials to bring home the guilt of the accused; but the appellate Magistrate was not prepared to accept such evidence as proof of the guilt of the accused and he has accordingly acquitted him. It is under these circumstances that he has come up in appeal before this court.
The matter, T am afraid, has been viewed from a wrong standpoint by the learned appellate Magistrate. He seems to have relied on a division Bench decision of this court in Chacko Pyli v. State of Kerala (1966 K. L. T. 102) for his conclusion that the prosecution is unsustainable. The fact that the accused holds a licence for working the radio set, was admitted by him; but according to him it is for the prosecution to prove that the condition of the licence was violated and that burden the prosecution has not discharged. Learned counsel appearing for the accused stated before me though with some reluctance, that the licence possessed by him is one for domestic purpose only, and in that case, all that the prosecution is expected to prove is that the radio was used for purposes other than what is covered by the licence. The conditions are appended to the licence itself and in proof of this fact a specimen licence was also placed before me by the prosecution. The very first condition printed on the reverse of the licence is that a licence for domestic purposes will, not entitle a licensee to use the radio for commercial purposes. It is the case of the prosecution that the same condition is printed on the reverse of the licence possessed by the accused also. If the case of the accused is that his licence does not contain that condition, it was up to him to get himself absolved by producing the licence. I do not mean that the accused has any such duty or burden. Under S. 106 of the Evidence Act, when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. But courts have held in a long array of cases that this section of the Evidence Act does not cast any burden on the accused person to prove that no crime was committed, by proving facts lying specially within his knowledge. I do agree that S. 106 can never be used to shift the onus of establishing a fact on the accused but when he throws no light at all upon facts which ought to be especially within his knowledge, and which could support any theory or hypothesis compatible with his innocence, the court can also consider his failure to adduce any explanation, in consonance with the principle. This is the spirit of the decision of the Supreme court in Deonandan v. State of Bihar (AIR. 1955 SC. 801 ). It was held in that case: "it is true that in a case of circumstantial evidence, not only should the various links in the chain of evidence be clearly established but the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. But in a case like this where the various links as stated above have been satisfactorily made out and the circumstances point to the appellant as the probable assailant with reasonable definiteness and in proximity to the deceased as regards time and situation, and he offers no explanation which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence, such absence of explanation or false explanation would itself be an additional link which completes the chain. " The Madras High Court has held in Smith v. Emperor (XLIII i. C. 605): "an accused person is always entitled to hold his tongue; but, where the only alter native theory to his guilt is a remote possibility, which, if correct, he is in a position to explain, the absence of any explanation must be considered in determining whether the possibility should be disregarded or taken into account. " So also in the present instance, the case of the prosecution that the accused possessed only a domestic licence could easily have been set at naught by the accused, by the production of the licence if, in fact, the licence is one for commercial pur-poses or for any purpose other than domestic. See also Roscoe's Criminal Evidence, 1952 (16th) Edn. page 286, wherein the learned author says: "where the offence consists in doing an act without lawful authority, it is not necessary for the prosecution to prove the negative averment of absence of authority. The onus is on the defence to show that such authority existed Williams v. Russel (1933) 149 L. T. 190); and Oliver (1944)K. B. 68. " The position in the present case is also the samp. The accused here has done an act without authority. The Wireless Inspector is empowered under the rules to demand the production of the licence from any person and such person is bound to comply with the demand. But in the present case the accused did not care to, produce the licence when demanded by the Inspector nor did not he produce it in court. He stood tight on his right that he has no duty to prove any fact, by doing something detrimental to his interest. On principle he might be right; but as observed by the Supreme court in the ruling cited above, to establish his innocence he has a duty to explain the position to the court. That apart, under the Statutory Rules in Annexure I (published in Director General's special Post office Circular No. 24 dated 24-9-1965) framed under the Indian telegraph Act, a licensee is bound by the conditions contained in the licence. R. 11 says: "a licence shall, in addition to these rules, be subject to the conditions contained in the licence. " Rules have been framed by virtue of the powers conferred by S. 7 of the Indian Telegraph Act and also by S. 10 of the Indian Wireless telegraphy Act. R. 14 of the Indian Wireless Telegraphy (Possession) Rules (framed under the latter) provides: "every person licensed under these rules shall keep the wireless telegraphy apparatus pos-ssssed by him at the premises specified in that behalf in the licence. " The case of the prosecution is that in violation of this condition of the licence, the radio set was shifted from his house to the hotel. The learned counsel did not question before me the right of the Central government to frame rules under the statute. All these rules were duly published in the government gazette from time to time. That being the case, I see no force in the accused's contention that the Rules have not been proved before court. The point that came up for consideration before this court in 1966 KLT. 102 (cited supra) and subsequently in Executive Officer, elayavoor Panchayat v. Bharathan (1967 KLT. 161) is different. In those cases, especially in the 1966 KLT. case, the very offence charged was created by the notification. Or to put it otherwise, the notification was the basis of the charge. There the question was whether a certain area was declared a reserve forest by the notification, and only if the area in question constituted a reserve forest the offence charged against the accused would be sustainable. So the proof of the notification was an essential feature of the prosecution case, failing which the whole case would fall to the ground. In the case before me, the question is whether a particular condition of the licence has been violated by the accused and the said condition, according to the prosecution, is an integral part of the licence itself and it has also been embodied in the Rules published by the department as authorised by the statute. The particular condition for the violation of which the accused has been charged is contained in annexure III of the statute. It was the definite case of the prosecution that this particular condition is embodied in the licence issued to the accused also and the accused, on his part, has admitted that he is possessed of a licence for domestic use. In these circumstances, without infringing any of the rights possessed by the accused and without doing violence to the provisions of Art. 20 (3) of the Constitution, the accused could have himself come forward with the licence and shattered the case of the prosecution that he has violated the condition of the license. My own impression, therefore, is that the rulings cited, viz. , 1966 KLT. 102 and 1967 KLT 161 have little bearing on the facts of the present case, and the learned appellate Magistrate was wrong in having acquitted the accused on this technical ground. Learned counsel also invited my attention to State v. Kesavan (1958 KLT. 934), where it was held that: "the non-production of the permit by the accused does not necessarily mean that the vehicle had no permit at all or that he had contravened any of the conditions of the permit, if a permit had really been obtained. " That case also is different from the one before me. In the present case the accused was not called upon by the court to produce his licence nor has any inference of guilt been drawn from the non-production of the licence. Here, that he was possessed of only a domestic licence and the holder of a domestic licence cannot make use of the radio set for commercial purposes, has been proved from other materials placed before the trial court. In the circumstances it was up to the accused to produce the licence in rebuttal at least. I would, therefore set aside the order of the learned appellate Magistrate and remand the case to his court for a re-hearing of the appeal on the other fact, viz. , whether the condition has, in fact, been violated. The learned trial Magistrate has entered the finding on the evidence before him that the radio set, was found being used by the accused for commercial purposes. On this fact the learned appellate Magistrate must enter his finding one way or the other, and dispose of the appeal accordingly.;