Decided on July 03,1946

EMPEROR Appellant


Leonard Stone, Kt. , C. J. - (1.)THE petitioner-accused was summarily tried by Mr. Basit, City Magistrate, First Class, Poona, for offence alleged against him under Rule 81 (4) of the Defence of India Rules and el. 6 of the Bombay Rationing Order, 1943, and he was found guilty by the learned Magistrate after a summary trial and was sentenced to pay a fine of Rs. 150. THE matter at the instance of the petitioner-accused went in revision to Mr. Nagarkar, the Sessions Judge of Poona, who dismissed the application. THE petitioner-accused now applies to us in revision in order to review the circumstances of the case.
(2.)THE prosecution case in the trial Court was that at 7-30 a. m. on the morning of December 2, 1944, the petitioner sent by a hamal 224 lbs, of sugar from his licensed rationing shop at Poona with instructions to the hamal that he should hand it over to one Gatarmal. It appears that the police had reason to suppose that the petitioner had been selling sugar in the black market and so a watch was being kept on his shop. That watch on the night of: December 1-2 was kept by Police Constable Kamuruddin Aha mad Saheb and his evidence as taken down by the learned Magistrate at the summary trial is quite short and is to this effect: I had kept a watch from December 1, 1944, on the shop of the accused. Hari Barake is his hamal and on December 2, 1944, at about 7-80 a. m. Barake and the accused were the only persons in the shop, THE accused took the bundle which is before the Court and put it on the head of Barake and Barake went out of the shop and I followed him. I accosted him on the road near Daruwalla Chauki, In the presence of one Haidarally, he told me that there was sugar and he was taking it for sale and that the sugar was from the shop of the accused. That Halwai denied knowledge. So I produced him before the Police Sub-Inspector. THE bundle was opened and Police Sub-Inspector attached the sugar under a panchnama.
Then under cross-examination he said:

It does not appear from that that the Police Constable's evidence on the main facts of the story was in any way challenged.

(3.)THE hamal. Hari Narayan Barake, gave evidence which is in no way inconsistent, with that of the Police Constable. But his evidence goes a little further in that he says: This happened in the morning, Barake is a. hamal as I have seen him working in the shop of accused. I do not know whether Motilal is the partner of the accused. On the night previous to the day on which this bundle was attached from me I had been to the accused's at about 10-30 p. m. It was Friday night and the accused was alone in the shop. Accused told me that a bundle of sugar is to be carried and he asked me to come next morning at about 6-30 a. m. THE same night accused told me that the bundle of sugar was to be taken to one Gatarmal Halawai near Datta Mandir. At half past six I found accused in his kirana shop and from there we came to his ration shop. Accused told me to take this bundle as instructed yesterday and said that he would follow me. THE sugar he said was 11 1/4 seers. This sugar was from accused's own shop.
The rest of his story confirms the evidence of the Police Constable.


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