HASHIM MOHAMMAD JADWET Vs. COMMANDER K.P. NAIR
LAWS(CAL)-1970-9-40
HIGH COURT OF CALCUTTA
Decided on September 29,1970

Hashim Mohammad Jadwet Appellant
VERSUS
Commander K.P. Nair Respondents

JUDGEMENT

N.C. Talukdar, J. - (1.) These two Rules, which involve the same points and are between the same parties, are taken up together for disposal. The Rules are at the instance of the accused -Petitioner Hashim Mohammad Jadwet for quashing two criminal proceedings, being criminal cases Nos. 27/24 and 28/24 of 1968, pending against the accused -Petitioner and five others under Ss. 55(1) and 59(a & (b) of the Inland Steam Vessels Act, 1917 (I of 1917), for a contravention of Sec. 3(1) and/or Sec. 19A(1) and of Sec. 27 respectively of the said Act in the Court of the Additional District Magistrate, Port Blair, Andaman and Nicobar Islands.
(2.) The facts leading on to the Rules can be put in a short compass. Two petitions of complaint were filed on April 11, 1968, by the complainant opposite party No. 1 Commander K. P. Nair, I.N, Harbour Master, in the Court of the Additional District Magistrate, Port Blair, Andaman and, Nicobar Islands, against the accused -Petitioner and five others under Ss. 55(1) and 59(a) & (b) of the Inland Steam Vessels Act, 1917. The two cases relate to two different motor launches, viz.' M.L, Sabreena in the first case and M.L. Sameena in the second one and the sixth accused in the first case is Adam Moosa while in the second case he is Kapey. The prosecution case, inter alia, is that the accused persons Nos. 1 to 5 including the accused -Petitioner had committed offences under Sec. 55(1) of Act I of 1917 by plying two boats M.L. Sabreena and M.L. Sameena in the inland waters of Port Blair in contravention of Sec. 3(1) and/or 19A(1) of the Inland Steam Vessels Act I of 1917 and also an offence under Sec. 59(b) of the said Act by employing master sarang and engine driver the sixth accused, without ascertaining that the said accused No. 6 was in possession of a certificate of competency as required under Sec. 27 of the above -mentioned Act. The prosecution case further is that the accused No. 6 in each case had committed an offence under Sec. 59(a) of the Inland Steam Vessels Act, 1917, by operating and running the said motor launches M.L. Sabreena and M.L. Sameena in the inland waters of Port Blair without possessing the sarang' s / engineer's or engine driver's certificates or motor or engine driver's licences. The Additional District Magistrate by his order dated April 11, 1968, recorded and admitted the complaints filed and directed the same to come up for hearing on April 15, 1968, for consideration. On April 15, 1968, the learned Additional District Magistrate perused the complaint, took cognizance, and summoned the accused for appearance on May 7, 1968. On May 7, 1968, the accused H. M. Jadwet and Adam Moosa in one case and H. M. Jadwet and Kapey in the other were present and were directed to execute personal bond of Rs. 1,000 each with one surety of the like amount. The cases were fixed for appearance of the remaining accused on May 28/1968. In the meanwhile the accused -Petitioner H. M. Jadwet moved two revisional applications in this Court on May 20, 1968, challenging the maintainability of the proceedings pending against the accused and obtained two Rules as also orders for interim stay.
(3.) Mr. Ajit Kumar Dutt, Advocate (with Messrs. Pritish Chandra Roy and D. K. Sen, Advocates), appearing on behalf of the accused -petioners made a two -fold submission. He contended in the first instance that the present proceedings are not maintainable for a nonconformance to procedure established by law in chaps II, IIA and III of the Inland Steam Vessels Act, 1917 (I of 1917). In this context, Mr. Dutt further submitted that the right to carry on trade is a fundamental right granted under the Constitution, and can only be reasonably restricted by the specific Ss. provided for in Act I of. 1917, viz., Ss. 4, 6, 7, 8, 9, 10, 19B, 19E, 19G, 191, 20, 21, 29, 30A and other provisions but the State having not carried" out its statutory obligation thereunder as enjoined, the fundamental right of the accused to carry on trade remain unfettered. Mr. Dutt secondly contended that in any event, even if there be a technical contravention of Ss. 55(1) and 59(a) fe (b) of Act I of 1917, the same' is clearly unaccompanied by a blameworthy mind or mens rea, ruling 'out thereby the offences alleged. Mr. Sankardas Banerjee, Senior Advocate (with Messrs. Prasun Chandra Ghosh and Promode Ranjan Roy, Advocates) appearing on behalf of the opposite party No. 1 opposed the Rule. In reply to the first, point, Mr. Banerjee contended that there has been no non -conformance to any procedure established by law as alleged and that Ss. 3(1), 19A(1) and 27 being completed by themselves, a prosecution can be launched under Ss. 55(1) and 59(a) & (b) of Act I of 1917 without any rules being framed. Mr. Banerjee's submission on the second point is that the Offences provided for under Ss. 55(1) and 59(a) & (b) of the Inland Steam Vessels Act, 1917, are statutory offences requiring no mens red and, as soon as there is any contravention of the said sections, the penalties are attracted. Mr. Amiyalal Chatterjee, Advocate, appearing on behalf of the State also joined issue and submitted that it was premature at this stage to quash the proceedings. Mr. Chatterjee further submitted that in order to ascertain whether there had been a contravention of Ss. 55(1) and 59(a) & (b) of the Act, there must be a trial on evidence and that in the absence thereof the defence submissions made in this behalf are unwarranted and untenable. Mr. Chatterjee finally submitted that the offences alleged do not require any mens rea and, by introducing the said concept, Mr. Dutt had tried to read more into the statute than the Legislature ever intended.;


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