Decided on February 28,1945

Shib Das Kumar Appellant
EMPEROR Respondents


Roxburgh, J. - (1.) IN this case the petitioner has been convicted under Section 3 of Ordinance 33 of 1943 for possession of certain coil of wire found in a godown at 38 Maharshi Devendra Road, Jorabagan. Another man Gouri Sankar Kulwar was tried along with the present accused in connection with some wire found with him in a taxi at Tolly gunge. On information be was stopped by the police, he took them to the godown at Jorabagan and pointed out the present petitioner who happened to go there at the time. The key of the godown was found with the -present petitioner, who threw it away. Gouri Sankar Kulwar has been acquitted on the ground that Major Hindley (p. W. i) who was called to prove that the articles in question were military stores was not as emphatic in regard to the wire found in the taxi as he was with regard to the coil found in the godown. As regards that, he is very definite that this wire is not supplied to the civilians, that it never came to India before the war, that it is supplied by America to India under lease -lend and is made by the United States Government for the British Army. In our opinion, it has been clearly established here that the coil in question consists of military stores that are Cr have been the property of His Majesty, The accused gives no explanation of his possession of the coil; and his defence is to deny possession.
(2.) MR . Basu has alleged that there has been a misjoinder in the trial of the petitioner Shib Das Kumar with Gouri Sankar Kulwar. Evidence was called to show that the taxi in question had Originally started from the godown in Jorabagan; the prosecution case was that all the wire had come from that godown and the petitioner was responsible for possession of all the wire. On that basis there was no misjoinder although in fact the accused Gouri Sankar Kulwar has been acquitted. The result is that this rule is discharged. The accused -petitioner must surrender to his bail and serve out the remainder of his sentence.
(3.) I agree, I would only add this on one point on which there appears room for misapprehension: on the question of evidence and the amount of proof. While it is clear under the Ordinance that if the stores are not shown to be military stores , and the accused chooses to give no explanation and no evidence, there will be no reason or room for drawing any presumption against him of unlawful possession. Yet in my view it is equally clear if the accused does choose to furnish evidence, then the evidence given will be available in respect of proof of the whole case, I do not subscribe to any doctrine that the evidence given by the accused as justification for his possession can be put in a water, tight compartment and looked at only for the purpose of seeing whether his possession is law. ful or not. If it is relevant and bears on the question also as to whether the stores handled were military stores , then in my view it can be taken into consideration on that point also.;

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