RAMESWAR BARTIA Vs. STATE
HIGH COURT OF GAUHATI
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(1.) We have before us an application under Article 134(1)(c), Constitution of India, asking this Court to certify that the case in which the petitioner's sentence was enhanced by this Court in criminal Reference No. 1 of 1951, is a fit case for appeal to the Supreme Court.
(2.) The petitioner Rameswar Bhartia was Convicted by Mr. C.K. Bhuyan, Magistrate of Labhimpur District, under Section 7(1), Essential Supplies (Temporary Powers) Act, 1946 (Act xxiv  of 1946) for contravention of the provisions of Sections 3 and 7, Assam Foodgrains Control Order, 1947, and sentenced to pay a fine of Rs. 50, or, in default, to undergo rigorous imprisonment for one month. The District Magistrate of Lakhimpur made a reference to this Court for enhancement of the petitioner's sentence as he was of the opinion that the sentence was "grossly and manifestly inadequate." In due course, the reference was heard by this Court, which, by its order, dated 1.6.51, accepted the reference and enhanced the petitioner's sentence to one of rigorous imprisonment for six months and ordered him to pay a fine of Rs. 1000, or, in default, to undergo further R.I. for 2 months.
(3.) Mr. Lahiri for the petitioner has raised 3 points, on the strength of which he invites us to certify that the ease is a fit one for appeal to the Supreme Court.
(i) According to Mr. Lahiri, the Magistrate Mr. C.K. Bhuyan, who tried the case, was disqualified from trying the case by reason of the provisions of Section 556, Criminal P.C. as illustrated by the Illustration to that section. He points out that Mr. C.K. Bhuyan who tried the case, was the person who granted sanction under Section 38, Assam Foodgrains Control Order 1947, for the prosecution of the petitioner under Section 7(1), Easential Supplies (Temporary Powers) Act, 1946, for the contravention of the provisions of Sections 3 and 7, Assam Foodgrains Control Order, 1947.
(ii) That Mr. C.K. Bhuyan was not a Director within the meaning of the word 'Director' mentioned in Sub-clause (3) of Section 2, Assam Foodgrains Control Order, 1947.
(iii) That there is no proof of mens rea and that the plea of 'guilty' entered by the petitioner does not, in law, amount to a plea of 'guilty.'
At the very outset, we wish to state that none of these three points was raised either at the trial or before us when Mr. M.N. Roy who then appeared for the petitioner to show cause against the Rule for enhancement of the petitioner's sentence, Under Clause (6) of Section 439(1), Criminal P.C., the petitioner's advocate, Mr. M.N. Roy, was entitled to show cause against the petitioner's conviction while avowing cause against the Rule, Mr. Roy did not avail himself of the right.;
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