Decided on September 08,1948

SHYAM LAL Appellant
KING Respondents


Imam, J. - (1.) THE petitioner was convicted under Rule 81(4), Defence of India rules for having contravened Clause 18(2), Bihar Cotton Cloth and Yarn Control Order 194(5) and sentenced to three months rigorous imprisonment as well as to a fine of Rs. 300 in default to undergo rigorous imprisonment for a further period of three weeks,
(2.) ON the facts found, it appears that the petitioner had boarded a bus of the Sidique Motor Transport Service at Dumka on 16th July 1946 with two bundles, one tied with a blanket and the other tied with a darri. These two bundles were placed on the roof of the bus. ONe Babu Harendra Prasad Jha, Market Inspector, having suspected that a large quantity of cloth was being carried, searched the bus in the presence of several witnesses and recovered from the said two bundles the following articles of cloth: 11 pairs of saris, 9 pieces of saris, 2½ pairs of saris, 1 mark in than 33 yds in length; another mark in than also 38 yds. in length. The necessary sanction of the Provincial Government having been accorded, the petitioner was prosecuted and convicted as already stated. Mr. Ghosal has raised three points of law and wished to enter into the facts. On questions of fact, it was not possible to go behind the findings and we must proceed on those findings which establish that the petitioner was the one who placed those two bundles on the bus and that they had been in his possession. If an offence in law has been committed, then, on the facts the responsibility is that of the petitioner. As to the questions of law raised, Mr. Ghosal urged in the first instance that the Sessions Judge who heard the appeal had no jurisdiction to hear it as the proper forum for appeal was the District Magistrate. He urged that on the date the petitioner was placed on his trial, he had a vested right to appeal to the District Magistrate and the proper forum for appeal was not that of the Sessions Judge. For his argument he relied upon the observations of Sir Pazl Ali J. in Banwari Gope v. Emperor and the Privy Council decision in Colonial Sugar Refinery Co. Ltd. v. Irving . It is to be remembered that on the date when the petitioner was convicted Regulation I of 1947 enacted by the Governor of Bihar was in force. By this Regulation, it was provided that a person convicted on a trial held by the District Magistrate, the Additional District Magistrate or any other Magistrate of the first class could appeal to the Court of Session. The petitioner filed his appeal in the Court of Session. There can be no doubt that the Sessions Judge had jurisdiction to entertain the appeal under the law as it existed then. Mr. Ghosal s argument that the- petitioner had a vested right to appeal to the District Magistrate would not in any way remove the obstacle in his way, namely, that his client had himself chosen to appeal to a Court in whom jurisdiction was vested to hear the appeal. If Mr. Ghosal s client had in fact filed his appeal before the District Magistrate and objection had been taken by the Crown that that officer could not hear the appeal, it may well be that the argument of Mr. Ghosal might have prevailed having regard to the observations of Lord Macnaghten in the Privy Council case referred to. It seems to me that neither the observations of Sir Fazl Ali in Banwari Gope v. Emperor , nor the observations of Lord Macnaghten establish that in the circumstances of this ease the Sessions Judge had no jurisdiction to hear the appeal. The next point of law urged by Mr. Ghosal was that under Section 92, Government of India Act, 1935, the Governor could only proceed under Section 92(1) and apply the provisions of the Code of Criminal Procedure by a notification and could not proceed under Section 92(2) to make a Regulation He relied upon certain observations of the Federal Court in Chatturam v. Commr. of Income-tax, Bihar , but it seems to me that the observations of the Federal Court on which he placed reliance do not support him at all. Section 92(l) was being referred to by the Federal Court and not Section 92(2). Section 92(1) empowers the Governor to apply to an excluded area the provisions of an Act of the Federal Legislature or of the Provincial Legislature subject to such exception or modifications as he thought fit. This could be done by means of a notification. Their Lordships of the Federal Court were merely holding that this power of the Governor was legislative in nature and not executive as had been contended before them. Their Lordships did not deal with Sub-section (2) in anyway. Sub-section (2) of Section 92 empowers the Governor to make Regulations and by such Regulations to repeal or amend any Act of the Federal Legislature or of the Provincial Legislature or any existing Indian law which was for the time being applicable to the area in question. The interpretation to the expression "existing Indian law" is to be found in Section 811, Government of India Act and there can be no doubt that the Santal Parganas Justice Regulation, 1893 comes within that expression and it was this Regulation which had been amended by Regulation I of 1947 made by the Governor of Bihar. I can, therefore, see no reason to suppose that Regulation I of 1917 was in any way invalid. The third point raised by Mr. Ghosal was that under Clause 18(2) of the Bihar Cotton Cloth and Yarn Control Order, 1945, the onus lay upon the prosecution to prove that the amount of cloth found in the possession of the petitioner was in excess of his normal requirements. It is true that nowhere has it been defined in the said Order as to what is the normal requirement of a person; but I think that in matters of this kind one has to exercise one s commonsense. A person found with 76 yards of mark in cloth and 36 pieces of saris must be deemed to be in possession of cloth in excess of his normal requirements unless he can prove otherwise. It is true that in a criminal prosecution the onus is always on the prosecution to prove its case, but as the clause stands, I read it to mean that a person found in possession of a large quantity of cloth or yarn which could not prima facie be regarded as his normal requirement, would have to show that in fact it was his normal requirement. The petitioner did not lead any evidence to prove that these saris and the mark-in thans were not only needed for himself but for members of his family. In the circumstances I think it must be regarded that for one single person to be in possession at a particular time of so much cloth must be regarded as being in possession of cloth in excess of his normal requirements. The ,points of law raised by Mr. Ghosal therefore fail and on the facts as I have already stated there can be no doubt that the petitioner was in possession of the cloth in question and therefore had contravened the provisions of Clause 18(2) of the Bihar Cotton Cloth and Yarn Control Order, 1945.
(3.) LASTLY it was urged that the petitioner had served 16 days in jail and that that may be considered sufficient by way of imprisonment and instead of sending the prisoner back to jail there may be an increase in the fine. I cannot see my way to accede to this submission. Offences of this kind must be regarded as antisocial and treated with severity. The conviction and sentence is accordingly affirmed and the application is dismissed. Das, J. I agree. ;

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