BHAGWATI - (1.) THE judgment of the court was delivered by
(2.) THIS is an appeal by special leave from the decision of the High court of judicature at Nagpur confirming the conviction and sentence passed upon the appellant by the court of the Magistrate first class, Akola. The appellant was charged: (1) Under S. 7, Essential Supplies (Temporary powers) Act, 24 of 1946, read with cl 2(1) (a). central Provinces and Berar Food-grains Export restriction Order 1943 for exporting 1405 bags of uncleaned tur dal on 26/12/1946 from Yeotmal to kalyan without permit in that he had no permit to export uncleaned tur dal and was not the holder of No. 10315 which moreover was exhausted before that day; (ii) under S. 420, Penal Code for cheating the railway authorities and thus obtaining seven wagons to load 1405 bags to Kalyan; and (iii) Under S. 471/465, Penal Code for fraudulent using, as genuine permit No. 10315 knowing or having reason to believe at the time of using it to be a forged document in certain matters. The appellant's father, Pannalal Gulraj chokhani, and the broker Krishnarao Shankarrao were also charged with abetment of the first offence. The Magistrate convicted the appellant of all these offences and sentenced him to various terms of imprisonment and fine. The appellant's father and the broker were also convicted of the offence with which they were charged and sentenced to imprisonment and fine. The 1405 bags which were the subject matter of the charge were ordered to be forfeited. The appellant and the other accused took an appeal to the High court of Judicature at Nagpur. The High court quashed the conviction of the appellant in regard to the second and the third offences but confirmed his conviction in respect of the first offence and maintained the sentence of imprisonment and fine as also forfeiture of the property. The conviction of the appellant's father and the broker was quashed. The High court rejected the application filed by the appellant leave to appeal to this court. The appellant however obtained from this court special leave to appeal which was granted on 25/9/1950. It is common ground that on 24/11/1944 the appellant's father had obtained in his name a permit No. 10315 for the export of 500 tons of chuni. He exported 130 tons under the permit within the extended date, the 30/04/1945 but no further extension was asked for nor was the permit returned by him to the Deputy Commissioner. It appears that in October 1946 the appellant applied to the deputy Commissioner and certain alterations were made in the permit including the following: (a) The name of the appellant was substituted as consignor in place of that of his father; (b) The term was extended up to 31/12/1946; (c) The word 'bharda' was added after the word 'Chuni' in the description of the commodity allowed to be exported; (d) The destination was changed from Wadibunder to Kalyan; (e) The words "to Kalyan for 500 tons" were added. On the basis of this permit the appellant obtained seven wagons from the Railway authorities and on 25/12/1946 he despatched from Yeotmal to kalyan 1405 bags of a commodity which has been variously described as 'chuni', 'Chuni bharda' and 'bharda'. During transit at Murtazapur Railway station, when the bags were being transhipped from the metre gauge to the board gauge wagons, a small quantity of grain fell down from some of the bags. The Railway staff suspected that "tur dal" was being exported and reported the matter to the police, the police detained the wagons, took specimens of the stuff contained in the bags and after investigation challaned the appellant his father Pannalal Gulraj Chokani and the broker Krishna Rao Shankarrao, charging them with the several offences mentioned above. Under Section 15, Essential Supplies (Temporary Powers) Act 1946, where any person is prosecuted for contravening any order made under S. 3 which prohibits him from doing an act without a permit, the burden of proving that he has such a permit shall be on him. Clause (2) (1) (a). central Provinces and Berar Foodgrains Export Restriction Order 1943, prohibits export of tur and its products outside the province without a permit issued in that behalf by the Director of Food Supplies, central Provinces and Berar. It is not disputed that what was exported by the appellant was a tur product and the burden was therefore on to prove that he had the required permit.
(3.) THE prosecution challenged the validity of the permit on various grounds all of Which were negatived by the High court and the High court found that the appellant was in prossession of a valid permit which was altered as above and was operative up to 31/12/1946 and which authorised him to export 500 tons of chuni bharda to kalyan Once that permit was produced by him the appellant' discharged the onus which lay upon him to prove that he had the required permit. THE only thing which survived for the consideration of the court was whether the commodity which was being exported fell within the description of chuni bharda. The appellant was charged with having exported 1405 bags of uncleaned tur dal without permit and even though the initial burden lay on the appellant to prove that he had the required permit, once he produced the permit authorising him to export chuni bharda and showed that the commodity which he was exporting fell within the description of chuni bharda, the burden lay upon the prosecution to prove that the commodity which was being exported was not chuni bharda but was uncleaned tur dal and unless and until the prosecution discharged that burden the conviction of the appellant could not be sustained. It was not for the appellant to prove that the commodity which he was exporting was not uncleaned tur dal. This is the fallacy which the High court tell into when it observed: "It is also true that the accused have been able to elicit from the prosecution witnesses in their examination that the samples of the consignment dated 26/12/1946 (Articles A to E) were of chuni bharda. None of them were asked to define what exactly they meant by chuni bharda, nor were they asked to distinguish between the product of the first grinding of tur and the products of the several subsequent processes." It is significant to observe that the appellant succeeded in eliciting from the witnesses, whose evidence was led by the prosecution the fact that the commodity which he was exporting fell within the description of bharda or chuni bharda. Rambilas, P. W. 6, a grain dealer stated in cross-examination: "I accept that grain of the description given in Ex. P-3 is called bharda". Laxminarayan, P. W. 7 a 25 grocery shop-keeper and cultivator stated in crossexamination: "The sample Article E had tur dal with husk but it had powdered dal with bhusa in it. This type of grain is usually known as bharda". Krishna, P. W. 9 a foreman at the Yeotmal railway station and who used to do the work of weighment, loading, unloading and preparation of railway receipts in connection with railway consignments, stated in cross-examination: "I do not know what is meant by bharda. By bharda I mean chunibharda. By grinding tur in pieces and mixing it with husk, bharda is formed. I cannot give the percentage of dal pieces and husk in bharda. I have been loading bags of chuni and chunibharda all my life." Ramchandra, P. W. 10, Assistant Food Officer at yeotmal stated in cross-examination. "When tur is grinded then the pieces of tur along with the husk form what is known as bharda.... ..........I know the word bharda from my Childhood. Chuni might be containing about one per cent of husk and it contains about 89 per cent. of powdered dal and the remaining per cent. of dal pieces. I cannot give want percentages of husk, dal and dal pieces is in bharda". Ratanchand, P. W. 17, stated in cross-examination: "I have sent chuni, chuni bharda and tur and tur dal on many occasions from Darwha. (Article E sample shown to the witness). I call this sample as 'chuni bharda". The evidence of these witnesses is sufficient to establish that the commodity which was being exported by the appellant came within the description of bharda or chuni bharda and if the appellant was able to prove through the evidence of the prosecution witnesses themselves that what he was exporting was a commodity which fell within the description of chuni bharda he had discharged the onus of proving that he was exporting the commodity in question under a valid, permit. ;