H M JADWET Vs. K P NAYAR

JUDGEMENT

(1.) THESE two Rules which involve the same point and are between the same parties are taken up together for disposal. The Rules are at the instance of the accused-petitioner Rasim Mohammad jadwet for quashing two criminal proceedings, being criminal cases Nos. 27/24 and 28/24 of 1968, pending against the accused-petitioner and 5 others under sections 55 (1) and 59 (a) and (b) of the Inland Steam-Vessels Act, 1917 (I of 1917), for a contravention of section 3 (1) and/or section 19-A (1) and of section 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 11. 4. 68 by the complainant opposite-party no. 1, Commander K. P. Nayar, I. N. Harbour Master, in the court of the additional District Magistrate, Port blair, Andaman and Nicobar Islands, against the accused-petitioner and 5 others under sections 55 (1) and 59 (a)and (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 6th 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 load committed offences under section 55 (1) of Act i of 1917 by plying two boats M. I. Sabreena and M. L. Sameena in the inland waters of Port Blair in contravention of section 3 (1) and/or 19-A (1) of the Inland Steam-Vessels Act I of 1917 and also an offence under section 59 (b)of the said Act by employing as master/serang and Engine Driver the 6th accused without ascertaining that the said accused No. 6 was in possession of a certificate of competency as required under section 27 of the above-mentioned act The prosecution case further is that the accused No. 6 in each case had committed an offence under section 69 (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 serangs/engineer's or Engine Driver's certificates/or Motor or Engine Driver's licenses. The Additional District Magistrate by his order dated the 11th April 1968 recorded and admitted the complaints filed and directed the same to come up for hearing on 15. 4. 68 for consideration. On 15. 4. 68 the learned Additional District Magistrate perused the complaint, took cognizance, and summoned the accused for appearance on the 7th May, 1968. On 7. 5. 68 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 a personal bond of Rs. 1000/-each with one surety of the like amount. The case were fixed for appearance of the remaining accused on the 28th may, 1968. In the meanwhile the accused petitioner H. M. Jadwet moved two revisional applications in this Court on the 20th May, 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-petitioners made a two-fold submission. He contended in the first instance that the present proceedings are not maintainable for a non-conformance to procedure established by law in chapters II, II-A 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 sections provided for in Act I of 1917 viz. , sections 4, 6, 7, 8, 9 10, 19b, 19e : 19g, 19i, 20, 21, 29, 30a and other provisions but the State having not carried out its statutory obligation thereunder, as enjoined, the fundamental rights 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 sections 55 (1) and 59 (a) and (b) of Act I of 1917, the same is clearly unaccompanied by a blameworthy mind or mensrea, ruling out thereby the offences alleged. M. Sankardas Banerjee, Senior Advocate (with Messrs Prasun Chandra Ghosh and promod 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 sections 3 (1), 19-A (1)and 27 being complete by themselves, a prosecution can be launched under sections 55 (1) and 59 (a) and (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 sections 55 (1) and 59 (a) and (b) of the Inland Steam-Vessels Act, 1917 are statutory offences requiring no mensrea, 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 is premature at this stage to, quash the proceedings. Mr. Chatterjee further submitted that in order to ascertain whether there has been a contravention of sections of sections 55 (1) and 59 (a) and (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 mensrea and by introducing the said concept, Mr. Dutt had tried to read more into the statute than the legislature ever intended.