- (1.) This is a revisional application against the conviction of the Petitioners Bhawani Das and Fulchand Agarwalla under Section 7(1) of Act XXIV of 1946 for contravention of para. 4(2) of West Bengal Cotton Cloth and Yarn Movement Control Order, 1950. The facts of the case were briefly as follows: S.I. Kalyari Kumar Banerjee attached to the District Enforcement Branch, Sealdah, was on duty at the Sealdah Railway Station on January 11, 1952. He had information that some, merchants werelikely to take Indian Mill-made cotton cloths by train from Sealdah Station towards Burdwan side. Accordingly, with a force he remained ready to search the outgoing trains. At about 10-30 p.m. that day he found the two accused Bhawani and Eulchand near a compartment next to the brake-van of a through train, viz., Assam Link Express, in platform No. 5; a railway ticket for Burdwan was found with one of the accused. They had three holdalls, one steel suit case and a haversack with them. These things were being loaded by coolies. The officer asked the coolies who were the owners of the articles and the coolies pointed out the two, accused who were standing near the compartment. The police officer then arrested the two accused and searched the holdalls, the steel suit case and the haversack and they were found to contain 179 1/2 pairs of Indian mill-made cotton dhotis and saris. The police officer asked the two accused whether they had the necessary authority for taking the aforesaid goods out of Calcutta by train and the accused could not produce any such permit. The two accused were then taken under custody and the goods were also seized. In due course a complaint was made against them in respect of offence under Section 7(1) of the Essential Supplies Act for contravention of para. 4(2) of West Bengal Cotton Cloth and Yarn Movement Control Order, 1950.
(2.) The accused pleaded not guilty but made no definite case and did not seek to explain the possession of such a large quantity of Indian mill-made cotton cloths at the railway station although they were asked by the learned magistrate to do so. On behalf of the defence it was urged that it was not proved satisfactorily by the prosecution that the articles in question were Indian mill-made cloths that the accused were trying to take the same out of Calcutta without having obtained the necessary permit and that para. 4(2) of the West Bengal Cotton Cloth and Tarn Movement Control Order, 1950, was vltra vires of the State Government as being repugnant to the Central Government Order, viz., Cotton Textile (Control of Movement) Order, 1948. The learned magistrate found that the cloths were Indian mill-made cloths and that the accused were trying to take them out of Calcutta in contravention of para. 4(2) of West Bengal Cotton Cloth and Tarn Movement Control Order, 1950. He also found that para. 4(2) of the West Bengal Cotton Cloth and Tarn Movement Control Order, 1950, was not repugnant to the Central Government order referred to.-Accordingly, the learned magistrate convicted the Petitioners under Section 7(1) of the Essential, Supplies Act and sentenced each of them to for six months and to pay a fine of Rs. 1,000 in default t0 suffer rigorous imprisonment for six months more. There was an appeal to the Sessions Judge of 24-Pargands and the appeal was heard by Shri J.C. Lodh, Additional Sessions Judge, The learned Additional Sessions Judge confirmed the findings of the learned magistrate on all the three points and also confirmed the conviction and sentence passed on the Petitioners.
(3.) In this Court Mr. A.K. Dutt appearing on behalf of the Petitioners has urged the same three points. An expert was examined in this case to prove that the cloth seized was Indian mill-made cotton cloth. A point was taken in this Court that there was no evidence to show that the samples which were sent to the expert had been taken out of the stock seized at the Sealdah Railway Station on January 11, 1952 in the circumstances alleged by the prosecution. To meet this point the trial court was directed to record further evidence so that the lacuna might be removed and the defence was given the opportunity of cross-examining the witnesses who might be examined after remand by the prosecution. The prosecution after remand further examined only two of the witnesses who had already been examined, namely P.W. 4, A.P. Maitra, technical officer, textiles, and P.W. 7, S. Gupta, sub-inspector of G.R.P.S., P.W. 7, S. Gupta, proved that the entire seized cloth was sent to court on April 17, 1952 through constable Baijnath Misra and they were kept in court malkhana and entered into the thana malkhana register, and that he took 10 items of cloth from the malkhana after signing the thana malkhana register and sent the 10 items of cloth on June 19, 1953 to the textile expert for examination. He identified the pieces of cloth which he sent to the textile expert for examination. They were marked exs. I to X. The expert P.W. 4, A.P. Maitra, also deposed that he received 10 pieces of cloth from S. Gupta, S.I., Sealdah G.R.P.S. on June 19, 1953 and he gave details of the 10 pieces of cloth which he examined, the description tallying with the description given by the sub-inspector in question: the expert also identified exs. I-X as the samples sent to him.;