BAVAJI ALIAS ABDUL MUHAMMAD Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) The petitioner who was accused 1 in c. c. No. 146 of 1948 on the file of the Court of the Additional First Class Magistrate of Kumbakonam was convicted for the contravention of an order promulgated by the Provincial Government No. 2660, A/45 (C. S.) published at pp. 681 and 582 to Part II of Fort St. George Gazette dated 4th September 1945 which had been continued as an offence by Section 7(1) of central Act XXXIV [24] of 1946 and sentenced to rigorous imprisonment for one year. The said conviction and sentence were confirmed on appeal by the Court of Session, West Tanjore and the present revision is to set aside the aforesaid confirmation of the conviction and sentence.

(2.) P. W. 1 was the Grain Purchase Tahsildar of Tanjore in October 1947 and P. W. .2 was the Inspector of Police, C. I. D. X Branch, Tanjore at the same time. On 3rd October 1947 at about 10-30 P.M. both P. Ws. 1 and 2 proceeded along the flood bank shown in the plan EX, D-5 and found four cart-loads of paddy at the place marked 46/5 on the said flood bank. According to the witnesses, the double bullock carts had gone down the bank in a northern direction into the padugai lands which intervene between the Coleroon river in the north and the flood bank in the south. To the north of the Coleroon river is the Ramanoor Island which formed part of the Trichinopoly district. By the time P. Ws. 1 and 2 reached the place in question, the bullocks had been unyoked and accused 2 and 3 who had been acquitted by the learned Sessions Judge were near the cart. On being questioned accused 2 and 3 told P. W. 1 that the paddy belonged to accused 1. Little later, the petitioner came on the scene and admitted that the paddy was his. He was asked to produce the transport permit, because, according to the witnesses, the carts were proceeding towards Trichinopoly district. He did not produce any such permit, but said that the paddy was being taken to Kumbakonam. Since accused 1 did not produce the A. A. permit on demand and after P. Ws. 1 and 2 waited for an hour, the paddy was seized under the Mahazar, EX. p-11 and the witnesses arranged that the paddy should be taken to Kumbakonam to be produced in Court. On this evidence, the lower Courts have held that accused l was attempting to transport paddy in contravention of the G. O. above mentioned. Exhibit, P-4, cl. 1 of which is in the following terms : "No person shall with effect from the date of this order transport paddy . . . from any place within the limits of any of the districts specified in Col. (1) of Sob. 1 .... to any place within the limits of any other district in the Province of Madras except under and in accordance with the terms and conditions of a permit issued by the Commissioner of Civil Supplies . .. ." It is not disputed that there was no permit for the transport of paddy from the Tanjore district to the Trichinopoly district which lies to the north of the Coleroon river at a distance of six furlongs from the flood bank. Half the river belongs to the Tanjore district and the other half on the northern side belongs Page 2 of 5 In Re: Bavaji alias Abdul Muhammad vs. (04.07.1949 - MADHC) 6/19/2007 to the Trichinopoly district on the principle of ad medium filum. The learned Sessions Judge found that the act of accused 2 and 3 did not constitute an attempt to transport paddy; but that accused 1 committed the offence in question. The learned Judge found that the carts had a considerable distance to go before they crossed the boundary of the district and it was certainly possible for the drivers to repent of their intention to take the carts to Trichinopoly district and give up the attempt. It was further found that when the carts were seized, they were not even moving. Following the decision in Queen-Empress v. Bamakka, 8 Mad. 5 : (1 weir 330) the learned Judge was of opinion that the action of accused 2 and 3 would not amount to an attempt. In para. 19 of his judgment, the learned Sessions Judge finds on evidence that if accused 1 had delivered the grain to the carters obviously with instructions to take it into another district and if there had been no interference, the petitioner would not have seen the carts again. According to the learned Judge, he had therefore done everything that lay with him and set in train a series of actions that, if they had not been interrupted, would have led to the commission of the offence. He then applies the analogy of a person who books goods by rail-way transport to a destination to which it is an offence to send the goods and holds that such an act would amount to an attempt to commit the crime. On the above reasoning, the learned Judge was of opinion that the petitioner must have instructed the cartmen (accused 2 and 3) to transport the paddy from Tanjore District to Trichinopoly District.

(3.) I find it difficult to follow the learned Judge's reasoning. A strict construction of para. 1 of the G. O. extracted above would show that the offender is the person who transports the goods. It cannot be said that even if the prosecution evidence is true that the petitioner who delivered the bags of paddy to the cartmen (accused 2 and 3) to be taken to the Trichinopoly district would be actually transporting paddy. If the petitioner had done an act like this, it could at the utmost amount only to an abetment of the transport of paddy from Tanjore to Trichinopoly district. The drivers would be the persons who would transport the goods and the person who directs them to do so would be the abettor of the offence. The learned Judge has found that accused 2 and 3 did not commit the crime. He also has found that they did not even attempt to commit the crime. In such circumstances, it is difficult to hold that if the actual participants did not even commit the offence of the attempt to transport, then the person who is alleged to have abetted the act which did not amount to an attempt has committed any offence at all. On this short ground, in my view, the offence has not been brought home to the petitioner.