V. ABOOBACER Vs. STATE OF KERALA

JUDGEMENT

(1.) The two accused persons in this case were charged with having taken rice without a permit from Karakkat within the specified area of the Ottapalam Taluk, to Tirur, outside that area, in contravention of Clause.3 of the Kerala Rice (Regulation of Movement) Third Order, 1965 (an order made under R.125 of the Defence of India Rules and hereinafter referred to as the Order), with having caused hurt to the Head Constable, P. W.1, who arrested them in the discharge of his duty, and with having escaped from his custody. On these charges they were convicted by the Sub Divisional Magistrate, Malappuram of offences under S.224 and 353 of the Indian Penal Code and R.125(9) of the Defence of India Rules read with Clause.3 of the Order. They were sentenced to suffer rigorous imprisonment for six months for each offence, the sentences to run concurrently. They appealed to the Court of Session. The learned Sessions Judge dismissed the appeal although he found that the accused had not completed the act of taking the rice outside the specified area, an attempt being equally prohibited by Clause.3 of the Order. The accused have come up with this revision petition which has been referred to a Division Bench because the vires of the Order was challenged in the light of the Division Bench ruling in Surajmal Roopchand & Co. v. State (AIR 1967 Rajasthan 104).

(2.) The facts as found by the learned Sessions judge and the evidence clearly supports the finding are as follows: On 17-11-1965, P. W. 10, the Sub Inspector of Railway Police, Shoranur detained his Head Constable, P. W.1, and two constables for duty on the train leaving Shoranur for Calicut at about seven in the morning to check the transport of rice in contravention of the Order. Accordingly P. W. 1 and his men boarded the train at Shoranur. At the next stop, Karakkat, within the Ottapalam Taluk, they saw the two accused and some others board another compartment of the train with five bags of what appeared to be rice. This was just as the train was leaving the station. P. W. 1 and his men got down at the next station. Pattambi, still within the Ottapalam Taluk (and within P. W. 1's jurisdiction if that were material) and got into the compartment in which the accused were travelling. They found the two accused there each seated on a bag of rice. (The remaining three bags, it would appear, were lying concealed in the lavatory, but with that we are not directly concerned). The accused had no permit for the transport of the rice and therefore P.W. 1 arrested them and seized the rice. The train went its way past Pallipuram, still in the Ottapalam Taluk, and, after crossing the boundary of that Taluk and entering the non specified area of the Tirur Taluk between Pallipuram and the next station, Kuttipuram, passed Kuttipuram and Thirunavaya to reach Tirur. Just before it stopped at the Tirur Station the two accused got up and pushed the two bags of rice out of the compartment after opening the door. P. W. 1 and his two constables at once caught hold of the accused and there was a scuffle in which some others, who got into the compartment at Tirur and tried to remove the remaining three bags, joined on behalf of the accused. In the result the two accused escaped and P. W. 1 was left with a torn shirt and a few scratches.

(3.) The evidence does not disclose that the accused persons used or threatened to use criminal force on P. W 1 and the learned Advocate General appearing for the prosecution has himself submitted that their conviction under S.353 of the Indian Penal Code cannot stand.