ILLURU LAKSHMIAH Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) Cr. R. O. Nos. 1379 and 1395/1949. These two revision petitions arise out of C. O. No. 25 of 1948 on the file of the Sub Divisional Magistrate, Adoni. The petitioners in Cr. R. O. No. 1379 are the first and second accused in the case and the petitioners in Cr. R. O. No. 1395 are the third and fourth accused in the case. There were nine accused in all in that case and excepting the four accused the rest were acquitted. They were all tried on three charges, the first charge being an attempt to transport millets without a permit from a village called Halaharvi in Beilary District to Kurnool District in violation of the notification mentioned in that charge, The second charge is for the same transport without a permit from the same village which is said to be in Alur taluk to Asparbi village in the same taluk and this is said to be in contravention of the notification mentioned in that charge, The third charge is causing the lorry in which these millets were taken to carry the foodgrains from Beilary District to Kurnool to be driven during night which is said to be contrary to the G. O. mentioned in the charge. The first Court convicted all the four accused on the first charge and sentenced them, the first and second accused to six months rigorous imprisonment and third and fourth accused to four months rigorous imprisonment. It may be stated that the third and fourth accused are the driver and conductor of the lorry whereas the first and second accused are the persons who are said to be taking these food-grains. The trial Court acquitted accused 3 and 4 on the second charge which was for taking the commodity from one village to another without a permit as the petitioners are convicted on the first charge. So far as the first and second accused are concerned, they were acquitted of the third charge, i.e., taking during night. The third and fourth accused, the driver and the conductor were convicted of the third charge and given the same sentence, the sentences to run concurrently. All the four accused preferred appeals to the Sessions Court, the appeal preferred by the first and second accused being C. A. nO 73 of 1949 while C. A. no. 66 of 1949 was preferred by the third and fourth accused. In appeal, the learned Sessions Judge acquitted all the appellants of the first charge and following certain rulings of this Court altered the finding and convicted the accused under the second charge of which, as already stated, they were acquitted by the trial Court on the ground of their having been convicted under the first charge. So far the third and fourth accused are concerned, the Sessions Judge confirmed the conviction on the third charge also. The learned Judge while altering the finding, maintained the sentence of six months passed on the first and second accused and the sentence of four months passed on the third and fourth accused. These revisions are against the judgments in the two appeals.

(2.) On the merits, there is very little to be said in favour of the first and second accused and the only question that was argued so far as they are concerned is that the appellate Court erred in finding the petitioners guilty under the second charge when they were acquitted of the fame by the trial Court and the lower appellate Court has no jurisdiction to convert the acquittal into a conviction under Section 423(1)(b)(2), Criminal P. C. So far as accused 3 and 4 are concerned, the same point is raised so far as their conviction on the second charge is concerned,

(3.) Before I deal with this point, it is better I dispose of the case of accused 3 and 4 so far as the conviction under the third charge is concerned which is already stated, driving the lorry having foodgrains from Bellary District during the night. It is said to be a violation of G. O. No. 893 dated 3-4-1947. As a matter of fact, it is in pursuance of this G. O. that the Collector and District Magistrate of Bellary passed an order on 15-7-1947 prohibiting the carrying of foodgrains during night, i. e., between 7 P.M. and 6 A.M. on certain roads which included the road on which the petitioners were driving. This notification was published in the District Gazette Extraordinary on 30-7-1947. The occurrence was on 28-7-1947. It is obvious therefore, that the notification itself was long after the occurrence and therefore accused 3 and 4 could not be said to have violated the provisions of the notification which was not in force on the date on which the occurrence took place, Accused 3 and 4 must therefore be acquitted of this charge i.e., the third charge framed against them.