STATE BY PUBLIC PROSECUTOR Vs. GURUSWAMY AND ANR.

JUDGEMENT

(1.) THE State, represented by the Public Prosecutor, has preferred this appeal challenging the correctness and propriety of the judgment of the learned Sessions Judge, Tirunelveli, made in C.A. Nos. 25 and 28 of 1974, dated 22nd April, 1974, acquitting both the accused of the offence punishable under Section 3, of the Madras Gift Goods (Unlawful Possession) Act, 1961 (Madras Act 49 of 1961) (hereinafter referred to as the Act), of which they were convicted and sentenced by the Sub Divisional Judicial Magistrate, Kovilpatti in C.C. 217 of 1973 by his judgment dated 31st January, 1974.

(2.) THE crux of the indictment as per the prosecution case is as follows On 15th February, 1973, at about 9 -15 p.m. on information the Tahsildar and Executive II Class Magistrate Kovilpatti (P.W.1), along with the Taluk Supply Officer and party, searched accused -l's Lorry Booking Office, Kovilpatti and seized 33 packets of American Soya Bean Salad Oil, each packet containing six tins, in the presence of the first accused. On the same night, on information furnished by the first accused, he seized 424 packets of Soya Bean Salad Oil at Vinayagar Match Factory and Sivagami Match Factory, belonging to his (accused -l's) son and wife respectively. These contrabands (457 packets in all, containing 2742 tins) were sent by accused -2 of Trivandrum to the first accused at Kovilpatti for disposal and transport. The evidence of P.W. 1 is to the effect that the 1st accused told him that these contrabands were brought by the son -in -law of accused -2 and one Kolappan Pillai through a lorry bearing Registration No. MDK 1448 at 9 a.m. on 15th February 1973 and were entrusted to him for the purposes of transporting some of them to Madurai and selling the rest in the nearby villages. P.W. 1 would further testify that accused -1 had no Katchathu (voucher) or any document for the custody of these contrabands in the above -said premises. These properties were seized under Exs. P -l to P -3 between 11 p.m. on 15th February 1973 and 1 -30 a.m. on 16th February 1973. When questioned by him, according to P.W. 1, accused -1 told him that accused -2 contacted him over phone from Trivandrum at 11 p.m. on 14th February 1973 and informed him that he would be sending American Soya Bean Salad Oil in a lorry with a certificate from the Commercial Taxes Department as though 70 packets of wheat were being transported, to which proposal accused -1 had agreed. P.W. 1 recorded a signed statement from accused -1 under Ex. P -4, which was read over to and accepted by accused -1. The said document Ex. P -4 is also attested by the Special Deputy Tahsildar, the Taluk Supply Officer and an Assistant in the Taluk Office, who were present there. The goods that were seized by P.W. 1 were gift goods since some of the packets had been affixed with a label "CARE" whereas the remaining packets were affixed with the rubber stamp impression "CATHWEL". Then, he sent a report about the seizure on 16th February 1973 to the District Collector, who thereafter preferred a complaint to the Superintendent of Police. P.W. 5, the then Sub Inspector of Police, Kovilpatti, on receipt of the complaint Ex P -9 from the Collector of Tirunelveli on 23rd February 1973, registered a case in Crime No. 70 of 1973 under Section 3 of the Act and investigated. He examined P. Ws. 1 to 4 and other witnesses and filed a charge sheet, Thereafter, both the accused surrendered before the Court of the witnesses examined, P.W.2, Mr. D'Silva is the administrative Assistant Catholic Relief Service, United States Catholic Conference, New York attached to the Catholic Relief Service, Madras Zonal Office. It is his evidence that generally consignments of goods of this nature are sent by the United States to the Food Corporation of India, which in turn distributes the same to various consignees such as convents and other similar institutions, the Corporation of Madras, etc., as per their allocations, and these gift goods are never consigned to private individuals. While distributing, the consignments of Soya Bean Oil should be distributed in loose condition, but not in bulk, and the maximum quantity of oil which is distributed to the beneficiary is not more than three lbs. per month. He would say that each tin contains 7.7 lbs.; of Soya Bean Oil. All the material objects except one, according to him, are in the original packing as packed in the United States, as seen from the iron band over the packet. Then, the witness describes the particulars of the consignments and the manner in which these consignments are sent through ships. P.W. 3 is the Field Officer attached 'to "CARE", Tamil Nadu, situated at the D.P.E. Buildings, Madras. On 9th April 1973, he inspected the goods in question at the warehouse in Kovilpatti. 80 cartons were found to bear the labels "CARE" and they are marked as M. Os. 1 to 80. It is his positive evidence that they received these M. Os. 1 to 80 as gift goods from the United States. The witness further deposes that the majority of the beneficiaries are the poor section of the School children and the other beneficiaries are pre -school children and pregnant and lactating mothers and these gift goods should not be sold in India. P. W. 4 is the Deputy Assistant Administrative Officer attached to "CARE", Tamil Nadu. As per his evidence, M Os. 1 to 76 are "CARE" goods which arrived by the ships covered by the Bill of Lading Exs. P - 7 and P -8, and those goods are intended to be distributed to the poor people. M. Os. 77 to 80 bear the "CARE" label. But, the shipment numbers are torn. All the properties seized form various places are marked as M. Os. 1 to 47.

(3.) THE learned Sub -divisional Judicial Magistrate, after elaborately and meticulously discussing the evidence and meeting out all the points raised by the defence, found both the accused guilty of the offence with which they stood charged and convicted them thereunder and sentenced accused -1 to undergo rigorous imprisonment for one year and also to pay a fine of Rs. 1000/ -, in default to suffer rigorous imprisonment for two months, and sentenced accused -2 to undergo rigorous imprisonment for two years and to pay a fine of Rs. 2000/ -, in default to suffer rigorous imprisonment for three months. By this judgment, the learned Magistrate ordered M. Os. 1 to 457 to be confiscated to the State, directing that the properties should be given to the District Educational Officer at Kovilpatti, for being distributed according to the rules after the expiry of the appeal time.