STATE Vs. BASDEO

JUDGEMENT

(1.) This is a reference by the District Magistrate of Shahjahanpur for enhancement of the sentence passed on Basudeo under Rule 81 (4), Defence of India Bales, read with Rule 9, U. P. Kerosene Control Order, 1942, and Section 353, Penal Code. Basudeo has been fined Rs. 500 for the offence of Rule 81 (4), Defence of India Bales, and Rs. 100 for the offence of Section 353, Penal Code. He was prosecuted along with his brother Mahanand, father Kedar Nath and Munim Shankar Lal, but Mahanand, Kedar Nath and Shankar Lal were acquitted by the Magistrate. Basudeo appealed from his conviction to the Sessions Judge, who on 16-7-1948 declined to interfere with either the conviction or the sentence. The reference of the learned District Magistrate is dated 11-5-1948.

(2.) In reply to the notice given by this Court for enhancement of the sentence Basudeo has appeared and challenged the legality of his conviction. There is practically no dispute about the facts and we were not addressed at all on the question of believing or not believing the evidence produced against Basudeo. I have gone through the prosecution evidence and see no justification for disbelieving it.

(3.) The case for the prosecution is as follows: There is a firm known as 'Mahanand Bajoria & Bros,' in Shahjahanpur. It deals in kerosene oil and holds an agency from the Standard Vacuum Kerosene Oil Importing Company. Basudeo, Mahanand and Kedar Nath are the proprietors of the firm. Under the U. P. Kerosene Control Order, 1942, made by the Governor in exercise of the power conferred upon him by Rule 81 (2), Defence of India Rules, no person can sell, store for sale or carry oh business in kerosene in U. P. except under a license granted under the order by the District Magistrate. The Mahanand Bajoria firm was given a licence under the order by the District Magistrate. The terms are printed on the licence itself. According to them, the licensee must maintain a stock register showing correctly the opening stock, the quantity received from the Oil Company, the quantity sold, delivered or other-wise disposed of, and the closing stock at the end of each day. It is stated in the licence that if the licensee contravened any of the conditions of the licence he would be liable to imprisonment for three years and a fine. Rule 9 of the Control Order is to the effect that "if any" person holding a license granted under this Order contravenes any of the conditions of the license" he shall "be liable under Rule 81, Defence of India Rules to a fine of Rs. 1000 and imprisonment for three years." Rule 10 entitles a person authorised by the District Magistrate to enter upon and inspect any premises in which he has reason to believe that the purchase, sale or storage for sale of kerosene is taking place contrary to the pro-visions of the Order. A supply inspector of Shahjahanpur had reason to believe that the firm was carrying on the business in kerosene oil contrary to the provisions of the order and being authorised by the District Magistrate under Rule 10 of the Order went to inspect godowns of the firm on 20-9-1946. At that time Basudeo was present in the shop. He saw the stock register of the big godown which showed a closing balance of 601/2 tins against the actual stock of 62 tins. The small godown which was open at the time of the inspector's arrival had been hurriedly locked by Basudeo. When the inspector asked him to open it, he refused pleading that his father had prohibited him from letting any one go inside it. The inspector told him that if he was not allowed to go inside he would seal the godown, whereupon Basudeo told him that he would go and consult his father at home and would probably bring him to the shop and went away on a cycle. He returned within half an hour and told the inspector that his father had told him that it was the order of the Standard Vacuum Kerosene Oil Importing Company not to let any one go inside the godown and that the inspector could find out from Qaim Ali, who was the previous agent of the Company, that such an order existed. The inspector, who had taken possession of the stock registers, left them in the charge of his peon and went to inquire from Qaim Ali. Qaim Ali told him that the Company had issued no such order. During his absence Basudeo took away the registers from the custody of the peon and went away on a cycle. So when the inspector returned to the shop he found Basudeo absent. Thereupon he sealed the small godown. There is also a chaukidar's hut and he found it empty. He then made a report about the matter at the police station. Next morning when he went to inspect the seals of the godowns he found the chaukidar's hut locked and was told that some kerosene tins had been brought by Basudeo from his house and stored in it. He demanded the key from the chaukidar, who replied that it was not with him but with his master. The inspector sealed the hut. He made a report about all the facts to the District Supply Officer on which an enquiry by the police was ordered. When the small godown was opened in the presence of witnesses it was found to have 175 tins of kerosene oil in excess. The stock register showed several incorrect entries.