RAM ASREY Vs. REX

JUDGEMENT

(1.) THESE two criminal revisions were filed in the Chief Court of Avadh on 15th December 1947. Application No. 154 is made by Bam Asrey and Gaya Prasad while No. 155 is made by Ram Asrey alone.

(2.) THE material facts are as follows : On 6th January 1947, the applicants were taking two consignments of grain by boats from district Lakhimpur to the adjoining district of Bahraich. They were convicted for having contravened an order dated 26th August 1946, passed by the Regional Food Controller prohibiting export of grain from Kheri district to another district without a permit authorising such export. In each case, the person convicted was ordered to pay a fine of Rs. 75 and all the grain which was being exported was confiscated to Government. Dissatisfied with this decision Ram Asrey and Gaya Prasad preferred appeals which were heard by the Additional Sessions Judge of Kheri. He noticed that there was no copy of the Regional Food Controller's order for the contravention of which the appellants before him were convicted, on record. Accordingly he sent for the order from the Collectorate. He found on reference to the file on which the order was placed that the "order had been published". The appellants before him had admitted that they were exporting grain from Kheri to Bahraich, but pleaded that they were not aware of the existence of the order, with the contravention of which they were charged. The learned Additional Sessions Judge considered the existence of the order as sufficient proof of the appellants' guilt and dismissed the appeal. They came up in revision to the Avadh Chief Court. Their revision applications were numbered 154 and 155 of 1947, as already stated. These applications came up for consideration before Walford, J., on 8th Match 1948. It was argued before him that as the record stood there was no evidence to prove the existence of any order of the Regional Food Controller or of its due notification or publication. It was contended that the action of the learned Additional Sessions Judge in sending for the record and not giving any opportunity to the applicants to meet "whatever fact that may have been discovered from that file" was a procedure unwarranted by law. The concluding portion of Walford, J.'s order runs as follows : "To my mind there exists only a technical error in not observing the formalities required in admitting evidence by an appellate Court. The case is undoubtedly a serious one and the applicants ought not to be allowed to take advantage of a mere formal technicality. I, therefore, order that the case be sent back to the Additional Sessions Judge of Kheri who will re -hear the appeal and if it is necessary to admit any evidence, he will act in accordance with Section 428, Criminal Procedure Code If the learned Judge finds that the evidence adduced falls short of bringing home the knowledge to the applicants, that an order prohibiting export was duly made and promulgated, he would be entitled to acquit them. In the event, however, of his coming to the conclusion that the evidence produced is sufficient to bring home that knowledge, he will return the case to this Court with his finding." In compliance with this order, the learned Additional Sessions Judge recorded evidence. Ha found that the Regional Food Controller had on 26th August 1946, passed an order No. F -3a/85 directing that no person shall export rice, paddy juar, bajra, maize and their mixture or products from any place in the districts mentioned above (including Lakhimpur Kheri) to any place outside these districts except under and in accordance with Military Credit Notes; or on U. P. Government Account under the orders of the Provincial Government or under permits issued by him or the Government. The order further provided that the contravention of the provisions of this order shall be punishable under Sub -Rule (4) of Rule 81, Defence of India Rules with imprisonment for a term which may extend to three years, or with fins or with both. The order further provided that the food grain in respect of which the Court is satisfied that the offence has been committed shall be forfeited to His Majesty, unless for reasons to be recorded in writing the Court is of opinion that the direction should not be made in respect of the whole, or, as the case may be, a part of the property. The concluding portion of this order reads as follows : "This order will be posted on the notice board of the District Magistrates Tahsils, Municipal boards, District Boards and all the Octroi posts of the districts mentioned above. The District Magistrates of all the districts will also arrange for its publication by beat of drum in the tahsils adjoining the district borders. Copy of the order will also be posted in the office of the Regional Food Controller, Lucknow, Dy. Regional Food Controller, Bareilly and the marketing inspectors concerned by the order." According to the findings of the learned Additional Sessions Judge a copy of the order was pasted on the notice board of the District Magistrate on 5th December 1946, but there was DO proof that it was pasted on the Octroi posts. It was definitely proved that it was not pasted on the notice boards of the District Board, Lakhimpur. Compliance with the directions that the order be published by beat of drum was made in Nighasan Tahsil in April 1947, and in Mohamdi Tahsil it was made after 25th March 1947. It will thus be seen that all the directions contained in the order for its promulgation and due publication were not complied with. The learned Additional Judge, however, observed : "This again in my judgment would not warrant the conclusion that sufficient publication of the notification in question was not made and that as such the appellants could not be fixed with the notice thereof." In view of the finding arrived at by him, the case was returned to this Court.

(3.) THE matter has been argued at some length before me. It was contended by the learned counsel for the petitioners that on the learned Additional Sessions Judge's findings it was clear that there was no due publication of the Regional Food Controller's Order. That there was no proof that his clients knew of the existence of any such order; nor could such knowledge be imputed to them inferentially by such publication of the order as was made.