STATE Vs. PUNIA GOOR AND ORS.

JUDGEMENT

(1.) THIS is an appeal against the acquittal of Punia Gour, Asaram Gaur, Ananta Gaur, Jaysing Naik, Sania Gaur, Kesab Gaur and Sadhu Naik who were tried along with another Gurubari Gaur on a charge under Section 55 of the Bihar and Orissa Excise Act. Though all the accused persons were acquitted by the Magistrate, this appeal is confined only against the acquittal of the seven Respondents.

(2.) THE prosecution case is that the Choukidar and the Jhankar of village Paikabahal under the direction of the Sub -Inspector of police were patrolling the village. On the night of 1 -5 -1955, P.W. 1 the Choukidar with 5 or 6 persons of his village towards the last part of the night saw the eight accused persons passing through the village road with Bhar loads each. P.W. 1 challenged them when one of the accused persons Gurubari Gour fled away throwing his Bhar load on the Ground. At this, P.W. 1 and the other persons obstructed the accused and found them to be in possession of non -duty paid Ganja and detained them. After day break, when they wanted to take the accused to the Police Station at the instance of the Gountia, the accused wanted time to cook and take their food and after they took their food they were taken to the Police Station. P.W. 5, the Assistant Sub -Inspector of Police, before whom the First Information Report was lodged, seized, by the seizure lists Exts. 2 to 9 several bundles of Ganja from the Respondents and the bundles left at the place by Gurubari from the Choukidar. P.Ws. 2 and 3 who were the direct witnesses to the possession of non -duty paid Ganja stated that they could not say which accused was carrying which bon dies. P.W. 1 also stated that it was not clear whether all the accused had bundles separately. P.W. 4 stated that he could not identify the bundles carried by each of the several accused.

(3.) THE learned Standing Counsel on behalf of the State contented that the acquittal Was illegal. He submitted that this case was governed by Clause (a) of Section 289 of the Code of Criminal Procedure and as such the accused persons could be tried together. Clause (a) allows persons to be charged and fried -together who are accused of the same offence committed in the course of the same transaction. Here, in my view, the Respondents are not charged for the same offence committed in the course of the same transaction. They were charged for offences of the same kind. The learned Standing Counsel further contended that they were found to be in possession of non -duty paid Ganja at the same place and that they were coming from the same place where this Ganja was purchased and therefore those circumstances constitute the same transaction. I cannot accept this contention. In my view, the act of each accused is an offence and there is no connection between the act of one accused and that of the other. No doubt, the decision relied upon by the Magistrate in holding that the trial is illegal is not applicable to the facts of the present case. But the learned Counsel for the Respondents, Mr. K.S.R. Murty referred m to two decisions which clearly show that the trial of the Respondents in this case is illegal. The first case a decision of the Madras High Court. Mr. Justice Jackson in Re Samiullah Sahib and Ors., 27 Cr.L.J. 1381 where a number of persons were tried and convicted at one trial of offences of stealing fish in prohibited waters under Sections 79 and 447, Indian Penal Code, and where there was no evidence that was done as a result of prior consultation or conspiracy though they had gathered at the same time and at the same place for a similar purpose, held that inasmuch as there was no identity of purpose or common object the Joint trial was illegal. In the case before me, each was in possession of non -duty paid Ganja, but that does not show that their offences were committed In the course of the same transaction. This cases identical with the illustration given in the judgment of the learned Judge Mr. Justice Jackson where three persons were travelling without ticket ;n a train and though the offence committed by each of them was the same, they could not be tried together. There is another decision of the Nagpur High Court which also applies to the facts of the present case. In Re Amolak Mulchand and others fl. Emperor, 34 Cr. L.J. 1175, it was held,