STATE Vs. HARICHARAN RAKSHIT

JUDGEMENT

(1.) This is a Government appeal against the order of acquittal passed by the Sessions Judge of Ganjam-Puri on an appeal from the conviction and sentence passed by a First Class Magistrate of Puri. Page 1 of 11 State vs. Haricharan Rakshit (28.10.1949 - ORIHC)

(2.) The respondent was found travelling in a Second Class coupe compartment of the Puri-Howrah Express on 20th July 1946. His compartment was searched by the S. I. Anti-smuggling (P. W. 3) at Khurda Road Railway Station and new cloth consisting of dhoties, sarees, ready-made garments, napkins, etc., were recovered from the compartment. The respondent had a Second Class ticket No. 2,197, Another lady who was said to be the mother of the respondent was also travelling in the same compartment with him. The Sub-Inspector seized the cloth and on weighing the same found the weight to be about 22 lbs. Subsequently, however, when the cloth was weighed by the Court Sub- Inspector of Puri Sadar (D. W. 1) the weight was found to be 14 lbs., 4 1/2 ounces. As rightly pointed out by the learned Sessions Judge this glaring discrepancy in the weight of the cloth is indeed very intriguing. Either some of the cloth was subsequently pilfered by unauthorised persons or else the weighing at the time of seizure was done vary carelessly. Whatever that may be, the Crown launched prosecution against the respondent for contravention of the Government of Orissa Notification No. 16,100 S. T., dated 3rd June 1946 (hereinafter referred to as the impugned notification) banning the transport by rail of any cloth from the Province of Orissa to any place outside the Province except in accordance with a permit granted by the Controller of Supply and Transport. As the respondent had no permit with him the learned Magistrate convicted him under Section 81 (4) read with Section 121, Defence of India Rules for contravention of the impugned notification. But on appeal the learned Sessions Judge acquitted him observing that there was a conflict between the impugned notification of the Government of Orissa on the one hand and an Order of the Central Government known as the Cotton Textiles (Control of Movement) Order, 1946 (hereinafter referred to as the Central Order) and that the said Central Order should prevail. He further held that the previous sanction of the appropriate authority as provided by Clause 10 of the Central Order, was necessary before starting prosecution and that in the absence of such sanction the case must fail.

(3.) The essential facts are practically unchallenged. The respondent was a Second Class passanger travelling in the Puri-Howrah Express on 20th July 1946 with new cloth in his compartment which on weighing was found to be about 14 lbs. 4 1/2 ounces. His mother was also travelling in the same compartment. Even if it be assumed that the cloth belonged jointly to the respondent and his mother it is clear that each of them was in possession of more than 7 lbs. of new cloth. Some argument was faintly advanced to the effect that the evidence to show that all the pieces of cloth seized from the compartment were new cloth was not very satisfactory and in support of this argument the entry in the search list (Ex. 2) was relied upon. But from the evidence of the S. I. (P. W. 3) there seems to be no doubt that all the pieces of seized cloth were new cloth and as much as such would come within the definition of 'cloth' as given in the impugned notification of the Provincial Government. The respondent had no luggage ticket with him and though in his written statement he denied that the seized cloth was part of his personal luggage, there can be no doubt that he was transporting the pieces of cloth as part of his personal luggage in view of his clear admission in his examination under Section 842, Criminal P. C. "I was carrying about 14 lbs. of cloth with me." Page 2 of 11 State vs. Haricharan Rakshit (28.10.1949 - ORIHC)