PROVINCE OF BIHAR Vs. CHHEDILAL SHARMA

JUDGEMENT

(1.) This is an appeal by the Provincial Government against an order of the learned Magistrate exercising 1st class powers at Bhagalpur dated 3rd February 1948, by which the learned Magistrate has acquitted one Chhedilal Sharma in the following circumstances. On 22nd December 1946, Mr. B. N. Das, a Cloth Inspector and one Muhammad Moniruddin Ansari, Secretary of the Weavers' Association, were going on a tamtam from Bhagalpur to Nathnagar. At about 3-30 P.M., they noticed another tamtam coming from the direction of Nathnagar and going towards Bhagalpur Railway Station. On this latter tamtam were the respondent, Chhedilal Sharma, and some bundles--two big bundles and seven small bundles. The Cloth Inspector was suspicious of the contents of the bundles, and he stopped the tamtam and enquired of the respondent as to the contents of the bundles. The respondent said that the bundles contained handloom cloth. This did not allay the suspicion of the Cloth Inspector ,who opened one of the bundles and found that it contained cotton yarn. The respondent further stated that the bundles belonged to one Lakhi Prasad Budhia, proprietor of the Agarwal Silk Stores, and the respondent was taking them to Bhagalpur Railway Station under the orders of Lakhi Prasad Budhia for the purpose of despatching them to Patna. The respondent along with the bundles was taken to the Sub-Divisional Officer. In his presence all the bundles were opened. It was found that they contained cotton yarn. The Cloth Inspector then submitted a written report to the Sub-Divisional Officer, and, on receipt of sanction from the Provincial Government for the prosecution of the respondent, the learned Sub-Divisional Magistrate took cognizance on the report of the Cloth Inspector. Thereafter the respondent was put on trial, and was acquitted by the learned Magistrate exercising 1st class powers at Bhagalpur. The learned Magistrate found that the statement of the respondent that the bundles belonged to Lakhi Prasad Budhia, was true, and that, therefore, the respondent was not liable for the offence with which he was charged. I may here state that the respondent was charged with committing an act in contravention of para. 18 (2), Cotton Cloth and Yarn (Control) Order, 1945 (hereinafter to be referred to as the Control Order, 1945). The relevant paragraph of the Control Order, 1946, reads as follows :

(2.) The learned Government Advocate appearing for the Crown has contended before us that the learned Magistrate took an erroneous view of para. 18 (2) of the Control Order, 1945. He contends that the respondent was found in possession of the yarn in question, and it was for the respondent to prove that the yarn belonged to somebody else, and not to him. Assuming that the burden of proof was on the respondent, though I am not sure that the burden was really on the respondent, the learned Magistrate has referred to the evidence in the record which shows beyond any doubt that the yarn in question did not belong to the respondent. As soon as the respondent was questioned about the contents of the bundles, he said that they belonged to Lakhi Prasad Budhia. The driver of the tamtam on which the bundles were being carried was examined in the case. He also made a statement to the Cloth Inspector. That statement is Ex. 3 in the record. Prom that statement also, it appears that the bundles in question were loaded on the tamtam at the shop of Lakhi Prasad Budhia. This circumstance fits in with the statement of the respondent that the yarn in question did not belong to him. The Cloth Inspector had given evidence to the effect that be examined the books of the shop of Lakhi Prasad Budhia and did not find any entry of the yarn in question in those books. The absence of any entry in the books of the shop of Lakhi Prasad Budhia does not necessarily discredit the statement of the respondent. If a shopkeeper is engaged in dealing in yarn in contravention of the conditions of his license, be will naturally not enter the yarn in his books. In my opinion the learned Magistrate was right in his appreciation of the evidence and correctly came to the finding that the statement of the respondent that the yarn did not belong to him was true. If that finding is correct, then the learned Magistrate was right in his conclusion that para. 18 (2) of the Control Order, 1945, would have no application in the case of the respondent. The respondent was not holding the stocks of yarn. It was the owner of the yarn who was holding the stocks. The respondent was merely taking the yarn to the station under the orders of the owner.

(3.) Learned counsel for the respondent has drawn our attention to another defect in the case. Paragraph 23 of the Control Order, 1945, laysdown that no prosecution for the contravention of any of the provisions of the Order shall be instituted without the previous sanction of the Provincial Government or of such officer of the Provincial Government not below the rank of District Magistrate, as the Provincial Government may by general or special order in writing authorise in that behalf. The order sanctioning the prosecution of the respondent in the present case purports to be an order of the Governor of Bihar, but is signed by somebody "for the Additional Under Secretary to Government." Learned counsel for the respondent has drawn our attention to Notification No. 2094A, dated 1st May 1987, by which certain rules made by the Governor of Bihar in exercise of the powers conferred by Sub-section (2) of Section 59, Government of India Act, 1935, were published. The first rule states that all orders or instruments made or executed by order or on behalf of the Government of Bihar shall be expressed to be made by, or by order of the Governor of Bihar. The second rule states that, save in cases where an officer has been specially empowered to sign an order or instrument of the Government of Bihar, every such order or instrument shall be signed by either the Secretary, the Additional Secretary, the Joint Secretary, the Deputy Secretary, the Under Secretary or the Assistant Secretary to the Government of Bihar, and such signature shall be deemed to be the proper authentication of such order or instrument. There is no mention of an "Additional Under Secretary" in the rule in question. The learned Government Advocate was not in a position to state before us if any amendment has been made in the rule since 1937 so as to authorise an Additional Under Secretary to authenticate an order of the Governor of Bihar. Apart from that, however, the order is not even signed by the Additional Under Secretary. It is signed by some officer "for the Additional Under Secretary." I have examined the original order which bears the signature of Mr. M. B. Mukbarji. It has been suggested before us that Mr. M. B. Mukharji was the Under Secretary, and was competent to authenticate the order. We do not, however, know whether Mr. M. B. Mukharji was Under Secretary at the time when the order was signed. Assuming, however, that he was Under Secretary at the time, he does not purport to sign the order in his capacity as Under Secretary. He signs "for the Additional Under Secretary." Such signature is not, in my opinion, proper authentication of the order as laid down in the rule referred to above. The order sanctioning the prosecution of the respondent is thus defective.