BHUBAN BIJAY SINGH Vs. EMPEROR

JUDGEMENT

(1.) The petitioner in this case held certain excise licenses in Moran near Dibrugarh and, according to his petition, used to help the officers of the Excise Department of Dibrugarh Sadar Circle in detecting excise cases for a number of years. On the morning of 24 July 1932, the petitioner was out with Mr. Baruah, a regular Excise Inspector of Dibrugarh, detecting certain illicit distillation cases in a Nepali village and returned to his shop at Moran at 12-30 p.m. At about 2 p.m. he went to see Mr. Baruah again, in the Moran Inspection Bungalow, about 500 yards away from his shop, and remained talking with him about the Nepali village case until 5 p.m., when a police constable from the officer in charge of the Moran Police Station asked him to go and see him at his shop. The petitioner went there and heard that there had been an occurrence during his absence between his servants and the Excise Officer who had attempted to test the liquor in the shop. The servants had protested at this being done in the absence of their master. The prosecution, on the other hand, say that one Suresh Chandra Das Gupta who was a special Excise Inspector lodged an information in the Moran Police Station stating that at 3-30 p.m. (or 4-21 p.m. Dibrugarh local time) of the same day, when he was examining a bottle of country spirit in the petitioner's shop in the presence of Shah Jalal and Tulsi, constable, the petitioner interfered with the examination by spilling the contents of a glass and snatching away the bottle and aiming a blow with the bottle at the petitioner which was prevented by his peons.

(2.) The petitioner and his men attacked the Special Excise Inspector as well as the Special Sub-Inspector of Excise, Moulvi Abdul Majid, and three peons and a party which accompanied him to the shop consisting of Jibeswar Gogoi and others and pushed them all out of the shop and the compound with the result that he had to leave behind him the articles which he used for the purpose of testing liquor. As a consequence of this information, the petitioner and Moroi Singh and Sewjod Singh who, the petitioner says, were respectively a colessee and an agent, were placed upon their trial under Section 353, I.P. C, before Mr. Mac Donald, the Assistant Commissioner at Dibrugarh. This Rule was issued on the grounds that the Courts below were wrong in not giving the defence the benefit of the presumption under Section 114 (g), Evidence Act, and, secondly, that the Courts below ought to have secured the attendance of Mr. Baruah and they were wrong in disposing of the case without examining him. Mr. Pugh on behalf of the petitioner has not laid much stress on the second ground and it is, therefore, unnecessary for me to say much about it. There is no question that it is the duty of the Magistrate to secure the attendance of the witnesses for the defence. But in this case it appears that the Magistrate issued three summonses against Mr. Baruah who did not appear. No application was made by those who appeared for the defence that a warrant should issue against him, and in the absence of such an application there was no further obligation upon the Magistrate. Further, the Deputy Commissioner in his letter of explanation has stated that the paragraphs in the petition which refer to this point are false. He says that Mr. Baruah was cited as a defence witness and that he could have been, examined by the defence if they had wished until 25 August 1932, the day after the close of the prosecution, and before he went on transfer to another place.

(3.) It is clear from his explanation that the summonses could not be served owing to the fact that the accused was late in filing process. Mr. Baruah, was, in fact, present in Court on 22nd October 1932; yet the defence did not call him or examine him. Nor did they ask for any adjournment on that date in order to examine him, nor did they point out the necessity that he should be examined or, that the Magistrate ought to examine him in order to meet the ends of justice. In fact, we think that the statement of the Deputy Commissioner is justified, that it was the defence who withheld the evidence of Mr. Baruah. Bearing in mind the fact of the close relationship existing between the petitioner and Mr. Baruah, the local. Excise Inspector, and the fact that a Special Excise Officer had been brought from another district for the purpose of detecting breaches of the law and the fact that this officer had brought a criminal charge against the petitioner, we are not altogether surprised that Mr. Baruah was not called for the defence. Criticism has been made of the judgment of the Assistant Commissioner Mr. Mac Donald. I need not deal with this matter because, in our opinion, the learned Sessions Judge, Mr. Lethbridge, has very fairly pointed out both the defects and the virtues of this judgment.