TARAK NATH SAHA Vs. EMPEROR

JUDGEMENT

(1.) THESE rules are directed against the conviction of the petitioner under the provisions of Rule 81(4), Defence of India Rules. The case for the prosecution was to the effect that the petitioner had sold some kerosene oil at a price in excess of the controlled rate. Several points were raised in the Court below on behalf of the defence and these points have also been argued before us by the learned advocate for the petitioner. As things stand now it is only necessary for us to deal with one of these; points. The learned advocate contends that his client should not have been convicted as he was entitled to sell kerosene oil at a rate sufficient to cover both the controlled price and the transportation charges incurred in connexion with the transport of the kerosene oil to its destination in the mofussil and he maintains that the rate at which the sale took place was not higher than what was permissible in the circumstances. The findings of the learned Sessions Judge indicate that it was in fact permissible to make a charge on account of the costs of transportation but he was of opinion that the amount charged on this account was excessive. At the same time it is quite clear that this opinion is not based on any evidence and in fact it appears from the judgment that at one stage of the proceedings the learned Judge contemplated granting a remand to the trial Court for the purpose of ascertaining the amount of transshipment charges. It follows, therefore, that it cannot be said that the prosecution succeeded in proving that any provision of Rule 81, Defence of India Rules, or any order made thereunder had been contravened. In these circumstances the rules must be made absolute and the convictions and sentences of the petitioner must be set aside. We direct that the petitioner be acquitted and released from his bail. The fines, if paid, shall be refunded.