IJJATALI TALUKDAR Vs. EMPEROR

JUDGEMENT

(1.) The two petitioners before us are husband and wife. They were tried before the Subdivisional Magistrate of Serajganj on a charge under Section 46(a), Bengal Excise Act, for being in possession of illicit distilled spirit in contravention of Section 18 of that Act and also on a further charge under Section 16(f) of the same Act for using, keeping and having in their possession certain materials and apparatus for the purpose of manufacturing spirit in contravention of Section 13 of that Act. One of the defences of the petitioners wag that the prosecution had been engineered at the instance and instigation of one Bazlur Rahaman (a nephew of the first petitioner) who had contrived to plant the offending materials and apparatus in the house of the petitioners out of old enmity towards them. It appears that on 12 May 1912 the petitioners applied to the Subdivisional Magistrate for issuing a summons on the Excise Commissioner, Bengal, for production of the petition alleged to have been made by Bazlur Rahaman against him to the Excise Commissioner and the Report thereon. The Sub- divisional Magistrate who was then trying the case and before whom this petition had been made having been transferred shortly thereafter, the trial was started de novo and no action appears to have been taken on this petition. On or about 14 July 1942, a fresh application was made on behalf of the petitioners for summons, amongst others, on the Excise Commissioner of Bengal, Calcutta for production of that petition of Bazlur Rahaman and the Report thereon which I have mentioned and also an anonymous letter relating to the enquiry in connexion with that petition. In this application the petitioners also prayed for summons on the Excise Superintendent of Pabna for production of several telegrams said to have been sent by the Excise Sub-Inspector to the Excise Superintendent on certain dates therein mentioned and the several telegrams said to have been sent by the Excise Superintendent to the Excise Sub-Inspector on those dates and the two Dak books of the Serajganj Circle Sub-Inspector and the Sub-Inspector in charge of the depot. The Subdivisional Magistrate directed issue of summons as prayed and the summonses were duly served. Both the Superintendent of Excise, Pabna and the Commissioner of Excise, Bengal, sent the documents by their respective clerks but claimed privilege under Section 123, Evidence Act. The Commissioner of Excise claimed privilege in an unsworn memorandum which is in the following terms: (a) I direct Maulvi K.A. Quddus to appear with the files mentioned in the summons and to claim privilege for them under Section 123, Evidence Act. (b) I withhold permission to give any evidence derived from the files for which privilege is claimed under this order. It should be represented to the Court that these flies contain unpublished official records relating to affairs of State for the purpose of Section 123 and that in view of the provisions of Section 162, Evidence Act, the files are not open to the inspection of the Court. Sd. Illegible,Head of Department. Dated 25 July 1942.

(2.) The privilege claimed by the Superintendent of Excise, Pabna was on the same ground and on practically the same terms. His memorandum was dated 31 July 1942. Apart from a bare assertion that the documents relate to affairs of State, there is no indication as to whether and how their production would injure public interest. Nor was the claim made on affidavit. The documents summoned having been produced in sealed covers a petition was filed on 15 August 1942 on behalf of the petitioners contending that no privilege could be claimed for those documents and praying that the Court should decide whether any such privilege could be claimed and to enable it to do so the Court should open the covers and see the documents. The Sub-Divisional Magistrate took no action on this petition and simply endorsed thereon the following words "Pile with the record." Eventually, on 7 December 1942, both the petitioners were found guilty and convicted under both the charges. Petitioner 1 was sentenced to a fine of Rupees 250 and in default of payment to 3 months rigorous imprisonment and petitioner 2 was directed to execute a bond of Rs. 200 with one surety to appear and receive sentence when called upon within one year and in the meantime to keep the peace.

(3.) The petitioners appealed to the Sessions Judge of Pabna. One of the points urged on behalf of the petitioners in support of their appeal was that those documents which would have helped them in establishing the story of planting were not admitted in evidence on the erroneous ground of privilege. This point, like the others also taken on their behalf did not find favour with the lower appellate Court and the appeal was dismissed and the sentences were confirmed. The petitioners thereupon moved this Court in revision and on 5 March last obtained the present rule calling upon the District Magistrate of Pabna to show why the order of conviction and sentence complained of in the petition filed in Court should not be set aside and the appeal re-heard on ground No. 1 mentioned in the said petition. Ground No. 1 on which this rule has been issued is as follows: 1. For that the judgments of the Courts below have been vitiated by exclusion of important documentary evidence on the erroneous ground of a privilege under Section 123, Evidence Act, without the Court even opening the cover and seeing for himself whether the privilege claimed was justifiable.