CHANG CHUNG CHING Vs. EMPEROR

JUDGEMENT

(1.) In this case the accused have been convicted for an offence under Section 3 of Ordinance 83 of 1943 in respect of possession of 63 tins of cheese bearing Government mark D arrow D and of certain cartons of Philip Morris cigarettes. Chang Chung Ching as manager and Chang Tsai Ching as the proprietor of the restaurant in which the articles were found have been sentenced each to six months rigorous imprisonment and to pay a fine of rupees 500 in default to suffer further three months rigorous imprisonment. Chow Ching Young a cook of the restaurant has been sentenced to three months rigorous imprisonment. The goods in question were found in the course of a drive which the Military authorities held when several premises in Calcutta were searched and articles were seized bearing Government marks. The finding of the articles is not disputed. The defence of the accused is that the cheese was bought from one Banwarilal Saha, a regular supplier of goods to the restaurant, by the store keeper Yu Fu Sai, D. W. 1. The cigarettes were said to have been given to the proprietor by some American soldiers. In support of the evidence of purchase the accused proved a number of vouchers admitted by the clerk of the firm Banwarilal, D. W. 3, to be vouchers of his firm which were for goods bought by the restaurant, also one voucher Ex. E showing the receipt of Rs. 150 purporting to be signed by Banwarilal Saha and another Ex. C showing supply of articles totalling a value of Rs. 124-8-0. In Ex. C three items are mentioned but as regards two of them the actual description is not given; item 3 is shown as "Jam". The clerk in question has denied that these were issued by the firm. We have ourselves compared the writings on these (there is a different writing in Ex. B from that in Ex. C) with those on the admitted vouchers and have no doubt that in fact they are genuine vouchers of the firm.

(2.) The learned Chief Presidency Magistrate has not accepted it as proved that these are genuine vouchers and has also added that even if these were issued by the firm, the fact that the accused accepted vouchers in which the articles were not specified is in itself an indication that they knew that they were buying something which could not be legitimately sold. The accountant of the accused's firm was called and has proved entries (written in Chinese) in the account books of the restaurant corresponding to these payments. In our opinion the accused have sufficiently proved within the terms of Section 3 of Ordinance 33 of 1943 that they came into possession of these tins of cheese lawfully. No doubt the clerk whom they called has denied the vouchers, but the firm which sold the goods are likely to know more about their origin than the buyer, and it is obvious that it is in their interest for their servants to deny any connexion with suspected goods found elsewhere. The writing on the vouchers and the accounts of the accused seem sufficient proof for us, at any rate the evidence satisfies us of the probability that these goods were bought by the store keeper D. W. 1 from the firm of Banwarilal Saha. As regards the question of knowledge that the goods bore the Government mark, assuming that such knowledge is a material point, once it is accepted that the goods were purchased from a shop in the bazar we think that it is improbable that these Chinamen would know in the circumstances that these tins were or had been Government property.

(3.) On this point Mr. Ahmed appearing on behalf of the Crown first urged that the accused had clearly failed to show as required by Section 3 of the Ordinance that the articles came into their possession lawfully because, as he contended, they were required to prove the matter beyond reasonable doubt. Later in his argument he did not press the matter so far and stated that he relied on the statement of the law as given in Robert Stuart Wauchope V/s. Emperor ( 33) 20 A. I. R. 1933 Cal. 800. That was a case of breach of trust. On this point there is a recent decision of the Court of Criminal Appeal in Rex V/s. Garr-Briant (1943) 1 K. B. 607 with reference to Section 2, Prevention of Corruption Act, 1916, under which in certain circumstances payments "shall be deemed to have been paid or given and received corruptly... unless the contrary is proved." Charles J. had directed the jury at the trial that the accused had not only to discharge the burden of proof and show that he gave the money without the corrupt motive but also had to do so beyond all reasonable doubt. It was held that in any case where, either by statute or at common law, some matter is presumed against an accused person, unless the contrary is proved, the jury should be directed that it is for them to decide whether the contrary is proved, that the burden of poof required is less than that required at the hands of the prosecution in proving the case beyond a reasonable doubt, and that the burden may be discharged by evidence satisfying the jury of the probability of that which the accused is called upon to establish.