BANSIDHAR Vs. EMPEROR

JUDGEMENT

(1.) The petitioners have been convicted under Rule 81(4), Defence of India Rules, read with Section 3, Bihar Cotton Cloth and Yarn Control Order. The charge against them was that they failed to give cash memo to purchasers Mannu Modi, Govind Modi and Masudan Modi for purchases made by them and thereby committed an offence under Rule 81(4), etc. The date of the occurrence in the charge is 13 February 1945. The prosecution story is that an Assistant Sub- Inspector of Police on getting some report came near the shop of the petitioners and noticed a bullock cart loaded with six bags of cloth said to belong to Mannu Modi of Parsada. The cart was standing in front of Benarsi Modi's shop. The Assistant Sub-Inspector demanded the permit of the Sub-divisional Officer and the cash memo. Mannu Modi could not produce them. Then the Assistant Sub- Inspector seized the cloth in the presence of Benarsi Modi, prepared a list and then took him to the police-station. The Sub-Inspector visited the shop on 14th February 1943. He found that three cash memos were issued. He also got from the petitioners three permits, Exs. 7, 8 and 9 and this was between 8 and 9 A.M. in the morning of 14 February. The date of occurrence is said to be the previous day between 8 and 8-30 P.M. The learned first Additional Sessions Judge has pointed out certain illegalities in the procedure and recommended that the conviction and sentence should be set aside.

(2.) In fact he points out that the charge was defective but he himself does not attach much importance to that defect. But then he lays emphasis upon the fact that seizure was by a person not authorised by the law and that the examination of Bansidhar under Section 342, Criminal P.C., through a pleader was not proper. But apart from these grounds, what strikes me is that the condition of the licence, for infringement of which the petitioners have been convicted, runs as follows: All licensees (except holder of hawker's licence) shall issue to every customer a correct receipt--cash or credit memo, or invoice, as the case may be, in which is set forth clearly the name, the licence number, police-station, subdivision and district of the licensee as well as the quantity of cloth and/or yard sold, the rate charged, the total amount charged and the date of transaction. A duplicate of each such receipt, memo, or invoice shall be maintained and made available for inspection when required.

(3.) Can it be said that the condition has not been satisfied? The trial Court has observed in his judgment: It is admitted that the three cash memos Exs. 4, 5 and 6 were issued next morning in accordance with the permits granted by the S.D.O. Exs. 7, 8 and 9. I have examined the three cash memos and I find that as usual, details of each kind of cloth, their quantities and rate of each have been mentioned therein and in fact it must have taken some time to write them out, as each cash memo occupies the whole of a half paper of fool-scape size, perhaps larger. The accused had pleaded that the three dealers were supplied cloth in accordance with the S.D.O.'s permit, and as there was great rush and much work to do, the cash memos could not be issued in the night and they were issued next morning. It is admitted that out of the three dealers, who were supplied the cloth, two remained behind to take the cash memos (which were really Bijaks) and only one, viz., Mamu Modi, was carrying the cloth when he was caught by the police. Later on he says, the facts indicate that the offence has really been of a technical nature and so I take a lenient view of what they have done.