DINANATH BANIA Vs. EMPEROR

JUDGEMENT

(1.) THIS is an application by one Dinanath Bania, who has been convicted under Rule 81(4), Defence of India Rules, and has been sentenced to undergo rigorous imprisonment for three months. On 22 February, 1944, a Sub-Inspector of Police came across four bullock-carts heavily loaded with bags of rice. The total quantity of rice in the bullock-carts was between 60 and 70 standard maunds, and the Sub- Inspector took the petitioner into custody as he was the person in charge of the carts-and as he suspected that he was taking the carts out of Shahabad into the neighbouring district of Saran. The charge against the petitioner was in the following terms: That you, on or about the 20 day of February 1944, at Gajrajgunj, P.S. Arrah Moflasil were found in possession of more than twenty-five standard maunds of rice without a permit and without a licence under the Foodgrains Control Order though you are not a bona fide producer of rice, and this was thus in contravention of the Bihar Essential Foodgrains (Possession and Storage) Order, 1943, and thereby committed an offence punishable under Rule 81(4), Defence of India Rules, and within my cognizance, and I hereby direct that you be tried by me on the said charge. 3. Section 3, Bihar Essential Foodgrains (Possession and Storage) Order, 1948, does not, however, make it an offence for a person to be in possession of more than 25 standard maunds of rice in the circumstances in which the petitioner was in possession of the rice which was seized by the Sub-Inspector. Section 3 states: No person other than a producer of any essential foodgrain or a dealer licensed under the Food-grains Control Order, 1942, shall keep or store in any premises occupied by him...a total quantity of essential foodgrains exceeding 25 standard maunds unless he has obtained a written, permit from the District Magistrate of the district in which he resides authorising him to do so. 3. The words "in any premises occupied by him" qualify the word "keep" as well as the word "store." That is clear, in the first place, from the punctuation, and. secondly, from the words which immediately follow "or permit any other person to keep or store in any such premises." What the order aimed at was apparently what is popularly known as "hoarding" by persons who were not either producers or licensed dealers. If the learned trying Magistrate had kept clearly in view the provisions contained in Sub-sections (8) and (4) of Section 221, Criminal P.C., in drawing up the charge, it would at once, I think, have been apparent to him that the offence, if any, which the petitioner had committed, was not an offence under the Bihar Essential Food-grains (Possession and Storage) Order, 194?, but an offence under the Fdodgrains Control Order, 1942. 4. If there had been evidence on the record to show that the petitioner purchased the whole of this rice in some market in Shahabad and was taking it to some other market either in that district or in another district to resell, it might have been open to me to alter the conviction while maintaining the sentence. 5. There is, however, no such evidence, and I have, therefore, no option but to set aside the conviction and sentence. The petitioner is discharged from his bail.