PROVINCE OF BIHAR Vs. SHEIKH IMAMAN (ACCUSED)

JUDGEMENT

(1.) This is a Government appeal from the judgment of the learned Sessions Judge of Bhagalpur acquitting the respondent Sheikh Imaman on a charge of having contravened the provisions of Clause 12(1), Cotton Cloth and Yarn (Control) Order, 1943, and thus committing an offence under Rule 81(i), Defence of India Rules. Sheikh Imaman had been convicted by the Munsif Magistrate of Bhagalpur of the said charge and sentenced to three months rigorous imprisonment and a fine of Rs. 50 or in default further rigorous imprisonment for 15 days.

(2.) It was alleged that on 2-3-1945, at about 10 P.M. the accused Imaman, who owned a cloth shop in Madhurapur Bazar, had sold eight pieces of cloth to the Station Master and the Assistant Station Master of Narainpur Railway Station at a price in excess of the controlled price stamped on the cloth in question under Clause 10, Cotton Cloth and Yarn (Control) Order of 1948. Prom the evidence of the Station Master and the Assistant Station Master it would appear that the accused refused to sell at the rates stamped on the cloth and that after some discussion the Station Master sent the Assistant Station Master with a report (EX. 1) to the police outpost nearby, complaining that the accused was charging black market price. After the Assistant Station Master had left, the Station Master offered to pay the accused the prices charged by him and the eight pieces of cloth, which had been selected earlier by the Station Master and the Assistant Station Master, were cut out from the thans and kept ready for delivery. In the meanwhile, the Assistant Station Master had handed over the memo, or report (Ex. 1) at the police outpost and after a station diary entry had been made the Assistant Station Master returned to the shop followed immediately after "wards by a police officer. The total price charged by the accused for the eight pieces of cloth came to Rs. 57-5-0 and this amount was accordingly paid by the Assistant Station Master to the accused, but the police officer arrived on the scene just as the accused was putting away the money in his cash box. The amount paid, the; eight pieces of cloth sold and the thans from which they had been cut out were seized then and there and the accused was also placed under arrest. The station diary entry made subsequently at the thana gives details of the excess charged by the accused on each of the eight pieces of cloth sold to the Assistant Station Master and the Station Master. The transaction in question was witnessed by a railway chaukidar and a pointsman who are said to have accompanied the two railway officers to the accused's shop. Of these the railway chaukidar was examined as one of the prosecution witnesses. The defence as put forward in the cross-examination of the prosecution witnesses was that the two railway officers wanted to buy cloth at about 10 P.M., that is, some four hours after the accused had closed the day's business,-that the accused had refused to sell cloth at that hour of the night and that he had been falsely implicated for that reason. A defense witness, another shopkeeper having his shop at, a distance of about two was is from the accused shop was also examined to say that one Wahid and not Imaman was the owner of the shop; that Imaman merely used to sit at Wahid's shop and sell cloth on behalf of Wahid and that Imaman had been falsely implicated because he had refused to sell cloth after the close of business" hours. This defence was disbelieved by the learned Munsif Magistrate who convicted the accused, but the learned Sessions Judge acquitted Imaman on the ground that it had not been proved that Imaman was a "dealer" as defined in Clause. 3 of the Control Order, presumably relying on the statement of the solitary defence witness just referred to The learned Sessions Judge has not discussed other evidence in the case as he was of the view that Once the prosecution failed to prove that Imaman was a dealer, there was no question of his contravening the provisions of Clause. 12 which are meant to punish a manufacturer or dealer selling or offering to sell cloth or yarn at a price higher than the maximum price specified in that behalf under Clause 10 of the Control Order.

(3.) Setting apart for the moment the statements of D.W. 1, it was not alleged on behalf of the accused at any stage of the trial that Imaman did not own the shop in question and was only a servant or salesman of Wahid. The prosecution witnesses have all referred to the cloth shop as the cloth shop of Imaman and one or two of them further gave out that Imaman was known to them from before; it was not put to any of these witnesses that the cloth shop really belonged to some one else, and the name of Wahid did not transpire in the cross-examination of any of these witnesses or even in the written statement filed on behalf of the accused. Now a perusal of the evidence of the solitary defence witness Kishun Lall, who stated for the first time that the shop belonged to Wahid and not to the accused, would show that this man was completely unreliable. Wahid was said to be a resident of Madurapur to which both the defence witness and Imaman admittedly belonged, but the witness could not even give out the name of Wahid's father. EG also said that he had seen the name of Wahid as the owner of the shop on cash memos issued by the shop, but not one cash memo, was produced in support of this, statement. Further, as already observed, this witness has his shop at a distance of two rasis from the accused's shop, and there are other shops intervening, and it is obvious that D.W. Kishun Lall was a friend or sympathiser whose services had been requisitioned for the purpose of saving the accused if possible.