EMPEROR Vs. AKUB ALI MAZUMDAR

JUDGEMENT

(1.) Each of these three accused was separately tried on a charge of keeping more than 300 tins of kerosine oil in his boat without a license or pass, an offence punishable under Section 15(a) of Act VIII of 1899. Each accused pleaded guilty and filed a written statement. The Magistrate after recording the plea of guilty adjourned the cases. At the nest hearing after examining one Court witness in each case, he convicted each accused and sentenced them to pay a fine of Rs. 10 each. The learned Sessions Judge of Tipperah has referred these cases with a recommendation that the convictions and sentences be set aside, on the ground that the accused merely carried the kerosine tins under the orders of the sub-agent of Messrs. Bullock Brothers and Company who had a general license for the transport of kerosine oil.

(2.) Differing with regret from my learned brother I would hold that we should not interfere in this case. There can be no doubt that the principle of Section 412, Criminal Procedure Code, should ordinarily be applied in cases in which we are asked to exercise our revisional powers. This section provides that where a person has pleaded guilty and has been convicted on such plea, there shall be no appeal except as to the extent or legality of the sentence. I agree with the remarks of Sargent, J., in Empress v. Jafar M. Talab 5 B. 85 : 5 Ind. Jur. 428 : 3 Ind. Dec. (N.S.) 58, and would bold that by their pleas of guilty the accused waived their right to question the legality of their convictions. The case of Queen v. Mittun 11 W.R. 53 Cr seems to me distinguishable, on the ground that it was held in that case that the accused never intended to plead guilty and the plea should not have been recorded. In the present case it has not been alleged by the accused in their petitions to the Sessions Judge that they did not intend to plead guilty. In none of the grounds taken it is suggested that the plea was wrongly recorded. As I read their written statements, they were not inconsistent with the pleas of guilty but were Bled in order to set out extenuating circumstances that might mitigate the sentences.

(3.) Further if the convictions be held to be bad on the ground that the pleas of guilty should not have been recorded, I think a retrial should be ordered as was done in the case of Queen v. Mittun 11 W.R. 53 Cr. As the accured were convicted on their plea of guilty, the question has not been investigated whether the license held by Bullock Brothers and Company was sufficient to cover possession by the accused of an excess amount of kerosine oil.