Ram Labhaya J.
1. The petitioner was found guilty of a contravention of Section 12 (1), Assam Cotton Cloth and Yarn Control Order, 1946, and in consequence was convicted Under Section 7 of Act sxiv  of 1946. He was sentenced to pay a fine of BS, 1000, or, in default, to undergo rigorous imprisonment for 6 months. On appeal, the conviction and the sentence were maintained. The accused has come up on revision.
2. The prosecution case was that on 22nd February 1947 the petitioner was found standing by the side of a truck near the Deopani Tea Estate on the Barpathar-Dimapur Road. The driver of the truck, a Maaipuri, was also there. The truck at that time was not in working order, Dambraudhar Hazarika (P.W. 1) came there in a Jeep, The owner of the Jeep was with him, Dambraudhar is President of the Vigilance Committee of Sarupathar. He examined the contents of the truck and found that it contained IS baga of yarn and 42 boxes of matches. He asked the driver of the truck to take those articles to the Deopanai T.E., but was told that the truck could not be taken there on account of some defects in the machine that had developed on the way. He, therefore, came in his own Jeep to the Daopani Tea Estate and returned to the spot within a short time with another truck from the tea garden. He brought the baga of yarn and the match boxes to the Deopani T.B. along with the petitioner and another Marwari named Ramkumar who came to the scene of occurrence after he had left for Daopani T.E. in order to bring a truck. Ramkumai1 arrived at the scene of occurrence in a Jeep.
3. After investigation, both Puranmal Agarwalla and Eamkumar were sent up for trial. Ramkumar was discharged.
4. Five witnesses were examined on behalf of the prosecution. Dambarudhar Hazarika, the driver of the Jeep, and the owner of the Jeep who was travelling with Dambarudhar, are the 3 important witnesses. Saileeh Chandra Mukerji, the Manager of Deopani T. E, is a formal witness. The Tex-tile Inspector who investigated the case was also examined (P.W. 4), No defence evidence was produced.
5. The learned Counsel for the petitioner has contended that no proper sanction was obtained for the prosecution of the accused and the orders of the Courts below were, therefore, without jurisdiction and liable to be set aside. He has relied on Cokulchand Dwarkadas Morarka v. The King, 52 C.W.N. 325 : A.I.R. (35) 1948 P.C. 82. It was held in this case by their Lord, ships of the Privy Council that
it was plainly desirable that the facts should be referred to on the face of the sanction. But it the facts constituting the offence charged are not shown on the face of the sanction, the prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority.
In this case, the order sanctioning the prosecution does not refer to the facts constituting the offence. But as contended by the learned Government Advocate, it has been proved by the statement of the investigating officer and the reports placed on the record that all the facts bearing on the case were placed before the sanctioning authority. In these circumstancea, this case is of no help to the petitioner. The order sanctioning the prosecution is valid accord-ing to the pronouncement of their Lordships of the Privy Council. The Courts below had jurisdiction to take cognizance of the ease, and the trial is not vitiated for want of jurisdiction.
6. It is next argued that the conviction should not stand on the facts of the case. All the 3 witnesses who have been examined by the prosecution admit that on being asked as to the ownership of the yarn, the accused as well as the driver of the truck said that it belonged to some one from Manipur who had been travelling in the truck and had gone to fetch a mechanic when, on account of some defect in the machine, the truck containing the yarn stopped on the way. All that is proved is that the accused was standing by the truck which contained the yarn. The accused stated in Court that the yarn did not belong to him, and that he was not aware that the packages in the truck contained yarn. The conviction in the case obviously rests on circumstantial evidence. Their 13 no direct evidence that the accused was the owner of the yarn or that he was interested in its transport in any other capacity. There is no suggestion that he wag dealing in cloth or yarn. Both the accused and the driver of truck made exactly the same statement.
7. The question is whether the mere presence of the accused proves his guilt. The learned District Magistrate observed that the reason which let the trying Magistrate to find the accused guilty was his suspicion arising from the circumstance that the accused did not avail himself of the opportunity to go away in the Jeep in which the co-accused Ramkumar was travelling. There is nothing on the record to show that Eamkumar was detained by the accused for remedying the defects in the truck. Eamkuma may have stopped to assist the driver of the stranded truck; this is a usual courtesy which is extended on the road by those who drive vehicles when they find some one stranded. The driver of the truck may have made the request. The possibility that Ramkumar was himself interested in the yarn is not excluded by the prosecution evidence. In fact, he was sent up for trial and was discharged as he was not travelling in the truck but was following it. Ramkumar did not leave the stranded truck till P.W. 1 came back and thus there was no opportunity for the petitioner to go with him. Both Eamkumar and the accused were taken to the Deopani T.E. The driver's conduct should have arouse suspicion. He could not have been unaware of the identity of the owner of the truok. He, like the accused, stated, that the truck belonged to a third person. If the driver's statement was wrong as has been found by the trial Court, the driver surely had guilty, knowledge. He may himself have been trans, porting the yarn, or at least may have been an abettor. He has not been proceeded against.
8. The prosecution evidenoe does not disclose who the owner of the truck wag. No attempt has been made to find him out, We are thus left with the solitary circumstance that the accused travelled in the truck and did not leave it when stranded. This circumstance is insufficient for arriving at the conclusion reached by the trial Court. It is a fundamental rule of universal application that in cases dependent on circumstantial evidence, in order to justify an inference of guilt, the incriminating circumstance must be incompatible with the innocence of the accused and must be incapable of explanation upon any other reasonable hypothesis than that of guilt; the circumstantial evidence must be of such a character that it should establish the guilt of the accused beyond any reasonable doubt, and all possibilities of innocence of the accused should be excluded. The circumstance on which the prosecution is based in this case does not surely exclude all such possibilities. There may have been a third person in the picture, as was suggested by the accused and the driver. Eamkumar may possibly be that very third person. In any case, mere travelling by the truck would not justify an inference that the yarn inside the truck belonged to the petitioner and that it was being transported by him. The learned District Magistrate, while considering the circumstantial evidence, observed as follows:
The fact is that the appellant chose to stand by the aide of the truck is a rather suspicious thing. The suspicion was strengthened by the fact that the accused remained with the truck till P.W. 1 Dambarudhar Hazarika came back from Deopani T, E. which was about 3 miles from the truck.
It is clear that there was nothing more than strong suspicion against the accused arising from the circumstance that he travelled in the truck. Suspicion, however strong, is no substitute for legal evidence, and it cannot form the basis of a conviction.
9. The accused, I think, is entitled in this case to the benefit of doubt. I therefore, accept the petition and quash the conviction of the petitioner He is acquitted. The fine, if paid, shall be fefunded.