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State of Assam Vs. Indra Bhuyan and anr. - Court Judgment

LegalCrystal Citation
CourtGuwahati High Court
Decided On
AppellantState of Assam
Respondentindra Bhuyan and anr.
- - it seems to us unnecessary to go into the question of law raised by the learned counsel on behalf of government because we are not satisfied that even the evidence, as it stands, is enough to bring home the guilt of the accused. the best evidence was thus withheld from the court......against an order of mr. s. sarkar, magistrate, 1st class, gauhati, dated 11-11-52, acquitting the accused indra ehuyan and jagat chandra kumar of certain charges framed for violation of rules under the essential supplies act {24 of 1946)'.on 29-4-52, at about 7 or 8 p.m., a private carrier vehicle, no. ask. 1288, travelling from palasbari side to gauhati, was stopped at kamaklfya gate by head constable sital prasad pande. the accused jagat chandra kumar was the driver of the truck and indra bhuyan was an occupant thereof. it was loaded with 124 maunds of rice packed in 48 those days, the movement of grain at that hour in the evening was prohibited under the provisions of section 11, assam foodstuff (foodgrain) control order, 1951, read with government notification no. sdb......

Sarjoo Prosad, C.J.

1. This appeal has been preferred by Government and is directed against an order of Mr. S. Sarkar, Magistrate, 1st class, Gauhati, dated 11-11-52, acquitting the accused Indra Ehuyan and Jagat Chandra Kumar of certain charges framed for violation of rules under the Essential Supplies Act {24 of 1946)'.

On 29-4-52, at about 7 or 8 p.m., a private carrier vehicle, No. ASK. 1288, travelling from Palasbari side to Gauhati, was stopped at Kamaklfya gate by Head Constable Sital Prasad Pande. The accused Jagat Chandra Kumar was the driver of the truck and Indra Bhuyan was an occupant thereof. It was loaded with 124 maunds of rice packed in 48 bags.

In those days, the movement of grain at that hour in the evening was prohibited under the provisions of Section 11, Assam Foodstuff (Foodgrain) Control Order, 1951, read with Government Notification No. SDB. 100/51/192, dated 12-2-1951. When the Constable challenged the occupants for pro- duction of transport licence, they were unable to do so. He then took them to the Enforcement Office at Gauhati and produced them before Sub-Inspector Kalyan Purkayastha.

The Sub-Inspector recorded a report, seized the rice and lorry and started prosecution of the accused. Their prosecution was sanctioned by the Additional Deputy Commissioner Under Section 7(2), Essential Supplies (Temporary Powers) Act (24 of 1946) for violation of Clause 3(a), 11 (ill) and ll(i)(b), Assam Foodstuff (Foodgrain) Control Order of 1951.

2. The plea of accused Jagat Chandra Kumar was that the owner of the truck, Bapin Chandra Kumar, his employer, had left for Gauhati on the morning of 29-4-52 leaving instructions with him to take the lorry load of rice from Palasbari to Gauhati. In accordance with that instruction, he took the lorry to the bazar where the rice was loaded and then proceeded to Gauhati when, on the way, he was intercepted by the Enforcement Police who seized the rice and arrested him. He was unaware whether the owner had the necessary permit for such possession or movement of rice.

The plea of accused Indra Bhuyan was that he happened to be travelling from Palasbari to Gauhati on foot and on the way he came across this lorry driven by the accused Jagat. As the lorry was going towards Gauhati, he requested Jagat for a lift and he was accommodated by him. He denied knowledge of any rice being illegally transported.

3. The Magistrate, after a consideration of the evidence, has acquitted both the accused persons. So far as the driver is concerned, the Magistrate-observed as follows:

Jagat's defence is that the owner loaded the truck with rice and asked him to go to Gauhati in the evening. He accordingly proceeded towards Gauhati, but was caught on the way. Ho did not know that the owner had no permit. It was a private carrier vehicle and could not be let on hire. It is not probable that the driver would illegally employ it for his personal gain to carry the rice of some other to a place where he knew the owner had already gone and was expecting him with the lorry. This fact only tends to show that the rice was loaded by or at the instance of the owner and accused Jagat only acted on his advice.

It is quite natural that a paid driver would care very little to know if his master had permits to carry articles which he loads in his lorry. Under the circumstances, if we hold that Jagat probably carried the rice on instruction from the owner, we must also concede that he might not have the necessary msns rea (guilty knowledge).

The learned Counsel on behalf of Government has been unable to find any defect in this reasoning of the Magistrate.

On the evidence also there is nothing to indicate that this view of the Magistrate cannot be supported. It has to be remembered that the. matter is on appeal before us at the instance off Government and the presumption of, innocence in such cases is reinforced by the order of ac qulttal in favour of the accused. It is suggested by the learned Counsel for the appellant that it was for the driver to establish that his master did possess a special licence, as reauired by Clause (3) of Section 11 of the Order. In my opinion, even If there was such onus on the driver, the prosecution had still to prove his mens rea.

In this connection I may refer/to a decision of the Calcutta High Court in — 'Bholaprosad Lala v. The King' AIR 19-19 Cal 348 (A) where it was held that when the accused was merely acting for his master at his master's instructions and moving the yarn without knowing that such movement was illegal, he would not be committing any offence at all. The material question in such a case is 'did the accused know whether the master had a permit or not and his master required such a permit before he could move the goods from one district to another?' There is nothing to show in the present cass that the driver was aware that his master did not possess any such special permit, and that in spite of this knowledge he persisted in carrying the rice load in the truck from Palasbari to Gauhati.

I realise that it places an almost impossible burden on the prosecution, but if mens rea has to he established in such cases, of which there can be little doubt after the decision of the Privy Council in — 'Srinivas Mall v. Emperor' AIR 1947 PC 135 (B), the burden has to be discharged. That being so, the Magistrate was not unjustified in observing that no mens rea had been established on the part of this accused.

4. As to the other accused Indra Bhuyan, the prosecution tried to lead some evidence of the character of an extra-judicial confession to show that the accused had admitted that he was the owner of the rice carried in the truck. The constable who challenged the truck at the Kama-khya gate, Sital Prasad (P.W. 2), stated that in reply to his query, accused Indra claimed the rice to be his. There was another witness, Kumud Ranjan Pal, who also stated that he heard Indra Bhuyan claiming the rice before the Enforcement Officer, and a third witness who tried to prove ownership of rice by Indra. This witness is Giris Chandra Neog (P.' W. 9), the Cleaner of the truck. This witness does not speak of any confession made by Indra Bhuyan, but he purported to depos that it was Indra who engaged the truck, loaded the bags, and then got into it to proceed towards Gauhati.

The learned Magistrate rejected the evidence of Sital, the Head Constable, on The point of Indra's confession as being inadmissible Under Section 162, Cr.PC and Section 26, Evidence Act. He also discarded the evidence of the other witness, Kumud Ranjan Pal, en the same ground. As to the evidence of this Cleaner, the Magistrate thought that he was more or less in the position of an accomplice because he also had been arrested as one of the occupants of the truck. It is apparent that the Magistrate was not prepared to rely on his testimony alone for the purpose of convicting the accused.

It seems to us unnecessary to go into the question of law raised by the learned Counsel on behalf of Government because we are not satisfied that even the evidence, as it stands, is enough to bring home the guilt of the accused. The defence of Indra Bhuyan is that he was simply coming the same way and he asked for a lift and was taken into the truck and he had nothing to do with the rice which was being carried in the truck. The evidence of the Cleaner siiowa that the bags In question had been loaded by certain coolies. They would have been material witnesses on the point as to who asked them to put in the bags in the truck and to whom the bags containing the rice belonged, but, no effort has been made to examine any one of these persons. The best evidence was thus withheld from the Court.

Apart from the reasons assigned by the Magistrate for not accepting the testimony of this Cleaner, it appears from his cross-examination that he has given a complete go-bye to the statements witch he made in his examinatinn-in-chief. He says he was not present when the bags were loaded, and when Indra is said to have arranged with the driver and engaged the truck. If that is so. then his evidence is worthless, and there is some force in the suggestion of the defence that he was making those statements in order to screen his master and to throw the blame upon the accused. The evidence of Kumud; Ranjan if not supported by the evidence of the Sub-Inspector himself. There is nothing to indicate that Indra Bhuyan made any such statement before him. In these circumstances, it i very difficult to accept the case of the prosecution that Indra Bhuyan was admittedly the owner of the rice.

In my opinion, the Magistrate was justified in not convicting the accused on the state of th& evidence before him. The accused were entitled' to the benefit of doubt. The appeal is accordingly dismissed.

Ram Labhaya, J.

5. I agree.

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