1. This is an application in revision by the Government of Bombay against the order of the Presidency Magistrate, 4th Additional Court, Mazagaon, Bombay, discharging the accused of the offences under Rule 39(i)(a)(b), and Rule 38(1)(b) and (5) read with Rule 121 of the Defence of India Rules, 1939.
2. The facts shortly are that the accused, who is a merchant in Bombay, sent, on August 19, 1943, a telegram from Bombay to his agent at Colombo as follows:
40 barrels 'Jalabala' left 5th. Document sent.
3. This message was sent in reply to inquiries made by his agent about the cargo to be despatched by the vessel. The message was intercepted by the Censor's office in Bombay, and on August 31, the Censor's office sent it to the police for enquiry. The police traced the accused as the sender of the message and started proceedings against him under the rules mentioned above. The relevant provisions of Rule 38, Clause (1)(b), are that 'no person shall, without lawful authority or excuse, communicate by any means whatsoever to any other person any information likely to assist the enemy'; and the relevant provisions of Rule 39(1)(a) are that 'no person shall, without lawful authority or excuse, have in his possession any information likely to assist the enemy or any confidential information.' The expression 'likely to assist the enemy' occurs in both the rules and it is denned in Rule 34, Sub-rule (5)(k). The relevant part of the definition is that 'information likely to assist the enemy' means any informa-tion, whether true or false, with respect to (k) the passage of any vessel near any, part of India. The accused admitted that he sent the telegram to Colombo and stated that he inferred the date of the steamer from the bill of lading.
4. The learned Magistrate was of the opinion that as there was no evidence to show that before August 19, when the telegram was despatched, the steamer had not reached Colombo, and that as it was quite likely that it had already reached Colombo by that date, the telegram cannot be said to be about the passage of any ship. He was further of opinion that if the ship had already reached Colombo, the information about the departure of the ship on the 5th was not calculated directly or indirectly to convey to any person information about its passage. On this ground the learned Magistrate held that the sending of the message was not prohibited under the rules. With regard to the further argument that in any case the accused had lawful authority or excuse for sending the message, he did not express any opinion as the case was disposed of on the ground that the information given by the telegram was not likely to assist the enemy.
5. We are unable to concur with the view taken by the learned Magistrate that the steamer cannot be said to be in the course of passage because it was not shown that it had not reached Colombo before the wire was sent In our opinion in view of the definition of the term 'information likely to assist the enemy', the question as to whether the steamer had reached Colombo by that date is entirely immaterial. It is also, in our opinion, immaterial that the telegram did not expressly mention that the steamer had left Bombay for Colombo. What the definition says is that the information, whether true or false, must be with respect to the passage of any vessel near any part of India, The passage may be from any place to any other place whether disclosed or not. All that is necessary is that the information must be with respect to the passage of a vessel near any part of India. The message having been sent from Bombay to Colombo, it must, in our opinion, be presumed that the information was in respect of the passage near any part of India.
6. Mr. Daphtary on behalf of the accused has contended in the first place that there must be inherent evidence in the wire itself that the vessel was in the course of a passage between Bombay and Colombo, but as I said above, it is not necessary that there must be any evidence of the passage from one specified place to another. He has further contended that the passage of the ship means the passage of the vessel at the time when the wire was despatched and that the prosecution must therefore prove that the vessel had not reached Colombo when the wire was despatched. In view of the generality of the words in the definition, we are unable to agree with that contention. The passage may be at any time, whether at the time when the message was sent or before or even after. There is no doubt in this case, and it is admitted by the accused, that the telegram was sent by him with respect to the passage of the 'vessel, We are, therefore, of the opinion that the message sent by the accused is information likely to assist the enemy within the definition of that term in Rule 34.
7. The further question as to whether the accused had any lawful authority or excuse in sending the wire has not been gone into by the learned Magistrate. We, therefore, set aside the order of discharge passed by the learned Magistrate and send the case back to him for disposal according to law. The rule is made absolute.