J.W.F. Beaumont, C.J.
1. This is an application in respect of fifty-five persona who were convicted under Section 17(1) and 17(2) of the Criminal Law Amendment Act XIV of 1908 and sentenced to various terms of imprisonment by the City Magistrate, Bandra. The papers were sent for at the instance of the High Court because it was thought that the convictions might conflict with the recent decisions of this Court, viz., Emperor v. Balkrishna Hirlekar (1930) 33 Bom. L.R. 82 and Emperor v. Shripad (1930) 33 Bom. L.R. 90.
2. In the first place, it was thought from the dates that the declaration that the Upnagar Satyagraha Chhavani, of which the accused were convicted of being members, was unlawful might not have been notified in the Bombay Government Gazette before the date of their arrest. As the Advocate General said that he was in a position to prove this point we allowed evidence to be called. Mr. Jayakar, District Magistrate, Bombay Suburban District, was examined as a witness and I accept his evidence entirely. He says that he got about twenty-five copies of the Bombay Government Gazette, which is dated October 10, 1930, and in which the declaration is contained, between 5 and 6 p.m. that evening, that the copies were sent to him by a special messenger from the Secretariat, that he received them at his office in Bombay, that he took them with him to Bandra and distributed them amongst his assistants and the Deputy Inspector of Police and his assistants. There is no evidence that the Gazette was in general publication at that time. Mr. Jayakar then says that the next morning at about 5 a.m. he proceeded with the police to the Chhavani near Bandra which was a sort of camp of which the accused were alleged to be members and which was the unlawful association in question, surrounded the Chhavani, and collected the inmates in an open space in the compound. The Sub-Divisional Magistrate then asked Mr. Jayakar whether he should explain to the persons in the Chhavani the contents of the notification and Mr. Jayakar agreed to his doing so. The Magistrate, thereupon, told the people in the hearing of Mr. Jayakar that the Chhavani had been declared unlawful by a notification in the Gazette which he had. After this explanation the accused were put under formal arrest. One man raised a protest that he had only come there the previous evening and was spending the night there and he was subsequently discharged by the Magistrate. Two or three of the inmates arrested said that they were milkmen and not members of the Chhavani and they were allowed to go. The rest were taken to Bandra and later in the day brought up before the Magistrate who convicted them for being members of an unlawful association under Section 17 (1) of the Criminal Law Amendment Act. Accused NOS. 1 and 3 were convicted of managing the association under Section 17 (2).
3. Now, I think, on these facts there is no ground for the suggestion that the declaration that the association was unlawful was not sufficiently notified to the accused. I do not think it matters whether the Gazette had been issued to the public or not, so long as a copy of the Gazette notifying the association as unlawful was actually shown to the accused.
4. But the difficulty then arises as to whether there is any evidence to show that the accused continued as members of the Chhavani after it had been declared unlawful. Mr. Jayakar admits that the accused were not asked if they wished to dissociate themselves from the Chhavani. The question might have been put, 'Now that the Chhavani has been declared unlawful, are you continuing as members or not?' If they had said 'Yes, we are, ' there would have been a clear admission of membership and there would have been no question but that they could have been charged. If they had said, ' No, we desire to observe the law and have nothing more to do with the Chhavani, ' even then according to the learned Advocate General's argument that would have made no difference to their guilt, because his contention is that having been members of the Chhavani immediately before it was declared unlawful, they necessarily continued as members immediately after it was declared unlawful. In my opinion the learned Advocate General's argument is wholly inconsistent with the decision which this Court gave a week ago in Emperor v. Shripad (1930) 33 Bom. L.R. 90 that it is not right to presume from the fact that a man is a member of an association when it is lawful that he continues to be a member after it is declared unlawful. From the answers which the accused gave to the trying Magistrate, I think that most of them would have said that they intended to continue as members of the Chhavani although unlawful, if the question had been asked. But they were not asked and I cannot help feeling that some of them might have had the good sense to say that they did not wish to continue as members, in which case in my view they were not liable to be charged. In the trying Magistrate's Court most of the accused made what I venture to think extremely foolish remarks about the Court not being recognised since it was a creation of a foreign Government and so forth. The fact that they made foolish observations in Court did not justify their being convicted illegally. I think this case is entirely governed by the decision to which I have referred. In my opinion there is no evidence in this case of membership or management of an unlawful association and the convictions and sentences on all the accused in this application for review must, therefore, be quashed.
5. The question is the same as the one which we have answered in another similar case, though the facts are somewhat different. The evidence of Mr. Jayakar, District Magistrate, Suburban District, is that the notification in question was issued to him on the evening of October 10, 1930, in Bombay, and that he went with the District Superintendent of Police and some policemen to the camp of which the accused had been members the following morning at about 5 a. m. After the camp had been surrounded, its inhabitants were collected at a certain spot and the Sub-Divisional Magistrate, in the presence of the District Superintendent of Police, explained the nature of the notification which had been issued by Government to those assembled. One man disclaimed any connection with the Camp saying ho was a casual guest, and two others said they were milkmen. The milkmen were allowed to go, and we understand that the person who said that ho was a casual guest was discharged. None of the others said anything, and they were placed under formal arrest and sent to Bandra in a lorry.
6. The point for our consideration is whether under these circumstances the accused continued to be members of the association which had been declared unlawful. They were not asked if they were still members, and the arrests followed immediately on the notification being brought to their notice. The learned Advocate General has argued that the law really is that once an association has been declared unlawful, any person who was a member while it continued lawful, becomes guilty under Section 17 (1) of the Criminal Law Amendment Act, by a kind of presumption, but we have held in other cases, in precisely similar circumstances, that it is not a matter of presumption, but that there must be evidence of continuing membership. There was no such evidence here, and on the facts of this ease I agree that the convictions and sentences must be set aside and the accused discharged.