1. We are mush obliged to the Government Pleader in this case for the pains he has taken to make us acquainted with the prosecution view of the matter. He was not originally instructed to appear, but the Magistrate's judgment presented so much difficulty to us that we asked him to look into the papers of the case and put before us the case for the prosecution.
2. That case appears to be this: Accused No. 1, who is a trader in Ahmedabad, finding that the price of petrol had risen in February 1918 and being anxious to make a profit out of this rise in price, took to dealing in petrol. He had himself no license either for the import or transport or possession of petrol. So he entered into an arrangement with Cama Brothers, of whom accused No. 2 is a representative, that they were to receive for him and store for him the petrol that was sent to Ahmedabad to his name. Thereafter he sold some petrol of his that was in the custody or possession of Cama Brothers, He also imported from Rajkot eleven drums which were sent covered by a railway receipt in the name of accused No. 1's firm which was taken possession of in Ahmedabad and stored by Cama Brothers. He also transported in a similar way a quantity of petrol from Ranpur to Ahmedabad. It is quite immaterial for the purposes of the point which we have to consider to trouble either about the quantities or the dates. It suffices for our purpose to assume that the transport and import by accused No. 1 was contrary to the provisions of the Petroleum Act.
3. All the three accused were tried by the First Class Magistrate in Ahmedabad, accused No. 1 for the commission* of the offences of transporting, importing and possessing without a license and accused Nos. 2 and 3 for abetting him in so doing. They were all convicted. The sentence inflicted on accused No. 1 was an appealable sentence. He has appealed and his appeal is still pending before the Sessions Judge of Ahmedabad. The sentences inflicted on accused Nos. 2 and 3 were not appealable. So they have applied to us in our revisional capacity to set aside the sentences.
4. We assume for the purposes of this case that accused No. 1 has been rightly convicted, and we further assume that accused Nos. 2 and 3 have done all the physical things which the prosecution allege that they have done. The case turns entirely on what was their intention. It would be a perfectly legitimate thing for Cama Brothers or any one else with a proper license to store petrol which had been cent to Ahmedabad in the name of and for the accused No. 1, Cama Brothers had a proper license and in storing petrol they were not in any way whatever breaking the law 80 long as they did not exceed the quantity which they were licensed to store or possess. It is not alleged against them that they did exceed this quantity. They were under no obligation to inquire whether accused No. 1 had received the petrol in a licensed or an policensed way. That was no business of theirs any more than it was the business of the Railway Company, when they carried the petrol, as they did in this case, to inquire whether the person transporting it had or had not the necessary license. On the fasts alleged, moreover, it is quite clear to my thinking that we must assume that Cama Brothers were ignorant that the law was being deliberately broken and we must continue so to assume, unless definite circumstances are established from which it must be reasonably inferred that Cama Brothers were in collusion with Parikh, Brothers, i.e., the firm of accused No. 1; or at least that they knew that in storing accused No. 1's petrol they were helping him to deal in petrol which he had obtained by illegal means, that is, by importing or transporting without a license. The only particular reason which is given for inferring that Cama Brothers were colluding with Parikh Brothers and did know that the petrol was obtained by methods deliberately contrary to the provisions of the law, is that they have not given an entirely frank account of their part in the affair. It may be that they have not, though on the Magistrate's judgment I am not sure that even that can be said. Unfortunately when matters come before a Magistrate, it very commonly happens that people do not give a frank explanation of the circumstances although the true circumstances may be, as far as they are concerned, perfectly innocent. So it seems to me that there are not any circumstances proved which do definitely suggest that Cama Brothers were acting in collusion with accused No. 1 for the purpose of evading the law. Indeed, if I had to conjecture one way or the other, I should be disposed to conjecture that they were not conscious that the law was being intentionally evaded. I think the Magistrate has in some way been misled by the idea that there was something fraudulent in the case. Now there was nothing at all which was fraudulent in the ordinary sense of that word. Accused No. I may have been guilty of importing and transporting petroleum without a license and he may have been very properly convicted. (As to that we do not express any opinion whatever.) But so far as the evidence discloses the circumstances, he did not act in any fraudulent way. He acted perfectly openly. Not so much as if trying to evade the law clandestinely but as if openly defying the law. For he had the petroleum sent by railway, covered by a railway receipt in his own name, so that everything which it was necessary to discover as against him was made patent. If once this idea of fraud, of something clandestine or deceitful, is eliminated, and I thick it must be eliminated in this case, there really remains no reason that I can see for supposing that Cama Brothers were acting in anything but a perfectly straightforward, natural and businesslike way. I do not wish to be understood to suppose that because a man has acted openly and not fraudulently, he may not have acted contrary to the law. I am assuming that accused No. 1 did act contrary to the law and that he has been rightly convicted.
5. The case is, if anything, even weaker on the point of possession than it is in the matter of transport and import. It is said that accused No. 1 was for the purpose of the Act in possession of the petroleum which was actually on the premises of and under the control of Cama Brothers, who have a license. I will not say anything as to whether in such circumstances accused No. 1 could be rightly convicted of possession, because that is a point for the Sessions Judge of Ahmedabad to decide. Bat it seems to me that by no stretch of ingenuity can Cama Brothers be said to have abetted accused No. 1 in being in possession against the law of this petroleum unless, of course, it were clearly established that there was a conspiracy between Cama Brothers and accused No. 1 for the purple of evading the law. As I have already explained, such a conspiracy is not suggested by the evidence and circumstances of the case. Even if it were, I should skill be very doubtful whether Cama Brothers could be said to abet the unlawful possession by accused No 1 of petrol.
6. I have dealt with the case at quite considerable length, because it seems to me to be a case of some importance. I think the Magistrate has so used the law, in this case, as to show that there is a very real danger that perfectly legitimate business operations may he obstructed and rendered difficult by applying a law like the Petroleum Act with a stringency that was never intended. I think that when assumptions are made, in what appear to be ordinary business transactions, that there is an intention to defeat the law, those assumptions need to be based on something substantial. If too readily made, they will have the effect of impeding perfectly legitimate business.
7. I think, therefore, that in the case of these two applicants, Behramsha Ratanji accused No 2 and Vanmali Devchand accused No. 3, the convictions must be set aside and the fines, if paid, refunded.
8. I agree.