1. It is to be regretted that I have no alternative but to quash this conviction, on the purely technical ground that neither in the charge nor in the conviction has the Court laid down the crime for which the accused has been punished. The section provides punishment for any person who, in contravention of the provisions of this Act, in this particular case that must mean without a license, either recruits or engages or induces such person to emigrate or further assists any person to emigrate. Now the definition of emigration is 'the departure of a native of India from any part of India to which this Act applies, for the purpose of labouring for hire in a labouring district otherwise than as a domestic servant.' So that the section requires, before punishment can be inflicted under it, proof that the accused person without a license recruited, engaged, induced or assisted a labourer to depart from any part of the territory for the purpose of labouring for hire. Now there are at least four if not eight different offences contemplated by that section, and as one has had to say over and over again and it cannot be said too often, a Criminal Court must, in every case before 'it convicts and, as a general rule, before it goes into the evidence, clear the ground and decide and define the offence which it is sought to establish against the accused. In this case there is clearly evidence of guilty knowledge in the fact that the book which the accused person used for entering the names of certain coolies was kept behind a locked door, and also in the fact that the licensed person Nageshar, who could have given an honest explanation of the relationship between himself and the accused, told a story which the Court rejected as false, 0a the other hand guilty conduct of that kind must not be pressed too far, particularly in this case, because behind the locked door was also a concubine whom, according to her own account, the accused was keeping there against her will, and that makes plain the condition of the premises and also that persons carrying on quite honestly a business which can only be conducted under Government supervision and is hedged round with a quantity of Regulations which they have probably never read and if they did, would certainly not understand, are not unlikely, when they are raided, to say and do things which suggest a guilty mind, although in fact an honest explanation would have saved them from any criminal charge.
2. In this particular case the first Court came to three conclusions of fact, every one of which may be true but neither of which agrees with one another or fits into the alleged offence for which this man has been sentenced to six months' simple imprisonment. First, it held that he undoubtedly took a prominent part in running these depots. Now taking a prominent part in running depots is not necessarily an offence under the Act. This much, I think, is quite clear that it is almost impossible for a garden sardar to comply with certain provisions of the Act which require him for example to house, feed and properly accommodate the labourers collected by him without the assistance of a person placed in charge of the labourers. To provide such assistance and keep them in order in feeding them and so forth, is undoubtedly taking a prominent part and Section 167 clearly contemplates a recruiter lawfully deputing some person who is not a recruiter to accompany labourers to a depot, and prima facie for my own part, I cannot see why if you can employ a person not licensed to accompany labourers to a depot, you cannot employ a person not licensed to enter the names of coolies in a book, interview them at the depot or even accompany you when you are going round actually recruiting in the streets. For example in this case the register, about which so much has been made, contains entries not only by the accused but also by a Babu, one Dass, a Bengali, and apparently by Nageshar himself, and I feel some doubt as to whether the Babu, if he had kept the register regularly and done nothing else, could have been convicted. It would have been quite true to say that he was taking a prominent part, because the register is a very important document. The Magistrate further uses the expression 'these depots'. Whether he means by that that Nageshar was running both and the accused was taking a prominent part in assisting him, or that Nageshar was running one and the accused running the other, or that they were both running both in partnership, nobody can possibly say, and it is impossible to convict a man of an offence of tin's kind without deciding what he has done. The second alternative is based upon a decision, of Sir George Knox's, that if you run a business yourself without a license, for your own profit, it is no answer to say that you have put up a licensee wholly to run it in his own name. Every-thing depends upon the real question, whose the business is, the licensed party's or the unlicensed party's. If it is the licensed person, he is undoubtedly recruiting, but there is no evidence and no clear finding that that was the real state of affairs, and, it is difficult to say why if Nageshar, who clearly was doing some business on his, own account, had obtained a license, and the present appellant wanted to carry on another business of his own, he himself should not have applied for a license which, I have no doubt, he could perfectly well do. The third conclusion arrived at by the Magistrate is that Qasim Ali used to get coolies brought by employers and send them off. If he had sent coolies off within the meaning of the definition in Sub-section (2) in the sense of recruiting them actually to the depot, it would have been a very different matter. But as at present advised there is no evidence that he did that. Turning to the Appellate Court's judgment, it is sufficient to say that the only statement of the offence for which the applicant has been, in the view of the Sessions Judge, rightly convicted, is put in the following language: 'Knowingly recruiting or assisting in recruiting persons to emigrate to Assam, without having any license permitting him to do so.' That statement as a statement of a conviction is clearly bad for duplicity. It is uncertain. It leaves it quite doubtful whether the accused was carrying on the business himself or was assisting somebody else and although if he was doing either, in the moral point of view it makes very little difference, the law has always required, for excellent reasons, that the conviction shall be certain and not doubtful or in the alternative otherwise no man would be safe. The result is that this conviction and sentence must be quashed without prejudice to any further proceedings.
3. It is not advisable to say much with regard to future proceedings, but it is a little difficult to say why, upon grounds of public policy, if all that the accused is doing is, for some remuneration, giving genuine assistance to a person authorised to carry on a depot and to recruit, it should be thought worth while to interfere, because it is difficult to see how such work can be properly done, unless the authorised recruiter has the assistance of some agents or servants for whose conduct he is responsible to the authorities. On the other hand, if the accused is really running a concern for his own benefit, either as suggested under the guise of a licensed person or independently, without having secured the necessary protection of the license, then undoubtedly he ought to be prosecuted and if convicted, punished according to law; but the lower Court ought to guard itself against being led off the track to convict a man for something which he really has not done merely because the Court thinks, upon the evidence, that he has done something else which he ought not to have done. These things are really matters of evidence and no better illustration can be given than in the way in which Mr. Cooke's statement has been used in the judgment of the Court below. Now if at the time when the applicant was meeting these women in the street, taking them off to the southern house kept by him, entering their names in his register as though recruited by him, with a statement against their names of the persons who had introduced them to him, if at that time, he had said to a responsible person like Mr. Cooke that lie was recruiting coolies, that would be practically an admission to the hilt of the charge made against him. The, evidence of Mr. Cooke is vague in the highest degree. All that it comes to is that at some time or another he told Mr. Cooke that he was recruiting. There is not a particle of evidence that on the day when he made that statement he was not a licensed person or that he was not giving merely clerical assistance in the management of the depot to Nageshar or some other person.
4. The order, therefore, is that I quash the conviction and order Qasim Ali to be forthwith released. The fine, if paid, will be refunded.