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The King Vs. Tustipada Mandal and ors. - Court Judgment

LegalCrystal Citation
Decided On
Case NumberGovt. Appeal No. 4 of 1947
Reported inAIR1951Ori284
ActsGovernment of India Act, 1935 - Sections 297 and 297(1); Orissa Essential Articles Control and Requisitioning (Temporary Powers) Act, 1947 - Sections 10; Orissa Live Stock (Control of Movement and Transactions) Order, 1947; Indian Penal Code (IPC), 1860 - Sections 41, 42, 53, 79 and 511; Evidence Act, 1872 - Sections 105; Code of Criminal Procedure (CrPC) , 1898 - Sections 32
AppellantThe King
RespondentTustipada Mandal and ors.
Appellant AdvocateAdv. General
Respondent AdvocateD. Sahu, Adv.
DispositionAppeal allowed
Cases ReferredSitaram v. Emperor
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....ray, c.j.1. this appeal is directed against an order of acquittal recorded by rai bahadurcharu chandra coari, ses. j. cuttack, in cri. app. no. 70-c of 1947, reversing the order of conviction passed by the sub-divisional mag. jaipur, in the case of emperor v. tustipada mandal & 5 others, under schedule 0, orissa essential articles control & requisitioning (temporary powers) act (i [l] of 1947).2. the reaps, six in number, belong to the dist. of burdwan in the province of bengal. they were prosecuted for attempting to transport 21 bullocks from the province of orissa in contravention of cl. 3, orisaa livestock (control of movement & transactions) order 1917, made & promulgated in exercise of the powers conferred by schedule , orissa essential articles control & requisitioning (temporary.....

Ray, C.J.

1. This appeal is directed against an order of acquittal recorded by Rai BahadurCharu Chandra Coari, Ses. J. Cuttack, in Cri. App. No. 70-C of 1947, reversing the order of conviction passed by the Sub-Divisional Mag. Jaipur, in the case of Emperor v. Tustipada Mandal & 5 others, under Schedule 0, Orissa Essential Articles Control & Requisitioning (Temporary Powers) Act (I [l] of 1947).

2. The reaps, six in number, belong to the dist. of Burdwan in the Province of Bengal. They were prosecuted for attempting to transport 21 bullocks from the Province of Orissa in contravention of cl. 3, Orisaa Livestock (Control of Movement & Transactions) Order 1917, made & promulgated in exercise of the powers conferred by Schedule , Orissa Essential Articles Control & Requisitioning (Temporary Powers) Act 1947, in supersession of all existing orders on the subject, by the Govt. of Orissa. On 2-6-1947, the resps. were found passing through Dharmasala (in the dist. of Cuttaek) en-route Bhadrak with 21 heads of cattle (bullocks), purchased on different dates by one or other of them in different districts of Orissa. They were avowedly moving & transporting cattle to the dist. of Burdwan beyond the provincial boundaries of Orissa. It is admitted that the resps. held no permit nor licence from the Govt. of Orissa as enjoined in Cl. 3 of the Order aforesaid. Under these circumstances they were prosecuted under Schedule 0 of the Orissa Act I [l] of 1947. & sentenced to pay a fine of Ks. 51 each, & the 21 bullocks Beized were forfeited to the Govt. of Orissa.

3. In appeal, the learned Ses. J. of Cuttaek gave them b8ne6t of doubt & set aside their conviction & recalled the order of forfeiture of the bullocks seized.

4. The points, that were canvassed before him & have been reiterated here, were: (i) if the Act of the Orissa Legislature, referred to above, & the Order, passed thereunder, were ultra vires the Provincial Legislature, (ii) that whatever the resps. did in furtherance of movement & transport of the cattle amounted in law to preparation, as distinguished from attempt, to commit the offence. Two other points were raised in this Ct. by the learned counsel for the resps. namely, (iii) the trial was vitiated by misjoinder of charges & parties, & lastly (iv) that in view of the Govt. of India's letter addressed to all Provincial Govts., the resps. had reasons to believe bona fide that under the laws, then prevailing, there was no imposition of any ban on the movement & transport of cattle from Orissa across its borders. I shall proceed to deal with the points in the order in which they have been stated above:

5. Point (i):-If Orissa Act I [1] of 1947 is ultra vires the Provincial Legislature. The Act is impugned, as being contrary to the provisions of Schedule 97, Govt. of India Act, which reads:

'297. - (1) No Provincial Legislature of Govt. shall-

(a) By virtue of the entry in the Provincial Legislature List relating to trade & commerce within the Province, or the entry In that List relating to the production, supply, &distribute; on of commodities, have power to pass any law or take any executive action prohibiting or restricting the entry into, or export from the Province of goods of any class or description or,

(b) by virtue of anything in the Act, have power to impose any tax, cess, toll, or due which, as between goods manufactured or produced in the province & similar goods not so manufactured or produced, discriminates in favour of the former, or which, in the case of goods manufactured or produced outside the Province, discriminates between goods manufactured or produced in one locality & similar goods manufactured or produced in another locality.

(2) Any law passed in contravention of this section shall, to the extent of the contravention, be invalid.'

6. It is submitted that this section must operate so as to completely neutralize the Provincial Legislature's powers to make laws offending it under any of the entries in the Provincial Legislative List. Reliance is placed in support of this contention on James v. Cowan, 1932 A. C. 842 : (101 L. J. P. C. 149) and James v. Commonwealth of Australia (No. 2), 1936 A. C. 578: (105 L. J. P. C. 115). Of the above two, the last named case is completely beside the point as it concerns the party's right to appeal to His Majesty's P. C. Before dealing with the case of James v. Cowan, 1932 A. C. 542 : (101 L. J. P. C. 149) so strongly relied upon by Mr. D. Sahu, I shall place side by Bide Schedule 2, Commonwealth Constitution to which the Australian case related & Schedule 97, Indian Constitution, against which the impugned Act is said to offend. The material portion of the section of the Commonwealth Constitution, which reads: 'trade, commerce & intercourse among the States whether by means of internal carriage or ocean navigation, shall be absolutely free'. The relevant portion of Schedule 97 reads:

'297.-(1) No Provincial Legislature or Govt. shall by-

(a) by virtue of the entry in the Provincial Legislative List relating to trade & commerce within the Province, or the entry in that list relating to the production, supply & distribution of the commodities have power to pass any law or take any executive action prohibiting or restricting the entry into, or export from the province of goods of any class or description;

(2) Any law passed in contravention of this section shall, to the extent of the contravention, be invalid.'

7. The contrast of the sections, as expressed, should make it clear that while one amounts to absolute prohibition, the other is a conditional one. The Provincial Legislature can be charged with contravening Schedule 97, only if it contravenes by a legislation relating to trade & commerce within the Province or production, supply & distribution of commodities. It is manifest; therefore, the Provincial Legislature's power to legislate on subjects, relating to any other entry is not, in the least, affected by Section 297. This has also been so held by their Lordships of the F. C. in the case of Bhola Prasad v. Emperor, A. I. R. (29) 1942 F. C. 17: (43 Cr. L. J. 481). It would be sufficient, in this connexion, to quote a passage from the judgment of Gwyer C. J. After quoting Schedule 97 (1) (a), his Lordship proceeds to say:

'It is plain beyond words, that this provision only refers to legislation with respect to entry No. 27 & entry No. 29 in the Provincial Legislative List: it has no application to legislation with respect to anything in entry No. 31. A Provincial Legislature if it desired to pass a law prohibiting export from or import into the Province must therefore seek for legislative authority to do so in entries other than entry No. 27 or entry No. 29. If it can point to legislative powers for the purpose derived from any other entry in the Provincial Legislative List, then its legislation cannot be challenged under Schedule 97 (1) (a),'

8. The impugned Act, it has been urged with some force by Mr. D. Sahu, is relatable to entries nos. 27 & 29, Provincial Legislative List, which entries deal with trade & commerce, & production, supply & distribution of commodities respectively-subjects referred to in Schedule 97 (1) (a). He takes us to the preamble of the impugned Act, which reads:

'Whereas it is expedient to provide for the continuance during a limited period of powers to control the production, processing supply, distribution, transport & prices of essential articles & of trade & commerce therein & for requisitioning of property;

It is hereby enacted as follows:'

& urges that the Act directly impinges upon the bounderies of Schedule 97 (i) (a). It is contended for the Province of Orissa that the Act is relatable to entry no. 20 of the Provincial Legislative List which refers to:

'Agriculture, including agricultural education & research protection against pests & prevention of plant diseases; improvement of stock & prevention of animal diseases; veterinary training & practice; pounds & prevention of cattle trepass.'

9. The question, that in this context, arises for consideration, is whether the scope of the Act is to be limited to what is stated in the preamble as contradistinguished from what is provided in the text. The key sections of the Act are 3 & 4. According to both of these sections, the Provincial Govt's power under the Act is to be exercised only when it appears to them to be necessary or expedient that certain measures should be taken only to maintain increase or secure supply, distribution & availability at fair prices or production of any essential article. Essentiality of the article should be determined according to the existing resource of such articles & their necessity for the life of the society. It would be denying the Provincial Legislature & the Provincial Govt. their bare existence, if by virtue of Schedule 97, Govt. of India Act, they are made powerless for, or in. other words, prohibited from, passing such legislation & taking such measures as will be thought expedient & necessary by them to prevent complete depletion of such commodities of the Province without which the members of society in the Province are bound to perish, To provide for the agriculture of the Province is a necessity which cannot be ignored without grave danger & risk to its existence. As at present situated, no agricultural operation can be carried on without proper supply of cattle. Accordingly, 'improvement of stock' is intimately & inextricably connected! with the Province's agriculture. Under the circumstances, the scope & purpose or pith &. substance of the Act are directly, if not solely referable to legislative powers, derivable front the entry no. 20 Provincial Legislative List ii. I have read the whole Act & I find absolutely no provisions therein of which the object can be held to come within the mischief of Section 297. The object of the section is to make inter-provincial trade & commerce free from discrimination by any of the Provinces' attempt to support its own trade & commerce or to avail of the opportunity of holding or producing certain commodities to the impoverishment & deprivation of neighbouring province & to encourage, as far as practicable, freedom of commercial intercourse between the Provinces. It would be pertinent here to advert to the construction put upon Schedule 2 of the Australian Commonwealth Constitution by their Lordships of the Judicial Committee. In spite of the terms of absolute prohibition in the section directed against, any barrier being put to the absolute freedom of inter state commerce, their Lordships observe:

'Thus the only question in this case appears to be whether the Minister did exercise his powers so as to restrict the absolute freedom of inter-state trade. It may be conceded that even if the Minister exercised them for a primary object which was not directed to trades or commerce but to such matters as defence against the enemy, prevention of famine, disease & the like, he would not be open to attack because incidentally interstate trade was affected.'

(In the case before them, their Lordships, however, came to a finding that the direct object of the exercise of powers was to interfere with inter-state trade & in that view held that the impugned section was ultra vires.)

10. In the instant case, however, it is not only not the direct object but even not ancillary nor collateral object of the impugned Act to interefere with inter provincial trade. The object of the Act was to regulate & control movement of commodities essential for the life of the society so as to allow their complete depletion. There is no word of prohibition of transport under all circumstances across the Provincial borders. Any such transport or trade was to be controlled for the purpose of its regulation so far as such regulation was needed for preserving the barest minimum of the essential goods for the bare existence of the society. Suppose under this Act, the Provincial authorities allowed free transport of livestock other than plough cattle & milch cows which were essential in view of the then economic condition of the society, greatly shaken by the devastating World War No. II, could it not be said that it was a measure not intended to prevent or prohibit inter-provincial trade or commerce, but meant to prevent famine in the Province by preserving plough cattle, so necessary for carrying on agricultural operations' (Entry No 20) the mainstay of the life of the society & to maintain health by preserving milch cows (Entry No. 14) of the Province. There objects could not be achieved except by way of regulating movement & transport of livestock through measures, such as, this Act provides. In my judgment, therefore, as the Act can be justified by reference to entries Nos. 14 & 20 of the Provincial Legislative List, it is not ultra vires.

11. Point (ii):-To appreciate Mr. D. Sahu'a submissions, it would be necessary to read cl. (3), Orissa Livestock (Control of Movement & Transactions) Order 1947. Its material portion reads:

'No person shall move or transport or attempt to transport, any livestock .... to any place outside it except under & in accordance with a permit .... issued In this behalf.'

The submission is that the offence is committed only when the Provincial boundaries are crossed & rot before that. To accede to this contention would amount to virtual abrogation of the law. This is not a case in which there was any dispute as to whereto the cattle were being moved or transported, it being admitted by the accused that they were taking them to the district of Burdwan. The movement & transport being contrary to law the offence must commence as soon after their purchase of the cattle as they begin to move them even a step. The act of movement or transport is to be accomplished between two termini, one is terminus a quo & the other is terminus ad quem. Any slightest movement from the former towards the latter amounts to movement of transport within the mischief of the clause. The argument can prevail if the accused persons did nothing beyond purchase of the cattle for the purpose of moving or transporting. The dividing line between preparation & attempt is real though fins. So long as the offender is at the stage of preparation, he is not held punishable as it is still open to him to change his mind. The test, therefore, is whether the overt acts, already done, are such that if the offender changes his mind & does not proceed further in its progress, the act already done would be completely harmless. But where the thing done is such as, if not prevented by any extranous cause, would justify into commission of the offence, it would amount to an attempt to commit an offence. In the present case, cl. (3) makes an attempt to move or transport without a permit as good an offence as the completed acts of movement or transport from inside the Province to a place outside. As I have said the least movement from one terminus towards the other must constitute an attempt & will be punishable under Schedule 0 of the Act. This contention must fail.

12. Point (iii):-As to misjoinder of charges: & parties, this ought not to detain us for any length of time. The fast that all the resps. came together to purchase cattle, though the purchasewas made in the name of either one or the other of them & were going back together driving the entire flock collected by them & admittedly one of them had gone ahead to arrange for a waggon for transport, makes it quite plain that they were acting in concert & the attempts to move or transport were part & parcel of one continuous transaction with which each one of the resps. was connected & in which one was helping the other. It cannot, therefore, be ruled that there was any such deficiency in trial as misjoinder of charges & or of persons.

13. Point 4:-The fourth and the last point, is fraught with difficulties. The facts relevant to elucidation of this branch of contention, are admitted beyond any controversy & they are set out herein below :

14. That, with the lapse of Defence of India Act, the various orders, passed by the Provincial Govts. controlling the movement & transport of livestecks, made as they had been under the Defence of India Rules; deriving their force from the Defence of India Act, automatically exhausted themselves. The Govt. of Orissa, however, considered that it was expedient in the interest of the life of the community in Orissa that power to control movement & transport & of certain essential articles & trade & commerce therein & requisitioning thereof should continue for a limited period. Propelled by this decision, the Legislature of Orissa passed Act I [1] of 1947, which received the assent of the Governor-General on 28-2-1917, & was published in the Orissa Gazette on 12 3-1947. In pursuance of this Act, livestock, including poultry, constituted, inter alia essential commodities for the purposes of the Act. According to the provisions) of Sections 3 & 4, the Provincial Govt. were empowered to make & notify necessary orders for regulating of prohibiting production, processing, supply, distribution, transport & prices of essential articles & trade & commerce therein. The powers, thus conferred, without any prejudice to the generality, were specified in Sub-section (2) of the section. In fulfillment of this power in order to meet the exigencies of the circumstances flowing from the then condition of the community at large in the Province of Orissa, the relevant order was made which was notified on 23-4 1947. This order was mainly, if not solely, concerned with providing a machinery for grant of licenses or permits as condition precedent to movements & transports of & trade & commerce in essential commodities. In cl. (3) of this order, it was prescribed :

'No person shall move or transport or attempt to move or transport any livestock ... from any place in the Province .... to any place outside it except under & in accordance with permit issued by ... .'

15. The offence, which is the subject of this trial, is contravention of this clause which is made punishable Under Section 10 of the Act. I have already said that the order containing the clause was notified on 23-4-1947. It appears from the documents, printed at pp. 10 & 11 of the Paper Book that K.P.W. Marar, Esq., Joint Secretary to the Govt. of India, addressed to all Provincial Govts. on 19-3-1947 (a few days after the publication of the concerned Act of Orissa) in the following terms:

'Sir, I am directed to say that with the lapse of the Defence of India Act, various orders passed by the Provincial Govts. controlling the movement of livestock cease to be operative. Their orders were not, however, formally withdrawn & instances have come to the notice of the Govt. of India where the public are still under the impression that the movement of livestock is not free. The Provincial Govts. are no doubt aware that under Schedule 97, Govt. of India Act, no order can be passed by them affecting inter-provincial movement of cattle & any restrictions either by order or by executive action will be ultra vires. I am, therefore, to request you to remove any wrong impression that might exist & issue a formal notice intimating that these respective orders are no longer in force. The Rly. Board is also being requested to inform all Rly. Administrations that lapsed orders of the Govt. of India should be ignored & free movement of livestock permitted. I have etc.'

Following this letter the Director of Agriculture, Bengal wrote a Memo No. 7464 dated 18-4-47 to the Deputy Director of Agriculture, Burdwan Circle informing:

'Now-a-days there is no restriction on the inter-provincial movement of cattle. A copy of the Govt. of India, letter issued in this connexion is enclosed herewith.'

16. The Deputy Director in his turn forwarded a copy together with the enclosure (Govt. of India's letter) to one Rai Hari Kali Pan Bahadur. It appears that in course of investigation, the resps. produced this letter before the investigating Sub-Inspector (P. W. 1), who deposed:

'The accused all belonged to Bengal, During enquiry they produced a letter from the Director of Agriculture, Bengal to the Deputy Director of Agriculture, Burdwan Circle (Memo No. 7464 dated 18-4-47) regarding import of cattle from Orissa. The letter is marked Ex. 2. This letter contained as an enclosure a copy of a letter purported to ,have been issued from the Joint Secretary to the Govt. of India to all Provincial Govts. stating that all orders affecting Inter-provincial movement of cattle passed by the Provincial Govts. will be ultra vires.'

It may be noted that the enquiry, referred to, took place on 2-6-1947. Prom such receipts, printed at pp. 11 to 15, as are relevant to the present case, the resps. commenced purchasing bullocks, in question, from the second week of may & completed the same on 1st of June. They started moving on the 2nd of June & were arrested on that day.

17. On these facts, it is contended by Mr. Sahu, that the actions of the accused were fully justified as they, in good faith & reasonably, believed that they were entitled to move or transport cattle from Orissa to a place beyond its borders & to trade or commerce in livestock inter provincially. The facts, proved, do not sufficiently make out the defence plea with reference to the material time of commission of the offence. The commission of the offence must, in this case, be held to have commenced from the date of the purchase, that is, from the second week of may though the actual movement or transport, as the case may be, commenced on 2nd of June. This is so in view of Section 11 of the Act, which says:

'Any person......does any act preparatory to a contravention of an order made under the provisions of this Act, shall be deemed to have contravened the order......'

18. The learned Advooate-General in counter argumenting the contention of Mr. Sahu, says that the principles underlying the 'general exceptions' in chap, iv, I. P. C., are not applicable to a special or local Jaw offence as the present one. This contention cannot be entertained in view of Section 40 of the Code, wherein it is provided:

'In Chap. IV......word 'offence' denotes a thing punishable...... under any special or local law as hereinafter defined.'

'Special law' is defined in Schedule 1 & 'Local laws' in Schedule 2. These definitions will, by all means, cover the relevant laws with which we are concerned in this case.

19. The contention of Mr. Sahu, therefore, deserves consideration in view of the provisions, contained in Chap. IV, I. P. C. under the head 'General Exceptions.' The section, on which Mr. Sahu lays his finger in support of his contention, is 79, which reads:

'Nothing is an offence which is done by any person 'who is justified by law, or who by reason of a mistake sot fact & and not by reason of a mistake of law in good faith, believes himself to be justified by law, in doing it.'

20. The next question, that then arises, is whether the resp's case comes within the purview of aforesaid section, that is, whether they, fey reason of mistake of fact & not by reason of mistake of law, in good faith, believed themselves to be justified by law, in moving or transporting the 21 heads of bullocks from in. side Orissa to a place outside, True, that, but for the Act restricting such movement, they would be justified by law to move them, But the question, that falls to be considered, is whether the mistake, which led them to believe in their justification, was a mistake of fact & not a mistake of law. I shall deal with the question of their 'good faith' presently. (Before doing so I shall assume 'good-faith' in their favour). It is contended, on behalf of the Province, that it was a mistake of law rather than a mistake of fact, Mistake of law ordinarily means mistake as to existence or otherwise of any law on a relevant subject as well as mistake as to what the law is. The difficulty, involved in this case, arises out of a discordant note, struck by the Govt of India, as to the competence of a Provincial Legislature or a Provincial Govt. either to legislate or to take any executive action having the purport as well as the effect of prohibiting inter-provincial movement & transport of commercial goods, including livestock. In holding a citizen guilty of any offence, the existence of manse rea in him is fundamental. It is only when the mind is at fault, that a man can be held guilty of an offence. It is fundamental, too, that whenever & wherever there is a mistake of fact on which is founded a belief in good faith of justification by law of an act, the requisite state of mind that would make the author of the act; guilty is absent. Considered in this aspect, there is hardly any differencs between mistake of fact & mistake of law, but it has been the policy of criminal jurisprudence of civilised countries that every individual shall be presumed to know the law & shall be debarred from pleading ignorance of law as an excuse. If the accused's plea in this case amounted to plea of ignorance of the relevant Act & the relevant order, it must have been summarily ruled out as not sustainable in law; but the plea, before us, is that the mental state of the presumed knowledge of law of the alleged offenders is neutralised by what can be called a knowledge, imparted by an authoritative governmental source to the effect that any law, prohibiting such movement or' transport or any executive action taken in that behalf by provincial authorities either legislative or otherwise, is beyond their competence. The real controversy reduces itself to this whether the latter knowledge derived from the source, as it is, produces or If ads to 'mistake of fact or mistake of law' within the meaning of Schedule 9 of the Code. If the latter, the contention, however much it may evoke sympathy in us for the accused, must fail.

21. Mr. Sahu's contention is that the knowledge, imparted by the Government of India, is substantially to the effect that there is no law prohibiting the movement or the transport, in question. As such, it is contended, it is a question of fact. This contention leads one to think of an apt analogy. Suppose, for instance, the Official Gazette of Orissa published a list of temporary Acts, that have either exhausted or been repealed, & in the list, Orissa Act I [1] of 1917 & the order, published there under, are included ; later, however, this mistake was rectified in subsequent Gazette. A question arises whether any offence in contravention of the Act can be said to have been committed during this interval. The only answer, that is admissible, is that no such offence can be said to have been committed. Pushing the analogy to its logical conclusion in its application to the present case, it can, as well, be said, in favour of the accused, that they were given to understand that any law prohibiting movement or transport of livestock from Orissa to outside had lapsed & they had no reason either to disbelieve or to discredit the source, from which it came nor had they any reason to doubt its authority. Under the circumstances, can it be said that the mental state, under which one is capable of committing an offence, was in existence in the accused. I am fully alive to the counter contention that the responsibility of the accused in such a case, is to ascertain the validity of the provincial law & is not to be led away by an official letter which cannot occupy the place of law. But I, on my part, should not fall in line with this contention, particularly as the nature of the act, impugned, is not in itself either wrongful or unlawful. On the contrary, it is a lawful act until it is made unlawful. There are circumstances which make out ca3es of exception to the general rule that ignorance is no excuse. If I can understand any reason behind this exception it is this that there may arise circumstances neutralising the presumption of knowledge of law in every individual. I shall here quote a passage from the judgment of Baggally L. J., (in a case of which the facts are somewhat dissimilar) in the case of Burns v. Nowell, (1880) 5 Q. B. D. 444 at. p. 454 (49 L. J Q B. 468) :

'Before a continuous act or proceeding, not originally unlawful, can be treated as unlawful by reason of the passing of an Act of Parliament by which it is in terms made so, reasonable time must be allowed for its discontinuance; & though ignorance of the law may, of itself, be no excuse for the master of a vessel who may act in contravention of it, such ignorance may nevertheless be taken into account when it becomes necessary to consider the circumstances under which the act or proceeding alleged to be unlawful was continued, & when & how it was discontinued, with a view to determine whether a reasonable time had elapsed without its being discontinued.'

22. I shall not be understood to use this decision, in view of the quoted passage occurring therein, as an apt precedent, but, merely, as showing that in view of particular circumstances of a case, an exception, to the universally recognised rule that ignorance of law is no excuse, may come into being. Next, I shall advert to a passage in Mayne's Law of India at pp. 136-137 which, I think, is more pertinent to the question, that, at the moment, has engaged my attention :

'Suppose, for instance, that an Act of Parliament was passed in England, applicable to India, which came into operation as soon as the royal assent was given, & that an offence against it was committed in India a week after it came into operation, before the Act could have arrived, or been promulgated in India; I do not think It could be contended that the law was In force in India at the time the act was committed.'

23. It is, however, settled that an error on mixed question of law & fact is treated as a [mistake of fact. In this connexion, I shall quote the remarks of Bishop in his commentary on Criminal Law. Article 878 :

'...... So, in criminal jurisprudence, the guilt or the innocence of the prisoner depends on the fact .... that he honestly believed it through his misapprehension of law.'

In England, the view has unanimously been taken that if the accused is misled into the error of fact on account of an error of law, his mistake shall be treated as a mistake of fact rather than of law. (Vide R. v. Reed, Car. & M. 306 : (174 E. R. 519); R. v. Hall, 3C. & p. 409). This sort of conclusion to my mind appears to be more a matter of policy of criminal jurisprudence father than of strict logical deduction.

24. For the purpose of elucidation, I shall quote the five invaluable rules, laid down by 15 Judges, in the case of R. v. Prince, (1683) 2 Ch. C. 154, which has been the guiding star in England & elsewhere whenever the question of justification of an offence either due to mistake of fact or mistake of law has arisen :

'(i) That when an act is in itself plainly criminal, Is 1b more severely punishable if certain circumstances co-exist, ignorance of the existence of such circumstances is no answer to a charge for the aggravated offence.

(ii) That where an not is prima facie innocent & proper, unless certain circumstances co-exist, then ignorance of such circumstances is an answer to the charge.

(iii) That the state of the deft's mind must amount to absolute ignorance of the existence of the circumstance which alters the character of the act, or to a belief in its non-existence.

(iv) Where an act which is in itself wrong i.e., under certain circumstances, criminal, a person who does the wrong act cannot set up as a defence that he wag ignorant of the facts which turned the wrong into a crime.

(v) Where a statute makes it penal to do an act under certain circumstances, It ix a question upon the wording & object of the particular statute, whether the responsibility of ascertaining that the circumstances exist is thrown upon the person who does the act or not. In the former case his knowledge is immaterial.'

25. The present act of movement & transport of livestock from one Province to another comes within R. (ii) above being an act which is prima facie innocent. It is made penal on account, of certain circumstances co-existing, namely, the prohibitory orders & laws passed by a Province. Of course, I shall not be taken to be confusing: questions of fact with questions of law, as in this rule, no doubt, 'the circumstances' referred to are in relation to 'circumstances' relating to facts; but such circumstances will not be different in, character in cases of circumstances of mixed question of law & fact. Rule (ii) above must attract the application of B. (iii). Applying R. (iii) in the present case, it may be argued with force, that the fact of some public officers of Bengal canvassing the validity of Provincial laws on the subject with the Govt. of India presupposes the fact of the Provincial law & that their authorisation of the accused persons to come & transport cattle from this Province amounts to flying in, the face of the Provincial law. The argument,, standing by itself, will, no doubt, commend itself very strongly to me to the prejudice of the accused; but keeping the gist of the law of general exception in mind, the bare possibility of the accused's innocence cannot be completely ruled out. In view of their misconception of law, they fell victim to a mistake of fact that the Provincial laws on the subject had lapsed. Lapsing of a particular statutory law & order must always be a question of fact.

26. Under the circumstances of the present case, however, the accused persons cannot be held 'not guilty'. The burden was on them to satisfy that the conditions that could exonerate them, existed at the time, when the offence was committed. The only evidence, that is before us, is that on 2nd of June, they were in possession of the letter of the Govt. of India. There is hardly any reason to believe that the mental state of absolute ignorance, advocated in R. (iii) above, existed at the material time, namely, at the time of the purchase, which itself constitutes & completes the offence as stated above.

27. In this view of the matter, however, the appellate order of acquittal must be set aside & the resps. must be convicted of the offence charged against them, In consideration of the circumstances, set out above, the punishment to be inflicted must be of a nominal character, that is, each of them is sentenced to pay a fine of Re. 1 & in default to undergo R. I. of one week each.

28. Mr. D. Sahu contended that the order of conviction need not attract any sentence what ever. In this connexion, he relied upon the case of Sitaram v. Emperor, A. I. R. (15) 1928 Nag, 188 : (29 Cr. L J. 506), With great respect, I do not agree with the view taken by the learned Judge, Hallifax, A. J. C., in that ease. To my mind, it is imperative that every conviction of an offeree shall be followed by the prescribed punishment while, in case no minimum is prescribed, to reduce it to something nominal is completely within the discretion of the Ct. In the ends of justice, we shall also direct that the order of forfeiture of the cattle, seized, to the Govt. of Orissa, should be set aside & the sale proceeds, in deposit, must be made over to the resp3.

29. The appeal is, therefore, allowed.

Narsimham, J.

30. I agree with my Lord the Chief Justice.

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