1. The petnrs. have been convicted under Schedule 0 (l) of the Orissa Essential Articles Control and Requisitioning (Temporary Powers) Act, 1947, & sentenced to pay a fine Rs. 25 each, in default to suffer R. I. for 6 weeks' each. The prosecution case is that on the night of 16-5-49, the petnrs. were carrying loads of Kendu leaves from Bolangir district into Sambalpur district within the limits of Agalpur police outpost under Leisinga P. S. without a permit authorising them to move Kendu leave from one unit to another or from one district to another. This is said to be an offence against R. VII (l) of the Orissa Kendu Leaves (Control & Distribution) Order, 1949. This Order was made by the Govt. of Orissa in exercise of the powers conferred by Sub-section (l) of Schedule , Orissa Essential Articles Control & Requisitioning (Temporary Powers) Act, 1947. Para, vii of the said order runs as follows:
'VII-(l) No person shall move or transport or attempt to move or transport Kendu leaves by rail, road, water or in any other manner from any place in the unit to any place outside the unit within the province except under & in accordance with a permit issued in the behalf by the authority specified hereunder:
(a) outside the unit within the district-Divisional Forest Officer of the Unit.
(b) Outside the district -Dist. Mag. of the district.
(2) The authority specified above may at any time in his discretion cancel a permit granted by him under sub cl. (1) of this clause.'
2. In the facts of this case, it appears that it is not known from where the kendu leaves were being moved or transported or attempted to be moved or transported. The learned trying Mag. observes:
'In this case it is not known from where the accused persons were carrying the keudu leaves. They were stopped just at the point of crossing the boundary of this district into the limits of Sambalpur district.'
It is admitted that the petnrs were moving in a route passing through Bolangir to their destination in Sambalpur; but as already observed by the learned Mag. it has not been established from what place they started. Whether they started from a place inside the unit of Sambalpur or from a place inside the unit of Bolangir is a matter of doubt. The prosecution has adduced no evidence either direct or circumstantial to establish that they were moving kendu leaves or transporting them from a place in the district of Bolangir. The petnrs. belong to the place of Jamutbahal & they were going to Tahilamal. Both these places are within the unit of Sambalpur district. They were arrested at the place Gudimunda which is in the district of Bolangir. The learned trial Mag. says that the fact that they were proceeding at night while the distance of the route that they had to pass over is only five miles is proof presumptive that they must be committing an offence. From that he jumps to the conclusion that the place from where they were bringing the kendu leaves must be one within the unit of Bolangir. I cannot understand his judgment to mean anything other than this. He does not mean to say that even if they brought kendu leaves from a place in Sambalpur district, they shall be held liable for the offence, defined in paragraph VII, simply because they were passing through a route which lies in another unit. The learned Advocate-General', who opposes this petn. on behalf of the State, urges that it was for the defence to establish, in view of the fact that they were caught in a place within the district of Bolangir while their destination was at a place in the district of Sambalpur that they were bringing the kendu leaves either from their native village or from any other place within the unit of Sambalpur within which lies the admitted destination of their movement. This argument, when properly analysed, tantamounts to say that whenever any person is found at a place in course of his journey, he must be in the absence of anything else, presumed to start from that place. As this assumption or the supposition is involved in this contention with which I do not agree, I will reject this contention as completely without any substance. He has again invited my attention to para. III of the Order. This para. 3 is of a comprehensive character. According to this no person other than a licensee shall engage in anyundertaking which involves the collection, purchase, sale or storage of kendu leaves for sale, provided that the owner of a private tree or forest may collect himself or through pluckers & store his own kendu leaves but he shall not sell them to anybody except to a licensee. After referring, to this para, it is contended that the owner of a, private tree is by necessary implication prevented. from transporting. The submission is that assuming that the petnrs. were the owners of the kendu trees & the head-loads of kendu leaves which they were carrying were their own, yet they were committing an offence by transporting. This argument is not at all relevant, firstly for the reason that the petnrs. have not been convicted far less charged for an offence against this para. & secondly, that had they been authorised to pluck & store, the authority for transport must be assumed to have been granted. Otherwise, every owner of kendu trees will be required to have a storage house at the roofs of the trees. This submission, therefore, is without any substance.
3. The fundamental principle of criminal law is that apart from such presumptions of facts as arise Under Section 114, Evidence Act, all other facts have to be established by the prosecution in order to bring the charge home to the accused. The essence of the offence in this case is carrying from one place in one unit to another place in another unit Suppose, stations, A & B are within the same unit. Under the para, it is not an offence to carry kendu leaves from A to B as both the places are within one unit. It would be reading some thing into the para, to held that if the route from A to B lies within a different unit, the man transporting shall be held to be guilty of an offence in the same manner as if he takes it from a place in one unit to a place in another unit. I do not think this is the meaning of the para, VII of the Order. I would, therefore, bold that the prosecution has failed to bring the charge home to the accused petnrs. The order of convictions & sentences is, therefore, quashed. They are acquitted, of the charges & fines, if paid, must be refunded.