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Jethalal Nanalal Vs. State of Gujarat - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Case NumberCriminal Appeal No. 623 of 1965
Judge
Reported inAIR1968Guj163; 1968CriLJ1065
ActsEssential Commodities Act, 1955 - Sections 3, 7 and 14; Iron and Steel (Control) Order, 1956; Evidence Act, 1872, - Sections 101 to 104, 106; Code of Civil Procedure (CPC), 1908
AppellantJethalal Nanalal
RespondentState of Gujarat
Appellant Advocate D.K. Shah, Adv.
Respondent Advocate K.M. Chhaya, Asstt. Govt. Pleader
Cases ReferredShriniwas Pannalal v. State of M. P.
Excerpt:
criminal - burden of proof - sections 3, 7 and 14 of essential commodities act, 1955, rule 4 of iron and steel (control) order, 1956, sections 101 to 104 and 106 of indian evidence act, 1872 and code of civil procedure, 1908 - whether in order to prove contravention of rule 4 it is necessary for prosecution to prove acquisition from one of three sources specified in rule 4 having regard to statutory provisions - offence contemplated was acquisition of iron and steel from three sources - according to section 14 burden of proving prohibited act of acquiring and acquiring from any of three specified sources remains on prosecution - section 106 not applicable - held, in order to prove contravention of rule 4 it is necessary for prosecution to prove acquisition by accused was from one of three.....vakil, j.1.this reference has come to us under the following facts:-(2) criminal appeal no. 623 of 1965 came up for hearing before mr. justice m. u. shah. the appellant of the said appeal was convicted under section 7(1)(a)(ii) of the essential commodities act, 1955 (hereafter referred to as 'the act') by the city magistrate, 7th court, ahmedabad for contravention of clause 4 of the iron and steel (control) order, 1956 (hereafter referred to as 'the order') for having acquired 211 new corrugated iron sheets and was sentenced to suffer rigorous imprisonment for four months and pay a fine of rs. 2,000, in default to suffer further rigorous imprisonment for three months. on behalf of the appellant, the conviction was challenged in appeal on the ground that unless the prosecution proves that.....
Judgment:

Vakil, J.

1.This reference has come to us under the following facts:-

(2) Criminal Appeal No. 623 of 1965 came up for hearing before Mr. Justice M. U. Shah. The appellant of the said appeal was convicted under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 (hereafter referred to as 'the Act') by the City Magistrate, 7th Court, Ahmedabad for contravention of clause 4 of the Iron and Steel (Control) Order, 1956 (hereafter referred to as 'the Order') for having acquired 211 new corrugated iron sheets and was sentenced to suffer rigorous imprisonment for four months and pay a fine of Rs. 2,000, in default to suffer further rigorous imprisonment for three months. On behalf of the appellant, the conviction was challenged in appeal on the ground that unless the prosecution proves that the appellant-accused had acquired the iron sheets from a producer, ac stock holder or a person holding stocks of iron and steel, presumption under Section 14 of the Act cannot be attracted. Differently stated, the argument was that the burden thrown on the accused to prove certain matters under Section 14 does not arise until the prosecution proves that the accused had acquired iron or steel and further that he had so acquired from any of three specified sources mentioned in clause 4 namely a producer a stock holder or a person holding stocks of iron and Steel. The further argument was that in the instant case, the prosecution had failed to prove that the 211 new corrugated iron sheets were acquired by the accused from any of the three sources and therefore the question of discharge into the burden thrown on the accused under Section 14 of the Act namely to prove that the had the authority to acquire under the necessary permit, licence, or other document or the authority to acquire under any general or special Order of the Controller, did not arise and the prosecution must fail. According to the and prosecution must fail. According to the learned Judge, the question whether the accused had acquired the iron sheets from any of the three sources namely a producer, a stock steel is a fact specially within the knowledge of the accused and this will attract the provision of Section 106 of the Indian Evidence Act. Therefore, in his view the burden of proving that special fact namely the Act of acquiring the new iron sheets from any one of these three stated sources will be on the accused. Thus, in the opinion of the learned Judge the only initial burden that is on the prosecution is to prove that the iron or steel is acquired by the accused and the prosecution is not under the obligation to also prove that the iron or steel was acquired from any of those specified sources and the burden then shifts on the accused to prove the facts stated above. During the course of the argument on behalf of the appellant, reliance was placed on a decision of this Court in Criminal Appln. No. 622 of 1965 given on 5th February 1967 (Guj) by Mr. Justice N. G. Shlat wherein the learned Judge had held that in order to attract the presumption under Section 14 of the Act, it must first be proved by the prosecution that the impugned Act of the accused is the Act of acquiring iron or steel from a producer, a stock holder or a person holding stocks of iron and steel. In the opinion of M. U. Shah J., the view held by shelat J. Did not take into consideration the provisions of Section 106 of the Indian Evidence Act which lays down that 'when any fact in especially within the knowledge of any person especially within the knowledge of any person, the burden of proving that fact is upon him'. In the opinion of the learned Judge, that fact in the present case is the Act of acquisition from one of the three sources in clause 4. The learned Judge has observed:

'The result otherwise would be that a person who has acquired the controlled articles will circumvent the provisions of law by merely stating that he does no know from what source he acquired the articles. It may not be possible to prove the source of acquisition in a large majority of cases. This cannot be the legislative intent in enacting Rule 4 of the Order. For the reasons stated I find it difficult to agree with the ration of the decision given by Shelat J. The question is of public importance and requires consideration by a larger Bench'.

The question referred to us is framed as follows:-

'Whether in order to prove the contravention of Rule 4 of the Iron and Steel (Control) Order, 1956, it is necessary for the prosecution from one of the three sources specified in Rule 4 of the Order, having regard to the provisions of Section 106 of the Indian Evidence Act, 1872, and the scheme and relevant sections of the Essential Commodities Act, 1955, and of the Rules of the Iron and Steel (Control) Order, 1956?'

Before we proceed to answer the question referred to us, it will be necessary to refer to the relevant provisions of law bearing on the subject. Section 3 of the Essential Commodities Act, 1955 provides for vesting of powers in the Central Government to control production, supply, distribution etc. Of essential commodities by orders. Section 7 of the said Act provides for heavy penalties for contravention of any Order made under Section 3, of imprisonment, fine and confiscation of commodities.

(3) In exercise of the powers vested in the Central Government under Section 3 of the Act, The iron and Steel (Control) Order, 1956 and came into effect from the 6th May 1956 and came into effect from the 8th of May 1956. Clause 4 of the said order as it stood before it was amended in 1959 was as follows:-

'4. Acquisition. - No person shall acquire or agree to acquire any iron or steel from a producer or a stockholder except under the authority of and in accordance with there conditions contained in a quota certificate or permit issued by the Controller or under the authority of and in accordance with the conditions contained or incorporated in a general or special written order of the Controller.'

Clause 2(g) defines 'Producer'. 'Producer' means a person carrying on the business of manufacturing iron or steel. The definition of 'Stockholder' as given in clause 2 (1) is' 'Stockholder' means a person holding stocks of iron and steel for sale who is registered as a stockholder by the Controller under such terms and conditions as he may prescribe from time to time. Clause 2(c) defines 'Controller'. ' Controller' means the person appointed as Iron and Steel Controller by the Central Government and includes any person exercising, upon authorisation by the Central Government all, or any of the power of the iron and Steel Controller; authority to make general or special Orders in respect of essential commodities and by virtue of this authority, the Controller made a general India on the 18th of May 1956. The relevant part of the Notification is as under:-

'Notification:- In pursuance of the provisions of clauses 4 and 5 of the Iron and Steel (Control) Order, 1956. And in suppression of all previous notifications on the subject, I hereby authorise that, subject to the general conditions set out below:-

(I) any person may acquire, without permit, the articles specified in item (a) of the following entries from the persons specified in item (b) of the said entries from the stocks mentioned in item(c):-

(11) the persons specified at item (b) of the following entries may dispose of, without permit, the articles specified in item (a) of the said entries from the stocks mentioned in item(c):-

xxx xxxx

2. Black sheets (Plain), Galvanised Sheets (Plain), Galvanised Sheets (corrugated) and plates - any quantity:

(b) nay stockholder other than a registered Producer or a Controlled Stock holder;

(c) from stocks held for a period exceeding 90 days, or for lesser period if the State Licensing Authority so orders, from the date of receipt by the State Steel Licensing, Authority of first intimation of such stocks, but which remain either (a) uncovered by permits or (b) covered by issue of permits, but for which no financial arrangements have been made by the allotted within the period of validity of the permits issued'.

The effect is that any person could acquire from a 'Stockholder' without permit and the 'stockholder' could sell to any person without permit or written authority of Iron and Steel Controller from a particular stock indicated in the Order. Under this provision, therefore, any individual including another stockholder or a merchant a stockholder, can acquire and posses corrugation the said notification without permit, licence or any other authority.

(4) Before 1950 even under clause 4 itself, the acquisition was prohibited from two sources only, namely a 'Producer' or a 'stockholder' and not from any other source. We have pointed out that expression 'producer' and 'stockholder' have a technical meaning given under the definition. Therefore, under clause 4, acquisition from other persons holding any stock of iron and steel who would not fail within the ambit of the terms 'producer' and 'stockholder' was not prohibited. It is obvious that the Iron and Steel (control) Order does not provision business of iron and steel. It only contemplates exercise of controls. Now apart from producers and stockholders, there were other merchants doing the business in Iron and Steel. There were thus sources available for acquiring iron and steel without permit or from these merchants and other person who situation left a lot of leakage in the adequate control of iron and steel and therefore in 1959 by an amendment in clause 4. The three category namely 'a person holding stock' was added and clause 4, since 1959 reads as follows:-

'4. Acquisition - No person shall acquire or agree to acquire any iron or steel from a producer, a stockholder or a person holding stocks of iron and steel except under the authority of and in accordance with the conditions contained in a quota certificate or permit issued by the controller of under the authority of by the Controller or under the authority of and in accordance with the conditions contained or incorporated in a general or special written order of the Controller'.

Now it is of some importance to determine what exactly this expression ' a person holding stocks' meant. Was it enacted to have the meaning that any person who had corrugated from sheets or other kind of iron and steel even for his personal use would fall within the ambit of this expression or was it enacted to cover only merchants holding stock of iron and steel for the purpose of carrying on the business of iron and steel. Mr. Chhaya the learned Assistant Government Pleader urged that the expression was wide enough to include possession of even a few sheets by an individual for personal use. In short be submitted that this expression was enacted to include every person whether he may be a merchant carrying on business of iron and steel or not and who held iron and steel for any purpose. We are unable to accept this submission. This controversy has important and which we shall indicate a little later. But at this stage we proceed to point out that Mr. Chhaya's contention is without any merit. This becomes apparent if we turn to Clauses 7, 10, 12 and 14 of the Order as they stood even before the above amendment in Clause 4 was introduced.

(5) Before the amendment of Clause 4 as stated above, acquisition was prohibited from 'producers' and 'stockholders' and registered producers' as defined by Clause 2(b) and clause 2(h) respectively; other merchants dealing iron and steel were not covered. But by the above stated clauses, some sort of a control was sought to be exercised even over them.

(6) The proviso to Clause 7 lays down that the Controller could require by written Order any person holding stock of iron or steel either to release by way of loan or sale, the whole or any part of the stock to such person or class of persons on such terms and conditions as may be specified in the Order. Clause 10 provides that the Controller may, by written Order, require any person holding stock or iron and steel acquired by him otherwise than in accordance with the provisions of Clause 4 to sell the whole or any part of the stock, to such person or class of persons and on such terms and conditions as may be specified in the Order, Clause 12(1) lays down that every producer or stockholder or person holding stocks of iron or steel and every person employed in connection with the business or a producer or stock-holder or person holding stocks of iron or steel and every person employed in connection with the business of a producer or stock-holder or person holding stock of iron and steel shall on being requested so to do either by notice served on him or special or general direction issued by the Controller; (a).... (b) .... The relevant part of clause 14 is as follows :-

'14 (1) The controller may by order in writing direct any stockholder or other person holding stock of iron or steel' to maintain a list of the godowns and 'stockyards' with the boundaries thereof, where iron or steel belonging to him is stocked, and to exhibit 'such list on his business premises'. The controller may in any such order give directions as to the manner in such which the order is to be carried out.

(2) The Controller may, by notification in the official Gazette, direct that every producer 'stockholder' or 'other person holding' stocks of iron or steel 'when selling any iron or steel' shall give to the memorandum containing the particulars specified in such notification.

(3) No producer, stockholder or other person holding stock of iron and steel', shall without sufficient cause, refuse to sell any iron or steel' which he is authorised to sell under this part. xx xx xx'

We have underlined (here in single ') the words and expressions in the above provisions in order to draw specific attention to these parts of the provisions. All these provisions leave no manner of doubt that the expression 'any person holding stock' was used and understood to have a restricted meaning namely persons who hold stock of iron or steel for the purpose of doing business and it did not contemplate taking into its sweep any individual who held any quantity of iron or steel for purposes other than of doing business. So when this expression was added in Clause 4, it carried with it the same restricted meaning and cannot be construed to have a wider connotation. This construction which we are putting on this added portion of Clause 4 receives support from the fact that the authorities also found it necessary to amend this clause again in 1965 as we shall presently point out, to make Clause 4 all pervading as the expression 'any person holding stock of iron and steel' did not prevent acquisition of iron and steel from any person who was holding iron and steel and was neither a producer, a stockholder or a person holding stocks of iron and steel. It was found that this was a source of vast leakages and for black marketing. Therefore, on 9th October, 1965, Clause 4 of the Order was again amended by deleting the words 'a person holding stocks of iron and steel' and substituting the words: 'any person in possession of iron or steel'. The effect of this last amendment in Clause 4 is that no person can thereafter acquire iron and steel from any person whatever who held iron or steel whether for business or any other purpose. By this amendment therefore, a total prohibition against acquisition of iron and steel from any source whatever except under a lawful authority, permit, licnece etc., has been enacted. We are concerned with a case however of the period before the last amendment was effected. We have discussed all this only to point out that before the 9th of October 1965 when the last amendment was effected, it was possible for a person to acquire iron and steel without committing a breach of Clause 4 from a person who cannot be said to be 'holding stocks of iron and steel'. Clause 4 did not put a total prohibition till then on acquisition of iron and steel from all sources. There still remained a category of a source from which iron and steel could be acquired without permit or licence and without committing breach of Clause 4.

(7) When a person is prosecuted for an alleged offence for breach of Clause 4 as it stood before its amendment in 1965, the necessary ingredients of the alleged offence, in our view, are there:--

(i) The doing of the Act of acquiring iron and steel:

(ii) from either a producer, stockholder or a person holding stock of iron and steel ;

(iii) without the authority of or in breach of the conditions contained in a quota certificate or permit or without the authority of or in breach of any condition contained in a general or special written Order issued by the Controller.

If either of the three ingredients is not proved, the offence would not be established. Under the fundamental principles of criminal jurisprudence the general burden of proving all the ingredients of the offence alleged is on the prosecution; but the legislature in certain cases may cast a special burden on the accused as was pointed out by Gajendragadkar J., as he then was, in the decision of Dahyabhai Chhaganbhai v. State of Gujarat, : 1964CriLJ472 as follows:--

'It is fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution, therefore, in a case of homicide shall prove beyond reasonable doubt that the accused caused death with the requisite intention described in Section 299 of the Indian Penal Code. This general burden never shifts and it always rests on the prosecution. But, Section 84 of the Indian Penal Code provides that nothing is an offence if the accused at the time of doing that act, by reason of unsoundness of mind was incapable of knowing the nature of his act or what he was doing was either wrong or contrary to law. This being an exception, under Section 105 of the Evidence Act the burden of proving the existence of circumstances bringing the case within the said exception lies on the accused, and the Court shall presume the absence of such circumstances. Under Section 105 of the Evidence Act, read with the definition of 'shall presume' in Section 4 thereof, the Court shall regard the absence of such circumstances as proved unless, after considering the matters before it, it believes that the said circumstances existed or their existence was so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that they did exist. To put it in other words, the accused will have to rebut the presumption that such circumstances did not exist, by placing material before the Court sufficient to make it consider the existence of the said circumstances so probable that a prudent man would act upon them. The accused has to satisfy the standard of a 'prudent man'. If the material placed before the Court, such as, oral and documentary evidence, presumptions, admissions or even the prosecution evidence, satisfied the test of 'prudent man' the accused the accused will have discharged his burden. The evidence so placed may not be sufficient to discharge the burden under Section 105 of the Evidence Act, but it may raise a reasonable doubt in the mind of a Judge as regards one or other of the necessary ingredients of the offence itself. It may, for instance, raise a reasonable doubt in the mind of the Judge whether the accused had the requisite intention laid down in Section 299 of the Indian Penal Code. If the Judge has such reasonable doubt, he has to acquit the accused, for in that event the prosecution will have failed to prove conclusively the guilt of the accused. There is no conflict between the general burden, which is always on the prosecution and which never shifts, and the special burden that rests on the accused to make out his defence of insanity'.

(8) We note at the outset that Section 14 does not create any presumption of guilt unless the contrary is proved by the accused. It only throws a burden of proof of the facts stated therein on the accused. We are of the view that when a person is prosecuted for contravening Clause 4 of the Order, Section 14 casts a burden of proving first two ingredients namely; (i) the doing of the prohibited act of acquiring and (ii) acquiring from any of the three specified sources, remains on the prosecution. Therefore, unless these two ingredients are established by the prosecution in the first instance, the burden under Section 14 of the Act would not shift on the accused.

(9) It was however urged by Mr. Chhaya that the effect of Section 14 is that the prosecution has only to prove the alleged doing of the act with is prohibited and then the burden is on the accused to prove that his act is done under a lawful authority, permit, licence or other document. Applying this principle to the contravention of Clause 4 it would mean that the prosecution has to first prove acquisition of iron and steel, which is the act prohibited and on proof thereof, the accused in order to prove that he has not contravened Clause 4 of the Order has to prove that he had done so with lawful authority or under a permit, quota certificate licence etc. Mr. Chhaya further urged that it is not necessary for the prosecution to prove that the accused had acquired from any of the three sources because as soon as it is proved that he had acquired from either of these three sources because there was no other source from which it could be acquired. It is, therefore, not necessary to separately or specifically prove the source from which it was acquired. Bu this argument of Mr. Chhaya assumes, as its basis that all acquisitions of iron and steel were prohibited by Clause 4 from whatever source they could be acquired and acquisition could only be made form these three sources only under a lawful authority or permit, licence etc., and no other source was open from which iron and steel could be acquired without a permit, licence or any other authority from the Controller. We would have agreed with Mr. Chhaya that if Clause 4 as it stood before the last amendment in 1965 provided a total prohibition of acquisition of iron and steel from all sources without permit or licence it may not be necessary for the prosecution to also establish that the acquisition was made from either of the three sources mentioned in Clause 4; for, under such circumstances, as soon as acquisition is proved it would imply as a matter of necessity that it was acquired from either of the three sources and the prohibited act would be established and then the burden would shift on the accused to prove that he had acquired under a lawful authority, permit etc. But the basis adopted by Mr. Chhaya, as we have already pointed out, is erroneous. We are dealing with a case before the last amendment of Clause 4 in 1965 and we have fully discussed and pointed out that the three categories namely 'producer', 'stockholder' and 'persons holding stock of iron and steel' did not exhaust as a matter of fact all the sources from which iron and steel could be acquired. There was yet another source namely persons who held iron and steel for purposes other than for business, who were beyond the ambit of the expression 'producer', 'stockholder' and 'person holding stock of iron and steel', from whom it could be acquired without permit or licence and to whom the prohibition under Clause 4 did not apply. Under the circumstances, the argument that mere proof of the fact of acquisition would necessarily imply acquisition from either of the three sources only, has no force. The prosecution, therefore, has also to establish that the acquisition was from either of these three sources. As the offence contemplated was acquisition of iron and steel from these three sources only and to establish the guilt, prosecution has to establish these two ingredients of the offence before the burden can shift on to the accused to establish that he held the concerned iron and steel under a permit or licence.

(10) Mr. Chhaya, however tried to persuade us to accept his submission on two other grounds. Firstly that it would be extremely difficult for the prosecution to discharge such a burden. The fact from whom he acquired the iron and steel would be within the knowledge of the accused and it would be very difficult for the prosecution to establish the fact. Under the circumstances the burden must be on the accused to prove this fact. We are unable to accept this submission of Mr. Chhaya. It may be that the prosecution may find it difficult to establish that fact but difficulty on the part of the prosecution to obtain evidence to establish the necessary ingredients of an offence can be no criteria to determine the question of burden of proof. In majority of criminal cases, the prosecution has to face the difficulty of bringing evidence to prove the necessary ingredients of an offence.

(11) Then Mr. Chhaya drew our attention to Clause 28 (a) of the Order and contented that this provision should make us hold that the burden of proof of the second ingredient namely that the acquisition was from either of the three sources, is on the accused. Clause 28 (a) is as follows:--

'28. Powers of controller :-- The Controller may, with a view to securing compliance with this order:--

(a) require any person to give such information in his possession in respect of stocks of iron or steel or of scrap acquired by him or in respect of business carried on by that or any other person; xx xx xx'.

It was argued that this provision shows that any person was bound to give information in respect of the stock of iron and steel acquired by him if required by the Controller for the purpose of securing compliance with the Order. Therefore, it was clear that these provisions read with Clause 4, throw the burden of proof about the source from which he acquired - on the accused. We are unable to accept this submission also. Clause 28 merely empowers the Controller to obtain the necessary information which, no doubt, would include information about the source from which any iron or steel was purchased. This on the country shows that by this provision it was put within the powers of the Controller to get into possession of the knowledge of the source from which the iron and steel was acquired, before taking any steps for the breach of Clause 4. The complaint that it would be difficult to prove this fact by the prosecution has therefore no basis. It the authorities do not try to utilise the provisions of law, enabling them to get the information, they cannot make the difficulty of getting that information, the basis to urge that the burden of proof cannot be made to lie on the prosecution. But then it was argued that the person who has acquired such iron and steel may refuse to furnish such information. That may be so but then such a person would be liable to be prosecuted for breach of Clause 28 itself under Section 7 of the Act and be liable to punishment to the same degree as in the case of breach of Clause 4. But in no case can it be said that on the construction of Clause 4, in a prosecution for breach thereof, before the amendment in 1965, the burden of proving that iron and steel was acquired form either of the three sources was on the accused. The argument that it would be impossible to prove such source by the prosecution is also of no avail as indicated hereinabove because the law provides by Clause 28 the machinery to get that information. These are penal provisions and are required under law to be strictly construed.

(12) Mr. D. K. Shah, the learned Advocate for the appellant urged that as the reference requires to take into consideration the scheme and relevant sections of the Act and the clauses of the Iron and Steel (Control) Order, we should also decide the question as to whether it is necessary for the prosecution to also establish that the iron and steel in respect of which the contravention of Clause 4 is alleged was acquired after Clause 4 came into effect. He argued that it was open to any one to acquire before 1956 any quantity of iron and steel and be in possession thereof without obtaining any licence or permit. Even after 1956 to 1959 it was open to any one to acquire iron and steel form any source other than 'producer', or a 'stock-holder'. After 1959 even, a person could acquire iron and steel from any one who was not 'producer', 'stockholder' or 'a person holding stock of iron and steel'. Therefore, when a person was prosecuted for a breach of Clause 4, it would be necessary for the prosecution to also prove that the iron and steel in respect of which the breach was alleged was acquired after the prohibition against acquisition came into effect and also take into consideration the source prohibited. We are, however, not inclined to decide this contention as it falls beyond the scope of the question referred to us and it would be open to Mr. Shah to urge this point before the learned Judge, dealing with the case on merits. So far we have considered the question of burden of proof having regard to the scheme of the Act, the relevant sections thereof particularly section 14 and the clauses of the Iron and Steel (Control) Order as required by the question referred to us. Now, we turn to consider the question having regard to the provisions of Section 106 of the Indian Evidence Act as that also forms part of the question referred to us.

(13) On behalf of the appellant, it was urged that so far as the present case is concerned. Section 106 can never have any application in considering the question on whom the burden lies to prove that second ingredient. It was argued that the reasoning that the prosecution is not bound to prove the second ingredient namely the source from which the iron and steel is required, as that is a fact specially within the knowledge of the accused and that fact has therefore to be established by the accused, suggests a proposition which creates an anomaly. The accused cannot be called upon to prove that he acquired from either of these three sources because that would be tantamount to call upon him to prove his own guilt. The accused cannot be expected to prove that part of the offence. If at all the burden shifts on the accused, it may be to establish that he acquired if from any source other than the three specified in Clause 4 or that it was not iron and steel required to be acquired under a permit or under an authority so that the acquisition would not be hit by Clause 4. Therefore under no circumstances, it can be dais that the legislature would expect the accused to prove the second ingredient of Clause 4. There is no force in the said submission.

(14) In our view, with due respect to the learned Judge referring the matter, Section 106 of the Evidence act cannot have any application to the present case. Language of Section 106 and particularly the word 'especially' used therein connote that the facts must in their nature be such as could be within the knowledge of the accused and possibly of no one else. Section 106 cannot come into play where the fact concerned is such as is capable of being known not only by the accused but also by others. If it were possible by due diligence and proper investigation to find out the fact even though it may be very difficult to do so, it cannot relieve the prosecution from the obligation of establishing the ingredients of an offence alleged. In the present case, it cannot be aid that the source of acquisition can be known to the accused and no one else. As a matter of fact, we do not know whether any effort was made by the prosecution to find out the necessary facts, but apart from that, as pointed out by us, the Iron and Steel (Control) Order itself provides the machinery to know such facts. Apart from that as far back in 1936 the Privy Council in the case of Attygalla v. Emperor, AIR 1936 PC 169, laid down that Section 106 of the evidence act does not cast any burden on the accused to prove that no crime is committed by proving facts lying specially within his knowledge. In our view, the section cannot be used to shift the onus of establishing an essential ingredient of the offence on the accused.

(15) The learned Advocate for the appellant relied upon various authorities to urge that Section 106 can have no application to a case like this. We may refer to a few of them.

(16) In the case of Mukandlal v. The State, AIR 1957 Raj 178, the accused was prosecuted for the breach of Clause 17 (1) of the Rajasthan Food Grains Control Order, 1949 which was published under Section 7 of the Essential Supplies Temporary Powers Act, 1946. The Court came to the conclusion that the necessary ingredient of the offence was that the person should be in possession of prohibited food grains in excess of the quantity prescribed and that he had been in such possession for more than a week. The learned Judges further held that the burned of proof is always of the prosecution even in cases where it is within the special knowledge of the accused as to for what period he had been holding the possession of the food grains. It may be difficult for the prosecution to establish precisely as to when the accused came into possession of the food grains and it might be easy for the accused to prove that he had received the food grains within seven days but that would not alter the general principle that it is for the prosecution to prove that the accused has contravened the provisions of Clause 17 of the Order. The learned Judges then relied upon the following observations of the Supreme Court in Behran Jhrushid v. State of Bombay : 1955CriLJ215 :--

' The mere circumstance that the fact in regard to his consumption or use of liquid medicinal or toilet preparation containing alcohol was specially within the knowledge of the accused also could not shift the burden of proving the ingredients to the offence from the prosecution to the accused, because it is a cardinal principle of criminal jurisprudence as administered in this country that it is for prosecution and prosecution alone to prove all the ingredients of the offences with which the accused has been charged. The accused is not bound to open his lips or to enter upon his defence unless and until the prosecution has discharged the burden which lies upon it was and satisfactorily proved the guilt of the accused. Section 106 of the Evidence act cannot be construed to mean that the accused has by reason of the circumstance that the facts are especially within his own knowledge to prove that he has not committed the offence. It is for that the prosecution to prove that he has not committed the offence and that burden and is not any manner whatsoever displaced by Section 106 of the Evidence Act.' The next case is of Amba Lal v. Union of India, AIR 1961 SC 264. This is a case under the Sea Customs Act. The appellant was resident of Rajasthan at the date of the alleged offence. But before 1947 he was living in a place which is now situated in Pakistan. In 1951 the deputy superintendent, Land appellant's house and recovered therefore 10 Article made of gold and silver and some other prohibited articles. The appellant's stand with regard to items Nos. 1 to 5 was that they were brought by him from Pakistan after the partition of the country in 1947 and as regards items Nos. 6 to 10 it was that they were purchased by him bona fide for value in Rajasthan. The authorities held that the appellant had failed to establish that items Nos. 1 to 5 had been brought by him to India in the year 1947 and as result thereof it was held the goods were imported into India in contravention of the relevant legal provisions and an order of confiscation of the said articles was also passed. Ultimately the matter went to the Supreme Court and the Supreme Court dealt with the appeal in two parts one in regard to items Nos. 6 to 10. The relevant observations in respect of items Nos. 1 to 5 only have a bearing on the question with which we are concerned. The learned Judges observed that the decision in regard to Items 1 to 5 turns purely on the question of onus. The Excise Authority held that the onus of proving the import of the goods lay on the appellant. Neither side had led any specific evidence on the point. In the circumstances, the question and the decision depended upon the question on whom the burden of proving lay. It is further observed that the Supreme Court had held that a Custom Officer was not a judicial tribunal and that a proceeding before him was not a prosecution. But at the same time the provisions of the Sea Coustoms Act and the Land Customs Act were penal in character. Having regard to the powers enjoyed by the appropriate Customs authority, the provisions of the code of Criminal Procedure or the Evidence Act may not apply except in so far as they were statutorily made applicable. But the fundamental principal of criminal jurisprudence and the situation, the burden of proof was on the customs authorities and they had to bring home the guilt to the person alleged to have committed a particular offence under the said Acts. By adducing satisfactory evidence. In the case on their hands, no such evidence was forthcoming on the part of the customs authorities to prove the case. Their Lordships further observed that the onus shifted to the appellant for three reasons. One of the reasons stated was Section 106 of the Evidence Act, dealing with this contention also their Lordships have stated that they could not accept of Section 106 of the Evidence Act, the onus lay on the appellant to prove that he brought the said items of goods into India in 1947. Under that section when any fact is especially within the knowledge of any person the burden of proving that fact is upon him. Their Lordships then came to the conclusion that the onus to prove the case against the appellant was on the customs authorities and they failed to discharge that burden in respect of items Nos. 1 to 5.

(17) It is importance to note that in the said case also it was extremely difficult it not impossible for the custom authorities to prove as to when the prohibited articles of gold etc., were actually brought within the territory of India and yet the Supreme Court held that the prosecution and the burden of proving that the accused. The difficulty of proving that the ingredient can never be a basis in a criminal case to shift the burden on the accused under Section 106 of the Evidence Act.

(18) AIR 1965 SC 404 is the leading case of Shambhu Nat v. State of Ajmer on the effect of Section 106 of the Evidence Act in a criminal case. Bose J., speaking for the Supreme Court observed that the general rule is that in a criminal case the burden of proof is on the prosecution and section 106 is certainly not intended to relive it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible or at any rate disproportionately difficult, for the prosecution of facts which are especially within the knowledge of the accused and which he could prove without difficulty or inconvenience. But the Supreme Court laid stress on the fact of the use of word 'especially' in Section 106 and further observed that the said word means facts that are pre-eminently or exceptionally within the knowledge of the accused. The learned Judge further observed the if the section were to be interpreted otherwise it could lead to the every starling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did it or not. These decisions cited by Mr. Shah clearly support the view that we have taken.

(19) As against this, Mr. Chhaya relied upon the decision of the Supreme Court in Shriniwas Pannalal v. State of M. P., AIR 1954 SC 23. It was a case where the appellant was held under Section 7 of the Essential Supplies (Temporary Powers) Act, 1946 read with Clause 2 (1) (a) of Central Provinces and Berar Food Grains Export Restriction Order, 1943 for exporting 1405 bags of uncleaned tour dal on 26-12-1946 from Yeotmal to Kalyan without permit in that he had no permit to export uncleaned tur dad and was not the holder of permit No. 10315 which moreover was exhausted before that day. The perusal of the case shows that the necessary essential facts to prove the offence were undisputed and therefore the burden to prove that he had transported the goods under a permit was held to be on the accused. There is nothing in this case, in our view, which can help the prosecution in this case before us.

(20) We have carefully examined the necessary facts of the case, the provision of Section 106 of the Evidence Act and the scheme and relevant sections of Rules of the Iron and Steel (Control) Order, 1956 and our answer to the query raised in the reference is that in order to prove the contravention of (Rule) Clause 4 of the Iron and Steel (Control) Order, 1956 it is necessary for the prosecution to prove the acquisition by the accused was from one of the three sources specified in Clauses 4 of the Order. Section 106 of the Indian evidence Act, 1872 has no application in the present case.

(21) We may make it once again clear that our answer is in reference to Clause 4 of the Order before it was amended in 1965.

(22) Revision allowed.


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