John Wills, C.J.
1. The accused in these cases has been convicted by the Chief Presidency Magistrate on two charges of contravening the Royal Proclamation of the 9bh September 1914 against trading with the enemy by obtaining and attempting to obtain at Madras goods from an enemy and from an enemy country, offences punishable under Section 3 of the Commercial Intercourse with Enemies Ordinance VI of 1914 as continued and amended by Acts I and XIV of 1915. He has been discharged by the Presidency Magistrate on a complaint of further contravening the said Ordinance by conspiring at Madras with one other to obtain goods from a firm in Germany. The accused has appealed against the convictions and the Grown Prosecutor has filed a revision petition against the order of discharge. Though the illegality of trading with the enemy was established in the eighteenth century by the decisions of the Prize Court administering the Law of Nations which are collected by Sir William Scott (afterwards Lord Stowell) in the Hoop (1769) 1 Ch. Rob. Repo 196 and were followed by the Courts of Common Law in Bristow v. Towers (1794) 6 T.R. 35 Potts v. Bell (1800) 8 T.R. 518 Esposito v. Bowden (1857) 7 E. & B. 763 and Zinc Corporation v. Hirsch (1916) I.K.B. 541 there is no record of any prosecution for this offence before the outbreak of the present war. In Gist v. Mason (1786) I.T.R. 88 Lord Mansfield said that Lord Hardwicke had given him a note which had been destroyed with the rest of his library during the Gordon riots, of a reference to all the Judges in the reign of King William the Third on the question, 'Whether it were a crime at the common law to carry corn to the enemy'; who were of opinion that it was a misdemeanor. There can be very little doubt that trading with the enemy in contravention of the Royal Proclamation would be held to be a misdemeanour in England if not also in India, for, as observed by Willes, J delivering the Judgment of the Exchequer Chamber in Esposito v. Bowden 4 ' the force of a declaration of war is equal to that of an Act of Parliament prohibiting intercourse with the enemy except by the Queen's license,' and in the Royal Proclamation of September 9th, 1914 it is expressly stated that such contraventions are criminal. It was not however thought desirable to rely solely on the common law and both in England and in India after the issue of the Proclamation of the 9th September, legislation was passed making it an offence to contravene the provisions of any proclamation against trading with the enemy and it is under this legislation that the accused has been convicted as already stated.
2. In the first case the accused Mr. F.E. Hooper, Managing Director of McDowell and Co., Madras is charged with contravening the Royal Proclamation of the 9th September at Madras between the 21st and 26th November 1914 by obtaining 34 bales of tobacco leaf per ' S.S. Mombassa ' from an enemy, one E.C. Ruppell residing in Hamburg and also with obtaining 26 of the aforesaid bales from Goch in the German Empire, an enemy country. Prior to the outbreak of war the accused's firm. had purchased and stored certain bales of tobacco partly at Amsterdam and partly at Goch, a German town on the Dutch frontier not far from Dusseldorf. The purchases were arranged by and the goods stored in the name of Mr. Ruppell, a former partner, who after his retirement took up his residence in Hamburg and became an enemy by virtue of the declaration of war on August 4th, 1914. On July 28th the accused had cabled to Mr. Ruppell an order for 28 bales and on July 31st Mr. Ruppell wrote saying that he had executed the order and hoped to send the documents next week. It is proved that 18 bales were sent from Goch to Antwerp for shipment and were never heard of again in consequence of the outbreak of hostilities. 'The consignment now in question consisted of 28 bales of the descriptions ordered, of which 18 bales were admittedly purchased after the outbreak of war and the other 10 supplied from stock at Amsterdam or Goch, together with 6 bales of another description which had not been ordered. The Presidency Magistrate has found and we see no reason for differing from his finding that the whole 34 bales to the knowledge of the accused came from Ruppell, an enemy. He has also found that to the knowledge of the accused 26 of these bales came as charged from Goch; but though there is evidence before the Court which points to their having in fact come from Goch, there is evidence as to some of the bales, that the accused had every reason to believe that they came from Amsterdam and as to the rest, that he had no information that they came from Germany.
3. It is proved that on or about the 7th October 1914, these bales were shipped at Amsterdam by Downer and Hiemink, the Madras firm's agents in Amsterdam, free on board to London consigned to Lancelot and Dent, the firm's London agents, who paid the freight, took them out of bond and reshipped them by the 'Mombassa' consigned to the firm in Madras and at the same time drew upon the firm in the usual course but only for their own charges as they had not been called upon to pay for the goods. The bales must in the ordinary course have been put on board the 'Mombassa', which arrived in Madras on the 21st of November. About the 14th of October the date when the Ordinance came into force and, as the prosecution has not established that they were shipped on or after the date, it may be taken in favour of the accused that they may have been shipped before the date. In this state of facts, two objections are taken for the accused. It is said that the goods were not obtained in Madras on the date specified from an enemy or an enemy country, but at the worst were obtained from an enemy or an enemy country by Lancelot and Dent the innocent agents of the accused in London before the 14th October when the Indian Ordinance came into force and that after that date there was no obtaining within the meaning of the Section. It is quite clear that a Statute and above all a Penal Statute has no retrospective operation unless the intention of the legislature that it should have such aneffect is clearly indicated, which is not the case here. The question then arises how far a Statute creating a new offence applies to offences begun before the passing of the Act but completed subsequently. In R. v. Griffiths (1891) 2 Q.B. 145 which came before the Court of Crown Cases Reserved, it was scarcely con-tended that the statutory provision in question could affect acts done before it was passed, but it was said that, as the Act was passed in July and only came into force in January following, this indicated an intention on the part of the legislature that it should apply to offences against its provisions which had been committed after it has been passed and before it came into force. The Court did not think fit to dispose of the case on the ground that the complete offences had been committed before the Act came into force and thought it right to lay down and escpressly to decide the case on the broader rule that all the ingredients of the offence must have been committed after the coming into force of the Act. To illustrate this, one of the offences in question in that case was obtaining money by false pretences and it is clear to my mind that the Court intended to lay down that if the false pretences were made before the coming into force of the Act and the goods received afterwards, the conviction would be bad. I should feel bound in any case to follow the rule which was then laid down by the Court of Crown Cases Reserved for the guidance of Criminal Courts and I do so the more willingly because it seems to me in accordance with principle and also in accordance with the view of the learned Judges who decided the earlier case of R. v. Vine (1875) L.R. 10 Q.B. 196 where a provision disqualifying every person convicted of felony from holding a license to sell spirits was held, Lush, J, dissentiente, to have a retrospective operation and to apply to persons convicted before as well as after the passing of the Act on the express ground that the object was not to punish offenders but to protect the public against public houses being kept by persons of doubtful character. I may add that I do not think the rule laid down in R. v. Griffiths (1891) 2 Q.B. 145 is likely to give rise to inconvenient results, as the more serious and obvious forms of crime are already punishable under the existing law and as to newly created offences it is open to the Legislature to make the enactment retrospective if there are sufficient reasons for so doing.
4. Now as regards the charge of obtaining these goods from an enemy, of which the accused has been convicted, it seems to me that giving the word 'obtaining' its ordinary meaning, it includes procuring or ordering the goods from the enemy as well as taking delivery of them on arrival and that the conviction on the charge must be held bad on the ground that the ordering or procuring was before the 14th October when the Ordinance came into force ; and I think it is also bad on the further ground that the obtaining by the accused from the enemy was in London through Messrs-Lancelot and Dent, the firm's agents, an offence we have no jurisdiction to try.
5. As regards the suggestion made for the Crown that the charge should be altered into one of obtaining the goods at Madras from Messrs. Lancelot and Dent by way of transmission from an enemy (which is also forbidden by the Royal Proclamation) such a charge in my opinion would be open to the same objection that the obtaining must have taken place at least in part before the 14th October when the Ordinance came into force. This objection would not apply to a charge of obtaining the goods at Madras from the master of the ' Mombassa' by way of transmission from an enemy between the 21st and 26th November, but there is a further objection to both the amended charges, viz., that if the accused be held to have obtained the goods in London he cannot be convicted as again obtaining them in Madras as that would be convicting him of obtaining them from himself. The question is by no means free from doubt and in these circumstances I am not prepared to make any alteration in the charge at this late stage and would accordingly set aside the conviction and acquit the accused of this charge and direct the fine if paid to be refunded. As the acquittal is not on the merits, I think it right to say that as it is not shown that the accused knew these bales came from Germany, the fact that he obtained them through his agent Ruppell would not in the exceptional circumstances of the case and having regard to the novelty of the offence, have necessitated a sentence of imprisonment but would have been adequately punished by a fine.
6. The next appeal is from a conviction of attempting to trade in goods coming from an enemy country and from an enemy and of entering into a commercial obligation for the benefit of an enemy.. This charge arises out of two letters of the 26th November 1914 signed by the accused and addressed to Downer and Heimink, the firm's agents in Amsterdam and to Blum Brothers at Goch in which the accused sought to get his tobacco stored with Blum sat Goch in Germany sent to Amsterdam and undertook to pay the incidental charges. These letters were found in a large cover addressed to Downer and Heimink which also contained a smaller cover addressed in the accused's hand-writing to Blum Brothers in which was a letter of his assistant Hermans which is the subject of the next charge. The first objection to the conviction is that the accused cannot be convicted of an attempt because it is not shown that the firm had any goods at Goch when he wrote the letters. Though the provisions of the Indian Penal Code do not in terms apply, I see no reason why we should not apply the same rule to cases of attempts which are punishable under some other law. The conduct of the accused amounted to an attempt under Section 511 of the Indian Penal Code and the English authorities on which Mr. Osborne relies are contrary to the' illustrations to the section and to the later English decisions such as R. v. Ring (1891) 61 L.J.N. 8. which must be treated as overruling them. The next objection is that it was no offence for the accused to send for his own goods from an enemy and an enemy country. In Esposito v. Bowden 7 E. & B. 763 already referred to Willes J., observed that there was very high authority which he refers to for saying that the removal of merchandise even though acquired before the war from the enemy's country after knowledge of the war without a Royal license is generally illegal and the Royal Proclamation of 9th September 1914 appears to proceed on the same view as it prohibits generally the obtaining of goods from an enemy or an enemy country and makes no exception in the case of goods acquired by a subject before the outbreak of war. Further it was so expressly ruled by Atkin, J. in a recent case under this very Proclamation and the ruling was upheld by the Court of Criminal Appeal, Rex v. Oppenheimer and Colbeck (1915) 2 K.B. 755. The objection therefore fails. Having regard however to the novelty of the law and the misconceptions as to his position under which the accused appears to have laboured, I think the fines may be reduced to Rs. 250 in each case and so direct.
7. The third complaint on which the accused was discharged was of a much more serious character and arose out of the fact that a letter dated 26th November 1914 from the accused's assistant Hermans to Blum Bros. was found in the envelope addressed in the accused's handwriting to Blum Brothers which envelope, as already stated, was found by the Censor in the larger cover addressed to Blum Brothers while the accused's own letter to Blum Brothers which was the subject of the second charge was found pinned to the accused's letter to Downer and Heimink in the same cover. Hermans' letter purported to order further goods from Blum Bros. on the authority of the accused and if brought home to the accused, would have amounted to a serious offence and necessitated a severe sentence. As against this, how-ever, there is only the evidence that Hermans' letter was found inside the envelope addressed by the accused to Blum Bros. and Hermans who has been called as a witness has deposed that he put his letter there without the knowledge of the accused. In these circumstances we are not prepared to interfere with the Presidency Magistrate's order of discharge anddismiss the revision petition. We also dismiss the revision petitions praying for enhancement of sentence.
Coutts Trotter, J.
8. This is an appeal by Frederic Edmed Hooper against a conviction and sentence of the Acting Chief Presidency Magistrate, Madras, under Section 3 of the Commercial Intercourse with Enemies Ordinance, 1914. That Section makes it an offence punishable with imprisonment to contravene any of the provisions of any Proclamation or Order in Council of His Majesty for the time being in force, relating to trade, Commercial intercourse or her dealings with any subject of any State at war with His Majesty.
9. The Ordinance is dated 14th October 1914, the day of its publication in the Gazette ; and by Section 15 of Act XIV of 1915 words are inserted in the section which make attempts to commit these offences themselves punishable if committed since the 14th October 1914, the date of the Ordinance. The relevant Proclamation in this case is the Proclamation of the 9th September 1914. Paragraph 5 runs as follows ' From and after the date of this Proclamation the following prohibitions shall have effect... and we do hereby accordingly warn all persons resident, carrying on business or being in our Dominions... not directly or indirectly to supply to or for the use or benefit of, or obtain from, an enemy country or an enemy any goods, wares or merchandise, not directly or indirectly to supply to or for the use or benefit of, or obtain from any person any goods, wares or merchandise, for or by way of transmission to or from an enemy country or an enemy, nor directly or indirectly to trade in or carry any goods, wares or merchandise destined for or coming from an enemy country or an enemy... And we do hereby further warn all persons that whoever in contravention of the law shall commit, aid, or abet any of the aforesaid acts, is guilty of a crime and will be Liable to punishment and penalties accordingly.' The charge against the accused is that between the 21st and 26th November 1914 during a state of war between His Majesty and the German Empire, at Madras, unlawfully did contravene the provisions of the Proclamation by obtaining goods, wares and merchandise, to wit 34 bales of various tobacco leaves per S.S. ' Mombassa ' from an enemy, to wit E.C. Ruppell, trading and carrying on business in Hamburg in the said German Empire and by obtaining 26 of the abovesaid bales of tobacco also from an enemy country, to wit Goch, in the said German Empire.
10. The accused was the Managing Director of the firm of Messrs. McDowell and Co., Ltd. carrying on business in Madras as general merchants and dealing among other things in tobacco and spirits and importing them from Eurpoe. Some years ago there was a partner of German birth in the firm, namely E.C. Ruppell, but in 1908 he retired from India and started business in Germany where he acted as agent for the firm in which he retained a considerable interest as a share-holder. In particular he used to purchase consignments of tobacco for Messrs. McDowell & Co., Ltd. and pay for them by drawing upon the firm's account at the Chartered Bank of India in London. The course of business appears to have been this : Messrs. McDowell from time to time communicated to Ruppell the quantity and kind of tobacco that they required. He would fulfil the orders sometimes by fresh purchases there and then, sometimes by drawing on stock which had accumulated in Europe. This stock appears to have been stored in two places. Some of it he bought at Government auctions at Amsterdam. At these auctions only sworn Government brokers are allowed to bid and the brokers employed for the purchase of McDowell's goods were a firm of Downer and Heimink of Amsterdam. That stock was stored at a ware-house in Amsterdam belonging to a storage Company called Naamlooze Vennootschap Purperhoedenveem. It was stored in the name of Ruppell and apparently could be released only on his orders. Other tobacco was bought by Ruppell in Germany and was stored with a firm styled Gebruder Blum at Goch in the Rhineland close to the Dutch border. It is not quite clear on the Evidence what Blum's exact business was and what they did to McDowell's tobacco. It seems fairly evident that Ruppell bought some tobacco from them and it is certain that McDowell's German stocks accumulated there, though it is not clear that they were paid any sums of money by way of storage or warehousing charges. At least no record of such charges can be found in McDowell's books. The relations between the two firms of McDowell and Compmy and Blum were obviously friendly and a man called Hermans who held a responsible position in McDowell's business had been for many years before he came to India in the employment of Blum. It is suggested by the defence that Blum allowed McDowell's stock to remain in their premises until wanted merely as an act of courtesy to suit their business Convenience without making any charge. When tobacco was forwarded to McDowell's in India, it was consigned by shipment to a London firm, Messrs. Lancelot Dent and Co., who were McDowell's London agents. At the close of each year Ruppell forwarded to McDowell & Company a statement of the stock he held for them in Amsterdam and Goch respectively. By comparing this with the statement of the previous year they could check the invoices relating to the consignments they had received during the current year. The present charge relates to a consignment of 34 bales of tobacco which arrived in Madras on the S.S. 'Mombassa' on the 21st November 191.4 and were received into stock by McDowell on that date. Hermans in his evidence gave the 26th November as the date of receipt, but this is obviously the date at which the goods came under his charge as foreman of the Tobacco Department. The composition of these bales is important and is as follows:
5 bales Brazil mild.
5 bales Brazil strong.
13 bales Vorstenlanden (in two consignments of 8 and 5 respectively).
5 bales of Borneo (in two consignments of 2 and 3 bales) and 6 bales of Sumatra.
11. The order for these goods was by a telegram on the 28th July 1914 from Messrs. McDowell to Ruppell in the following terms: ' Ship at once 8 bales Vorsten Umblatt, five each Sumatra, Borneo, Brazil, mild, strong' making in all 28 bales. The stock records show clearly what tobacco there was at Amsterdam and Goch respectively available to fulfil these orders and the matter is not really in dispute. There were only two bales of Borneo at Amsterdam and there were nine at Goch, so that Ruppell could only execute the order from stock by taking at least 3 from Goch, With regard to the 6 bales of Sumatra--for although 5 were ordered 6 were in fact despatched--it is not suggested that they were ever in Germany or came out of it. With regard to 5 bales of Vorstenlanden these were not ordered. The balance of 18 bales, 10 Brazil, mild and strong and 8 Vorstenlanden are the most important goods in the subsequent history of the transaction. On the 31st July Ruppell, sent a letter to McDowell's which was received by them on the 12th November. This enumerates the order contained in the telegram and concludes as follows : ' I have executed these orders as quickly as possible for shipment per S.S. ' Wachtfels. ' I hope to be able to send you the documents by the next or following post.' A good deal of discussion appears to have taken place in the court below as to what action on Ruppell's part these words must be supposed to imply. The 'Wachtfels' was a German ship lying at Hamburg preparing to make a voyage to London calling at Antwerp on the way. Antwerp is almost equidistant from Amsterdam and Goch and would be a natural port of shipment for goods from both of these places. The natural commercial meaning of Ruppell's letter is that he had contracted to purchase the goods he could not supply from stock, had given orders for the forwarding of those goods for shipment at Antwerp, had given similar orders in respect of the goods he was supplying from stock and had contracted with the steamship owners to ship and carry the goods to London. Ruppell on the 81st July sent another letter to McDowell and Co., also received on the 12tb. November which after setting out a summary of his account up to date goes on to state ' business is completely disorganised owing to the war which seems to be going to break out and it is very difficult even to transact the smallest business. The local branch of the Chartered Bank has almost given up business.' In fact on the 81st July Germany had declared war on France and Russia and on the 4th of August at 11 o'clock p.m. she was also at war with England. The next document is a letter from Ruppell at Hamburg, dated the 5th September which was received by McDowell on the 15th October and from this letter we can ascertain what had happened. 18 bales, namely, the 10 Brazils and 8 Vorstenianden had gone to Antwerp. The ' Wachtfels ' had been unable to leave Hamburg. Antwerp was in a complete state of disorganisation and for practical purposes the 18 bales may be treated as having been lost there. The letter goes on to state : ' the ten bales of Sumatra and Borneo tobacco which you ordered by telegram had not left Amsterdam when hostilities broke out and are lying safely there. ' The defence contends that it should be inferred from this that 3 bales of Borneo tobacco had been transferred from Goch before the out break of hostilities. The Chief Presidency Magistrate has rejected the inference on the ground that if the goods were shipped from Antwerp they would be kept at Goch to be sent directly to Antwerp, at any rate until the out break of war demonstrated the impossibility of that course. This seems to me to overlook the fact that, as soon as war broke out between Germany and France, every businessman must have realised the danger of its spreading and Ruppell may very naturally have thought it advisable to get the goods he was forwarding out of stock into Holland as soon as possible. In the face of the plain statement in his letter--and I cannot see why it should be aupposed that at that time he saw any reason to conceal what he was doing--it would be unreasonable to draw any inference adverse to the prisoner based on mere general considerations. The letter contains the following sentence : ' As at present no goods from Germany to Belgium can be forwarded I am trying with the help of some friends to replace these 18 bales (i.e., those that had gone to Antwerp) by other goods in Amsterdam and to send you a consignment of different tobaccos (Vorstenlanden and Brazil, Sumatra and Borneo) from Amsterdam to Madras via England.' On the 14th of September Ruppell wrote another letter from Hamburg Exhibit P which was received on the 12th of October, This repeats the statement that the 10 bales of Borneo and Sumatra were lying at Amsterdam and says that Ruppell will try to ship the goods through a neutral port. On the 9th October Downer and Heimink sent 3 invoices to McDowell and Co. and a covering letter. This shows that the whole of the 34 bales which arrived in Madras on the S.S. 'Mombassa' had by that date been shipped by Downer and Heimink from Amsterdam to Lancelot Dent and Co., in London. The first invoice Exhibit E relates to two bales of Borneo and six bales of Sumatra which are stated to be from 'Amsterdam stock.' The second, Exhibit D, relates to the balance of 3 bales of Borneo which are stated in the letter to be from Goch stock. I have already given my reasons for thinking that these three bales had been transferred to Amsterdam before the out break of hostilities. The 3rd invoice Exhibit C, relates to 18 bales which were obviously bales sent to replace the 18 bales held up at Antwerp and at the foot of the invoice are the words: ' From Blum.' It is obvious that these 18 bales were obtained considerably after the out break of hostilities, because Ruppell had not got them when he wrote the letter of the 5th September, Exhibit O. In that letter he says no doubt that he is trying to replace them in Amsterdam with the help of some friends, presumably Dutch friends. The suggestion for the prosecution is that in the result he got them from Blum and sent them to Downer and Heimink for shipment by a neutral port. Having regard to the care with which the invoices specify the place of origin of the goods the conclusion is irresistible that the 18 bales in question were bought in Germany between the 5th September and 9th October and accordingly had an enemy origin. I think that there can be little doubt that the accused must have known that these 18 bales came from and were despatched by an enemy, namely Ruppell. That is the finding of the learned Chief Presidency Magistrate and I am not disposed to hold that he was wrong.
12. It is urged on behalf of the accused that as the Ordinance only came into operation on the 14th October, he cannot be convicted of an offence some ingredients of which took place before that date and for that proposition reliance is placed on the case of Beg v. Griffiths 1. In that case a trader was charged under the Debtor's Act of 1869, 32 and 33 Vict. C. 62 with obtaining goods on credit under the false pretence of carrying on business and dealing in the ordinary way of his trade with intent to defraud on various dates in November 1890. The Debtors' Act made these offences misdemeanours if committed within four months next before the presentation of bankruptcy proceedings against him. The Bankruptcy Act of 1890, 53 and 54 Viet. C. 71 for the first time extended the operation of the penal sections of the Debtors' Act to a period of four months next before the presentation of a bankruptcy petition by the debtor himself and the defendant filed his own petition on the 14th January 1891. The Court held that he could not be convicted under the Debtors' Act inasmuch as the acts of obtaining had taken place before the Act came into operation and the statute must not be construed as being retrospective in operation. With the broad principle that in general criminal statutes ought not to be construed as being retrospective, I am in entire agreement. But I am unable to hold that there is anything in the decision in Reg v. Griffiths (1891) 2 Q.B. 145 to govern this case. There all the acts that constituted the alleged offence had been completed before the Bankruptcy Act of 1890 came into operation. All that was done by the defendant after it came into force was to file a bankruptcy petition, an act not only not unlawful in itself but expressly provided by the Legislature as a method of relief to embarrassed debtors. The position contended for here is quite a 'different one. It is said that a man may start on a course of action and notwithstanding the fact that in the middle of it the completed act is declared by the Legislature to be criminal, he may proceed to complete it with impunity, because, when he began the act, it had not been declared by the Legislature to be a crime. That seems to me to be a dangerous doctrine and one to which I cannot accede. Suppose a man to mix what he believes to be a medicinal draught but which at the moment of administration he ascertains to be poisonous, can he with impunity proceed to administer it and complete the act merely because in its earlier stages it was innocent?. In my opinion whenever the Legislature declares a series of acts to constitute a crime, any person who has entered' upon that series of acts must from that moment stay his hand and if he proceeds to the completion of the series of acts, he is guilty of a crime. I may add that in the instance of this particular offence I have no doubt myself that trading with the enemy was a common law offence both in England and in India apart altogether from the Ordinance or the corresponding English Legislation. It is quite true that there is no direct decision to that effect in the common Law Courts, but I cannot doubt that any Judge before whom the matter had arisen would have held it to be a misdemeanour and acted in conformity with the principles laid down by Lord Stowell in the ' Hoop ' 1 Ch Rob Adm. Reports 198 and Mr. Justice Willes in Esposito v. Bowden (1857) 7 E. & B. 768. In my opinion it affords no defence in this case to say that some of the acts constituting the alleged obtaining took place before the date of the Ordinance.
13. Mr. Osborne's next argument seeks to carry the matter still further and to contend that the whole course of acts constituting the obtaining was complete before the 14th October. If that contention be sound, it is fatal to the prosecution in two ways. In the first place, even although the offence was a common law misdemeanor apart from the Ordinance, no such charge was brought against this accused, but he is charged under the Ordinance alone. In the next place the offence would have taken place in England and the Courts of this country can have no jurisdiction to try it. The contention is, that when Lancelot Dent and Co., received the goods in London as agents of McDowell and Co., that completed the obtaining and no further offence could be committed by McDowell in relation to the same goods. I agree with Mr. Osborne that the offence defined by the first words of Section 5 Sub-section (7) of the Proclamation was completed when Lancelot Dent and Co. took delivery of the goods in London. But I am not prepared to hold, though the matter is not free from difficulty that the same goods can never be ' obtained ' twice by the same person. Suppose that the accused had obtained the goods in London and disposed of a portion of them there and had then shipped the balance consigned to himself in India and had come out to India and taken delivery of them from the snip here, I am not prepared to hold that that would not constitute a second offence ; but the offence, if it was one, committed in this case by the accused was an offence under the latter part of the sub-section which makes it an offence to obtain from any person any goods by way of transmission from an enemy country, the person in this case obviously being either the owners or the master of the 'Mombassa.' He has not been charged under that portion of the section and in order to convict him under it, it would be necessary for this Court to alter the charge preferred against the accused. I am not prepared to take that course in a case like the present where I am satified that the accused acted without realising that he might be breaking the law and without conscious disregard of the interest of his country. I therefore agree with my Lord in the result that the conviction and sentence should be set aside.
14. The next charge is that of attempting to trade in goods coming from an enemy country and from an enemy and of entering into a commercial obligation for the benefit of an enemy ; and is based on two letters of the 26th November 1914, Exhibits EE and F.F, one addressed to Downer and Heimink and the, other to Blum Bros. In these letters a request is made that the respective persons to whom they are addressed should en-deavour to get hold of McDowell's stores of tobacco lying at Blum's place of business at Goch in Germany and forward them to McDowell in India. The first contention put forward by Mr. Osborne is that there is nothing to show that at the date these letters were written there were in fact any goods belonging to McDowell's in Blum's hands and that the accused was therefore attempting to do that which was impossible of performance and cannot be convicted. The English Courts at one time had some difficulty over this question. But in my opinion it was finally settled in Beg v. Ring 61 L.J.N.S. (M.C.) 116 adversely to the present contention on behalf of the accused. Section 511 of the Indian Penal Code and the illustrations to it leave no doubt in my mind that the law in India is the same as Reg v. Ring (1891) 61 L.J.N.S.M.C. 116 settled for England.
15. Mr. Osborne also argued that the accused could not be convicted of an attempt to obtain from an enemy country goods which were at all material times his own property. The Court of Criminal Appeal in England in Rex v. Oppenheimer and Colbeck (1915) 2 K.B. 755 has negatived this contention and this is a matter on which it seems to me that all the Courts of the Empire should be in agreement and should accept the rulings of the highest Criminal Court in England.
16. The conviction must therefore stand, but I agree with my Lord that the fine may without impropriety be reduced. I do so for this reason, that I do not for a moment suppose that it was present to the mind of the accused that in seeking to obtain his own goods from an enemy country he was infringing the law as no possible benefit could result to the enemy from the transaction. But he has in fact infringed it and breaches of laws enacted to safeguard the welfare and safety of the Empire in war time must be punished if only as a warning to others. I also think it right to say that though I have held the action of the accused to be a breach of the law, I do not think it need leave any stigma either upon his commercial honour or his patriotism.
17. With regard to the third charge, I need only say that I think the learned Chief Presidency Magistrate was quite right in refusing to act upon evidence which in my opinion could not at the most create anything more than vague suspicion. Particularly wrong would it be to act upon slender evidence in a country where the accused person is not afforded the opportunity of denying and explaining the accusation brought against him upon oath in the witness-box.
18. I agree with my Lord that the Revision Petitions should be dismissed.