1. The chief point in this case is whether the accused resisted 'a distraint duly made' under Act I of 1908. The facts are that the agent of petitioner for arrears of rent seized certain cattle said to belong to accused, and was proceeding to drive them out of accused's pen, when accused interfered and prevented him from doing so. Petitioner contends that this was resistance to a distraint. I am inclined to agree. No doubt a learned Judge of this Court held in Narayana Reddi v. Dyvadeenachar 48 M L J 215 that cattle are not 'produce' within the meaning of Section 212(b), but the offence regarding produce is forcibly or clandestinely removing. it. after it has been duly distrained. In the present case my view is that the distraint was not complete when accused interfered and therefore it is not a case on all fours with Narayana Reddi v. Dyvadeenachar 48 M L J 215. The essence of a distraint, I take it, is the act of taking out of the possession of the real owner, and such act will not be completed, until the taking out of the possession of the real owner is complete. Here the cattle were still in accused's pen when accused resisted, and I would hold therefore that the act of taking them out of his possession had not been completed when he resisted the taking and that therefore he was 'resisting a distraint' within the meaning of Section 212(b). Accused urges that even so it has not been proved that the distraint was legal since the power-of-attorney of prosecution Ist witness has not been produced. Prosecution Ist witness swore that he had a registered power-of-attorney to distrain and this statement has never been challenged by accused until now and I cannot uphold the contention.
2. The next point is the contention that the cattle were not the accused's because he is divided from his father. The first Court found that unproved. The Lower Appellate Court did not consider it, and it is not worth while sending the case back for a finding on that point.
3. With this expression of opinion on the main point of law I dismiss the petition.