M. Krishnaswamy Reddy, J.
1. This revision has been filed by accused 3 to 5 in S.T.C. No. 239 of 1970 on the file of the Additional First Class Magistrate, Padmanabhapuram, who were convicted under Section (1) (a) (ii) of the Essential Commodities Act read with Clause 3-A of Southern States (Regulation of Export of Rice) Order, 1964 and sentenced to pay a fine of Rs. 300 each, by the Additional First Class Magistrate. Accused 1 and 2 who were also convicted and sentenced to pay a fine of Rs. 300 each, have not challenged the conviction.
2. The prosecution case is briefly this: P.W. 2 Natarajan, the Sub-Inspector of Police (Food Cell) C.I.D., Nagercoil, was patrolling the belt area in Kanyakumari District at a place called Padmanabhapuram at about 5 A.M., on 25th March, 1970. P.W.1, Hasan Mian, a Police constable, attached to the Food Cell was also with P.W. 2. They saw a lorry M.D.U. 8834 (M.O.1) coming on the road from south to north. P.W. 2 intercepted that lorry and checked it. Accused 1 to 5 were all in the lorry. Accused 1 was the driver and accused 2 was the cleaner. Accused 3 was the owner of the paddy. Accused 4 and 5 were coolies engaged for loading and unloading the rice bags. The lorry was loaded with 85 bags of paddy. The accused had no permit to transport paddy in the belt area. P.W. 2, therefore, recovered the paddy bags and seized the lorry. The paddy bags were handed over to the Special Deputy Tahsildar (R) Warehouse Nagercoil. P.W. 3,. Gopalakrishnan, the Assistant Director of Survey and Land Records stated that the place where the lorry was intercepted is about II miles from the nearest point of the Kerala border.
3. When the accused were questioned, they denied totally.
4. The learned Magistrate held that the accused were transporting paddy bags within the belt area without permit and found all the accused guilty for having contravened Clause 3-A of the Southern States (Regulation of Export of Rice) Order, 1964. 85 bags of paddy seized by the Police were forfeited to the State. So far as the lorry was concerned, the learned Magistrate stated in his judgment that it would be disposed of after holding a separate enquiry.
5. Sri Ganapathi Subramania Iyer, the learned Counsel appearing for the accused-petitioners contended that the prosecution has not proved that the accused were transporting 85 bags of paddy within the belt area and that since the lorry was found in a village called Padmanabhapuram and since transporting the paddy from one place to another place within the village is not prohibited, the conviction is not sustainable. It is therefore, necessary to note the relevant provisions of the Southern States (Regulation of Export of Rice) Control Order, 1964 (hereinafter called 'the Order.')
6. Clause 3-A, so far as it is relevant, runs as follows:
Restrictions on transport of rice to or within the border area. No person shall transport, attempt to transport or abet the transport of rice.
(a) to any place in the border area from any place outside that area; or
(b) from any place in the border area to any other place in that area; except under and in accordance with a permit issued by the State Government or any officer authorised by that Government in this behalf:
Provided that nothing contained herein shall apply to the transport of rice--
(iv) Within the same town or village in ' border area'....
7. It is, therefore, clear from Clause 3-A (b) that the transport of rice from any place in the border area to any other place in that area is prohibited. In the Explanation to Clause 3-A 'border area' is defined as the area which is within the fifteen mile belt inside a specified area and adjoining any other specified area.
8. It is the evidence of P.W. 3 that the place where the lorry was intercepted was 11 miles from the nearest point of the State of Kerala which is the adjoining specified area to the State of Madras. Therefore, there cannot be any doubt that the place where the lorry was intercepted while coming on the road was within the belt area and that, in any event, it could be held that the transport of paddy was at least from one point in the belt area to another point in that area. I, therefore, do not see any point in the contention raised by the learned Counsel that the prosecution has not proved that the accused transported the rice from one place in the belt area to another place in that area.
9. But the substantial question to be considered is whether the accused would get the benefit of the proviso to Clause 3-A. Under the proviso to the said clause, it is stated that nothing contained therein shall apply to the transport of rice within the same town or village in the border area. It is contended by the learned Counsel that since the lorry was found, even according to P.W. 2, in the locality of Padmanabhapuram which is a village and that as there is nothing to show from the evidence of the prosecution that the transport of paddy was not within the village of Padmanabhapuram, the accused would have the benefit of this proviso. On the point, the learned Magistrate has found that the burden of proof is on the accused to show that they were transporting the rice from one place to another within the village of Padmanabhapuram and that that burden was not discharged by the accused as required under Section 14 of the Essential Commodities Act (hereinafter called 'the Act'). Sri Ganapathi Subrarnania Iyer, learned Counsel for the petitioner contended that Section 14 of the Act runs thus:
Where a person is prosecuted for contravening any order made under Section 3 which prohibits him from doing any act or being in possession of a thing without lawful authority or without a permit, licence or other document, the burden of proving that he has such authority, permit, licence or other document shall be on him.
10. As pointed out by the learned Counsel, the burden of proof is restricted under this section only in cases where a person is prosecuted for not having any permit, licence or other document and not to other matters. In such a case, the burden of proving that he has such permit, licence or other document is on the accused. It is the case of the prosecution that the accused should have had permit to transport the paddy from one place to another within the belt area and that the accused did not have a permit to transport the paddy and that in such a case, it is for the accused to show that he had permit an required under Section 14 of the Act. It is not the case of the accused that they had permit to transport paddy. But in a case where the Proviso applies, namely, transport of rice within the same town or village in the border area, that does not require any permit. Section 14 of the Act will not apply. Where no permit is necessary, the question of burden of proof does not arise at all.
11. Now the question is whether the accused were transporting the paddy within the village of Padmanabhapuram in the border area. When the lorry was intercepted, it was actually proceeding on the road towards the Kerala border. I am of the view that though Section 14 of the Act would not apply to this case, it is for the accused to show or at least state when they were questioned in Court, that they were transporting paddy from one, point to another point within the village of Padmanabhapuram. As already observed, their case is one of absolute denial. It is impossible for the prosecution, especially when the village happens to be a small village and when the lorry was proceeding through that village to show that the transport was not within the village. The evidence in those circumstances would be only of a negative aspect. In such a case, the investigating Officer must enquire all the villagers to find out whether any lorry was transporting paddy within the village. Though the accused in such circumstances may not prove it, but at least they must have stated either before the police who intercepted or at least in the Court that they were transporting the paddy within the village of Padmanabhapuram. If the accused had stated so before the police, one would normally expect the police to verify whether such statement was true and then let in either positive or negative evidence as the case may be. Whenever the accused gets the benefit of an exception and in this case claiming exception by sub-clause (iv) or the proviso to Clause 3-A of the Order, it is for the accused to show how he is entitled to get benefit of that exception. This is the normal Rule.
12. Even otherwise, under Section 106 of the Evidence Act, when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Whether a fact is especially within the knowledge of any person will depend upon the circumstances of each case and it requires a commonsense approach.
13. In this case, it would not have been possible for the Investigating Officer to find out whether the transport was within the village of Padmanabhapuram unless, as already pointed out he exhausted making enquiry of all the villagers in the village to let in evidence. This is not at all practicable. Would this be expected to be done, especially when a person who could have had knowledge was available to state wherefrom and whereto he was transporting and he did not say so When the paddy was transported, there must have been someone in the lorry, at least the driver. That someone who was in the lorry must have had the knowledge as to wherefrom the lorry was proceeding and also the destination. Therefore, in a case like this, it was the accused who should have had knowledge, about the transport of rice from one place to another and it was their duty to have disclosed their case to get the benefit of the proviso.
14. In the decision in Shambhu Math v. State of Ajmer : 1956CriLJ794 , the Supreme Court considered the scope of Section 106 and laid down the following principles:
Section 106 is an exception to Section 101. The latter with its illustration (a) lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve 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 to establish facts which are ' especially ' within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word 'especially' stresses that. It means facts that are pre-eminently or exceptionally within his knowledge.
It is clear from this observation that though the prosecution is not relieved of its duty of proving its case, yet Section 106 provides that in exceptional cases where it would be impossible or at any rate disproportionately difficult to prove the particular fact and the same fact which is pre-eminently or exceptionally within the knowledge of the accused and which he could prove without difficulty or inconvenience it is the duty of the accused to prove such fact.
15. In the instant case, as already pointed out by me, it would be impossible and impracticable for the prosecution to prove that the accused were not transporting the paddy within the village of Padmanabhapuram. The accused alone would have known about it and it was for them to have proved that they were transporting the paddy within the village of Padmanabhapuram.
16. Mr. Ganapathi Subramania Iyer relied upon the decision in Jetklal v. State A.I.R. 1958 Guj. 163. Even though in that case it was held that Section 106 of the Evidence Act would not have application to that case, the Court observed that 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. The decision in Shambhu Math v. State of Ajmer : 1956CriLJ794 , which was considered earlier by me, has been followed in that case.
17. The accused denied the case of the prosecution totally and they have not even stated as to wherefrom they were taking the paddy in the lorry and to which place. Therefore, I am of the view that it was the duty of the accused to have proved or at least placed the facts before the Court to get the benefit under the proviso and also I am of the view that the accused alone should have had knowledge as to wherefrom 'and whereto they were transporting the paddy and that they should have proved or at least stated what was within their knowledge.
18. I agree with the finding of the learned Magistrate that the accused were transporting the paddy within the border area without permit and that it was not shown that they were transporting the paddy from one place to another place within the village of Padmanabhapuram. The conviction is confirmed. The sentence of fine of Rs. 300 imposed on each of the petitioners, in the circumstances, cannot be said to be excessive. The sentence of fine is also confirmed.
19. In the result, the revision petition is dismissed.