1. We think that the question put to us at the end of the 4th paragraph of this reference must be answered in the negative, and that the absence of the certificate required by Rule 5(b) of the rules issued by the Governor-General in Council does not make the document in question 'not duly stamped' within the intention of the Stamp Act. It is not necessary for us to express an opinion as to the exact scope of the direction contained in that rule. Whether or not it is a purely administrative order, directory as addressed to the treasury officer or to the stamp vendor, or whether it be also intended for the protection from inconvenience or what not, of the person applying for the stamps, in neither case can it, in our judgment, be held that the non-compliance by the treasury officer or the stamp vendor with the direction to give such a certificate is an act for which the person purchasing the stamp from him can be punished by the invalidation of the stamps innocently bought by him. So long as the proper stamp is obtained and paid for by him, as was the case in this instance, he is, we think, unaffected by the operation of that rule. We are not aware, nor probably does the matter come strictly before us, of the exigencies which, in the opinion of the Collector under some rule issued, as he supposes, probably correctly, by the Board of Revenue, rendered it his duty to institute this astonishing prosecution directed against a person who had done all required of him by law, and even paid Rs. 15 more than the stamp required from him by law.
2. We would earnestly invite attention to the question whether the rules and directions issued by the Board of Revenue are, in truth, of such a stringent nature as to compel the Collector, who of course did, as he understood it, his duty, and no more, to institute this prosecution under the impression that he was bound to do so. If so, it seems obvious that such rules should be corrected.
3. As to the prosecution, we have already intimated our opinion--an opinion in which the learned Advocate-General, as might be expected from him, cordially joins--that the matter ought to be sent to the Criminal Bench for their consideration in case the learned Judges sitting on it should think proper to take notice of the case. If so, perhaps the stigma of a criminal conviction under such circumstances may not be allowed to remain upon Trailakya Nath Baral, the subject of that prosecution.
4. On the matter coming before the Criminal Bench, the Court (Petheram, C.J., and Rampini, J.) delivered the following judgment on 3rd September 1890:
5. We think that, for the reasons given in the judgment of this Court, dated the 30th July last, the document executed by the accused was duly stamped, and that therefore the accused has not committed any offence punishable under Section 61, Act I of 1879. 'We accordingly set aside his conviction and the sentence inflicted upon him. The fine, if paid, must be returned to him.