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Haripada Sen Gupta Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1937Cal49
AppellantHaripada Sen Gupta
RespondentEmperor
Excerpt:
- .....magistrate of kurigram, against the petitioner for an offence punishable under section 35 (a). the book in question was written and published in 1927. section 35 of the act creates the offence and prescribes the punishment. whoever knowingly has in his possession any newspaper, book or other document the importation of which has been prohibited under the sea customs act of 1878(i quote only the relevant sub-section) is punishable with imprisonment which may extend to three years or with fine or with both. no cognizance of the offence punishable under section 35 can be taken except upon complaint made in pursuance of an order or under the authority of the local government or of an authorized district magistrate. sub-s. 2 of section 38, states that no complaint shall be made unless the.....
Judgment:

R.C. Mitter, J.

1. The petitioner, Haripada Sen Gupta, has been convicted of an offence punishable under Section 35(a), Bengal Suppression of Terrorist Outrages Act (Act 12 of 1932). He was tried by Sub-Divisional Magistrate of Kurigram, and sentenced to two years rigorous imprisonment. On appeal the Sessions Judge of Rangpur maintained the conviction but reduced the sentence to a term of nine months' rigorous imprisonment. The father of the accused has a book shop at Lalmonirhat. The shop-room abuts on the road and the back room of the house is used for residence. The father does not take any part in the management of the shop which has been left to the petitioner who is, according to the finding, about 26 years of age. He has two brothers, one aged about 15 or 16 years, and the other 12 or 13. They both live in the house in which the shop is located. The eldest of these two brothers helps the petitioner by acting as a salesman but the youngest is a schoolboy.-On 5th May 1936, the shop was searched in connexion with the Kurigram train robbery. No incriminating articles were found on the search which would have connected the petitioner with the said robbery, but in a corner of the shop a book entitled 'The Future of the Indian Polities' written by M.N. Roy and published by R. Bishop of 7 Blomfield Crescent, London, was found inside a packing case. Thereupon the Officer-in-charge of Lalmonirhat Police Station, with the sanction of the District Magistrate, given under Section 38 of the said Act (12 of 1932), filed a complaint before the Sub-Divisional Magistrate of Kurigram, against the petitioner for an offence punishable under Section 35 (a). The book in question was written and published in 1927. Section 35 of the Act creates the offence and prescribes the punishment. Whoever knowingly has in his possession any newspaper, book or other document the importation of which has been prohibited under the Sea Customs Act of 1878(I quote only the relevant sub-section) is punishable with imprisonment which may extend to three years or with fine or with both. No cognizance of the offence punishable under Section 35 can be taken except upon complaint made in pursuance of an order or under the authority of the Local Government or of an authorized District Magistrate. Sub-s. 2 of Section 38, states that no complaint shall be made unless the Local Government or the authorized District Magistrate is satisfied that the newspaper, book or document in respect o which the offence is alleged to have been committed, contains words, signs or visible representations which tend to further or encourage the terrorist movement or the commission of any Offence in connexion with that movement. The District Magistrate of Rangpur who sanctioned this prosecution is empowered under Section 38, Clause (1). A notification issued by the Governor-General in Council in the year 1923 under Section 19, Sea Customs Act (8 of 1878) prohibited the importation into India of 'books issued by M.N. Roy-that may be written in any language.'

2. The learned counsel appearing for the petitioner raised the following points before us: (1) That the book in question is not covered by the aforesaid notification, it being written and published about four years after the said notification; (2) that in any event the word 'issued' used in the notification does not include authorship; (3) that in any event the conviction is not sustainable in the absence of any evidence by the Crown that the petitioner knew of the said notification; (4) that in any event the petitioner was only in constructive possession of the book and constructive possession only does not constitute an offence punishable under Section 35; (5) that the sanction of the District Magistrate is bad as the book does not contain any word, sign or visible representation which would tend to further or encourage terrorism or terrorist crimes; and (6) that the sentence at any rate is severe. We do not consider any of the first five contentions to be sound but for the reasons to be stated hereafter we consider the sentence to be severe. In order to examine the first contention we must take into account not only the language used in the notification in question but also consider the scope of Ch. 4, Sea Customs Act. The notification as the learned Sessions Judge rightly remarks is not very happily worded. The language used however could cover not only books already issued by M.N. Roy, at the date of the notification but also books that may be issued in future, and unless the said interpretation be adopted the object underlying Ch. 4, Sea Customs Act, would be frustrated.

3. Chapter 4 of the said Act consists of three sections, of which Section 19-A need not be examined in detail. It contemplates the detention and confiscation of goods the importation of which is prohibited under the preceding two sections under conditions defined in regulations to be made by the Governor-General in Council. Section 18 prohibits the importation into India of certain classes of goods well defined in the six sub-sections to that section. Section 19 empowers the Governor-General in Council by notification to prohibit or restrict the bringing or taking out by land or sea goods of any specified description. For the purpose of detention or confiscation all that the Chief Customs Officer is required to do is to satisfy himself at the time when the goods are brought into the port that they are such as are prohibited to be imported in accordance with the regulations, that is to say, to see if the goods in question come within any of the sub-sections of Section 18 or answer the description of goods as given in the notification issued under Section 19. In the case of a book he need not read it, nor is he required to do so to find out when it was written. To hold that the Chief Customs Officer could rightly detain or confiscate the book in question and to hold at the same time that no offence would be committed which is punishable under Section 35(a), Bengal Terrorist Act, if such a book had been smuggled in and was found in the possession of a person would be inconsistent. Our view is that an offence under Section 35(a), Terrorist Act, in respect of a book is committed if it could have been rightfully seized by the Chief Customs Officer at the time of its importation. We accordingly overrule the first contention.

4. The second contention is that the word 'issued' used in the notification means published. The learned counsel for the petitioner accordingly contends that as M.N. Roy is not the publisher of the book in question it does not come within the notification. We do not think that such restricted meaning should be given to the word 'issued.' One of the meanings given to the word 'issue' in the Oxford Dictionary is that which proceeds from any source.' We accordingly hold the phrase 'books issued by M.N. Roy' would include books written by him as well as books published by him. The second contention is accordingly overruled. The third and fourth contentions are also without substance. The word 'knowingly' in Section 35, Terrorist Act, qualifies the word 'possession.' Constructive possession on the part of the person charged is not enough. If such a book is in a room occupied by the person charged, he is no doubt in the eye of law in possession of the book, because he has possession of the room, but to sustain a conviction under the section the Grown must prove that he knew that the book was in his room. The finding of the learned Sessions Judge is that the petitioner knew that the book was in his shop. As the word 'knowingly' qualifies the word 'possession' only, it is immaterial whether the petitioner had knowledge of the notification or not. To the fifth contention there can be only one answer. A prosecution can be started only on the sanction of the Local Government or of an authorized District Magistrate. Whether the sanctioning authority would authorize a prosecution for an alleged offence punishable under Section 35(a) or not is a matter for that authority to decide. No doubt the legislature enjoins the Local Government or the District Magistrate to satisfy themselves that the book in question contains words, etc., which tend to further or encourage terrorism or terrorist crimes, but, once the prosecution is authorized the trying Court cannot go behind the sanction or question the propriety of the judgment of the sanctioning authority. We cannot therefore examine the book for the purpose of seeing whether it contains any words etc., which would tend to further or encourage terrorism or terrorist crimes for the purpose of seeing whether the District Magistrate was right in directing a complaint to be filed. We accordingly overrule this contention also. In considering the question of sentence the learned Sessions Judge was asked to look into the book but he refused. He said as follows:

I did not think it necessary to read the book but in my opinion that point is irrelevant as the accused has been found guilty under a particular notification. His offence is an offence under a special and preventive Act. The fact of his having broken that law is his offence. It is in a way a technical offence.

5. We do not think that the learned Sessions Judge was right in this view. We have already held that the contents of the book cannot be examined by the Court which holds the trial or by us for the purpose of seeing whether the District Magistrate ought to have authorized the prosecution. But for the purpose of deciding what sentence ought to be passed it is the duty of the Court to take into account the character of the book. If the book in question is a violent one advocating terrorism or terrorist crimes the sentence ought to be substantial. If it is an innocent one in the sense that it does not encourage terrorism, it may be unfortunate that authority to file a complaint has been given by the District Magistrate, but the Court must take the character of the book into consideration in passing sentence. With this view we asked the learned Deputy Legal Remembrancer to go through the book and tell us if there is in it any appeal to terrorism or anything concerning terrorism or terrorist crimes. He has stated before us that the book contains no such thing. I have examined the book myself and I do not find in it anything which has any reference to terrorism or terrorist crimes. On this ground we hold that the offence committed is of a technical character and that justice would be done if the sentence be reduced to the term already served. We order accordingly. The petitioner is discharged from his recognizance.

Henderson, J.

6. I agree.


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