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Chang Chung Ching and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1945Cal363
AppellantChang Chung Ching and ors.
Cases ReferredRex v. Garr
- roxburgh, j.1. in this case the accused have been convicted for an offence under section 3 of ordinance 83 of 1943 in respect of possession of 63 tins of cheese bearing government mark d arrow d and of certain cartons of philip morris cigarettes. chang chung ching as manager and chang tsai ching as the proprietor of the restaurant in which the articles were found have been sentenced each to six months' rigorous imprisonment and to pay a fine of rupees 500 in default to suffer further three months' rigorous imprisonment. chow ching young a cook of the restaurant has been sentenced to three months' rigorous imprisonment. the goods in question were found in the course of a drive which the military authorities held when several premises in calcutta were searched and articles were seized.....

Roxburgh, J.

1. In this case the accused have been convicted for an offence under Section 3 of Ordinance 83 of 1943 in respect of possession of 63 tins of cheese bearing Government mark D arrow D and of certain cartons of Philip Morris cigarettes. Chang Chung Ching as manager and Chang Tsai Ching as the proprietor of the restaurant in which the articles were found have been sentenced each to six months' rigorous imprisonment and to pay a fine of rupees 500 in default to suffer further three months' rigorous imprisonment. Chow Ching Young a cook of the restaurant has been sentenced to three months' rigorous imprisonment. The goods in question were found in the course of a drive which the Military authorities held when several premises in Calcutta were searched and articles were seized bearing Government marks. The finding of the articles is not disputed. The defence of the accused is that the cheese was bought from one Banwarilal Saha, a regular supplier of goods to the restaurant, by the store keeper Yu Fu Sai, D. W. 1. The cigarettes were said to have been given to the proprietor by some American soldiers. In support of the evidence of purchase the accused proved a number of vouchers admitted by the clerk of the firm Banwarilal, D. W. 3, to be vouchers of his firm which were for goods bought by the restaurant, also one voucher Ex. E showing the receipt of Rs. 150 purporting to be signed by Banwarilal Saha and another Ex. C showing supply of articles totalling a value of Rs. 124-8-0. In Ex. C three items are mentioned but as regards two of them the actual description is not given; item 3 is shown as 'Jam'. The clerk in question has denied that these were issued by the firm. We have ourselves compared the writings on these (there is a different writing in Ex. B from that in Ex. C) with those on the admitted vouchers and have no doubt that in fact they are genuine vouchers of the firm.

2. The learned Chief Presidency Magistrate has not accepted it as proved that these are genuine vouchers and has also added that even if these were issued by the firm, the fact that the accused accepted vouchers in which the articles were not specified is in itself an indication that they knew that they were buying something which could not be legitimately sold. The accountant of the accused's firm was called and has proved entries (written in Chinese) in the account books of the restaurant corresponding to these payments. In our opinion the accused have sufficiently proved within the terms of Section 3 of Ordinance 33 of 1943 that they came into possession of these tins of cheese lawfully. No doubt the clerk whom they called has denied the vouchers, but the firm which sold the goods are likely to know more about their origin than the buyer, and it is obvious that it is in their interest for their servants to deny any connexion with suspected goods found elsewhere. The writing on the vouchers and the accounts of the accused seem sufficient proof for us, at any rate the evidence satisfies us of the probability that these goods were bought by the store keeper D. W. 1 from the firm of Banwarilal Saha. As regards the question of knowledge that the goods bore the Government mark, assuming that such knowledge is a material point, once it is accepted that the goods were purchased from a shop in the bazar we think that it is improbable that these Chinamen would know in the circumstances that these tins were or had been Government property.

3. On this point Mr. Ahmed appearing on behalf of the Crown first urged that the accused had clearly failed to show as required by Section 3 of the Ordinance that the articles came into their possession lawfully because, as he contended, they were required to prove the matter beyond reasonable doubt. Later in his argument he did not press the matter so far and stated that he relied on the statement of the law as given in Robert Stuart Wauchope v. Emperor ('33) 20 A. I. R. 1933 Cal. 800. That was a case of breach of trust. On this point there is a recent decision of the Court of Criminal Appeal in Rex v. Garr-Briant (1943) 1 K. B. 607 with reference to Section 2, Prevention of Corruption Act, 1916, under which in certain circumstances payments 'shall be deemed to have been paid or given and received corruptly... unless the contrary is proved.' Charles J. had directed the jury at the trial that the accused had not only to discharge the burden of proof and show that he gave the money without the corrupt motive but also had to do so beyond all reasonable doubt. It was held that

in any case where, either by statute or at common law, some matter is presumed against an accused person, 'unless the contrary is proved,' the jury should be directed that it is for them to decide whether the contrary is proved, that the burden of poof required is less than that required at the hands of the prosecution in proving the case beyond a reasonable doubt, and that the burden may be discharged by evidence satisfying the jury of the probability of that which the accused is called upon to establish.

4. We think that this is the correct principle to apply to the terms of Section 3 of ordinance 83 of 1943 under which the accused in certain circumstances is liable to be punished 'unless he proves that the article came into his possession lawfully.' The view we think is entirely in accordance with the definition of 'proof' as given in Section 3, Evidence Act. In this case, assuming that the prosecution have discharged their part of the onus as required under Section 3 the accused has to go to jail unless he proves that he came by these articles lawfully. The question we are considering in estimating the proof given and the amount of proof required is whether he has satisfied us that he should not go to jail. The standard of proof required in the circumstances is obviously not the same standard as is required from the prosecution when they are trying to satisfy us that the accused must go to jail. We are to take the fact as proved (in accordance with the definition) if we consider 'its existence probable that a prudent man ought under the circumstances of the particular case to act upon the supposition that it exists.' We think that in this case a prudent man ought to act on the supposition that these articles were bought by the accused innocently and lawfully.

5. As regards the cigarettes we are in some difficulty. If we accept the accused's version that these were given to him by American soldiers, the question then to be ascertained is whether this is proved to be a lawful possession on his part. We see no reason not to accept the accused's version. There is evidence to show that these cigarettes are identical with cigarettes imported by the United States army and issued to the troops. They bear stamps showing that they are Sea Stores and according to the evidence of Captain Morris, Deputy Assistant Provost Marshall, U. S. Army, they were sent for the use of the U. S. Navy. The question is whether it is unlawful to receive such articles if given away by an American soldier (or seaman). Under Section 156(1), Army Act, 1881, kept in force by the Annual Acts it is an offence to obtain in India in various ways articles there described, (including it would seem articles issued as rations) from a British soldier. Under Sub-section (2) it is provided that:

Where any such property as above in this section mentioned is found in the possession or keeping of any person, such person may be taken or summoned before a Court of summary jurisdiction, and if such Court have reasonable ground to believe that the property so found was stolen, or was bought, exchanged, taken in pawn, obtained or received in contravention of this section, then if such person does not satisfy the Court that he came by the property so found lawfully and without any contravention of this Act, he shall be liable on summary conviction to a penalty not exceeding five pounds.

6. The same provision applies with respect to the Air Force by virtue of Section 12, Air Force (Constitution Act, 1917) which applies certain provisions of the Army Act to the Air Force with amendments as set forth in the schedule to the former Act. Provisions with regard to the public stores generally are to be found in the Public Stores Act, 1875. Under Section 7 there is a provision similar to that in Section 156(2), Army Act, providing for punishment of the person found in possession of stores reasonably suspected of being stolen or unlawfully obtained on his failure to give a satisfactory account of how he came by the same. (This Act does not, it would seem, apply in India). Under Section 13, Public Stores Act, and Section 156(7), Army Act, provision is made for separation of the respective articles to which the two Acts apply. Stores issued as regimental necessaries or otherwise for any soldier, militiaman, or volunteer are excluded from the operation of the Army Act. There is a complementary exclusion of the articles covered by the Army Act from those deemed to be stores issued as regimental necessaries or otherwise within the meaning of Section 13, Public Stores Act. Incidentally we may note that there are no provisions similar to those in Section 156(1), Army Act, to be found in the Indian Army Act, and we have not been shown whether such provision exists elsewhere or whether there are provisions similar to those of the Public Stores Act, 1875, in force in India, and for our present purpose it is not necessary for us to investigate the matter further. The important point is that no provisions have been shown to us which regulate matters as regards possession of Government stores in the above manner in so far as they affect stores of the United States Army or Navy. In other words, it is clear that if this was the case referring to cigarettes issued as rations to a British soldier it would be an offence for any one to receive them even as a gift from such soldier and therefore the present defence of the accused in this case would be valueless. We have not been shown that there is any similar provision relating to rations issued to an American soldier making it an offence to receive them in India as a gift. In passing we may add that we are assuming that the cigarettes in this case are to be taken as having been issued as rations and not that they are to be taken as sold by a canteen.

7. Returning to the question of the tins of cheese we may point out that assuming that these tins are articles issued to the British Army or Air Force the offences created by Section 156, Army Act, are (in Sub-section (1)) the receipt from a soldier, and (in Sub-section (2)) possession of the articles provided the Court is satisfied that there is reasonable ground to believe that the tins were stolen or bought, exchanged, taken in pawn, obtained or received in contravention of that section, and if the possessor does not satisfy the Court that he came by the property lawfully and without a contravention of the Act. In other words, in the present case for instance even though the seller Banwarilal Saha might be liable for some offence on the facts as accepted as proved by us the purchaser, the present accused, would not be liable. Mr. Ahmed arguing in support of the conviction urged that the terms of Section 3 of Ordinance 33 of 1943 require that the person found in possession should in effect prove a good title to the goods; in other words, that he must trace the history back from the time when the goods first passed out of possession of the Army or of some soldier and show that there was no flaw in the chain of possession. We are clearly of opinion that the section cannot bear this interpretation. To quote only one instance, under Sub-section (1) of Section 156, a defence for the purchaser from a soldier is for himself to show that he acted in ignorance either of the property being of the class mentioned in the sub-section or that the seller was a soldier or a person acting for a soldier. According to Mr. Ahmed's interpretation of the Ordinance the innocent purchaser from a second-hand shop of an article sold by a soldier would be liable under the provisions of the Ordinance although the original purchaser, acting in ignorance, himself would not be liable under the Army Act and hence under the Ordinance. Incidentally every person connected with the present case who has handled the tins in question would appear also on the same argument to be liable under the Ordinance for his temporary possession. In fact, the interpretation leads to fantastic results. For the purposes of the present case, it is sufficient to say even accepting that it is proved that the articles in question here are military stores which have been the property of either His Majesty's Government or of the United States, the accused have proved that they came into their possession lawfully. The result is that this appeal must be allowed and the convictions set aside. The accused, if on bail, must be discharged from their bail. The fines, if paid, will be refunded.

Ormond, J.

8. I agree that these 3 Chinese accused in this particular case should be acquitted. The application of this Ordinance (33 of 1943), is of considerable importance to the public. The issues arising in such a case as the present are such as have not previously been much agitated in this Court. It may be useful therefore for me to add certain further observations. The Ordinance in Section 3 reads as follows: 'whoever is found or is proved to have been in possession of any article of military stores...'

9. It is the essence of any offence punishable under this Ordinance that the accused should have (or have had) possession: that is the first ingredient. In this case there is no question as to this, since the stores were found on the premises of the accused. There is no question at least, that is to say, of the possession, by the manager, of the stores found generally on the premises. It is not necessary for our decision in the present case to go into any further question whether possession by the cook in such circumstances on the orders of his master is intended to be punishable under the Ordinance. I would prefer not to commit myself at present to saying anything which might have any general application in such cases as to whether possession by a cook on the orders of his master is intended to be punishable under the Ordinance. The guilt or innocence of a servant might depend on the particular circumstances in which he was given possession by his master and as to whether the Court saw fit to accept his explanation of such circumstances as rebutting any presumption of unlawful possession and showing lawful possession in his individual case. If technically guilty, it might be that in certain cases a Court would be lenient to an underling by imposition of a nominal or light sentence: in other cases a Court might consider the servant equally to blame as his master. The second essential ingredient is that the article should be a military store. I shall return to this. The third essential ingredient in the offence punishable under the Ordinance is that the possession should be of a quality which is unlawful: which I should add must mean unlawful under the law in force in India. The words 'unlawful' and 'lawful' occur in various places in the Ordinance. But the Ordinance itself nowhere defines what is unlawful possession for the purposes of the Ordinance. Nor is any criminality or new offence created by the Ordinance which has not been already made a crime under some other statute or Act before the passing of the Ordinance. The Ordinance thus does not make any possession of any particular kind unlawful which was not already unlawful before the Ordinance was passed. The effect in substance of the Ordinance thus is; by laying down that an accused shall be punishable for mere possession unless he furnishes an explanation showing his possession to be lawful that it creates a presumption of lawful possession where mere possession and no more is proved. But while this may have important results as affecting proof or disproof of the offence of unlawful possession it in no way, as I see, affects or alters the character of the offence which is to be proved.

10. The practical result of this may be, where the pre-requisites for the presumption exist and possession only by the accused is shown that in a case where he gives no explanation, he may well be convicted of the offence of unlawful possession of military stores without any practical necessity for appreciation by the Court of the precise ingredients of the offence or of what precisely in his case might amount to lawful possession. But where an explanation of any sort is furnished, it obviously becomes at once necessary to appreciate the precise nature and limits of what will in law constitute unlawful possession, before any appreciation can be arrived at by the Court whether the circumstances as explained by him amount to lawful possession or not. To see if he has a defence to the crime it is necessary to see what the crime is. For this it becomes therefore necessary to look outside the Ordinance. Our attention has not been drawn on behalf of the Crown to any special Acts or Orders operative in India making the possession of military stores unlawful in any special circumstances. We have therefore ourselves looked into this matter to an extent necessary for the disposal of this case, though the researches so far made by us would not necessarily be exhaustive enough for a satisfactory disposal of all cases which may fall to be decided under this Ordinance; and this aspect of the matter may need to be dealt with in more detail hereafter. There may be mentioned at the outset Section 411, Penal Code, relating to the offence of dishonestly receiving stolen property. That section will apply equally to military as to non-military stores. To be guilty of the offence there defined it is necessary for the accused to have possession with knowledge (or reason to believe) that the goods were stolen property. There is also Section 156(1), Army Act, (see also the Air Force Act) being the English statute passed by Parliament as 44 and 45 Vict. Order 58 and brought into force now annually by the Army and Air Force (Annual) Act (see the Manual of Military Law (Edn)., Chap. II paras. 16 & 33). That section applies to stores which are: 'any of the property following; namely any arms, ammunition, equipment instruments, regimental necessaries, or clothing issued for the use of officers or soldiers, or any military or air force decoration of an officer or soldier, or any furniture, bedding, blankets, sheets, utensils, and stores in regimental charge, or any provisions or forage issued for the use of an officer or soldier or his horse or of any horse employed in His Majesty's service.' It is made an offence under that section for everyone who

(a) Buys, exchanges, takes in pawn, detains, or receives from any person on any pretence whatsoever; or (b) Solicits or entices any person to sell, exchange, pawn or give away; or (c) Assists or acts for any person in selling, exchanging, pawning or making away with'

any of such stores unless:

he proves either that he acted in ignorance of the same being such property as aforesaid, or that the same was sold by order or with the consent of the Army Council, or some competent military authority or that the same was the personal property of an officer who had retired or ceased to be an officer or of a soldier who had been discharged or of the legal representatives of an officer or soldier who had died.'

11. Here again, to put it broadly, want of knowledge that the stores were military stores (as covered by the section) will be a good defence. It may be observed that there is a note in the official edition to the effect that this section is applicable in India: though we have not in this case heard any full argument on this point, and it is not necessary for us to decide the extent of its application. Then there is operative in the United Kingdom the Public Stores Act (38 and 39 Vict. Ch. 25) of 1875. That Act applies to 'all stores under the care, superintendence or control of a Secretary of State or the Admiralty, or any public department or office, or of any person in the service of His Majesty,' and, as it goes on to say, 'such stores are in the Act referred to as His Majesty's stores.' The term stores is defined in Section 1 as including all goods and chattels and any single store or article. It will be observed that throughout that Act there is no provision creating any special or new offence in relation to public stores founded on any degree pr quality of unlawful possession more stringent than the ordinary unlawful possession which is a crime under the ordinary common law or criminal law operating in the United Kingdom independently of the Act.

12. Under the Act itself certain specific sections of the English Larceny Act are incorporated with the Public Stores Act and are to be read as re-enacted in it; and the expression 'this Act' where used in the Larceny Act is made to include the Public Stores Act. In addition to that, Section 7 is as follows:

If any person is brought before a Court of summary jurisdiction charged with conveying or with having in his possession or keeping any of Her Majesty's stores reasonably suspected of being stolen or unlawfully obtained, and does not give an account to the satisfaction of the Court how he came by the same he shall be deemed guilty of a misdemeanour, and shall be liable, OH summary conviction, to a penalty not exceeding five pounds, or, in the discretion of the Court, to be imprisoned for any term not exceeding two months, with or without hard labour.

13. Thus it is made a misdemeanour under Section 7 for a person if brought before a Court of summary jurisdiction when charged with possession of any of His Majesty's store reasonably suspected of being stolen or unlawully obtained, not to give an account to the satisfaction of the Court how he came by them. The maximum sentence for such misdemeanour is a fine of five pounds or in the discretion of the Court imprisonment up to two months. Section 9 is as follows:

If stores are found in the possession or keeping of a person being in Her Majesty's service, or in the service of a public department, or being a dealer in marine stores or in old metals, or a pawn-broker (within the meaning of any enactments for the time being in force relating to such dealers or to pawnbrokers), and he is taken or summoned before a Court of summary jurisdiction, and the Court sees reasonable grounds for believing the stores found to be or to have been Her Majesty's property, then if such person does not satisfy the Court that he came lawfully by the stores so found, he shall be liable, on summary conviction, to a penalty not exceeding five pounds.

14. Thus it is made an offence under Section 9 punishable with a penalty only not exceeding five pounds for a dealer in marine stores or in old metals or a pawnbroker or a Government servant as there mentioned found in possession of stores which the Court sees reasonable grounds for believing to be or to have been His Majesty's property, if he does not give an explanation satisfying the Court that he came lawfully by them. These two sections may well have been enacted with a view to assist in enquiry and investigation into the real origin of a theft of military stores when traced in the hands of receivers. No argument has been addressed to us suggesting that the English Public Stores Act is operative in India; and for the purposes of this case it is not necessary to go into any question of its operation. The Crown has not been able to show us any Indian Act or enactment corresponding to the English Public Stores Act beyond the provisions of this Ordinance 33 of 1943. In an old (1904) edition of Carnduff's Military and Cantonment Law in India we have traced a Bill only, which was introduced as the Government Stores Bill. It may be of interest hereafter in some other case for us to consider the history of whatever legislation has been introduced in India on these lines: but this is not necessary for our decision in the present case. I have referred to the English Public Stores Act only as showing the corresponding legal position in the United Kingdom. Also to emphasise that even where that Act is in operation and certain minor offences are enacted under it for failure to furnish an explanation as to the source of possession, yet under that Act also want of knowledge that the stores are stolen and that they are military (or Government) stores is a good defence. In any event the result is there is no Act or provision of law operative in India relied on by the prosecution, against which an explanation by the accused establishing his want of knowledge, (so that he neither knew (a) that the stores were stolen nor (b) that the stores were military stores), would not be a good defence: even though the stores are in fact military stores.

15. It may be convenient here also to emphasise a quite different point in relation to Ordinance 33 pf 1943, which is this: that unless the various circumstances exist which are made a pre-requisite of the presumption of unlawful possession, no such presumption will begin to come into operation: that is to say if the prosecution do not establish the stores to be military stores, then even though the accused gives no explanation of his possession, there will not arise merely from his failure to give an explanation any presumption that the possession is unlawful. I may pass now from these general introductory remarks to the particular consideration as this case. In the present case the prosecution rely for establishing the stores in question to be military stores partly on specific oral evidence suggesting that the mark D arrow D is found exclusively only on military stores (that is an inference of fact we are invited to draw as to certain of the stores so marked being military stores), and partly it would seem on an inference of law which we may be invited to draw from the goods being marked with this mark.

16. Mr. Ahmed for the Crown relies on the brief statement of the prosecution witness P. W. 3, Capt. Graham Walker, who is an officer-in-charge of a supply depot at Hastings in Calcutta when he states that the stores are not obtainable in the market, and that 'goods marked D arrow D are goods which are received by us from various countries solely for the' use of the military and they are used only for the military. They are not obtainable in the market for ordinary people.' It is true that in this case there has been no cross-examination of that statement, nor has any more detailed evidence been furnished. But, on the face of it, an officer-in-charge of such a supply depot would not necessarily be in a position to say what happened to the full out-put of such manufactured stores coming from a country such as Australia; and would hardly, on the face of it, be in a position definitely to say that no stores so manufactured were ever delivered for civilian consumption. As to this, the matter might well be complicated by sale and purchase from canteens and from surplus stores. It is one thing to say that the mark D arrow D is used on stores supplied to the army. It is another thing, in my view, to say that such a mark is never to be found on any stores supplied to the civilian market. The witness laid no foundation in his evidence for any special knowledge as to this.

17. In regard to the effect in law of Government marks, the position is as stated in Halsbury (Hailsham Edition) Vol. 9 Article 603, that certain marks have been exclusively appropriated by statute to denote His Majesty's property in public stores. The marks used in England for such stores as those with which we are now concerned are shown in the schedule of the Public Stores Act of 1875(38 and 39 Vict., Chap. 25). In that schedule the broad arrow, among other marks, is mentioned (though there is no mention of this mark 'D arrow D'). In view of the express provisions of Section 4 that such marks may be applied for the purpose expressly there stated 'in order to denote His Majesty's property in stores so marked'; and making it a misdemeanour for anyone to apply such marks without lawful authority under liability of imprisonment up to two years: and making it a felony also (under Section 5) to obliterate such marks under liability of penal servitude up to seven years or imprisonment up to two years: it would seem clear that in England any goods shown to be so marked may be taken by a Court to be proved to be, or at least to be subject to a strong presumption as being proved to be Government or military stores.

18. The mark 'D arrow D' is however not among the marks covered in the text as the English Public Stores Act seen by us. Nothing has been as yet placed before us or found by us to show that it has been included by any recent English statutory provision or amendment, or that it has been given even in the United Kingdom any statutory force of a mark Covered by the English Public Stores Act, As already mentioned, it has not been suggested that the English Public Stores Act is applicable in India. We have not been referred by the Crown to any Act of the Indian Legislature similar to that English Act in this matter of exclusive appropriation of Government marks. In these circumstances we have nothing before us on which we could hold that the mark 'D arrow D' as a Special mark has been given any statutory effect in British India as proof, in itself without more, of goods so marked being Government or military stores in India. This aspect of the matter as to the legal effect in India of special marks may call for further investigation hereafter: but even were the mark found to carry statutory effect, that would not alter our main decision in this case. The cheese in this case on which the mark 'D arrow D' is borne appears to be of Australian manufacture. It would seem reasonable therefore to suppose that the mark is used in Australia, and put on in that country before packing in the tins and before export. We have however no definite evidence whether that is so, or when or by whom or in what circumstances it is applied.

19. In view of the foregoing, had it been necessary to decide the point, I should for myself have hesitated, without further evidence or materials than have been made available in this present case, to have held that the prosecution had established that the tins of cheese in question were clearly military stores. If they are not, then the accused is free from the burden of any presumption of unlawful possession under the Ordinance; and even were they to give no explanation how they acquired the tins of cheese, where, as here, the prosecution prove no more than mere possession, they would without more be entitled to be acquitted.

20. A decision whether these stores were or were not in fact military stores does not however affect the final outcome of this case. For even were I to assume that the stores (the tins of cheese) in this case had been clearly shown to be in fact military stores, yet the accused would still, as I see the case, be entitled to an acquittal, for the reason that we must hold in our view that they acted without knowledge of the stores being military stores and purchased them in good faith. The facts as to this, as we find them, have already been mentioned in the judgment and findings of my learned brother with which I fully agree. The accused are Chinese. They kept their accounts in Chinese. There is no evidence that they can read English. The accused are thus not even in the same position as an ordinary person literate in English would be in this country. Furthermore on the only tin which has been shown to us the mark between the two Ds is extremely small and looks to my eye as much like a figure 4 as an arrow: and hardly at all like a plain broad arrow. Moreover the accused bought these stores at a reasonable price from a grocer, who was their usual grocer. In these circumstances it is hardly feasible, in my view, to suggest that they had knowledge of the cheese being military stores: either from a sight of the mark or from the other circumstances surrounding the transaction. The explanation furnished by them satisfies us therefore that they acquired possession by bona fide purchase without knowledge either of the goods being stolen or unlawfully acquired by the person from whom they got them, or of the goods being military stores. The result is, even if it should be considered that the evidence in this case is enough to show the stores to have been military stores, the accused are nevertheless entitled to an acquittal by reason of their explanation of possession, by which they have rebutted any presumption of unlawful possession, arising on the footing of the stores being military stores.

21. In regard to the degree of proof for the answer to be shown by the accused in order to establish his innocence, I entirely concur in the statement of the law which has fallen from my learned brother, in which he has held in effect that the standard of proof laid down in Rex v. Garr-Briant (1943) 1 K. B. 607 operates in such a case as the present, where the accused has to show proof of his innocence. I would only conclude by recording that I do not in any respect disagree with the view expressed by the Chief Presidency Magistrate that in view of the prevalence of thefts of military stores at the present time a deterrent sentence in a proper case should be called for. In the present case, however, I agree with my learned brother in the view that the accused have given sufficient explanation to establish their lawful possession under Section 3.

22. In regard to the cigarettes it may be noted that if there had been clear evidence that these cigarettes were stores 'intended for supply' to U. S. A. forces in India, this would bring them within the definition of military stores under the Ordinance even though they would not have been military stores of His Majesty. The charge as to the cigarettes is, in my view, a comparatively minor matter. It is sufficient to note that whatever may be the position in the United States of America as to a gift in the U. S. A. or in a country subject to the laws of the U. S. A. by a U. S. A. soldier to a civilian of cigarettes which have been issued to the soldier, we have not so far been shown any statutory provision of the Indian Legislature making such a gift by an American soldier unlawful in India. For the purposes of the present case, I therefore accept the explanation given by the accused as to their possession of the cigarettes also.

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