Brett and Stephen, JJ.
1. The present petitioner has been convicted of offences under Rules 1 and 2 framed by the Assam Government under Section 40 of the Assam Forest Regulation 7 of 1891, and has been sentenced to a fine of Rs. 800 or in default to undergo rigorous imprisonment for one month.
2. The rules, which he is said to have infringed provide, in Rule 1, for the import of foreign rubber into British territory along certain authorized routes and forbid forest produce being brought in by any other routes, while Rule 2 provides that duty leviable on such produce shall be realized at certain revenue stations.
3. The case, which has been found to be proved against the petitioner in the Lower Courts, is that he was removing 21 maunds of India rubber along an unauthorized oute on the 3rd of May 1905, and that by so doing he was also infringing Rule No. 2 by attempting to avoid payment of the duty leviable on that rubber.
4. It appears that, in consequence of information lodged to a Forest Ranger, the 21 maunds of India rubber were discovered in the house of one Bhudher in Kumar Graon.
5. The case for the prosecution was that the India rubber in question had been purchased at a place called Dangori and had been taken from there to Kumar Graon. The route provided by Rule 1 is down the Brahmaputra river by water or down the Wrarghirita Dibrugarh Railway by land. In carrying the rubber from Dangori to Kumar Gaon the case was that the accused was not proceeding or attempting to proceed along the authorised routes, but was going completely out of the direction of these two routes.
6. The case of the petitioner was that the rubber had been purchased at Wakhat Gaon and that it was being taken to the Brahmaputra river by elephants and that for some reason or other, or because the elephants could not proceed further, it had been deposited in the house of Budhu. The rubber, when discovered, was concealed in unthreshed paddy in the out-house of Budhu. There can be no doubt that the manner in which the India rubber was concealed was sufficient to raise suspicion against the petitioner, but it was necessary before he could be convicted of a breach of the two rules that the prosecution should prove the facts necessary to constitute such offences. The Deputy Magistrate, before whom the case was tried, has disbelieved the evidence for the prosecution, which was given to prove that the India rubber was purchased at Dangori and was taken from there to Kumar Gaon, and also the evidence adduced for the defence to prove that it was purchased at 'Wakhat Gaon and was thence taken, to Kumar Gaon There is therefore no evidence, which can be accepted as trustworthy, to prove where the India rubber was brought from, or that it was being moved along any routes different from the two routes laid down in Rule 1. We find in the original complaint as laid that there was an alternative charge that the petitioner had purchased India rubber, which was the produce of the trees in the Reserved Forest, without a license and was trying to pass it off as foreign rubber. That alternative charge was however not Entered into by the Deputy Magistrate, who tried the case, and apparently was not believed by him. The only charge, which he has considered, is the charge of the breach of the rules 1 and 2 framed under Section 40 of Regulation 7 of 1891, and we think that the facts, which he has found, are insufficient to support the conviction for breaches or. these two rules. There is no distinct finding that the rubber was being moved along an unauthorized route. The only facts accepted as proved are that the rubber was found under suspicious circumstances at Kumar Gaon. Where the rubber came from and where it was going was not found either by the Deputy Magistrate or by the Lower Appellate Court. The Lower Appellate Court has held that the onus rested on the accused of proving that the rubber was on its way for conveyance by an authorized route. We do not think that this view of the law is correct. The onus rested on the prosecution, in order to support the conviction, to prove that the rubber in question had been removed along some route, other than the two routes prescribed by Rule 1. As there is no finding to that effect, and as certainly there is no finding that there was any intention on the part of the petitioner to avoid payment of duty, inasmuch as there was nothing to prove that in keeping the rubber at the place, where it was seized, there was an intention to avoid any revenue station, the nearest revenue station for paying duty being Dibrugarh, which had not been reached, we think that the findings of the Deputy Magistrate convicting the petitioner for breach of rules 1 and 2 framed under Section 40 of Regulation 7 of 1891, cannot be supported,
7. We therefore make the Rule absolute, set aside the conviction and sentence, and direct that the fine or any portion of it, if paid, be refunded.
8. As we hold that no offence has teen committed in respect of this rubber, it necessarily follows that we must direct that the rubber, which by the order of the Magistrate was made over to the Forest Department, be returned to the petitioner.