1. This is a Rule calling upon the District Magistrate of Khulna to show cause why the conviction of the petitioners under Section 9 (a) and (b), Salt Act, should not be set aside. There is also an Order of confiscation of the salt, which is also attacked. On behalf of the Crown, Mr. Roy Choudhury pointed out that the learned Additional District Judge is mistaken about the provision of law applicable to the confiscation and that the Order in question was passed under the provisions of the Code of Criminal Procedure.
2. The petitioners pleaded guilty. The only reason why I issued the Rule was the allegation made in Para. 6 of the petition. That is to the effect that they had been told by the officer of the Salt Department that they would be very leniently dealt with and the salt would be returned to them if they made a plea of guilty. They supported the statement by an affidavit sworn personally in the lower Court. Mr. Roy Choudhury contended that this affidavit is worthless because the petitioners cannot be prosecuted, if it is false. Now there is no reason to suppose that the only reliable statements made are statements which if false would lead to prosecution. Affidavits by other defendants would be of little use. There is nothing at all unlikely in the statement made in the affidavit and there is no counter affidavit on the other side.
3. Furthermore, there is strong corroboration of the truth of the affidavit in the proceedings that took place in the Magistrate's Court. The case was taken up for trial on 17th June 1942, There were three accused persons. One of them did not plead guilty and an adjournment had to be taken because the prosecution was not ready to go on as the witnesses were not present. From this it is quite obvious that there was some sort of discussion between the present petitioners and the officers of the Salt Department. Had that not been so, there would have been an application for an adjournment to produce the witnesses.
4. Finally it was contended by Mr. Roy Choudhury that the appeal is barred under the provisions of Section 412, Criminal P.C. Of course under that section persons who plead guilty can only appeal on the ground of sentence. But they are entitled to satisfy the Court that there was in fact no plea of guilty. Now I have no hesitation in saying that a plea obtained by trickery is not a plea of guilty within the meaning of the Code. I am not satisfied that this was a proper plea of guilty which would preclude the petitioners from asking for any relief except the reduction of the sentences and the setting aside of the Order of confiscation.
5. Now this ground obviously does not entitle the petitioners to be acquitted. They can only ask for a retrial and it is for them to say whether they would press for a retrial and run the risk of obtaining a heavier sentence. I have indicated that I shall not be prepared to reduce the sentence or to set aside the Order of confiscation. In these circumstances a retrial was asked for. The Rule is made absolute, the conviction and sentences are set aside and I direct that the petitioners be retried. The Order of confiscation is also set aside.