1. Each of these three accused was separately tried on a charge of keeping more than 300 tins of kerosine oil in his boat without a license or pass, an offence punishable under Section 15(a) of Act VIII of 1899. Each accused pleaded guilty and filed a written statement. The Magistrate after recording the plea of guilty adjourned the cases. At the nest hearing after examining one Court witness in each case, he convicted each accused and sentenced them to pay a fine of Rs. 10 each. The learned Sessions Judge of Tipperah has referred these cases with a recommendation that the convictions and sentences be set aside, on the ground that the accused merely carried the kerosine tins under the orders of the sub-agent of Messrs. Bullock Brothers and Company who had a general license for the transport of kerosine oil.
2. Differing with regret from my learned brother I would hold that we should not interfere in this case. There can be no doubt that the principle of Section 412, Criminal Procedure Code, should ordinarily be applied in cases in which we are asked to exercise our revisional powers. This section provides that where a person has pleaded guilty and has been convicted on such plea, there shall be no appeal except as to the extent or legality of the sentence. I agree with the remarks of Sargent, J., in Empress v. Jafar M. Talab 5 B. 85 : 5 Ind. Jur. 428 : 3 Ind. Dec. (N.S.) 58, and would bold that by their pleas of guilty the accused waived their right to question the legality of their convictions. The case of Queen v. Mittun 11 W.R. 53 Cr seems to me distinguishable, on the ground that it was held in that case that the accused never intended to plead guilty and the plea should not have been recorded. In the present case it has not been alleged by the accused in their petitions to the Sessions Judge that they did not intend to plead guilty. In none of the grounds taken it is suggested that the plea was wrongly recorded. As I read their written statements, they were not inconsistent with the pleas of guilty but were Bled in order to set out extenuating circumstances that might mitigate the sentences.
3. Further if the convictions be held to be bad on the ground that the pleas of guilty should not have been recorded, I think a retrial should be ordered as was done in the case of Queen v. Mittun 11 W.R. 53 Cr. As the accured were convicted on their plea of guilty, the question has not been investigated whether the license held by Bullock Brothers and Company was sufficient to cover possession by the accused of an excess amount of kerosine oil.
4. As my learned brother and I are divided in opinion, the case will be submitted to the Hon'ble the Chief Justice in order that it may be laid before another Judge of the Court under Section 429 read with the concluding portion of Clause (1) of Section 439, Criminal Procedure Code.
Shamsul Huda, J.
5. The facts of the case are set out in the- letter of reference submitted by the learned Sessions Judge to this Court. On the point of law I agree with him. I do not think it makes any difference that the accused pleaded guilty to the charge. The plea of guilty was accompanied with a statement in writing filed by the accused. In that statement the accused said that they worked for Bullock Bros. who had a license, that the accused were illiterate persons and were not aware that a pass was necessary and that in future they would take out a pass. The plea of guilty cannot be dissociated from the statement that accompanied it and taking that statement into consideration, it seems to me that the plea was based on a mistake of law and should not have been accepted : Queen v. Mittun 11 W.R. 53 Cr.
6. I regret I am unable to agree with my learned brother in holding that we should refuse to interfere with the conviction and sentence in this case in the exercise of our revisional jurisdiction because a parson who is convicted on his own plea cannot appeal against the conviction.
7. These three oases have been referred to me under Section 429, Criminal Procedure Code.
8. The three accused were separately summarily tried for having kept more than 300 tins of kerosine oil, each in his own boat, without a license or pass, which is an offense punishable under Section 15 (a) of Act VIII of 1899. The record shows that they pleaded guilty and filed written statements- The trying Magistrate examined one Hemanta Kumar Mukherjee, Station Master, on the point as to who took delivery of the oil at the railway station and be also appears to have examined the accused. There is no record of what the accused were asked and what they said other than a note in each case. He says 'the oil belonged to Khamesh Chandra Rakkhit, sub-agent of Messrs. Bullock Bros. and Company, Limited. ' Each written statement is to the following effect: 'I work under Bullock Bros. They have a license. I do not know that a pass has to be taken under the rules. I am an ignorant man. In future I shall work after taking a pass. It is prayed that the Court will show kindness in doing justice. I have no objection to this Court trying me.' It further appears from the record in Jalaladdi Chowkidar's case that a notice was issued on him on the 16th July 1919 to show cause on the 25th why he was not to be prosecuted under Section 15 (a) of the Petroleum Act (Act VIII of 1899) ' for transporting without license about 400 tins of kerosine oil in his boat from the Hazigunge Railway station to the Bazar.' He showed cause and filed a petition on the 25th July to the effect he did not trade in kerosine oil : that he only carried the oil from the railway station to the Bazar in the dry season in gharries and in the rainy season in boats : that he used to take kerosine nil belonging to Bullock Bros. under orders of their officers to their godown : that he had done so for a consider-able time: that Bullock Bros. had a transport license from Government and under that license he had been employed to take the oil from the railway station to the godown: that it was, therefore, not necessary for him to take any license.
9. All the accused clearly raised the same defence. The plea of guilty as recorded must be taken in connection with their written statements. I am not prepared to hold that there was really a plea of guilty, All they meant to admit was that they had not a license or pass, and that the oil was in their boat. The written statements make it perfectly clear that they were relying on the transport license of Bullock Bros. as exonerating them. There is also on the record a letter from Bullock Bros. which was filed with Jalaladdi's petition, that they hold a general transport license for the transport of oil throughout India and that the oil is under their control until it leaves the hands of their sub agents. It also said that the oil in these cases was being conveyed to their sub-agent's godown and was covered by their licence.
10. The plea of guilty in these oases to my mind is of no value and it was incumbent on the Magistrate to try them on their merits. He was dealing with illiterate man and ought to have been very careful. He has clearly failed to consider the defence raised in the written statements. The convictions and sentences ought, therefore, to be and are set aside. The fines, if paid, are to be refunded.
11. The question whether the license held by Bullock Bros. was sufficient to cover possession by the accused of an excess amount of kerosine oil has not been investigated. It is, therefore, left open to the Magistrate to proceed with a retrial if he thinks it necessary, I find it noted that the trying Magistrate wanted to see the general transport license of Bullock Bros. Whether he saw it or not does not appear. There can be no difficulty in getting it from them. It should be asked to be produced and if found to cover the possession of the accused, the cases ought not to be proceeded with.