1. The petitioner in this case held certain excise licenses in Moran near Dibrugarh and, according to his petition, used to help the officers of the Excise Department of Dibrugarh Sadar Circle in detecting excise cases for a number of years. On the morning of 24th July 1932, the petitioner was out with Mr. Baruah, a regular Excise Inspector of Dibrugarh, detecting certain illicit distillation cases in a Nepali village and returned to his shop at Moran at 12-30 p.m. At about 2 p.m. he went to see Mr. Baruah again, in the Moran Inspection Bungalow, about 500 yards away from his shop, and remained talking with him about the Nepali village case until 5 p.m., when a police constable from the officer in charge of the Moran Police Station asked him to go and see him at his shop. The petitioner went there and heard that there had been an occurrence during his absence between his servants and the Excise Officer who had attempted to test the liquor in the shop. The servants had protested at this being done in the absence of their master. The prosecution, on the other hand, say that one Suresh Chandra Das Gupta who was a special Excise Inspector lodged an information in the Moran Police Station stating that at 3-30 p.m. (or 4-21 p.m. Dibrugarh local time) of the same day, when he was examining a bottle of country spirit in the petitioner's shop in the presence of Shah Jalal and Tulsi, constable, the petitioner interfered with the examination by spilling the contents of a glass and snatching away the bottle and aiming a blow with the bottle at the petitioner which was prevented by his peons.
2. The petitioner and his men attacked the Special Excise Inspector as well as the Special Sub-Inspector of Excise, Moulvi Abdul Majid, and three peons and a party which accompanied him to the shop consisting of Jibeswar Gogoi and others and pushed them all out of the shop and the compound with the result that he had to leave behind him the articles which he used for the purpose of testing liquor. As a consequence of this information, the petitioner and Moroi Singh and Sewjod Singh who, the petitioner says, were respectively a colessee and an agent, were placed upon their trial under Section 353, I.P. C, before Mr. Mac Donald, the Assistant Commissioner at Dibrugarh. This Rule was issued on the grounds that the Courts below were wrong in not giving the defence the benefit of the presumption under Section 114(g), Evidence Act, and, secondly, that the Courts below ought to have secured the attendance of Mr. Baruah and they were wrong in disposing of the case without examining him. Mr. Pugh on behalf of the petitioner has not laid much stress on the second ground and it is, therefore, unnecessary for me to say much about it. There is no question that it is the duty of the Magistrate to secure the attendance of the witnesses for the defence. But in this case it appears that the Magistrate issued three summonses against Mr. Baruah who did not appear. No application was made by those who appeared for the defence that a warrant should issue against him, and in the absence of such an application there was no further obligation upon the Magistrate. Further, the Deputy Commissioner in his letter of explanation has stated that the paragraphs in the petition which refer to this point are false. He says that Mr. Baruah was cited as a defence witness and that he could have been, examined by the defence if they had wished until 25th August 1932, the day after the close of the prosecution, and before he went on transfer to another place.
3. It is clear from his explanation that the summonses could not be served owing to the fact that the accused was late in filing process. Mr. Baruah, was, in fact, present in Court on 22nd October 1932; yet the defence did not call him or examine him. Nor did they ask for any adjournment on that date in order to examine him, nor did they point out the necessity that he should be examined or, that the Magistrate ought to examine him in order to meet the ends of justice. In fact, we think that the statement of the Deputy Commissioner is justified, that it was the defence who withheld the evidence of Mr. Baruah. Bearing in mind the fact of the close relationship existing between the petitioner and Mr. Baruah, the local. Excise Inspector, and the fact that a Special Excise Officer had been brought from another district for the purpose of detecting breaches of the law and the fact that this officer had brought a criminal charge against the petitioner, we are not altogether surprised that Mr. Baruah was not called for the defence. Criticism has been made of the judgment of the Assistant Commissioner Mr. Mac Donald. I need not deal with this matter because, in our opinion, the learned Sessions Judge, Mr. Lethbridge, has very fairly pointed out both the defects and the virtues of this judgment.
4. As he says, in most respects it is an extremely good judgment being based upon sound common sense and dealing, as it does, with the facts in a practical and concise way. On the other hand, it is defective in form, because it does not set out either the case for the prosecution or the defence; nor does it deal particularly with the evidence adduced on either side. Consequently, it is practically impossible for this Court to deal with the case without referring to the evidence. This in itself shows that the form of the judgment is defective.
5. On the other hand, we hope that the remarks of the learned Sessions Judge will not discourage the Assistant Commissioner, because it is a pleasure to find a case dealt with in a concise and practical way and upon a foundation of sound common sense, rather than by adhering to the somewhat worn out conventions according to which many of the judgments of the inferior Courts are framed. The only criticism we make of Mr. Lethbridge's criticism of this judgment is that he suggests that the Assistant Commissioner should adhere to these well known conventions, and that he should cast his judgments in the conventional sequence besides following strictly the provisions of Section 367, Criminal P.C. We agree that every judgment should follow some sequence in order to be intelligible. But we trust that the learned Sessions Judge does not mean that judgments ought to be prefaced with what has been described in many judgments of this Court as the 'customary ritual,' which precedes so many judgments which come before us, and which is of little use to anybody except to waste our time or, if included in a charge, to confuse the jury.
6. The main contention of the learned Counsel for the petitioner is that a number of witnesses who were included in the Ejahar by the prosecution were not called and that no sufficient explanation has been given for their absence. Therefore he says that as it is the duty of the prosecution to call all relevant evidence and all witnesses except those whom the prosecution believe to be untruthful, the Court ought to draw the presumption under Section 114(g), Evidence Act. We do not consider this to be a correct statement of the law. Section 114(g) provides that in such circumstances, the Court or a jury may draw such a presumption. Where the Code says 'may' it is not proper to use the word 'must.' No number of decisions as to what the prosecution ought to do can alter the fact that a discretion is given to the Court. It cannot be said that because certain witnesses have not been called, the Judge is not exercising his discretion judicially because he refuses to draw the presumption.
7. The learned Magistrate in this case very carefully considered the facts and circumstances and refused to draw the presumption, because he thought there was a good explanation of the absence of the witnesses. A good deal of confusion seems to us to be caused from time to time about the suggested obligation on the part of the prosecution to call all relevant evidence. Before the prosecution launches any case, they ought to be satisfied of the truth of the case which they are going to place before the Court. Consequently, it is absurd to expect the prosecution to call witnesses who will speak against that case. If the prosecution find that a number of those who are present will not support the prosecution case, they must make up their minds whether they are truthful witnesses or not. If they come to the conclusion that they are truthful witnesses, they ought to withdraw the prosecution forthwith. If, on the other hand, they come to the conclusion that they are not truthful witnesses, there is no obligation for the prosecution to call them. Practically speaking therefore the prosecution ought to call those witnesses who, they think, will support the prosecution case and no others. If the witnesses who are prepared to speak against that case are respectable witnesses who ought to be believed, then the prosecution ought to withdraw the case. It is quite useless to pursue a case and then call a whole series of witnesses who are going to speak against it. On the other hand, if the defence comes to the conclusion that the witnesses are witnesses of truth who ought to have been called, then it is the duty of the defence to call them.
8. In this case it: is suggested that the Special Sub-Excise Officer and some peons were present and could have spoken to this assault and have not been called. The reason given by the Deputy Commissioner is that one Mobarak between the hearing before the First Magistrate and the hearing before Mr. Mac Donald had turned hostile. At first he said that he was present at the assault and then he said that he had gone away before the assault took place. Consequently the prosecution did not call him. Two other witnesses were not called because they were friends of his, and came from the same village, and the prosecution did not consider them to be witnesses of truth. Abdul Majid, the Special Sub-Inspector of Excise, was away at North Lakhimpore during the trial and was not examined as a prosecution witness because his attendance could not be obtained without a great deal of inconvenience and expense to Government. Moreover in view of the fact that all he could say would not be of more value than the statement of Suresh Chandra Das Gupta, his superior, it was considered unnecessary to call him. We think that both the Magistrate and the Sessions Judge were justified in the conclusion to which they came and that they were right in refusing to draw any such presumption against the case for the prosecution. On the whole we agree with Mr. Mac Donald that there seems to be no conceivable reason why this Excise Officer should have brought a case of this kind against the accused unless it was true, and we see no reason to interfere with the conviction.
9. We do not understand however why the learned Magistrate thought it necessary to inflict imprisonment for one month upon the appellant as well as a fine of Rs. 200. If he thought it necessary to inflict imprisonment at all, it ought to have been a much longer period, to have been in any way effective. There is not much sense in sending a man to jail for one month who has not been in jail before. We think therefore that we are justified in setting aside the sentence of imprisonment and replacing it by a fine of Rs. 300 in addition to the fine of Rs. 200 inflicted by the Magistrate. Consequently the accused must pay a fine of Rs. 500 in all. In default of payment of the fine, he must suffer rigorous imprisonment for two months and two weeks in all. The petitioner will remain on the same bail as he is now pending further orders by the Sessions Judge either to pay the fine or to surrender to his bail.
10. I agree.