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Petitioner: SUBAL CHANDRA SAHA VS Respondent: I. M. S. HUQ, (MAGISTRATE 1ST CLASS, COMILLA-TIPPERA)
P L D 1960 Dacca 606
P L D 1960 Dacca 606
Before Akbar and Hasan, JJ
SUBAL CHANDRA SAHA‑Petitioner
versus
I. M. S. HUQ, (MAGISTRATE 1ST CLASS, COMILLA‑TIPPERA) AND ANOTHER‑Opposite‑Parties
Writ Petition No. 67 of 1959, decided on 7th August, 1959.
Certiorari‑Conviction based on no evidence quashed by writ of certiorari.
Where a conviction is based on no evidence at all, there is an error apparent on the face of the record and it can be quashed by a writ of certiorari.
Shafiqur Rahman for Petitioner.
B. A. Siddiky, Advocate‑General and ,Shahabuddin Ahmed for Respondent.
JUDGMENT
AKBAR, J.‑This petitioner, Subal Chandra Saba, has been convicted under section 6 of the East Pakistan Act I of 1956 and sentenced to rigorous imprisonment for three months and to pay a fine of Rs. 200 by the Special Magistrate of Comilla.
2. He has presented this application against the said order of the Magistrate and has prayed that the said order be quashed by a writ of certiorari.
3. The facts are as follows: The petitioner Subal Chandra Saba is the proprietor of the Basanti Flour Mills. On 28‑12‑58, the staff of the Anti‑Corruption Bureau, during a search of the said Mill, found two bags containing 3 maunds 3 seers of sugar hidden in a drum. As the proprietor of the Mill had not the necessary permit with regard to the aforesaid quantity of sugar, he and Abdul Wahab, a mechanic of the Mill, were prosecuted under section 6 of Act I of 1956 for keeping the said sugar in contravention of section 4 of the East Bengal Essential Foodstuffs Anti‑Hoarding Order, 1956, and also for contravening clause 7 of the Bengal Rationing Order, 1943.
4. Subal Chandra Saba was charged also under section 6 of Act I of 1956 for contravening clause 3 of the Bengal Rice Mills Control Order, 1943.
5. The Special Magistrate found that the prosecution had failed to prove the second charge, namely, the contravention of clause 3 of the Bengal Rice Mills Control Order and hence he acquitted Subal of the said charge. The learned Magistrate however was of opinion that the first two charges had been brought home to the accused and hence he convicted both of them under section 6 of Act I of 1956.
Only Subal Chandra Saba filed this application and obtained a Rule.
6. The learned Advocate for the petitioner has contended that the conviction of the petitioner Subal is based on no evidence at all. P. W. 1 Md. Mubarak Ali, Assistant Inspector, D. A. B., has stated that on 28‑12‑58 when they visited the Mill they found Subal absent but Wahab called him within a few minutes of their arrival and thereafter they found two bags of sugar kept in a big drum in a room which was part of the Mill. P. W. 2 Abdul Haq says that when the staff of Anti‑Corruption found the sugar Subal was not present in the Mill. Subal thereafter came within 10 to 15 minutes and, on arrival, questioned Abdul Wahab as to wherefrom the said sugar had come and Wahab replied that one Basu Mia had kept it there. P. W. 3 Kanu Mia is a witness to the seizure list. He also corroborates P. W. 2 Abdul Haq that Subal came after 10 or 12 minutes of the arrival of the staff of the Anti‑Corruption Bureau. He has further stated that when Mr. Bashir, S. P., questioned accused Wahab about the sugar, he stated that Basu Mia had kept it. Then the accused Subal asked Wahab to call Basu Mia and Wahab went to fetch him but did not return. P. W. 4 Badsha Mia Chowdhury has stated that when Subal came he asked Wahab as to who had kept the sugar. Wahab said someone had kept it there and then they sent Wahab to fetch that man but Wahab did not return. This is all the evidence in this case.
7. From the above, it is clear‑----
"(1) that when the staff of the Anti‑Corruption Bureau found sugar, Subal was not in the Mill,
(2) that when he came after 10 or 15 minutes he enquired wherefrom the sugar had come and Wahab, the mechanic, said that one Basu Mia had kept it there, and
(3) that Wahab was sent to fetch Basu Mia but Wahab did not return."
8. The above facts clearly indicate that Subal had no knowledge whatsoever of the sugar which was found in a room of the Mill.
9. The learned Advocate‑General has, therefore, been candid enough to say that it would be difficult for him to oppose the issue of the writ prayed for in the case. In our opinion, the conviction of the petitioner, Subal Chandra Saba, is based on no evidence at all and thus there is an apparent error on the face of the record.
10. We, therefore, quash the order of the Special Magistrate convicting and sentencing this petitioner, Subal Chandra Saba.
11. The Rule is accordingly made absolute but without any order as to costs.
HASAN, J.‑I agree.
K.B.A.???????????????????????????????????????????????????????????????????????????????????????????????? Rule made absolute.