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Petitioner: SK. GOLAM MOWLA AND ANOTHER VS Respondent: CHIEF SECRETARY, GOVERNMENT OF EAST PAKISTAN
P L D 1963 Dacca 1049
P L D 1963 Dacca 1049
Before Murshed and A. S. Chowdhury, JJ
Sk. GOLAM MOWLA AND ANOTHER----‑Petitioners
versus
CHIEF SECRETARY, GOVERNMENT OF EAST PAKISTAN
AND OTHERS‑---Respondents
Writ Petition No. 220 of 1961, decided on 11th July 1962.
(a) Criminal Prosecution‑Person cannot be charged and convicted on evidence of mere entries in books of account‑Evidence Act (I of 1872), S. 34.
(b) East Pakistan Gold (Procurement and Distribution) Order, 1958, cl. 12‑Word "Obtain"‑Meaning‑Person having already made application for permit‑Must be deemed to be going through process of obtaining permit‑Possession of gold above 80 tolas during pendency of application‑Not criminal.
(c) Writ‑Certiorari‑Other remedy open‑Writ, nevertheless, not refused in particular circumstances of case.
M. Behter Ali for Petitioners.
Meser Ali for Respondents.
JUDGMENT
MURSHED, J.‑The petitioners, Sk. Golam Mowla and Sk. Md. Safar Ali, used to carry on business in jewelleries in Calcutta, but, when their shop was looted there, they came over to East Pakistan and set up as jewellers in the town of Kushtia in East Pakistan. There they carried on business under the name and style of a firm, called, Muslim Jewellers at 150, High Road Kushtia. They had business in gold, silver and precious stones as well as in cloths and ready‑made garments, Inasmuch as they were genuine traders in gold, the District Magistrate of Kushtia recommended that they should be permitted to import 100 tolas of gold and 500 tolas of silver per month from West Pakistan. Another District Magistrate had certified that the proprietor of the Muslim Jewellers. Md. Sk. Golam Mowla, was creditably running his business as a manufacturing jeweller. He expressed his gratification at the workmanship and efficiency of work done by him.
2. Under the provisions of East Pakistan (Control of Essential Commodities) Act, 1956 (Act I of 1956) (hereinafter called the Act) the Provincial Government was authorised to specify commodities which would come within the definition of essential commodities under the said Act. Section 3 of the Act empowered the Government to make orders with regard to regulation of business in essential commodities. By a notification, being Notification No. 796 T. C., dated the 8th of March 1958, gold was declared to be essential commodity under the Act. By another notification, being Notification No. 4318 T. C. dated the 18th of November 1958, the Governor of East Pakistan promulgated an Order, called the East Pakistan Gold (Procurement and Distribution) Order, 1958, which was published in the Dacca Gazette, Extraordinary, dated the 19th of November 1958. Clause 14 of the said Order provided contravention of the Order would be punishable under section 6 of the Act. By Notification No. 110 T. C. dated the 13th January 1960, published in the Dacca Gazette, Extraordinary, dated the 14th of January 1960, Clause 12 of the said Order was, amended as follows :‑
"Persons and Firms, other than approved dealers shall within 30 days obtain a permit from the District Magistrate/Deputy Commissioner to possess gold above 80 tolas."
It would thus appear that, with the publication of the aforesaid notification, it was necessary to obtain a permit within thirty days from the date of the said notification for possession of the gold above 80 tolas. On the 28th of January 1960, the petitioners filed an application before the District Magistrate of Kushtia for a permit to possess gold exceeding 80 tolas. The said application was not disposed of by the District Magistrate in spite of reminders by the petitioners. They were given to understand that necessary permit would be forthcoming. However, on the 22nd of October 1960, the District Magistrate rejected the petitioners' application for such permit without assigning any reason whatsoever. Immediately thereafter the petitioners asked for guidance of the District Magistrate with regard to the disposal of any quantity of gold which they might have to their possession in excess of 80 tolas. Instead of giving due consideration to the request of the petitioners, a police official was sent to their shop. The said police official seized the books of account of the firm of Muslim Jewellers and lodged a first information report on the basis of the said books of account. An investigation was started which eventually led to the submission of charge‑sheet against the petitioners who were put in their trial before Mr. S. H. Rahman, Magistrate 1st Class, Kushtia, on the following charge: --‑
"That you both being proprietor and partner of the Firm Muslim Jewellery Kushtia on or about 26th Sharban 1367 B. S. (11th August 1960) at Kushtia possessed more than 80 tolas of gold to wit. 131 tolas 14 as. 1 rati of gold without obtaining any permit from District Magistrate (Deputy Commissioner) of Kushtia.
"And thereby committed an offence punishable under section 14 of the East Pakistan Gold (Procurement and Distri?bution) Order, 19.58 read along with section 6 of Act I of 1956 and within my cognizance.
3. At the trial the above‑mentioned police official was examined as P. W. 1 and he categorically stated in his evidence that he had made no physical verification whether the petitioners were in possession of gold exceeding 80 tolas; he merely seized the books of account and prepared a seizure list. One Kalipada Saha, P. W. 2 was an employee in the shop of the petitioners and he merely proved the books of account. He further proved that a petition was submitted to the District Magistrate for obtaining permit as stated above and that no reply was received from the said District Magistrate D. W. 1 Asghar Ali Khan is an office, Assistant attached to Kushtia Magistrate who proved a petition by Sk. Golam Mowla for securing a permit and the letter of Deputy Commissioner refusing the permit. This is all the evidence in the case and, on such trumpery, the petitioners were convicted under section 6 of the Act. On appeal their conviction was armed and the sentences were modified by the Sessions Judge. Thereupon the present petition was filed for the issue of a writ of certiorari to quash the aforesaid order of the Magistrate and upon the petition the present Rule nisi was obtained by them. Inasmuch as the petitioners did not inadvertently seek any relief against the order of the learned Sessions Judge who passed an appellate order affirming the conviction of the petitioners and modifying the sentences passed on them, the petitioners obtained permission from this Court to add the said Sessions Judge as a respondent so that the order passed by the said added respondent may also be quashed. Another Rule nisi, on such prayer, was also granted by this Court.
4. At the hearing of these Rules the points that were mooted before us were simple and straightforward. In thy first place, it was argued that the conviction and sentences of the petitioners could not be sustained on mere entries is, the books of account of the petitioners business. Reference was made to section 34 of the Evidence Act, which reads as follows :‑‑‑
"Entries in books of account, regularly kept in the course of business, are relevant whenever they refer to a matter into' which the Court has to inquire, but such statements shall not alone be sufficient evidence to charge any parson with liability."
It is, therefore, clear that there was no legal evidence upon which the conviction of the petitioners could b,, sustained. In these circumstances, the conviction of the petitioners and the sentences passed on them are illegal and based on no evidence at all.
5. It will be further seen that the requirement of the afore?said amended clause (12) of the East Pakistan Gold (Procurement and Distribution) Order, 1958, with regard to obtaining permit for possession of gold above 80 tolas has not been properly construed by the learned Magistrate. The said clause, which has been quoted above requires persons and firms, other than approved dealers, to "obtain" a permit from the District Magistrate/ Deputy Commissioner within thirty days to possess gold above 80 tolas. The words "to obtain" means "procure" or "to get by one's own efforts". So far as the petitioners are concerned they had made an effort towards procuring a permit by filing an application for that purpose well within the time allowed by law. Unfortunately, the District Magistrate took about ten months to dispose of the application. During the period when the application of the petitioners was pending, they must be deemed to be going through the process of obtaining the permit. The provision of law, which we have to construe, is penal in nature and, as such, it must receive a strict interpretation. Furthermore, it appears to us that to hold otherwise would lead to anomalies and absurd results. An innocent dealer may be in possession of gold above 80 tolas and may apply, for a permit with regard to such possession of gold. If he makes such application within time, and even if the Deputy Commissioner grants the application but by some mishap the permit miscarries and is not physically with the person concerned, can it be said that he could be convicted for contravening the said provision? In accordance with a too literal interpretation of the said provision, he would, probably, come within the mischief of the law. We have already seen that the petitioners were charged for not having obtained a permit for possession of gold in excess of 80 tolas on or before the 11th of August 1960, it so happened that on the 11th of August 1960, the petitioners' application for the permit was still pending before the District Magistrate. In our opinion, the prosecution of the petitioners on the aforesaid charge wash premature and their conviction cannot, therefore, be sustained.
6. A peculiar feature of this case is that P. W. 1 in the cross?-examination, to which he was subjected, admitted that five persons were initially made accused in this case and one of them was a boy of five or six years. This appears to be so startling that one can hardly believe that a thing like that had happened.
7. It appears from the records of this case that the petitioners could have pursued their remedy against the impugned orders by moving this Court in its criminal revisional jurisdiction. However, upon a misconstruction of decision of the Supreme Court the petitioners filed this application before this Court. In the light of the history and the special circumstances of this case, we do not propose to refuse to grant tire petitioners the writ of certiorari asked for by them particularly, because according to us, the conviction of the petitioners and the sentences pronounced on them were without jurisdiction : and if a Tribunal acts without jurisdiction writ of certiorari on the prayer of an aggrieved person, becomes a writ of right.
8. For reasons stated above, we make the Rules absolute and quash the order passed by respondent No. 2 on 19‑5‑61 in G. R. Case No. 18(11) of 1960 as well as that passed by respondent No. 3 on 31‑8‑61 in Criminal Appeal No. 69(B) of 1961.
A. S. CHOWDHURY.‑-----I agree.
S. B./K. B. A.?
Rule made absolute.