Ismail, J.:— This case has been referred to me under section 8(b) of the Ordinance by the Special Judge of Saharanpur. The accused Charan Das was charged with an offence under section 90(2)(d) of the Defence of India Rules and was sentenced to eighteen months' rigorous imprisonment and a fine of Rs. 100 by the Special Magistrate. The charge against the accused was that on the 10th of January, 1943, he acquired change worth Rs. 99-1-6 which was in excess of his business requirements. On the 18th of February, 1943, the accused was examined by the Magistrate. It would be convenient to reproduce his statement:
“Q.—Was on the 10th of January, 1943, change worth Rs. 99-1-6 recovered from your house which was in excess of your requirements?
A.—Yes. It was kept for my sister's marriage and to be spent at the time of the birth of child. I had … (The rest is illegible).
Q.—Have you anything else to say?
A.—My wife gave birth to male child on the 21st of January, and marriage of my sister took place on the 14th of January, 1943. If any offence I may be pardoned.”
The Special Magistrate treated this statement as admission of guilt. I do not think that this interpretation is correct. The statement merely means that coins of the aggregate value of Rs. 99-1-6 were recovered from his possession and the accused offered an explanation for being in possession of the coins. Three witnesses were examined on behalf of prosecution. The sub-inspector proved the recovery of coins and in cross-examination stated that he had no knowledge about the marriage of the sister of the accused. Dulli, P.W 2, states that he was deputed by the sub-inspector to go to the shop of the accused and ask for change of one rupee. The accused, according to the witness, refused to supply the change. The third witness merely proves the recovery of the coin. The evidence of Dulli is not of much importance, because the accused was charged and convicted of an offence under sub-clause (d) which runs as follows: “Acquire coin of an amount in excess of his personal or business, requirements for the time being which in the case of an acquisition of coin from any currency office….”
In order to prove the charge under the sub-clause the prosecution must prove by direct or circumstantial evidence that the accused had acquired coin in excess of his personal or business requirements. From the judgment of the Special Magistrate it appears that he has not applied his mind to the language of the rule. The accused was convicted and sentenced by him as stated above. An appeal was made to the Special Judge. Several points were urged in appeal, to show that no case was made out by the prosecution against the accused. Incidentally it was argued that the trial of Charan Das under the Ordinance was illegal. Reliance was placed on G.O No. 1516-C-X dated the 13th of February, 1943, from the Home Secretary to Government, United Provinces, to all District Magistrates. It appears that the Government Order was received by the District Magistrate of Saharanpur on the 15th of February, 1943, and it was communicated to the Magistrate concerned on the 17th of February, 1943. On the strength of this Government Order, it has been contended that the Special Magistrate had no jurisdiction to try the accused under the Ordinance, because the case against him did not arise out of the recent disturbance and was in no way connected with the existing subversive movement. There can be no doubt that this case had no connection with the recent disturbances. On behalf of the prosecution it is contended that the aforesaid notification did not apply to pending cases. The house of the accused was searched on the 10th of January and the offending article was recovered from the possession of the accused on that date. The case was sent up for trial to the Special Magistrate before the notification was published in the Gazette or communicated to the District Magistrate. The cognisance of the case was taken under the Ordinance and there appears no reason why the proceedings should not have continued under the Ordinance. The notification was never intended to have retrospective effect. In my judgment the trial of the case under the Ordinance was not illegal.
The next point that was urged before the court below and has been stressed before me is that rule 90(2)(d) has no application to the facts of the case. This question has been raised in several cases and I consider it necessary to express my opinion with regard to the interpretation of the sub-clause. It appears to me that mere hoarding of coin is not an offence under this sub-rule. Sub-clause (d) was inserted by notification No. 494-OR/40 dated the 25th of June, 1940. Any one who acquired coin in contravention of the sub-clause was liable to punishment. The question for consideration is whether the expression “acquire” has been used in the sense of hoarding. In my opinion it is not so. The word “acquire” is obviously intended to mean, “to get actively into one's possession”. A shopkeeper, however, may acquire coin in a legitimate and normal way, for example, if a shopkeeper has got a flourishing retail business, he may acquire coins of various denominations of considerable value every day. Suppose shopkeeper A has got at the end of the day Rs. 50 in his possession. The next day he has again sold goods of the same amount. The third day he will be in possession of coins of the aggregate value of Rs. 100 which may be in excess of his personal or business requirements. It is not said what he is expected to do in the circumstances. If he refuses to accept small change from customers on the third day; he will be guilty under rule 90(2)(c). If he accepts small coins on the third day, the aggregate value of coins in his possession will be in excess of his requirements and therefore he would be guilty under sub-clause (d). Such a situation will lead to most unfortunate results and could never have been contemplated by the framers of the rule, because in either case the shopkeeper would be liable to punishment. A shopkeeper was entitled to keep coins of any value before the promulgation of the rule. After the enforcement of that rule, however, restrictions were imposed upon him in terms of the rule. There is absolutely no evidence in the present case that Charan Das acquired coins after the 25th of June, 1940.
Several other arguments may be advanced in support of the contention that hoarding of coins is no offence under sub-rule (d). If my interpretation of the rule is correct it follows that the accused has been wrongly convicted.
The next point that falls to be decided is whether I have any jurisdiction to set aside the order of the Special Magistrate. The Reviewing Judge may interfere with the conviction of an accused only upon a reference being made to him under section 8 of the Ordinance. The Special Judge is empowered to make a reference only in cases specified in clauses (a) and (b). The present case was not tried by him. No appeal lay to him under section 13 of the Ordinance because the Magistrate had not passed a sentence exceeding two years. It is manifest, therefore, that the Special Judge had no jurisdiction to entertain the appeal. In the case of Emperor v. Bishun Narain Bhargava(1) I made certain observations, a passage from which has been quoted by the learned Special Judge. I said:
“The accused in this case has been sentenced to various terms of imprisonment and fine under different counts. The longest sentence awarded to him under any one count is one year's rigorous imprisonment. Under sub-clause (b) of section 8, it is open to the Special Judge to refer the proceedings to the Judge nominated under section 8 even if the sentence awarded is under seven years' rigorous imprisonment. The Ordinance, however, does not contemplate an appeal to the Special Judge unless an accused is sentenced to imprisonment for a term exceeding two years. Prima facie, therefore, no appeal will lie to the Special Judge unless the condition stated in section 13 is fulfilled. It follows, therefore, that only such cases may be referred to the Judge nominated under section 8 as may come up to the Special Judge in appeal under section 13 or those that may be tried by himself. From, the referring order, however, it appears that one of the questions involved in the case relates to the competence of the appeal. Under the circumstances a narrow interpretation of the scope of section 8(b) does not appear to me desirable.”
From the above quotation it would appear that the remarks quoted by the learned Special Judge were made in reference to the special circumstances of that particular case. In the present case I have gone into the merits of the question because I feel that the conviction of the accused is illegal upon a correct interpretation of sub-clause (d). Charan Das may possibly be guilty under sub-clause (c) but that matter has not been investigated, nor a charge has been framed with respect to that sub-clause.
In the result, therefore, I hold that the reference is incompetent as the learned Special Judge had no jurisdiction to entertain the appeal.
Let the record be returned to the court concerned.