The Judgment of the Court was as follows:

1. The Appellant Blythe has been convicted by the Special Tribunal, Alipore, of a charge under sec. 5(2) of Act II of 1947 and sentenced for this offence to rigorous imprisonment for four years and a fine of Rs. 5,000 and a further fine of Rs. 49,350 under sec. 9(1) of the West Bengal Criminal Law Amendment (No. II) Ordinance, 1947 and in default of payment of the fines to further rigorous imprisonment for eighteen months. He was also convicted of another charge under sec. 409, I.P.C but no separate sentence was passed on him for this offence.

2. Blythe who had joined the British Army as a private in 1931, came out to India, in 1937, as a non-commissioned officer. In May, 1940, he joined the Indian Army Ordnance Corps. He saw active service in the Middle East and on return to India, in 1943, was promoted to the Commissioned Rank in 1944. He went on leave in 1945 and shortly after his return from leave was posted as I.A.O.C representative attached to the Americans at Budge-Budge. In February, 1946, Blythe assumed charge as Depot Commander of the Lothian and the Albin Depot, two of the four depots at Budge-Budge where American surplus stores. Taken over by the Government of India had been stocked, and in April, 1946, he assumed charge of the other two depots, Ludlow and Gagalbhai. It is in connection with the duties as Depot Commander in charge of all these stores that he is said to have committed the offences of which he has been convicted. As Depot Commander, Blythe was the store-keeper of all these stores. His main duty was to give delivery of stores from these depots in accordance with release orders issued by the Directorate of Disposals who will be referred to hereafter as Disposals — to purchasers. His other duty was to have a physical check of the quantities of the stores against the statements received from the Americans, as obviously in the absence of such a check, it would be practically impossible to detect unauthorized deliveries and thefts.

3. The prosecution case is that Blythe dishonestly delivered to Bharat Purchasing Company, oil in excess of the quantities to which it was entitled under the release order from Disposals. It is on this allegation that the charge under sec. 409, I.P.C is based. It is further the prosecution case that Blythe, in his capacity as Depot Commander, obtained pecuniary advantage for himself. First, there is the general allegation that he did so by corrupt or illegal means, secondly, it is alleged that he did so by abusing his position as a public servant in not reporting the excess stock of oils and greases in his charge. Lastly, it was alleged that he did so by dishonestly abusing his position, by disposing of part of the oils and greases to Bharat Purchasing Co. It is on these allegations that the charge under sec. 5(2) of Act II of 1947 was based.

4. The accused pleaded not guilty to both the charges. He denied that oil in excess of the quantities to which Bharat Purchasing Co. was entitled under the release order was delivered to it to his knowledge, or under his orders; as regards the allegation of not reporting excess stock, his case is that he found it impracticable to carry out a physical check of oils and greases and so was not aware of any excess stock. He denied also the charge of adopting any corrupt or illegal means, in connection with his duties as Depot Commander.

5. Before coming to the question whether the charges against the accused have been proved, — as found by the Special Tribunal — it will be convenient to decide the questions of law that have been raised on be half of the Appellant.

6. The first of these questions is on the question of jurisdiction. Mr. Talukdar has contended before us, that as the accused was an Army Officer, the Special Tribunal had no jurisdiction to try him, without first following the rules framed under sec, 549, Cr. P.C

7. Sec. 549 of the Criminal Procedure Code is in these words:

“The (Central Government) may make rules consistent with this Code and the Army Act, the Naval Discipline Act and that Act as modified by the Indian Navy (Discipline) Act, 1934 and the Air Force Act and any similar law for the time being in force as to the cases in which persons subject to-military, naval or air force law shall be tried by a Court to which this Code applies, or by Court-martial, and when any person is brought before a Magistrate and charged with an offence for which he is Table to be tried either by a court to which this Code applies or by a Court-martial, such Magistrate shall have regard to such rules, and shall in proper cases deliver him, together with a statement of the offence of which he is accused, to the commanding officer of the regiment, corps, ship, or detachment. To which he belongs or to the commanding officer of the nearest military naval or air force station, as the case may be, for the purpose of being tried by Court-martial.”

8. It is not disputed that at the relevant time the accused was an officer of the Indian Army and so subject to military law. If, therefore, sec. 549, Cr. P.C, applies to trials held by Special Tribunals constituted under the West Bengal Criminal Law Amendment Act, the Special Tribunal which tried the Appellant, ought to have followed the rules framed under sec. 549, Cr.P.C before proceeding with the trial. The question, therefore, is Does sec. 549, Cr.P.C apply to a Special Tribunal constituted under the West Bengal Criminal Law-Amendment Act?

9. In our judgment, there are two good reasons, each of which by itself justifies the conclusion that it does not apply to these tribunals.

10. The first is that sec. 549, Cr.P.C only comes into play when any person is brought before a Magistrate and charged with an offence. It provides that in such circum stances, such Magistrate shall have regard to the rules framed under this section and do certain things.

11. Special Tribunals under the West Bengal Criminal Law Amendment Act are not, however, Magistrates, they are in law Courts of Sessions. This is the consequence of a provision in sec. 5(2) of this Act, which lays down that for the purposes of the provisions of the Code of Criminal Procedure, the Special Tribunal shall be deemed to be a Court of Session, trying cases without a jury. Sec. 549, Cr.P.C can have, therefore, no application, where a person is brought before the Special Tribunal, and charged with an offence, for which he is liable to be tried either by a Court to which the Criminal Procedure Code applies or by a Court-martial.

12. It was contended that though sec. 549 does not in terms apply to Courts of Sessions, it should be extended to a Special Tribunal, which though a Court of Session, performs some functions which are not per formed by Courts of Sessions, but are per formed only by Magistrates.

13. In our judgment this contention is with out substance. The provisions of sec. 549, Cr.P.C are of a very special nature, and have the result of taking away the jurisdiction of ordinary criminal Courts with respect to a certain class of people. Legal provisions of this nature have to be cons trued very strictly, and jurisdiction should not be given up, unless the plain meaning of the words of the statute so require. There is no scope for extension, by analogy, of principles of this character.

14. Another reason that leads inevitably to the same conclusion that sec. 549, Cr.P.C does not apply to these Special Tribunals, arises from the same sub-section of sec. 5, to which reference has already been made. The sub-section runs thus

“Save as provided in sub-section (1), the pro-visions of the Code of Criminal Procedure, 1898, except the provisions of section 196A and of Chapter XXXIII, shall, so far as they are not Inconsistent with this Act, apply to proceedings of a special Tribunal; and for the purposes of the said provisions, the Special Tribunal shall be deemed to be a Court of Sessions, trying cases without a jury, and a person conducting a prosecution before a Special Tribunal shall be deemed to be a Public Prosecutor.”

15. The result of this is that provisions of Cr.P.C which are inconsistent with the Act—the West Bengal Criminal Law) Amendment Act — shall not apply to proceedings of a Special Tribunal. Are the provisions of sec. 549, Cr.P.C inconsistent with any provision of the Act? In our judgment, they are clearly inconsistent with sec. 7 of the Act, which lays down that no Court…. save as provided in sec. 6 have any jurisdiction of any kind in respect of a proceeding of a Special Tribunal. Sec. 6 provides for appeal and revision by the High Court. The position, therefore, is that while sec. 7 of the Act provides that no other Court — whether it is a Court-martial or an ordinary Criminal Court — shall have any jurisdiction of any kind in respect of proceedings of a Special Tribunal, sec. 549, Cr. P.C might have the consequence of transferring such pro ceedings to a Court-martial for trial. It must, therefore, be held that the provision of sec. 549, Cr.P.C are inconsistent with sec. 7 of the West Bengal Criminal Law Amendment Act, and so, these provisions will have no application to trials before Special Tribunals.

16. Mr. Talukdar's next contention on the question of jurisdiction is that the sanction given by the Government of India to the institution of these criminal proceedings is not valid or sufficient. Sanction was given in this case both under sec. 197 of the Code of Criminal Procedure, and sec. 6 of Act II of 1947, and the two sanctions are in almost identical terms. On the authority of the Privy Council decision in Gill's case (1) we are of opinion that no sanction was necessary under sec. 197, Cr. P.C But as sanction was clearly required under sec. 6 of Act II of 1947, the contention requires careful consideration. For a proper appreciation of the points raised by Mr. Talukdar, it is necessary to set out the order. It runs thus:

“The Governor-General of India is pleased to accord sanction under Sec. 6 of the Prevention of Corruption Act, 1947 to the Institution of Criminal proceedings, against Major (now Captain) J.E Blythe I.A.O.C, 1/??? American Surplus Stores Unit, Calcutta who during the months February 1946 to June 1917 is alleged to have committed in Calcutta and Budge Budge, the offences of criminal misconduct, as contemplated in Sec. 6 of the Prevention of Corruption Act by dishonestly misappropriating a part of the stock entrusted to him, and by obtaining money by corrupt and illegal means and also by abusing the position of a public servant, in connection with his function as a Depot Commander in circumstances which constitute his acts offences punishable, inter alia under the following pro vision of law—

(1) Section 5(2) read with Section 5(1) clauses (c) and (d) of she Prevention of Corruption Act, 1947 (II) of 1947) and (ii) section 409 of the Indian Penal Code”

17. Mr. Talukdar attacks this order of sanction on three grounds. The first is that the mention in the sanction of “Calcutta” as one of the places where the offences were committed shows that the sanctioning authority was wrongly told that the offences were committed at Calcutta and Budge-Budge, though at the trial the case is that these offences were committed at Budge-Budge. If the sanction order had mentioned Calcutta only and not Budge-Budge, we would have agreed that the sanction was bad in law, and could not validate the present proceedings as the case here undoubtedly is that the offences were committed at Budge-Budge. We cannot see, however, how the unnecessary and incorrect mention of Calcutta affects the validity of the sanction. Mr. Talukdar argues that the sanctioning authority might not have granted sanction, if Calcutta had not been mentioned in it as one of the places where the offences were committed, and that the sanction must be held to have been obtained by misrepresentation, and is, therefore, invalid. In our opinion, this argument cannot be sustained. The order itself indicates that the sanctioning authority had before it substantially those very allegations of fact, which form the prosecution case at the trial. It is on these allegations that the authority had to decide whether sanction should be accorded or not. Whether one or two places were the places of occurrence, or whether Calcutta was one of these places, would be of no importance at all, for this decision. The contention that sanction was accorded as the result of misrepresentation is, there fore, unjustified. The mention of Calcutta in the sanction order, does not, therefore, in our opinion, invalidate the sanction.

18. Mr. Talukdar's next contention is that as the deliveries to Bharat Purchasing Co. which are the only deliveries in which excess is said to have been delivered by the accused, did not start at all before April, 1947, the mention in the order of “during the months February, 1946, to June, 1947,” makes the sanction invalid.

19. In our opinion there is no substance in this contention. Blythe was Depot Commander from some date of February, 1946 to the end of June, 1947. As it was in connection with his duties as Depot Commander that the allegations against him were made, this entire period was mentioned in the order of sanction. The fact that at the trial, the charge was limited to a part of this period only, is that the period which is mentioned at the trial as the time of the offence must be covered by the period mentioned in the sanctioning order. That requirement is satisfied here.

20. Mr. Talukdar's next point is that the sanction is defective, inasmuch as it mentions an offence under sec. 5(2) of Act II of 1947, having been committed during the period February, 1946 to June, 1947. It is quite clear that as Act II of 1947 received the assent of the Governor-General on the 11th March, 1947, no offence under sec. 5(2) of the Act could be committed prior to that date,

21. There is undoubtedly this defect in the sanction order. But, in our judgment, this defect does not make the sanction wholly invalid. It is certainly invalid as regards the period up to the 11th March, 1947, for there can not be a valid sanction for proceedings for an offence which did not exist in law, and the offence of “criminal misconduct as contemplated in sec. 5 of the Prevention of Corruption Act” did not exist before the Act came into force, which was on the 11th March, 1947. But we see no reason why the sanction should for that reason be considered invalid even as regards the period from the 11th March, 1947. From that date, the offence of criminal misconduct as defined in sec. 5 of the Prevention of Corruption Act, 1947, came into existence. The sanction would have been unexceptionable if the period of the commission of this offence had been mentioned as “11th March, 1947 to June, 1947.” Does the fact that wrongly some period of time prior to the 11th March, 1947, has been included in the period alleged as the time for commission of the offence affect the validity of the sanction? In our opinion it does not.

22. Mr. Talukdar, contended in the next place that the trial has been vitiated, by the illegal joinder of the charge under sec. 5(2) of Act II of 1947 with the charge under sec. 409 of the Indian Penal Code.

23. Sec. 233 of the Criminal Procedure Code provides that for every distinct offence of which any person is accused there shall be a separate charge and every such charge shall be tried separately except in the cases mentioned in secs. 234, 235, 236 and 239. There can be no question that these pro visions of the Criminal Procedure Code apply to the present case, The law is well settled that if charges which cannot in law be tried at the same trial are in fact tried at the same trial, the trial is bad in law. It is necessary to consider, therefore, whether the trial of the two distinct offences—one under sec. 5(2) of the Prevention of Corruption Act and the other under sec. 409 of the Indian Penal Code—at one trial is justified by any of the secs. 234, 235, 236, and 239 of the Criminal Procedure Code. Sec. 234 deals with the trial of offences of the same kind. Sec. 235 deals with cases where it is doubtful what offence has been committed; sec. 239 deals with the joint trial of different persons. None of these sections have, therefore, any application to the present case. Sec. 235, sub-sec. (2), however, provides for the joint trial of offences falling within more than one definitions. The sub-section is in these words, — “If the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time by which offences are defined and punished, the person accused of them may be charged with and tried at one trial, for each of such offences.” Illustration (k) to this sub-section runs thus— “A exposes her child with the knowledge that she is thereby likely to cause its death. The child dies in consequence of such exposure. A may be separately charged with and convicted of offences under secs. 317 and 304 of the Indian Penal Code.” It is clear from this illustration that it is not necessary to justify joint trial that all the acts alleged together should constitute each of the two offences. It is sufficient if of say, acts A, B, C and D alleged, acts A and B constitute one offence in law, and acts B, C and D constitute another offence. In the present case, the acts alleged constitute an offence of the criminal misconduct under sec. 5(2) of Act II of 1947; some of the acts alleged also constitute an offence under sec. 409 of the Indian Penal Code. The joint trial of these two offences is, therefore, not illegal.

24. It was contended by Mr. Talukdar that the very fact that there are the special pro visions in the Act II of 1947, under which in the trial of an offence under sec. 5(2) of the Act, on proof of the fact of possession of pecuniary resources disproportionate to the known sources of income, the Court shall in certain circumstances presume that the accused is guilty, and such a person shall be competent witness of the defence and may give evidence on oath, while these pro visions are not available with respect to the trial of an offence under sec. 409, I.P.C makes the joint trial of an offence under sec. 5(2) of Act II of 1947 and an offence under sec. 409, I.P.C improper. This fact that certain special provisions of law are applicable to the trial of one offence, but not to the trial of the other does not in any way reduce the field of operation of sec. 235(2) of the Criminal Procedure Code. The joint trial is legal, because it is permitted by sec. 235(2), Cr. P.C Inspite of the joint trial, the special mode of proof in sec. 5(3) of Act II of 1947, and the evidence on oath of the accused person under sec. 7 of that Act will not be available in the trial of the charge under sec. 409, I.P.C It may, as Mr. Talukdar contends, be difficult to efface the evidence of the accused person given on oath from the mind, when considering the charge under sec. 409, I.P.C after taking it into consideration, as regards the charge under sec. 5(2) of the Act II of 1947. But it can be done.

25. Another criticism leveled by Mr. Talukdar against the charge was that it did not satisfy the requirements of sec. 222 Cr. P.C This section requires that the charge shall contain such particular as to the time, the place of the alleged offence, and the person against whom, or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged. Mr. Talukdar argued generally that the charge under sec. 5(2) of Act II of 1947 did not contain sufficient particulars. We are unable to agree with this. In our judgment, the charge does give sufficient notice to the accused of all necessary particulars.

26. It was next urged that the charge under sec. 5(2) of Act II of 1947 is defective be cause the time of its commission was mentioned in the charge as February, 1946, to June, 1947.

27. As we have stated above, Act II of 1947 came into force on and from the 11th March, 1947; no offence under sec. 5(2) of the Act could therefore be committed prior to this date. Clearly therefore, there is this defect in the charge. But that defect does not in our judgment invalidate the charge and vitiate the trial. For the period 11th March, 1947 to June, 1947, there could in law be an offence under sec. 5(2) of Act II of 1947, and as this period was included in the period mentioned in the charge, the wrong inclusion of some period when no such offence could in law be committed is in my opinion of no consequence.

28. It is necessary now to consider whether the Special Tribunal is right in its conclusion that the prosecution has been able to prove that the Appellant has committed the offences with which he was charged.

29. The case that the accused committed criminal breach of trust is based on the al legation that the accused ordered or permitted delivery to the Bharat Purchasing Company of oil S.A.E 3O in excess of what it was entitled to.

[Then their Lordships began to discuss the prosecution case and the evidence thereon and concluded as follows:]

Our conclusion as regards the charge under sec. 409, I.P.C therefore is that the prosecution has failed to prove its case that the accused ordered or permitted de livery to the company of any oil in excess of the release order.

30. This finding is also sufficient to dispose of the second allegation in the charge under sec. 5(2) of Act II of 1947 — but for the special provision of sec. 5(3) of the same Act, which we shall consider later.

31. We shall next consider the prosecution case that the accused abused his position as a public servant in not reporting the excess stock of oils and greases. It seems to have been somehow assumed that there was in fact an excess in the stock of oils and greases over the quantities mentioned by the documents received from the Americans. But we are unable to discover in the record any justification for this assumption.

[Then their Lordships discussed the evidence and observed as follows:]

We hold that the prosecution has failed to prove that the accused abused his position by not reporting excess stock — apart from the provisions of sec. 5(3) of Act II of 1947. Our conclusion is the same as regards the other allegation in the charge under sec. 5(2) that the accused obtained pecuniary advantage by corrupt and illegal means. There is no evidence to show that if the evidence, adduced under sec. 5(3) is left out of consideration.

32. The evidence that has been given in accordance with the special rule of law enacted in sec. 5(3) of Act II of 1947, now re quires consideration.

33. Before proceeding to consider this evidence, it will be convenient to analyzes the provisions of sec. 5(3). This sub-section is in the words—

“In any trial of an offence punishable under sub-section (2) the fact that the accused person or any other person on his behalf is in possession, for which the accused person cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income may be proved and on such proof the Court shall presume, unless the contrary is proved, that the accused person is guilty of criminal misconduct in the discharge of his official duty and his conviction therefore shall not be invalid by reason only that it is based solely on such presumption.”

34. In the first place this provision permits the prosecution to prove in these trials a fact, which would not be relevant under the Indian Evidence Act — the fact that the accused (or any body else on his behalf) is in possession of pecuniary resources or property, disproportionate to his known sources of income, and that for such pos session the accused person cannot satisfactorily account. To prove this fact the prosecution will have, in practice, to prove the pecuniary resources in the possession of the accused; then to prove what is known about his sources of income; and then to prove that the accused person cannot satisfactorily account for this possession. If the Court is satisfied as regards these three things and also finds that the property is disproportionate to the sources of income, the prosecution will have proved the fact, which sec. 5(3) gives it the right to prove. Thereupon, it will become the duty of the Court to presume that the accused has committed the offence of criminal misconduct — but even then, the accused has the right to prove that he has not committed this offence. And if the accused succeeds in proving this, the Court shall not make the presumption aforesaid and will declare him not guilty.

35. It remains now to apply these principles to the facts of the present case.

[Then their Lordships analyzed the evidence given to prove the pecuniary re sources in the possession of the accused and proceeded as follows:]

The important question that arises next is whether the prosecution has proved that the accused could not satisfactorily account for his possession of these pecuniary re sources of the approximate value of more than Rs. 90,000. For, unless this is also proved, the prosecution cannot be said to have proved the fact that the accused per son is in possession for which the accused person cannot satisfactorily account, of pecuniary resources . . . . and unless this fact is proved, the prosecution can derive no assistance from the special provisions of sec. 5(3).

36. For the purpose, however, of proving that the accused could not satisfactorily account for the possession of pecuniary re sources, the prosecution is entitled to rely not only on the evidence of its own wit nesses, but also on the evidence of the accused himself. It is not necessary for us to consider in this case the position which would arise where the accused does not offer any explanation for his possession. In the present case, the accused has offered a two-fold explanation for the possession of these resources and if this explanation is clearly unacceptable, the prosecution will have proved that the accused cannot satisfactorily account for his possession of the pecuniary resources.

[Then their Lordships discussed the explanation offered by the accused to account for his possession of the pecuniary re sources, and went on to say as follows:]

The military pay and allowances were all deposited in the Lloyds Bank Account. The Bank Account Ex. 22 shows this and the accuser's own evidence is also to the same effect. The balance standing to the credit of the accused in this Bank is thus satisfactorily accounted for. But these receipts —military pay and allowances cannot ac count for any portion of his monies in the Imperial Bank.

37. Our conclusion, therefore, is that the accused has not satisfactorily accounted for the pecuniary resources in his possession, as shown by the Imperial Bank Account.

[Then their Lordships referred again to the explanation of the accused regarding a sum of £3,250 and to their finding thereon rejecting the same, and concluded as follows:]

Our conclusion on this part of the case, therefore, is that of the Rs. 90,000 worth of pecuniary resources the accused had in his possession in June, 1947, the accused had satisfactorily accounted for Rs. 12,000 only and that he has not satisfactorily accounted for the remainder.

38. That this amount which he has not satisfactorily accounted for is absolutely disproportionate to his known sources of in come is self-evident, the known sources of income being his military pay, allowances, which only account for the deposits in the Lloyds Bank.

39. We find, therefore, that the prosecution has proved in fact that the accused was in possession of pecuniary resources which he cannot satisfactorily account for, disproportionate to his known sources of in come. The consequence that will follow from this is that the Court shall presume that the accused is guilty of criminal misconduct in the discharge of his official duty unless the contrary is proved.

40. Has the contrary been proved? The bur-den of proving the contrary is obviously on the accused, and on the vexed question whether this burden on the accused is of the same or lesser degree than the burden that lies on the prosecution of proving the guilt of the accused beyond reasonable doubt, we shall assume for the purpose of this case that where the burden of proving any fact is on the accused, it is not necessary to prove it beyond reasonable doubt, and it is sufficient to show that the probabilities are that this is the fact.

41. Even on this assumption, we have no hesitation in coming to the conclusion that the accused has failed to prove the “contrary.” The three allegations against him— the “contrary” of which he is to prove— in the charge is that he obtained pecuniary advantage for himself by corrupt and illegal means; that he obtained pecuniary advantage for himself by abusing his position, as a public servant, in not reporting the excess stock of oils and greases in his charge, that he obtained pecuniary advantage for himself by dishonestly disposing of part of the oils and greases to Bharat Purchasing Company.

42. To prove the contrary of these allegations, the accused would have to show at least that these allegations were probably false.

43. As we have stated above, the evidence in the case—apart from sec. 5(3) of Act II of 1947—does not prove affirmatively the truth of these allegations. But the failure of the prosecution to prove affirmatively the truth of these allegations does not justify a finding that they are probably false.

44. As regards the first allegation of receiving money by corrupt and illegal means we think it is extremely difficult—if not impossible—for the accused to prove the contrary, except by showing (a) that he had no opportunity of receiving any such money, or (b) that his financial position shows that he could not have received such money. It is because his financial position is such as is not explained by his regular sources of income, that the need of proving the “contrary” has arisen. So the method of (b) is in fact not available to him. As regards (a) it cannot for a moment be seriously suggested that the accused, as the man in charge of the depot, had no opportunity to receive money by corrupt and illegal means.

45. As regards the second allegation, regard ing not reporting excess stock, the accused's case is that it was not possible to hold any physical check.

[Then their Lordships discussed the evidence and the circumstances disclosed in the case and after rejecting the uncorroborated testimony of the accused on the point ob served as follows:]

In our judgment, the accused has failed to show that the allegation that he obtained pecuniary advantage for himself by omit ting to report excess stock, is probably false,

46. The essence of the third allegation is that the accused dishonestly disposed of oils and greases to the Bharat Purchasing Company. We have stated above that the evidence on the record—apart from the provision of sec. 5(3) of Act II of 1947—is not sufficient to prove that the accused did dishonestly dispose of any oils and greases to Bharat. This finding will not, however, serve the purpose of the accused, when to meet the situation created by the provision of sec. 5(3) of Act II, he has to show at least that the allegation is probably false. Apart from his own testimony that he did not deliver or order to be delivered to Bharat any oils in excess of what Bharat was entitled to, there is nothing to show that the prosecution allegation is false. . . . We think it is ridiculous to suggest that in the absence of supporting circumstances the mere word of the accused should be taken as sufficient to show that the prosecution suggestion is false, or is probably false. We are unable to find on the record any circumstance which lends support to the accused's testimony on the point.

47. An argument was advanced by Mr. Talukdar that the Bharat Purchasing Company was in fact entitled to all excesses of oils and greases in the Budge-Budge depot and so, even if accused did deliver to them, oils and greases in excess of the quantities mentioned in the release order, that would not be an abuse of his position as a public officer.

[After discussing the evidence their Lord ships rejected this argument and concluded as follows:]

Our conclusion is that the accused has failed to show that the prosecution allegation that he obtained pecuniary advantage for himself, by abusing his position as a public servant, by dishonestly disposing to the Bharat Purchasing Company, oils and greases is probably false. He has thus failed to prove the contrary, of any of the three allegations, each of which, taken by itself, would make out a case under sec. 5(2) of Act II of 1947.

48. The position, therefore, is that the prosecution has proved that the accused was in possession, for which he could not satisfactorily account, of pecuniary resources disproportionate to his known sources of income; the accused has failed to prove the contrary of any of the allegations, each of which constitutes the offence of criminal misconduct as defined in sec. 5(1) of Act II of 1947. The result of the provisions of sec. 5(3) of the same Act, therefore, is that the Court shall presume that the accused is guilty of criminal misconduct.

49. We find, therefore, that the accused has been rightly convicted under sec. 5(2) of Act II of 1947. The sentence of four years' rigorous imprisonment and a fine of rupees five thousand, with a further fine of Rs. 49,350 under sec. 9(1) of the West Bengal Criminal Law Amendment Ordinance, 1947, and in default of payment of the fines, to further rigorous imprisonment for eighteen months, is, in my opinion, proper.

50. We affirm the conviction and the sentence.

51. As we have found earlier, the charge under sec. 409, I.P.C against the accused has not been proved. The order of conviction under sec. 409, I.P.C, is set aside. The accused must surrender to his bail.

52. On behalf of the Appellant we have been moved to grant a certificate under sec. 205 of the Government of India Act. Sec. 205 refers only to cases involving substantial questions of law as to the interpretation of the Government of India Act or any Order in Council made thereunder, or of the Indian Independence Act or of any Order made thereunder.

53. None of the questions raised and decided in the appeal now before us touch any of the Acts or Orders refer red to in sec. 205 of the Act. Certificate is accordingly withheld.