Ganga Prosad Kanoo Accused v. Emperor Opposite Party.

Lodge, J.:— This is an appeal against conviction and sentence under r. 81(4) of the Defence of India Rules passed by the Presidency Magistrate and Registrar of Calcutta.

2. The case for the prosecution was as follows; The appellant Ganga Prosad Kanoo is the proprietor of a Sehop at 77, Kailash Bose Street. On the afternoon of December 15, 1943, a Police Officer on receipt of certain information, searched that shop and found on the premises 58 coils of black iron wire and 18 coils of galvanized iron wire weighing in all 29 cwt. The Police Officer submitted a report in these terms:

“both the persons are charged with acquiring and possessing 58 coils of black wire weighing in all about 25 cwt and 18 coils of galvanized wire weiring in all about 4 cwt at their hardware shop stated as Gauga Prasad Chagin Lal at 77 Kailash hose Street at about 4-45 p.m on December 15, 1943 without any license or permit as required under the Iron and Steel Control Order, 1947, under s. 81(4) of the D.I.R read with s. 4 of iron and Steel Control Order, 1911”

3. The appellant was placed on his trial on the charge as described in the report of the Police Officer. After evidence had been recorded, the learned Magistrate amended the charge and after amendment the charge read as follows:

“That the Accused committed an offence under r. 81(4) of the Defence of India Rules as he failed to submit returns of his stock of iron and steel within fourteen days of the publication of the Order and in the alternative that he acquired the coils of wire in question between the date of the publication of the Order and the date of the seizure of the goods by the S.I”

4. The learned Magistrate found the accused guilty under r. 81(4) of the Defence of India Rules in that he failed to submit a return of his stock within fourteen days of the publication of the Order referred to and he sentenced the accused under r. 81(4) to pay a fine of Rs. ??? and in default, to suffer rigorous imprisonment for six months. In our opinion, this conviction and sentence cannot be sustained. Rule 130(1) of the Defence of India Rules reads:

“No Court or Tribunal shall take cognizance of any alleged contravention of these Rules, or of any order made thereunder, except on a report in writing of the facts constituting such contravention, made by a public servant”.

5. The contravention of the rules for which the appellant has been found guilty is failure to submit a return as required by the Iron and Steel (Demand for Information) Order, 1942, published in the Gazette of India on September 3, 1942. There is no report in writing of the facts constituting this contravention and, in our opinion, the Magistrate had no jurisdiction to take cognizance of the offence of which the appellant was found guilty.

6. It has been argued by Mr. Ahmed for the Crown that the absence of a report in writing was a mere irregularity and that therefore, under s. 537 of the Criminal P.C, the conviction ought not to be set aside as the appellant was not prejudiced by the irregularity.

7. We are unable to agree with this view. In our opinion, a report in writing of the facts constituting the contravention is a condition precedent to the institution of the proceedings and without such a report the Court has no jurisdiction whatever to try the case. As there was no such report in the present case, the Court had no jurisdiction to try the appellant on the charge of which he was ultimately found guilty.

8. In this view, the conviction and sentence are contrary to law and must be set aside. The order of forfeiture must also be set aside. The fine, if paid, must be returned to the appellant and if he is on bail, he will be released from bail.

Derbyshire, C.J:— I agree.

K.

9. Conviction set aside.