Santosh Kumar Jain v. State — 1950 DIGILAW 64 (PAT)

Judgement Rai, J. - This revision petition arises out of the conviction of petitioner Santosh Kumar Jain under S.186, Penal Code. Santosh Kumar Jain one of the Directors and the General Manager of Jagdishpur Zamindari Company, which Company holds the Bihta Sugar Factory as a lessee under a lease. The petitioner was prosecuted for offering obstruction to Mr. T.C. Puri, the then District Magistrate of Patna, and Mr. H.N. Thakur, the then Special Officer in charge of Rationing, Patna, in the discharge of their public function when they wanted to execute a seizure order passed by the Government of Bihar, Supply and Price Control Department. 2. According to the prosecution case, Jagdishpur Zamindari Company bad deliberately failed to comply with the direction issued by the Chief Controller of Prices and Supplies, Bihar, for supply of sugar to approved dealers under allocation orders made from time to time. Subsequently, the Government of Bihar had to pass an order dated 6th December 1947 for the seizure of tow maunds of sugar out of the stock held by the Company. It was further said that Mr. Puri, the then District Magistrate of Patna, and Mr. Thakur, the then Special Officer in charge of Rationing, Patna, went to the premises of the Bihar Sugar Factory on 6th December 1947, for the purpose of carrying out the order passed by the Government of Bihar as aforesaid. R.C. Jain and some other employees of the Company refused to accept a copy of the seizure order whereupon the copy of the order had to be left on a table in the office of the factory. On 6th December 1947, when the two officers went to remove the sugar seized, they found that a number of obstructions had been placed on the roads leading to the factory godown, and they also found that rails and fish plates had been removed from the siding which went near the factory godown with the result that it was not possible for them to arrange for the removal of the seized sugar. It was further said by the prosecution that sugar had been decontrolled from 8th December 1917, and to obstruct the removal of the sugar till the decontrol order had come into force was the motive which had led the petitioner to arrange for the obstructions as aforesaid. 3. It was further said by the prosecution that sugar had been decontrolled from 8th December 1917, and to obstruct the removal of the sugar till the decontrol order had come into force was the motive which had led the petitioner to arrange for the obstructions as aforesaid. 3. The case for the prosecution further was that Santosh Kumar Jain had told Mr. Puri that he was determined to resist the taking away of the sugar by all conceivable means. This attitude of the petitioner led the said officers to seek help of the police, and it was with the assistance of the police that the obstructions placed on roads leading to the factory godown and the railway line which had been tampered with could be removed and the carrying out of the order made possible. On these allegations the petitioner along with one R.C. Jain had been placed on their trial before Mr. K.K. Dutta Subordinate Judge Magistrate, first class, Patna. 4. The defence of the accused was that the order passed by the Government of Bihar dated 5th December 1957, was illegal, and, as such. Mr. Puri and Mr. Thakur were merely trespassing the factory premises and resistance to them was not punishable under S. 186, Penal Code. Regarding the obstructions, the case of the accused was that they had not been intentionally put for the purpose of obstructing public officers concerned in the discharge of their duties, but the situation as found on 6th December 1947, was such as was possible in the ordinary course of events. 5. The trial Court accepted the case of the prosecution, disbelieved the explanation given by the accused and convicted the petitioner under S.186, Penal Code, and sentenced him to undergo simple imprisonment for three weeks. The other accused, R.C. Jain, was however acquitted. 6. An appeal filed by the petitioner before the Sessions Judge of Patna was dismissed. The learned Sessions Judge held that the order passed by the Government of Bihar dated 5th December 1947, was perfectly legal and that the petitioner had no justification for causing the obstruction as has been found in the present case. 6. An appeal filed by the petitioner before the Sessions Judge of Patna was dismissed. The learned Sessions Judge held that the order passed by the Government of Bihar dated 5th December 1947, was perfectly legal and that the petitioner had no justification for causing the obstruction as has been found in the present case. The learned Sessions Judge also did not accept the explanation of the accused to the effect that the obstruction said to have been caused to the road, rail and passage leading to the factory godown had not been arranged intentionally to obstruct the public servants in the discharge of their duties, but had been occasioned in the ordinary course of management. Holding this view, the learned Sessions Judge upheld the conviction and sentence passed by the trial Court. 7. In this Court Mr. P.R. Das, learned counsel for the petitioner, contended that the order passed by the Government of Bihar dated 5th December 1947, was illegal, and, as such, obstruction to the carrying out of such an order by the petitioner could not make him guilty under the provisions of S. 186, Penal Code, which runs as follows: "Whoever voluntarily obstructs any public servant in the discharge of his public functions shall be punished with imprisonment of either description fur a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both." 8. He had also placed before us some of the irregularities committed in the previous directions issued to the Company for the supply of sugar, in support of his contention that really there was no valid reason for the Government of Bihar to have passed the order dated 5th December 1947, (Ex 1 (a)), which ran as follows: "GOVERNMENT OF BIHAR SUPPLY AND PRICE CONTROL DEPARTMENT. ORDER No. 29871/Sugar 32/47 P. C Patna, the 4th/5th December 1947 In exercise of the powers conferred on the Central Government by el. (j) of sub- s. (2) of S.3, Essential Supplies (Temporary Powers) Act, 1946 (24 of 1946), which have been delegated to the Provincial Government in relation to food stuffs in the notification of the Government of India, Department of Food, No PY. (j) of sub- s. (2) of S.3, Essential Supplies (Temporary Powers) Act, 1946 (24 of 1946), which have been delegated to the Provincial Government in relation to food stuffs in the notification of the Government of India, Department of Food, No PY. 603 (2)-1, dated 21st October 1946, the Governor of Bihar is pleased: (i) to authorise the District Magistrate, Patna and/or the Special Officer, in charge of Rationing, Patna to search the stock of sugar held by Messrs. Jagdishpore and Co., Bihta, in the district of Patna which is about to commit a contravention of the order of the Chief Controller of Prices and Supplies, Bihar, made under Cl. 7 (i) (ii), Sugar and Sugar Products Control Order, 1947 and issued in order No. 1613 P. C. R., dated 27th September 1947, in so far as the said order relates to the said Company and (ii) to direct that 5,000 (five thousand) maunds of sugar held in stock by the said Company shall be seized. By order of the Governor of Bihar, Sd. T. P. Singh, Secretary to Government." But ultimately, he conceded that if the above order is legal then it is not necessary to consider the events which lead to the passing of such an order; it has, therefore to be seen whether the order dated 5th December 1947, passed by the Government of Bihar was legal. 9. Now, the order dated 6th December 1947, was published in the Bihar Gazette Extraordinary of the same date. Mr. Das challenges the validity of this order on the ground that the Government of Bihar had no power to pass an ad hoc order as the one under consideration in the present case. According to him, S.3 (1) and S.3 (2) (j), Essential Supplies (Temporary Powers) Act, 1946 (Act 24 of 1946) contemplated the framing of rules only, and it did not contemplate the passing of an ad hoc order like the one dated 5th of December 1917, passed by the Government of Bihar. Some of the sections of the Essential Supplies (Temporary Powers) Act, 1946 which would be considered in this judgment, may be quoted below: "3(1). Some of the sections of the Essential Supplies (Temporary Powers) Act, 1946 which would be considered in this judgment, may be quoted below: "3(1). The Central Government so far as it appears to it to be necessary or expedient for maintaining or increasing supplies of any essential commodity, or for securing their equitable distribution and availability at fair prices, may by notified order provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein. (2) Without prejudice to the generality of the powers conferred by subs. (1) an order made thereunder may provide: * * * * (f) for requiring any person holding stock of an essential commodity to sell the whole or a specified part of the stock at such prices and to such persons or class of persons or in such circumstances, as may be specified in the order: * * * (j) for any incidental and supplementary matters, including in particular the entering and search of premises, vehicles vessels and aircraft, the seizure by a person authorised to make such search of any articles in respect of which such person has reason to believe that a contravention of the order has been, is being or is about to be committed, the grant or issue of licenses, permits or other documents, and the charging of fees therefor. 7. (1). If any person contravenes any order made under S.3, he shall be punishable with imprisonment for a term which may extend to three years or with fine or with both, and if the order so provides, any Court trying such contravention may direct that any property in respect of which the Court is satisfied that the order has been contravened shall be forfeited to His Majesty: Provided that where the contravention is of an order relating to foods stuffs which contains an express provision in this behalf, the Court shall make such direction, unless for reasons to be recorded in writing it is of opinion that the direction should not be made in respect of the whole or as the ease may be, a part of the property. (2) If any person to whom a direction is given under sub-s. (4) of S.3 fails to comply with the direction he shall be punishable with imprisonment for a term which may extend to three years or with fine or with both. 15. (2) If any person to whom a direction is given under sub-s. (4) of S.3 fails to comply with the direction he shall be punishable with imprisonment for a term which may extend to three years or with fine or with both. 15. Where any person is prosecuted for contravening any order made under S.3 which prohibits him from doing an act or being in possession of a thing without lawful authority or without a permit, license or other document, the burden of proving that he has such authority, permit, license or other document, shall be on him." 10. According to Mr. Das if the provisions of the Essential Supplies (Temporary Powers) Act, 1946, could be construed as to empower the relevant authorities to pass ad hoc orders, then in that case the order, Ex. 1 (a) might be said to be legal. He, in this connection, contended that the orders as contemplated by S.3, sub-s. (1) of this Act were analogous to the rules contemplated by the Defence of India Act, 1939. I am afraid I am not in a position to accept this contention of Mr. Das. The Defence of India Act, 1939, had clearly made provisions for making of rules. Section 2 (1) of the said Act ran as follows: "The Central Government may, by notification in the official Gazette, make such rules as appear to it to be necessary or expedient for securing the defence of British India, the public safety, the maintenance of public order or the efficient prosecution of war or for maintaining supplies and services essential to the life of the community." 11. In pursuance of such provision, the Defence of India Rules were framed. In the present case, however, it cannot be said that S.3, sub-ss. (1) and (2), Essential Supplies (Temporary Powers) Act, 1946, contemplated only publication of orders containing rules to be framed for the carrying out of the various provisions of the said Act. In my opinion, Section 3 (2) (f) read with Ss. 7 and 15 of the said Act leave no room for doubt that ad hoc orders as the one under consideration in the present case could be passed and in that view of the matter, it cannot be said that the order dated 5th December 1947, passed by the Government of Bihar was illegal. 7 and 15 of the said Act leave no room for doubt that ad hoc orders as the one under consideration in the present case could be passed and in that view of the matter, it cannot be said that the order dated 5th December 1947, passed by the Government of Bihar was illegal. The argument of the learned counsel for the petitioner that premises of the factory could not be subject to a search, and the sugar could not be seized until rules had been published previously for that purpose, does not appeal to me. 12. Mr. Das further suggested that the order, Ex. 1 (a) purports to have been passed in the exercise of the powers conferred on the Government of Bihar by cl. (j) of sub-s. (2) of S.3, Essential Supplies (Temporary Powers) Act, 1946, and it does not mention specifically sub.s.(1) of S.3 of the said Act. But, in my judgment the omission to mention sub-s.(1) of S 3 of the Act does not make the order illegal. The provisions of the Essential Supplies (Temporary Powers) Act, 1946, as mentioned in the order, Ex. 1 (a), are sufficient to clothe the officers concerned with legal power to execute that order, and I do not think such omission as contended by Mr. Das makes the order illegal. 13. Mr. Das then contended that the alleged obstruction would not amount to an obstruction as contemplated by S.186, Penal Code. Both the Courts below had found the following obstructions placed on the rail and road leading to the factory godown which had been intended to so block the way that the order could not be carried out: (a) All the gates of the factory except the main entrance were locked up. (b) A huge truck with all the four wheels removed and placed on jacks had been so placed as to block the road leading to the sugar godown. (c) Heaps of coal firewood and tins had been kept on the road leading to the door of the godown making it impossible for any vehicular traffic to reach the godown doors. (d) Some of the ails and fish plates of the railway siding loading to the godown had been removed. 14. Both the Courts below have accepted the evidence of Mr. T.C. Puri and Mr. (d) Some of the ails and fish plates of the railway siding loading to the godown had been removed. 14. Both the Courts below have accepted the evidence of Mr. T.C. Puri and Mr. Thakur wherein they had said that they had met San-tear Kumar Jain and had tried to persuade him not to adopt such attitude of resistance but he was, however, adamant and had told that as far as he was concerned he was determined to resist the taking away of the sugar by all conceivable means. Mr. Thakur in his evidence had further said that though the 6th December 1947, was not a holiday, S.K. Jain had declared it to be a holiday, and when asked about it he told him that he had declared that day to be a holiday in honour of some leader whose name he did not remember. It was, therefore, clear, as he has been found by both the Courts, that every attempt was made to obstruct Mr. Puri and Mr. Thakur to seize the sugar which they were lawfully entitled to seize. It has also been found by both the Courts that when the two officers found that they would be resisted by force they had to seek police aid, and it was after the arrival of an armed force that the various obstructions placed on the road leading to the godown could be removed and the rail track could be repaired. 15. Mr. Das further argued that the obstructions as found by the Courts below do not amount to an obstruction as contemplated by S.186, Penal Code. According to him, as no physical obstruction was used and as the two officers had ultimately succeeded in removing the sugar, and as Mr. Jain had left the mill premises when the two officers went to police station to seek aid of the police, he cannot be held responsible for any obstruction. In support of his contention, Mr. Das has cited several authorities. He relied upon the case of Mt. Darkan v. Emperor, AIR (15) 1928 Lah. Jain had left the mill premises when the two officers went to police station to seek aid of the police, he cannot be held responsible for any obstruction. In support of his contention, Mr. Das has cited several authorities. He relied upon the case of Mt. Darkan v. Emperor, AIR (15) 1928 Lah. 827: (29 Cr.L.J. 645) In that case, a learned single Judge of the Lahore High Court had held that the conviction under S.186 could not stand because there was no proper complaint in that case either by the process-server on the senior subordinate Judge, and in that view of the matter, according to him, the Court had taken cognizance of the case without jurisdiction. Regarding the obstruction said to have been made to the process-server, the learned Judge said as follows: "All that the Magistrate finds is that Mt. Darkan abused process-server and said that she would not let him attach the cattle. Now the word obstruction as used in S.186 means physical obstruction i, e., actual resistance or obstacle put in the way of a public servant. The word implies the use of criminal force, and it appears that mere threats or threatening language would seem to be insufficient." The other case relied upon by the petitioners was the case of Gopal Mahton v. Emperor, 21 P.L.T. 716: (AIR(28) 1941 Pat. 161: 41 Cr.L.J. 819) which was decided by my learned brother Meredith J. (as he then was). In that case it was found by this Court that the warrant which was sought to be executed was wholly without any legal force and as such an obstruction to the execution of such a warrant did not attract the operation of S.186, Penal Code. His Lordship, while dealing with the matter, farther held that "they resisted a warrant which was illegal and without force. The resistance, therefote, constituted no offence. The incident amounted at the moat to threats on their part. No one was obstructed or hurt to the circumstances I am not prepared to sustain the conviction." Another case referred to by Mr. Das was the ease of Emperor v. Tohfa, 55 ALL. 985: (AIR(20) 1933 ALL. 759 : 34 Cr. L. J. 1211). The incident amounted at the moat to threats on their part. No one was obstructed or hurt to the circumstances I am not prepared to sustain the conviction." Another case referred to by Mr. Das was the ease of Emperor v. Tohfa, 55 ALL. 985: (AIR(20) 1933 ALL. 759 : 34 Cr. L. J. 1211). In that case the warrant which was sought to he executed was illegal and on that basis the acquittal of the accused was upheld by the High Court, and, in fact, the decision in that case on the question of obstruction was not necessary. In fact, the nature of "obstruction" within the meaning of S.186, Penal Code, might be different with the kind of work that a public servant is attempting to perform. Another case relied upon by the petitioner was the case of Queen- Empress v. Sommanna, 15 Mad 221: (2 M.L.J. 120). In that case the District Judge of Cuddapah had issued a commission to a pleader to search the house of the accused and remove certain properties. The Commissioner went to the village of the accused and having read out the order, asked him to allow it to be executed. The accused remained inside his house and closing the doors against the commissioner obstructed the execution of the commission in spite of repeated requests addressed to him. The accused was convicted under S.186, by the Courts below, but the High Court took a contrary view and it held as follows: "All that is found is that the commissioner who appears to have acted throughout In a very injudicious manner, read out the order and asked the petitioner to be allowed to carry it out and that the petitioner, without giving any answer remained inside his house with closed doors. We do not think that mere failure to comply with the request of the commissioner amounts to such obstruction as is contemplated in S.186. The use of the word voluntarily seems to us to indicate that the Legislature contemplated the commission of some overt Act of obstruction, and did not intend to render penal mere passive conduct." Another case relied upon by the petitioner was the case of Thimmakka v. Emperor, 201 I.C.627: AIR(29) 1942 Mad. 552: 1942-1 M.L.J. 583: (43 Cr.L.J. 757). But this case is against the petitioner. 552: 1942-1 M.L.J. 583: (43 Cr.L.J. 757). But this case is against the petitioner. There, it was held that shutting the door in the officers face amounted to obstructing him in the performance of his duty and the accused were liable to be convicted for an offence under S.186, Penal Code. The petitioner also relied upon the case of Nagarmal v. Emperor, AIR(19) 1932 pat. 279: (33 Cr.L.J. 883), but the facts of that case were different. In that case it was held that the public officers who were executing the order of attachment had no right to attach articles in possession of the accused of that case and any obstruction to such attachment was not illegal. 16. The learned Government Advocate in opposing the application referred to the case of Nanhua v. Emperor, AIR(25) 1938 ALL. 118: (39 Cr L.J. 363), wherein it had been held that the word "obstruction" in s. 186, does not mean "physical obstruction". He further relied upon the cases of In re Thimmakka AIR(29) 1942 Mad. 552 (2): (43 Cr. L.J. 757), Mahan Sahu v. Emperor, AIR(24) 1937 Pat. 633: (39 or. L.J. 100). Emperor v. Babulal, AIR(1936) Nag. 50: AIR(23) 1936 Nag. 86: (37 Cr. L.J. 587) and Sajan v. Emperor, 159 I. C. 665: (AIR(22) 1935 Sind 245: 37 Cr.L.J. 148). In my judgment, the obstruction would differ according to the nature of duty that a public servant is to discharge. In the present case the obstructions as found by both the Courts are sufficient to bring the operation of s. 186, Penal Code, and in this view of the matter, the above contention of Mr. Des is also not tenable. 17. Mr. Das further contended that as the stock of sugar could not be sold without the permission of the Bank of Bihar which was financing the enterprise and as excise duty had to be paid before removal of any stock, the petitioner was justified in obstructing the removal, as admittedly no arrangements had been made to pay the price and the excise duty when Mr. Puri and Mr. Thakur went to remove the sugar on 6th December 1947. Puri and Mr. Thakur went to remove the sugar on 6th December 1947. But this argument is of no avail when both the Courts below found that the two officers bad taken care to take with them a representative of the Bank of Bihar and another officer of the Excise Department who had no objection to the removal of sugar, and as such, this does not seem to be the real reason. The real intention of the petitioners seems to be that they were determined to obstruct the seizure and removal of the sugar till the time for its decontrol would have come, and then it would be possible for them to sell the sugar for whatever amount they pleased. 18. It was also found by both the Courts below that large amounts of funds were received by the Jagdishpur Zamindari Company from various authorised dealers from time to time in connection with the supply of sugar, but they had not been supplied any in spite of their repeated requests. That matter really is not very relevant for the purposes of the present case. In my judgment the order passed by the Government of Bihar dated 5th December 1947, was legal and the obstruction to its execution was certainly punishable under S.186. Penal Code. 19. Mr. Das further referred to the various directions given to Jagdishpur Zamindari Company and the Bihar Sugar Factory for supply of sugar to authorised dealers from day to day and he pointed out some mistakes of procedure committed by the authorities concerned while issuing those directions. He, however, conceded that those irregularities would not affect the conviction of the petitioner if the order, Ex. 1 (a) was legal and if the obstructions proved to have been put were such as were contemplated by the provisions of S.186, Penal Code. He submitted that he was referring to those irregularities in order to get a reduction of the sentence passed on the petitioner. But in the view that I have taken I do not consider the sentence too severe. 20. The result, therefore, is that the petition is rejected, and the rule discharged. The petitioner must now surrender to serve out the remaining part of his sentence. 21Meredith, C. J.-I agree. Rule discharged.