P (PLP)

Practice‑‑

Criminal trial‑Accused making a new case before High Court in Revision‑Facts of new case within accused 's personal knowledge at trial‑Accused cannot rely oil new defence. The accused admitted at the‑trial that he was in possession of 278‑maunds of unhusked rice, such possession being a violation of section 25 of the Foodgrain Control Act, 1947, and was convicted. In Revision before High Court, accused's counsel pleaded for remand of the case to afford an opportunity to his client to prove that the stock found in his possession was not his exclu sive property but belonged to him and his sons as well and it also contained the share of the proprietor. The share of the petitioner therefore would‑‑'not exceed 20 maunds and as such he was not guilty of an offence under the said ‑Act. Held, that the accused cannot make a new case in the High Court when the facts on which it is made were within his personal knowledge. ORDER.‑

By Sub‑Clause (B) section 4 of Foodgrain Control Act, 1947 a person was not competent to keep a stock of more than 20 maunds of foodgrain in his .possession. According to section 25 of the same Act, a person in possession of more than 20.maunds of foodgrain had to give information of the excess amount to the Director of Food Supplies within the period of 15 days of the publication of the said Act. In default of it he was liable to be convicted under section‑31 of the same Act. The attention of the Public was further drawn to the provisions of the aforesaid Act by a Notification No. 7, dated 3rd of February, 1948. Mohammad Bakhsh the present petitioner was found in possession of 278 maunds of unhusked rice and was tried and convicted under section 31 for the violation of section 25 of the said Act and as sentenced to imprisonment till the rising of the Court and Rs. 100 fine and in default of payment of fine to six months rigorous imprisonment The stock of 278 maunds of unhnsked rice was confiscated: He preferred an appeal against that decision to the Sessions Court which was rejected. This is a revision before this Court. Mr. Nisar Ahmad in a petition to this Court requested the remand of the case to afford an opportunity to his client to prove that the stock found in his possession was not his exclusive property but belonged to him and his sons as well and it also contained the share of the proprietor. The share of the petitioner therefore would not exceed 20 maunds and as such he was not guilty of an offence under the said Act; It was too late to take that plea and to move the' High Court for additional evidence, The statement of the petitioner in the Court of the trial Magistrate was simply to the effect that the possession of 278 maunds of unhusked rice was correct and that he was ignorant of law and had consequently failed to give the information to the Director of Food Supplies. The present plea before this Court is evidently frivolous and it changes the case of defence entirely. A petitioner cannot make a new case in the High Court when, the facts on which it is made were within his personal knowledge. I therefore reject this application. The learned counsel had asked me to set aside the order of the confiscation of the entire‑stock or at least to a part of it: There too 'I disagree with him. Section 31 of the Act prescribes the punishment of 3 years rigorous imprisonment and 'fine and also of the confiscation of the stock found in possession of the accused contrary to the provisions of the said Act. The petitioner was found in possession of a large quantity of foodgrain in a case where a sentence of 3 years rigorous imprisonment was prescribed. Sentence of imprisonment till the rising of the Court in this case was nothing short of an insult to the law by the Magistrate. An officer exercising the powers of an Additional District Magistrate is expected to pass adequate .sentence after a person is found guilty of an offence with which he is charged. In the present case I do not treat that the discretion .was judiciously exercised by the Magistrate. The petitioner must be thankful to: the Magistrate for the lenient sentence already passed in ‑his favour. In these circumstances I am not prepared to cancel the order of the confiscation of the stock which was in possession of the petitioner, contrary to the clear provisions of an enactment. The petition is dismissed. A.H. Petition dismissed,