P L D 1958 Dacca 301 (PLP)

The learned Deputy Legal Remembrancer has contended that section 276 of the Criminal P. C. has not been complied with in this case, because there is nothing to show in the order‑sheet that the jurors were chosen by lot. It appears from the order‑sheet, dated 28th February 1955, that out of the jurors summoned only 3 appeared, and they were chosen without any objection from either side. To meet the deficiency of jurors; 2 other enlisted jurors who happened to ' be present in Court in connection with their own private affairs were chosen without objection from either side. There is nothing in the order‑sheet to show that the 3 sum moned jurors were selected by lot, and it is on this ground that the learned Deputy Legal Remembrancer challenges the constitu tion of the Court and, the trial to be illegal and void ab initio. Reference, was made to Kedar Nath Mahato and others v. The King‑Emperor (32 C W N 221 (F.B)),where the procedure to be followed in nominat ing a jury was considered by a Full Bench., The judgment was delivered by Buckland J., and agreed to by the other four Judges including Rankin, C. J. It Was held therein that section 276, Criminal P. C. provides in the first instance for a ballot among the persons summoned under section 326 all of whom may or may not be present. When their names have been exhausted, if a jury has not yet been empanelled, the Court may in its discretion allow the number requisite to complete the jury to be chosen from among the by‑standers or may adjourn the case for a fresh jury to be summoned. As each name is drawn and called aloud, if the person summoned answers or as each juror is chosen from among the by standers, should that point have been reached and that course be permitted, the accused shall be asked if he object to be tried by such juror. Should the objection be allowed, the Court should proceed as laid down in section 279 (2) adopting the course prescribed according as there are or are not persons left from among those summoned whose names have not been drawn. Reference was also made to Crown v. Akram Molla (P L D 1951 Dacca 63), which considered the Full Bench decision referred to above regarding the procedure to be followed in ' empanelling a jury. The question before us was considered in Rahmat Sheikh and another v. The Icing‑Emperor (2). It will be well to set out the relevant portion of the judgment at page 715 :‑ "Section 276 requires that the jurors shall be chosen by rot from the persons summoned to act as such. The second proviso to that section clearly indicates that in Case of a deficiency of persons summoned the procedure laid down in the first part of the clause need not be followed and the number of. jurors required may be chosen from such persons as may .be present. In other words, the provision of choosing jurors by lot is applicable only when the persons summoned to act as jurors are present in such number as to make it possible to choose them by lot and when such number is not present the Judge is to take the help of persons present in Court to form the jury". The decision, in our opinion, settled the matter once for all and we respectfully agree with the same. It is only when 'there are suffi cient number of jurors summoned present that they are to be chosen by lot and they need not be chosen by lot when the number summoned is below the number required in the case. In the present case, out of juror summoned, 5 jurors were required for the case and only 3 were present, and, therefore, no question of choosing them by lot arises. Mr. Hakim has also contended that this objection was not taken in the trial court as well as in the grounds of appeal and at, this, stage Government should not be heard to raise this objection. , He, .has referred to Superintendent and remem brances of Legal Affairs, Bengal v. Bhajoo Mijhi (A I R 1930 Cal. 291). In that case the self‑same objection raised before us was raised on behalf of l the respondents and the learned Judges held that the ground not having been taken in the petition of appeal and having been put forward at the eleventh hour should not be entertained at so late a stage. The objection' 'regarding constitution of the jury must also fail on this ground. Regarding the two authorities cited by the learned Deputy Legal Remembrancer, they are easily distinguishable. In the Full Bench case, three appeals were. beard together, namely, Appeals Nos. 377, 467 and

302. In Appeal No. 377, the accused were charged under sections 147 and 325 read with section 149 of the. I. P. C. Ten persons were summoned to serve on the jury. Of these ten, six persons attended. Of these, six, it was ascertained that one was serving in the office of a society of which the Public Prosecutor was the President. An objection being taken to this individual, the objection was sustained and he was discharged. This left five persons who had been summoned. The learned Judge chose one man from among the by‑standers in Court, added his name to those of the five persons summoned and from these six the jury of the five was chosen by lot. The learned Judge held, so far as that appeal was concerned, that the jury was not empa nelled as required by law. The convictions and sentences were set aside and a retrial ordered. In Appeal No. 468, the accused were charged under section 302 of the Penal Code. The number of persons summoned did not appear from, the affidavits but it was agreed that seven jurors were present; two of whom were European gentlemen. These two were discharged on the ground that they did not understand Bengali. Two persons were chosen from among the by‑standers and added to the five who remained, thus making a jury of seven. It was contended, in these circumstances, that there was no choosing by lot. It was held that the jury was in effect empanelled as provided by law from the five persons summoned and the two chosen from among the by‑standers and the case was remanded to the Division Bench to dispose of it on other points yet to be determined. In Appeal No. 302, charges were laid under sections 304, 147 and 304 read with 149 of the Code. Twelve persons had been summoned to serve on the jury. Seven of these attended of whom one was excused. Out of the remaining six, five jurors were chosen by lot. It was held that the jury was empanelled as required by law and there was the same order of remand in this appeal as in Appeal No.

468. The facts in the case reported in I P L R (Dacca Series) 175 are that twelve jurors were summoned and only seven were found present in Court and five out of those seven were chosen by lot without any‑ objection from either side. It was contended that two lotteries were held to empanel the jury contrary to the provisions of section 276, because the learned Judge, ascertained first of all by means of a lottery as to how many of the twelve common jurors summoned were present by calling aloud the names of all the jurors, one by one in open Court, and‑ thereafter the learned Judge chose by means of a second lottery five jurors out of the seven jurors who were found present. It was contended that the accused had been deprived of the benefit of a fair and impartial trial. It was held that the jury was validly constituted and that there was no prejudice to the accused. The authorities relied on by the State in fact support the respondents. On a consideration of the authorities cited for and against the preliminary objection raised by the learned Deputy Legal Remembrancer, it is clear that section 276 requires that the jurors shall be chosen by lot from the persons summoned to act as such. The second proviso to that section clearly indicates that in case of a deficiency of persons summoned, the procedure laid down in the first part of the clause need not be followed and the number of jurors required may be chosen from such persons as may be B present. In other words the provision of choosing jurors by to is applicable only when the persons summoned to act as juror are present in such number as to make it possible to choose the by lot and when such number is not present, the Judge is to take the help of persons present in Court to form a jury. The proce dure followed by the learned Judge in the present case is the correct procedure and the trial is not vitiated on the ground that the order sheet does not indicate that the three jurors present out of the jurors summoned were not chosen by lot. The preliminary objection raised on behalf of the State must fail. As regards the merits of the appeal, the learned Deputy Legal Remembrancer advanced many arguments to show tat the charge to the jury covering more than 50 typed foolscap ages contains many misdirections on points of law and facts, which have vitiat ed the trial. His arguments may be summarised as follows:‑ (1) The learned Judge misinterpreted the Sea Customs Act so far as the definition of the word "importation" is concerned. (2) He did not explain properly section 2 (a) of the Land Customs Act (XIX of 1924). (3) He did not explain section 167 of the Sea Customs Act, 1878 (VIII of 1878), find other portions of that Act‑ applicable to that section 9 of the Land Customs Act. (4) He gave the impression to the jury that the case was one under the Land Customs Act and not under the Sea Customs Act. (5) He mis‑explained the prosecution case. (6) He failed to notice some material evidence in the case. So far as the explanation of the law is concerned, we may state at the outset that the learned Judge has taken great pains to explain relevant portions of the law in this case. He has thoroughly explained the law and the application of the Land Cus toms Act, the Sea Customs Act and Imports and Exports (Control) Act of 1950 (Act XIX of 1950). Section 167 (8) of the Sea Customs Act was explained to the jury. He told them further that section 19 of that Act has reference to taking or bringing of goods by land as well, that under the Sea Customs Act imprison ment goes up to 7 years; by section 9 of the Land Customs Act some portions of the Sea Customs Act apply to the Land Customs Act; and section 167 (8) of the Sea Customs Act read with section 9 of the Land Customs Act makes the offence triable by a Session Court. After explaining the facts of the case, he told the jury that if they found the facts in favour of the prosecution, they should consider whether the offence was under the Sea Customs Act or under the Land Customs Act in the light of the explanation of the law he gave to the jury. So far as the argu ments advanced regarding misdirections on questions of law are concerned, we find no such misdirections. The learned Judge has taken great pains to explain the relevant law in this case. On questions of fact also, the learned Judge has not made any mistake. We have for ourselves gone minutely through the charge delivered to the jury to find out whether there was any lacuna in the prosecution case so far as the facts were concerned and we find that the learned Judge has placed many weak points in the prosecution case before the jury for them to consider whether on the facts they were satisfied that any offence was committed. He told the jury that there were many unhappy material contradic tions of what P. W. 1 stated. He pointed out to the jury that the prosecution could not show any mark on any sample or prove the manifest book itself and, from the evidence of P. Ws. 1 and 2, he asked the jury to consider whether there was any reasonable doubt regarding their presence at the time of search or seizure. He further told them to consider whether the prosecution case had been established and, if the facts were in favour of the prose cution, he asked them to consider whether the offence was one under the Sea Customs Act or under the Land Customs Act in the light of the explanation of law. He told them further that the prosecution had to establish beyond reasonable doubt that 19 samples actually represented the articles seized from the steamer. It will be seen that there were many loopholes and weak points in the case which were placed before the jury and it is likely that apart from any question as to whether the Land or the Sea Cus toms Act applied, the jury on the facts found against the prose cution case. Thus the prosecution case suffers from many infirmities which may have been accepted by the jury when they returned a verdict of not guilty. Mr. Hakim, Counsel, has submitted as a last argument that even if it be assumed that the charge to the jury contains mis-directions, this is not a fit case where a retrial should be ordered. In support of his argument, he has referred to an unreported decision of this Court in Krishna Barman and others v. The Crown, decided by Ellis, C. J.. and Zaman, J. on 25th June 1954, (in Criminal Appeal No. 177 of 1954). This case was referred to by the learned Judge in' his charge to the jury so that the jurors may come to their own decision as to whether the Sea or the Land Customs Act applied. We may state the relevant portion of the judgment which is as follows:‑ "The case as instituted by the prosecution is that the smuggling was done along inland water‑ways, part of which constituted the water‑ways between India and Pakistan. Consequently, we fail to see how the Sea Customs Act applies to the case at all. The sub‑inspector when he submitted his report and asked for the prosecution of the appellants mentioned the Sea Customs Act, Land Customs Act and the Prevention of Smuggling Act, 1952. For reasons best known to himself, the learned Magistrate C who committed the case framed a charge under section 167 (8) of the Sea Customs Act alone and ignored the Land Customs Act and the Prevention of Smuggling Act, 1952. The matter is of importance because the punishment is vastly different for an offence committed under the Land Customs Act and one under the Sea Customs Act as amended . . . . . ." The appeal filed by the accused was allowed and they were acquit ted of the charge. The facts in that case and the facts in the present one are practically the same, and we respectfully agree with the decision arrived at by the learned Chief Justice. On this ground also, this appeal must fail. The result, therefore, is that this appeal is dismissed. The respondents are on bail. It is directed that the bail bonds be cancelled. KHAN, J.‑I agree. Z. A. S. Appeal dismissed.