1. The Appellant Blythe has been convicted by the SpecialTribunal, Alipore, of a charge under Section 5(2) of Act II of 1947 andsentenced for this offence to rigorous imprisonment for four years and a fineof Rs. 5,000 and a further fine of Rs. 49,350 under Section 9(1) of the WestBengal Criminal Law Amendment (No. II) Ordinance, 1947 and in default ofpayment of the fines to further rigorous imprisonment for eighteen months. Hewas also convicted of another charge under Section 409 of the Indian PenalCode, but no separate sentence was passed on him for this offence.

2. Blythe, who had joined the British Army as a private in1931, 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 MiddleEast and on return to India, in 1943, was promoted to Commissioned Rank in1944. He went on leave in 1945, and shortly after his return from leave, wasposted as I.A.O.C. representative attached to the Americans at Budge Budge. InFebruary, 1946, Blythe assumed charge as depot commander of the Lothian and theAlbion Depot, two of the four depots at Budge Budge, where American surplus storestaken over by the Government of India had been stocked and in April, 1946, heassumed charge of the other two depots--Ludlow and Gagalbhai. It is inconnection with his duties as depot commander in charge of all these storesthat he is said to have committed the offences of which he has been convicted.

3. As depot commander, Blythe was the storekeeper of allthese stores. His main duty was to give delivery of stores from these depots inaccordance with release orders issued by the Directorate of Disposals--who willbe referred to hereafter as Disposals--to purchasers. His other duty was tohave a physical check of the quantities of the stores against the statementsreceived from the Americans, as obviously, in the absence of such a check, itwould be practically impossible to detect unauthorised deliveries and thefts.

4. The prosecution case is that Blythe dishonestly deliveredto Bharat Purchasing Company oil in excess of the quantities to which it wasentitled under the release order from Disposals. It is on this allegation thatthe charge under Section 409 of the Indian Penal Code is based. It is furtherthe prosecution case that Blythe, in his capacity as depot commander, obtainedpecuniary advantage for himself. First, there is the general allegation that hedid so by corrupt or illegal means. Secondly, it is alleged that he did so byabusing his position as a public servant in not reporting the excess stock ofoils and greases in his charge. Lastly, it was alleged that he did so bydishonestly abusing his position, by disposing of part of the oils and greasesto Bharat Purchasing Company. It is on these allegations that the charge underSection 5(2) of Act II of 1947 was based.

5. The accused pleaded not guilty to both the charges. Hedenied that oil in excess of the quantities to which Bharat Purchasing Companywas entitled under the release order was delivered to it to his knowledge, orunder his orders; as regards the allegation of not reporting excess stock, hiscase is that he found it impracticable to carry out a physical check of oilsand greases and so was not aware of any excess stock. He denied also the chargeof adopting any corrupt or illegal means, in connection with his duties asdepot commander.

6. Before coming to the question whether the charges againstthe accused have been proved--as found by the Special Tribunal--it will beconvenient to decide the questions of law that have been raised on behalf ofthe Appellant.

7. The first of these questions is on the question ofjurisdiction. Mr. Talukdar has contended before us that, as the accused was anarmy officer, the Special Tribunal had no jurisdiction to try him, withoutfirst following the rules framed under Section 549 of the Code of CriminalProcedure.

8. Section 549 of the Code of Criminal Procedure is in thesewords:

(1) The Central Government may make rules consistent withthis Code and the Army Act, (44 and 45 Vict, Clause 58), the Naval DisciplineAct (29 and 30 Vict., Clause 109) and that Act as modified by the Indian Navy(Discipline) Act, 1934 and the Air Force Act and any similar law for the timebeing in force as to the cases in which persons subject to military, naval orair force law, shall be tried by a Court to which this Code applies, or byCourt-martial and when any person is brought before a Magistrate and chargedwith an offence for which he is liable to be tried either by a Court to whichthis Code applies or by a Court-martial, such Magistrate, shall have regard tosuch rules and shall in proper cases deliver him, together-with a statement ofthe 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 ofthe nearest military, naval or air force station, as the case may be, for thepurpose of being tried by Court-martial.

9. It is not disputed that at the relevant time the accusedwas an officer of the Indian Army and so subject to military law. If,therefore, Section 549 of the Code of Criminal Procedure applies to trials heldby Special Tribunals constituted under the West Bengal Criminal Law AmendmentAct, the Special Tribunal, which tried the Appellant, ought to have followedthe rules framed under Section 549 before proceeding with the trial. Thequestion, therefore, is: Does Section 549 of the Code of Criminal Procedureapply to a Special Tribunal constituted under the West Bengal Criminal LawAmendment Act

10. In our judgment, there are two good reasons, each ofwhich by itself justifies the conclusion, that it does not apply to thesetribunals.

11. The first is that Section 549 of the Code of CriminalProcedure only comes into play when any person is brought before a Magistrateand charged with an offence.... It provides that in such circumstances, suchMagistrate shall have regard to the rules framed under this section and docertain things....

12. Special Tribunals, under the West Bengal Criminal LawAmendment Act, are not, however, Magistrates, they are in law Courts ofSessions. This is the consequence of a provision in Section 5(2) of this Act,which lays down that, for the purposes of the provisions of the Code ofCriminal Procedure, the Special Tribunal shall be deemed to be a Court ofSession, trying cases without a jury. Section 549 can have, therefore, noapplication, where a person is brought before the Special Tribunal and chargedwith an offence, for which he is liable to be tried either by a Court to whichthe Code of Criminal Procedure applies or by a Court-martial.

13. It was contended that, though Section 549 does not interms apply to Courts of Session, it should be extended to a Special Tribunal,which, though a Court of Session, performs some functions which are notperformed by Courts of Session, but are performed only by Magistrates.

14. In our judgment, this contention is without substance.The provisions of Section 549 are of a very special nature and have the resultof taking away the jurisdiction of ordinary criminal Courts with respect to acertain class of people. Legal provisions of this nature have to be construedvery strictly and jurisdiction should not be given up, unless the plain meaningof the words of the statute so require. There is no scope for extension byanalogy of principle of this character.

15. Another reason that leads inevitably to the sameconclusion that Section 549 of the Code of Criminal Procedure does not apply tothese Special Tribunals arises from the same sub-section of Section 5, to whichreference has already been made. The sub-section runs thus;--

(3) Save as provided in Sub-section (1), the provisions ofthe Code of Criminal Procedure, 1898, except the provisions of Section 196A andof 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 saidprovisions the Special Tribunal shall be deemed to be a Court of Session,trying cases without a jury and a person conducting a prosecution before aSpecial Tribunal shall be deemed to be a Public Prosecutor.

16. The result of this is that provisions of the Code ofCriminal Procedure which are inconsistent with the Act--the West BengalCriminal Law Amendment Act--shall not apply to proceedings of a SpecialTribunal. Are the provisions of Section 549 inconsistent with any provision ofthe Act In our judgment, they are clearly inconsistent with Section 7 of theAct, which lays down that no Court ... save as provided in Section 6 ... haveany jurisdiction of any kind in respect of a proceeding of a Special Tribunal.Section 6 provides for appeal and revision by the High Court. The position,therefore, is that, while Section 7 of the Act provides that no otherCourt--whether it is a Court-martial, or an ordinary criminal Court--shall haveany jurisdiction of any kind in respect of proceedings of a Special Tribunal,Section 549 might have the consequence of transferring such proceedings to aCourt-martial for trial. It must, therefore, be held that the provisions ofSection 549 of the Code of Criminal Procedure are inconsistent with Section 7of the West Bengal Criminal Law Amendment Act and so these provisions will haveno application to trials before Special Tribunals.

17. Mr. Talukdars next contention on the question ofjurisdiction is that the sanction given by the Government of India to theinstitution of these criminal proceedings is not valid or sufficient. Sanctionwas given in this case both under Section 197 of the Code of Criminal Procedureand Section 6 of Act II of 1947 and the two sanctions are in almost identicalterms. On the authority of the Privy Council decision in Gills case I.L.R.(1948) Cal. 542 : L.R. 75 IndAp 41, we are of opinion that no sanction wasnecessary under Section 197 of the Code of Criminal Procedure. But, as sanctionwas clearly required under Section 6 of Act II of 1947, the contention requirescareful 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 sanctionunder Section 6 of the Prevention of Corruption Act, 1947, to the institutionof Criminal proceedings against Major (now Captain) J.E. Blythe, I.A.O.C., 1/SAmerican Surplus Stores Unit, Calcutta, who, during the months February, 1946,to June, 1947, is alleged to have committed, in Calcutta and Budge Budge, theoffences of criminal misconduct, as contemplated in Section 5 of the Preventionof Corruption Act by dishonestly misappropriating a part of the stock entrustedto him and by obtaining money by corrupt and illegal means and also by abusingthe position of a public servant in connection with his function as a depotcommander, in circumstances which constitutes his acts offences punishable,inter alia, under the following provision of law--

(i) Section 5(2) read with Section 5(1), Clauses (c) and (d)of the Prevention of Corruption. Act, 1947 (II of 1947) and (ii) Section 409 ofthe Indian Penal Code.

18. Mr. Talukdar attacks this order of sanction on threegrounds. The first is that the mention in the sanction of "Calcutta",as one of the places where the offences were committed, shows that thesanctioning authority was wrongly told that the offences were committed atCalcutta and Budge Budge, though at the trial the case is that these offences werecommitted at Budge Budge. If the sanction order had mentioned Calcutta only andnot Budge Budge, we would have agreed that the sanction was bad in law andcould not validate the present proceedings, as the case here undoubtedly isthat the offences were committed at Budge Budge. We cannot see, however, howthe unnecessary and incorrect mention of Calcutta affects the validity of thesanction. Mr. Talukdar argues that the sanctioning authority might not havegranted sanction, if Calcutta had not been mentioned to it as one of the placeswhere the offences were committed and that the sanction must be held to havebeen obtained by misrepresentation and is therefore invalid. In our opinion,this argument cannot be sustained. The order itself indicates that the sanctioningauthority had before it substantially those very allegations of fact, whichform the prosecution case at the trial. It is on these allegations that theauthority had to decide whether sanction should be accorded or not. Whether oneor two places were the places of occurrence, or whether Calcutta was one ofthese places, would be of no importance at all, for this decision. Thecontention that sanction was accorded as the result of misrepresentation is,therefore, unjustified. The mention of Calcutta in the sanction order does not,therefore, in our opinion, invalidate the sanction.

19. Mr. Talukdars next contention is that, as thedeliveries to Bharat Purchasing Company, which are the only deliveries in whichexcess is said to have been delivered by the accused, did not start at allbefore April, 1947, the mention in the order of "during the monthsFebruary, 1946, to June, 1947" makes the sanction invalid.

20. In our opinion, there is no substance in thiscontention. Blythe was depot commander from some date of February, 1946 to theend of June, 1947. As it was in connection with his duties as depot commanderthat the allegations against him were made, this entire period was mentioned inthe order of sanction. The fact that, at the trial, the charge was limited to apart of this period only is not of any consequence. What is required in law isthat 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. Thatrequirement is satisfied here.

21. Mr. Talukdars next point is that the sanction isdefective, inasmuch as it mentions an offence under Section 5(2) of Act II of1947, having been committed during the period February, 1946, to June, 1947. Itis quite clear that, as Act II of 1947 received the assent of theGovernor-General on March 11, 1947, no offence under Section 5(2) of the Actcould be committed prior to that date.

22. There is undoubtedly this defect in the sanction order.But, in our judgment, this defect does not make the sanction wholly invalid. Itis certainly invalid as regards the period up to March 11, 1947; for therecannot be a valid sanction for proceeding for an offence which did not exist inlaw and the offence of "criminal "misconduct as contemplated inSection 5 of the Prevention of Corruption Act" did not exist before theAct came into force, which was on March 11, 1947. But we see no reason why thesanction should for that reason be considered invalid even as regards theperiod from March 11, 1947. From that date, the offence of criminal misconduct,as defined in Section 5 of the Prevention of Corruption Act, 1947, came intoexistence. The sanction would have been unexceptionable if the period of thecommission of this offence had been mentioned as "11th March, 1947, toJune, 1947". Does the fact that wrongly some period of time prior to the11th March, 1947, been included in the period alleged as the time forcommission of the offence affects the validity of the sanction In our opinionit does not.

23. Mr. Talukdar contended in the next place that the trialhas been vitiated by the illegal joinder of the charge under Section 5(2) ofAct II of 1947 with the charge under Section 409 of the Indian Penal Code.

24. Section 233 of the Code of Criminal Procedure providesthat for every distinct offence of which any person is accused there shall be aseparate charge and every such charge shall be tried separately except in thecases mentioned in Sections 234, 235, 236 and 239. There can be no questionthat these provisions of the Code of Criminal Procedure apply to the presentcase. The law is well-settled that if charges, which cannot in law be tried atthe 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 distinctoffences--one under Section 5(2) of the Prevention of Corruption Act and theother under Section 409 of the Indian Penal Code--at one trial is justified byany of the Sections 234, 235, 236 and 239 of the Code of Criminal Procedure.Section 234 deals with the trial of offences of the same kind; Section 236deals with cases where it is doubtful what offence has been committed; Section239 deals with the joint trial of different persons. None of these sections have,therefore, any application to the present case. Section 235, Sub-section (2),however, provides for the joint trial of offences, falling within more than onedefinition. The sub-section is in these words:

If the acts alleged constitute an offence falling within twoor more separate definitions of any law in force for the time being by whichoffences are defined or punished, the person accused of them may be chargedwith 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 therebylikely to cause its death. The child dies in consequence of such exposure. Amay be separately charged with and convicted of, offences under Sections 317and 304 of the Indian Penal Code.

25. It is clear from this illustration that it is notnecessary to justify joint trial that all the acts alleged together shouldconstitute each of the two offences. It is sufficient if, of say, acts A, B, Cand D alleged, acts A and B constitute one offence in law and acts B, C and Dconstitute another offence. In the present case, the acts alleged constitute anoffence of the criminal misconduct under Section 5(2) of Act II of 1947; someof the acts alleged also constitute an offence under Section 409 of the IndianPenal Code. The joint trial of these two offences is, therefore, not illegal.

26. It was contended by Mr. Talukdar that the very fact thatthere are the special provisions in Act II of 1947, under which, in the trialof an offence under Section 5(2) of the Act, on proof of the fact of possessionof pecuniary resources disproportionate to the known sources of income, theCourt shall, in certain circumstances, presume that the accused is guilty andsuch a person shall be a competent witness of the defence and may give evidenceon oath, while these provisions are not available with respect to the trial ofan offence under Section 409 of the Indian Penal Code makes the joint trial ofan offence under Section 5(2) of Act II of 1947 and an offence under Section409 of the Indian Penal Code improper. This fact that certain specialprovisions of law are applicable to the trial of one offence, but not to thetrial of the other, does not in any way reduce the field of operation ofSection 235(2) of the Code of Criminal Procedure. The joint trial is legal,because it is permitted by Section 235(2), Code of Criminal Procedure. In spiteof the joint trial, the special mode of proof in Section 5(3) of Act II of 1947and the evidence on oath of the accused person under Section 7 of that Act willnot be available in the trial of the charge under Section 409 of the IndianPenal Code. It may, as Mr. Talukdar contends, be difficult to efface theevidence of the accused person given on oath from the mind, when consideringthe charge under Section 409 of the Indian Penal Code after taking it intoconsideration, as regards the charge under Section 5(2) of the Act II of 1947.But it can be done.

27. Another criticism levelled by Mr. Talukdar against thecharge was that it did not satisfy the requirements of Section 222 of the Codeof Criminal Procedure. This section requires that the charge shall contain suchparticulars as to the time, the place of the alleged offence and the personagainst whom, or the thing (if any) in respect of which, it was committed, asare reasonably sufficient to give the accused notice of the matter with whichhe is charged. Mr. Talukdar argued generally that the charge under Section 5(2)of Act II of 1947 did not contain sufficient particulars. We are unable toagree with this. In our judgment, the charge does give sufficient notice to theaccused of all necessary particulars.

28. It was next urged that the charge under Section 5(2) ofthe Act of 1947 is defective, because the time of its commission was mentionedin the charge as February, 1946, to June, 1947. As I have stated above, Act IIof 1947 came into force on and from March 11, 1947; no offence under Section5(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 myjudgment, invalidate the charge and vitiate the trial. For the period March 11,1947, to June, 1947, there could in law be an offence under Section 5(2) of ActII of 1947 and as this period was included in the period mentioned in thecharge, the wrong inclusion of some period when no such offence could in law becommitted is, in my opinion, of no consequence.

29. It is necessary now to consider whether the SpecialTribunal is right in its conclusion that the prosecution has been able to provethat the Appellant has committed the offences with which he was charged.

30. The case that the accused committed criminal breach oftrust is based on the allegation that the accused ordered or permitted deliveryto the Bharat Purchasing Company of oil S.A.E. 30 in excess of what it wasentitled to. The release order issued to this company on its contract with theDirectorate of Disposals has been exhibited. Item 157 in the order refers tooil S.A.E. 30 (Ex. 4), a voucher signed by one Captain Pratap, on behalf of theBudge Budge Depot, under date April 30, 1947 and Mohanlal for the BharatPurchasing Company under the date May 6, 1947, shows that by this delivery ofS.A.E. 30 oil, item 137 was completed. If, therefore, the prosecution couldshow that any S.A.E. 30 oil was delivered to Bharat Purchasing Company--afterthe delivery evidenced by Ex. 4---it would have proved its case of excessdelivery, but would still have to show that the Appellant had either ordered orpermitted this.

31. The only evidence to show that any S.A.E. oil wasdelivered to Bharat Purchasing Company after the delivery of Ex. 4 was given byP.W. 5, Parimal De, the warehouseman--who says that in June, 1947, severalwagon loads of five gallon drums containing S.A.E. 30 oil were consigned toBharat Purchasing Company. If this witness is believed, excess delivery isproved and the Appellants responsibility for the same is also proved as,according to Parimal, this was done under Blythes specific order.

32. This witness goes so far as to say that he actuallybrought it to the notice of Blythe in June, 1947, that all the S.A.E. 30 oilunder the release order had been fully delivered and still Blythe ordered himto load these other drums containing S.A.E. 30 oil Clearly, however, Parimal isan accomplice. If excess oil was delivered, Parimal must have had a hand in it.If there was excess delivery, Parimal was, therefore, himself in grave peril ofbeing charged with criminal breach of trust under Section 409 of the IndianPenal Code and under Section 5(2) of Act II of 1947. This is, therefore, a casewhere the rule of prudence that an accomplice is unworthy of credit unlesscorroborated in material particulars by independent evidence cannot possibly bedeparted from. What is the independent evidence which the prosecution hasproduced to corroborate Parimals evidence We can find none.

33. The Special Tribunal seems to think that there wassufficient corroboration of Parimals evidence by the C.I.V. and C.R.V.vouchers--Exs. 12 to 15--and the two railway receipts Exs. 27 and 28. It ishardly necessary to discuss the bearing of the C.I.V. and C.R.V. vouchers onthis question of excess deliveries, for these, being all of May, 1947, cannotpossibly corroborate Parimal, who speaks of deliveries in June, 1947, as beingin excess of the release order.

34. Exhibits 27 and 28 are equally useless to theprosecution. These railway receipts show that wagons were despatched from BudgeBudge by Bharat Purchasing Company--to themselves.

35. But they do not show that these consignments were fromdeliveries from the Budge Budge Depot, of which the accused was in charge andParimal was a warehouseman. The Special Tribunal wrongly placed the onus on theaccused, in thinking that, so long as the accused did not prove that BharatPurchasing Company had brought any oil from any of the oil companies at BudgeBudge, it must be accepted that these receipts were for deliveries from theBudge Budge Depot. It was the prosecution who wanted the Court to believe thatthe receipts were for deliveries from Budge Budge Depot; as the receipts bythemselves did not show this, it was up to the prosecution to bring out inevidence that Bharat Purchasing Company did not purchase oil from any othercompany at Budge Budge. When no question about this was put by the prosecutionto P.W. 7 Kedia--it would have been inexcusable of the defence lawyer to putany such question to Kedia--the Special Tribunal was, in our opinion, entirelywrong in drawing an adverse conclusion from the fact that--

not a suggestion is made in the cross-examination of Kediaby the accused to the effect that he had bought oil from the civilian companiesat Budge Budge.

36. In the next place, these two railway receipts do notshow that the drums contained S.A.E, 30 oil.

37. Apparently, a case was also sought to be made before theSpecial Tribunal that the accused gave delivery in excess of the release order,by delivery of S.A.E. 50 oil. But on this also the only evidence is that ofParimal, uncorroborated by any independent evidence and so unworthy of credit.

38. Our conclusion as regards the charge under Section 409of the Indian Penal Code, therefore, is that the prosecution has failed to proveits case that the accused ordered or permitted delivery to the company of anyoil in excess of the release order.

39. This finding is also sufficient to dispose of the secondallegation in the charge under Section 5(2) of Act II of 1947, but for the specialprovision of Section 5(3) of the same Act, which we shall consider later.

40. We shall next consider the prosecution case that theaccused abused his position as a public servant in not reporting the excessstock of oils and greases. It seems to have been somehow assumed that there wasin fact an excess in the stock of oils and greases over the quantitiesmentioned by the documents received from the Americans. But we are unable todiscover in the record any justification for this assumption. The only witnesswho says there was an excess is Parimal, who as we have already mentioned, isan accomplice. His evidence on this point also is uncorroborated. Major Mead,P.W. 2, has indeed said that, after, he took charge of the Budge Budge Depots,he carried out a full physical check of the oils and greases. But he does notsay that, as a result of the check, he discovered that quantities received fromthe Americans were in excess of the quantities mentioned in the documents. Norhave any papers been produced to indicate either what quantities were mentionedin these documents, or what quantities were received.

41. Unless it is first established that there was an excessstock, it is absurd to find fault with the accused for not reporting the excessstock of oils and greases. We hold that the prosecution has failed to provethat the accused abused his position by not reporting excess stock--apart fromthe provisions of Section 5(3) of Act II of 1947. Our conclusion is the same asregards the other allegation in the charge under Section 5(2) that the accusedobtained pecuniary advantage, by corrupt and illegal means. There is noevidence to show that, if the evidence, adduced under Section 5(3) is left outof consideration, the evidence that has been given in accordance with thespecial rule of law enacted in Section 5(3) of Act II of 1947 now requiresconsideration.

42. Before proceeding to consider this evidence, it will beconvenient to analyse the provisions of Section 5(5). This sub-section is inthe 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 inpossession, for which the accused person cannot satisfactorily account, ofpecuniary resources or property disproportionate to his known sources of incomemay be proved and on such proof the Court shall presume, unless the contrary isproved, that the accused person is guilty of criminal misconduct in thedischarge of his official duty and his conviction therefor shall not be invalidby reason only that it is based solely on such presumption.

43. In the first place, this provision permits theprosecution to prove in these trials a fact, which would not be relevant underthe Indian Evidence Act--the fact that the accused (or any body else on hisbehalf) is in possession of pecuniary resources or property, disproportionateto his known sources of income and that for such possession the accused personcannot satisfactorily account. To prove this fact the prosecution will have inpractice 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 thatthe accused person cannot satisfactorily account for this possession. If theCourt is satisfied as regards these three things and also finds that theproperty is disproportionate to the sources of income, the prosecution willhave proved the fact, which Section 5(3) gives it the right to prove.Thereupon, it will become the duty of the Court to presume that the accused hascommitted the offence of criminal misconduct--but, even then, the accused hasthe right to prove that he has not committed this offence. And if the accusedsucceeds in proving this, the Court shall not make the presumption aforesaidand will declare him not guilty.

44. It remains how to apply these principles to the facts ofthe present case.

45. To prove the pecuniary resources in the possession ofthe accused, the prosecution relies on three documents--Ex. 22, Ex. 24 and Ex.6. The first two are certified copies of the accuseds bank accounts--Ex. 22for the Lloyds Bank account and Ex. 24 of the Imperial Bank account. Ex. 22shows deposits mainly of the pay and allowance received by the accused as anarmy officer and discloses a balance of about Rs. 8,000 at the end of March,1947, Rs. 13,000 at the end of April, about Rs. 12,000 at the end of May andabout Rs. 13,000 again at the end of June, 1947. Exhibit 24 shows that theaccount with the Imperial Bank was opened at the end of February, 1947, withRs. 3,000, Rs. 10,850 was deposited in March, Rs. 6,000 in April, Rs. 12,150 inMay and Rs. 7,200 in June. There was no withdrawal from the account, except ofRs. 20,713 in June for the purchase of defence bonds of 2,000. Exclusive ofthe assets of the Lloyds Bank, the accused was, therefore; in possession, atthe end of May, 1947, at least of Rs. 32,000 and at the end of June, 1947, ofRs. 39,000, inclusive of the defence bonds.

46. The prosecution case is that besides these pecuniaryresources, the accused had also in his possession, in June, 1947, sterlinginvestments of the value of Rs. 43,500 and an amount of Rs. 4,000 in cash. Theprosecution relies on Ex. 6 to show this. Exhibit 6 is a cryptic document,admittedly in Blythes handwriting. It was found in a drawer of a writing tablein the house where Blythe lived up to the end of June, by Major Mead, who cameto live there on July 8, 1947. It will be useful to reproduce the document infull--

Rs.

3,250 ... 43,500

31-5-47 ... 32,000

Due ... 18,650

In hand ... 4,000

Total ... 54,650

Transfer ... 2,000

Total ... 56,650

In sight R.D. ... 5,000

... 6,000

To wg ... 1,000

... 15,000

... 27,000

47. It is quite clear that this document was a roughcalculation by Blythe himself sometime in June, 1947, of his assetsincluding-expected assets. Blythe himself states that he jotted down thesefigures, probably when he was having a drink, one evening in the early part ofJune, 1947. Obviously, the second entry--"31-5-47 "--Rs. 32,000"refers to Blythes balance in the Imperial Bank account. The next entry of Rs.18,650 was clearly for money which was expected. It is not necessary tospeculate, as to the ground of the source of this expectation. Clearly, thisamount was not in the possession of the accused. It is also not clear whetherRs. 2,000 entered later was for money in hand. It is clear, however, that theRs. 4,000 shown as "In hand" was money in the possession of theaccused on the date in June, when he wrote Ex. 6 and this is not disputed.

48. The dispute is over the first entry--3,250--Rs. 43,500.Does this represent money in the possession of the accused, exclusive of thebalances in the two bank accounts, or does it, as claimed by the accused,represent the total of Rs. 32,000 in the Imperial Bank, Rs. 7,600 in the safeand Rs. 3,850 in the account Ex. E--in the name of Mrs. Howe, a lady who wasthen living with the accused If this entry "3,250--Rs. 43,500" wasintended to include the amount of Rs. 32,500 in the Imperial Bank, we can thinkof no reason why this amount of Rs. 32,000 would be entered again, in the samecalculation. Again, if there was on this date Rs. 7,600 in the safe, the entry"In hand Rs. 4,000" becomes incapable of explanation. It is alsonecessary to notice that the sterling amount is mentioned first and then itsequivalent in rupees is mentioned. On consideration of all this, we areunhesitatingly of opinion that this first entry in Ex. 6 is with respect to theaccuseds sterling investments and has nothing to do with his monies in any ofthe bank accounts in India, or the money he had in his safe. Our conclusion,therefore, is that in June, 1947, the accused had in his possession thefollowing pecuniary resources: about Rs. 12,000 in the Lloyds Bank, about Rs. 43,000in sterling investments, about Rs. 32,000 in the Imperial Bank and Rs. 4,000 inthe safe. We have excluded from this calculation the deposits of Rs. 5,000 inJune 6 and Rs. 2,200 on June 30, in the Imperial Bank--as it is not knownwhether, by the time these deposits were made, there had been any reduction ofthe sterling investment or the money in the safe.

49. The important question that arises next is whether theprosecution has proved that the accused could not satisfactorily account forhis possession of these pecuniary resources of the approximate value of morethan Rs. 90,000. For, unless this is also proved, the prosecution cannot besaid to have proved the fact that "the "accused person is inpossession, for which the accused person "cannot satisfactorily account,of pecuniary resources..."; and unless this fact is proved, theprosecution can derive no assistance from the special provisions of Section5(3).

50. For the purpose, however, of proving that the accusedcould not satisfactorily account for the possession of pecuniary resources, theprosecution is entitled to rely not only on the evidence of its own witnesses,but also on the evidence of the accused himself. It is not necessary for us toconsider in this case the position which would arise where the accused does notoffer any explanation for his possession. In the present case, the accused hasoffered a twofold explanation for the possession of these resources and if thisexplanation is clearly unacceptable, the prosecution will have proved that theaccused cannot satisfactorily account for his possession of the pecuniaryresources.

51. The explanation offered by the accused, is, as we havestated above, two-fold. He says that he won Rs. 8,000 at card games with anAmerican, between December, 1945 and February, 1946; and that he won large sumsby successful betting at races in Calcutta from December, 1946, to March, 1947.

52. We are prepared to believe that even such a large sum ofRs. 8,000 can be won at cards, in four months, by a skilful player--speciallywhen he plays against deeds if the stakes are high. But, if this accused didactually win Rs. 8,000, the normal conduct for him would be either to put it inhis bank, or to invest it. What he says is that, instead of doing either, hekept all this money with him till the end of December, 1946. That isincredible. It is on this ground that we disbelieve his account that he won Rs.8,000 at cards.

53. As to winning at races, his evidence is that the maximumwon by him in any single week was about Rs. 3,500 and the minimum was about Rs.300 and that he lost on one or two occasions only. It is curious that nothingout of his alleged winnings at these races found its way to his bank account ineither December or January. In February, he opens a new account with theImperial Bank and the first deposit is of Rs. 3,000. Supposing this deposit andthe further deposits during March are explained by his winnings at the races,we are unable to see how this account can explain the deposits made in April,May and June. For we find it impossible to believe that, after he won money atthe races, the accused would keep it in his safe for several months and thendeposit it in driblets. We believe, therefore, that no part of the depositsduring April, May and June at least was made from the winnings at races.

54. The military pay and allowances were all deposited inthe Lloyds Bank account. The bank account (Ex. 22) shows this and the accusedsown evidence is also to the same effect. The balance standing to the credit ofthe accused in this bank is thus satisfactorily accounted for. But thesereceipts--military pay and allowances--cannot account for any portion of hismonies in the Imperial Bank.

61. Our conclusion, therefore, is that the accused has notsatisfactorily accounted for the pecuniary resources in his possession as shownby the Imperial Bank account.

62. We have already stated our finding that the explanationoffered by the accused as regards the 3,250, mentioned in Ex. 6, that it is merelythe total of the Rs. 32,000 in the Imperial Bank, Rs. 3,850 in an account inthe name of his lady love Mrs. Howe and Rs. 7,000 in his safe--is untrue andthat, in the first part of June, 1947, when Ex. 6 was written by the accused,he had in his possession this 3,250 as sterling investments, quite apart fromhis rupee holdings in the banks in India. The fact that the accused has given afalse explanation for this 3,250 is itself sufficient for the finding that theaccused has not satisfactorily explained his possession of these sterlinginvestments.

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

64. That this amount, which he has not satisfactorilyaccounted for, is absolutely disproportionate to his known sources of income isself-evident, the known sources of income being his military pay andallowances, which only account for the deposits in the Lloyds Bank.

65. We find, therefore, that the prosecution has proved infact that the accused was in possession of pecuniary resources of which hecannot satisfactorily account for, disproportionate to his known sources ofincome. The consequence that will follow from this is that the Court shallpresume that the accused is guilty of criminal misconduct in the discharge ofhis official duty--unless the contrary is proved.

66. Has the contrary been proved The burden of proving thecontrary is obviously on the accused and on the vexed question whether thisburden on the accused is of the same or a lesser degree than the burden thatlies on the prosecution of proving the guilt of the accused beyond reasonabledoubt, we shall assume for the purpose of this case that, where the burden ofproving any fact is on the accused, -it is not necessary to prove it beyondreasonable doubt and it is sufficient to show that the probabilities are thatthis is the fact.

67. Even on this assumption, we have no hesitation in comingto 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--are that heobtained pecuniary advantage for himself by corrupt and illegal means; that heobtained pecuniary advantage for himself by abusing his position, as a publicservant, in not reporting the excess stock of oils and greases in his charge;that he obtained pecuniary advantage for himself by dishonestly disposing ofpart of the oils and greases to Bharat Purchasing Company.

68. To prove the contrary of these allegations, the accusedwould have to show at least that these allegations were probably false.

69. As we have stated above, the evidence in the case--apartfrom Section 5(3) of Act II of 1947--does not prove affirmatively the truth ofthese allegations. But the failure of the prosecution to prove affirmativelythe truth of these allegations does not justify a finding that they areprobably false.

70. As regards the first allegation of receiving money bycorrupt and illegal means, we think it is extremely difficult--if notimpossible--for the accused to prove the contrary, except by showing (a) that hehad no opportunity of receiving any such money, or (b) that his financialposition, shows that he could not have received such money. It is because hisfinancial position is such as is not explained by his regular sources ofincome, that the need of proving the "contrary" has arisen. So, themethod of (b) is in fact not available to him. As regards (a), it cannot for amoment be seriously suggested that the accused, as the man in charge of thedepot, had no opportunity to receive money by corrupt and illegal means.

71. As regards the second allegation, regarding notreporting excess stock, the accuseds case is that it was not possible to holdany physical check. The stock was no doubt very huge and it would certainlyhave taken a very long time if each drum had to be checked to see if it wasfull or not. A general check of the number of tins of different capacitieswould, however, give a very good idea of the stock and this could not take muchtime. The difficulties in the way of a thorough physical check do not, therefore,justify a conclusion that probably the accused did not hold a physical check,or that he was not aware of any excess stock for report. The accused himselfhas no doubt said that no physical check of the oils and greases was made underhis orders and to his knowledge, prior to the check made by Groves between June20 to June 28. He says that he himself gave Groves orders to carry out aphysical check of the P.O.L. section on June 20, 1947 and that Groves did thejob and gave the accused the list on June 28. He says further that he actuallydrew the attention of Lt.-Col. Mecutcheon to this list, on the morning he wasrelieved by the latter. If this evidence of a physical check being ordered bythe accused on June 20 could be accepted, that would be a very good ground forthinking that no earlier physical check had been held by accused and in thatcase, it would be reasonable to hold that the allegation that the accused haddeliberately omitted to report the excess stock of oils and greases was probablyfalse. But we find it impossible to accept the uncorroborated testimony of theaccused on this point. No attempt appears to have been made to call Groves andLt.-Col. Mecutcheon as defence witnesses. It is true that Major Green, who was,from April, 1946, to the middle of July, 1947, Deputy Chief Ordnance Officer ofthe Unit, in which the stores in question were, says:

To the best of my knowledge no stock-taking of P.O.I.section had been taken the reason being that issues to the Bharat PurchasingCompany were still in progress.

71. He, however, is not likely to know of any stock-taking,unless a report was sent to him. His want of knowledge of any stocktaking beingtaken is, therefore, not of the slightest assistance to anybody.

72. In our judgment, the accused has failed to show that theallegation that he obtained pecuniary advantage for himself, by omitting toreport excess stock, is probably false.

73. The essence of the third allegation is that the accuseddishonestly disposed of oils and greases to the Bharat Purchasing Company. Wehave stated above that the evidence on the record apart from the provision ofSection 5(3) of Act II of 1947--is not sufficient to prove that the accused diddishonestly dispose of any oils and greases to Bharat. This finding will not,however, serve the purpose of the accused, when, to meet the situation createdby the provision of Section 5(3) of Act II, he has to show at least that theallegation is probably false. Apart from his own testimony that he did notdeliver or order to be delivered to Bharat any oils in excess of what Bharatwas entitled to, there is nothing to show that the prosecution allegation isfalse. We think it is ridiculous to suggest that, in the absence of supportingcircumstances, the mere word of the accused should be taken as sufficient toshew that the prosecution suggestion is false, or is probably false. We areunable to find on the record any circumstance which lends support to theaccuseds testimony on the point.

74. An argument was advanced by Mr. Talukdar that the BharatPurchasing Company was in fact entitled to all excesses of oils and greases inthe Budge Budge Depot and so, even if accused did deliver to them oils andgreases in excess of the quantities mentioned in the Release Order, that wouldnot be an abuse of his position as a public officer. It appears that, on May22, 1947, Bharat wrote to the Director-General of Disposals, claiming that theywere entitled to all excess in lubricating oil and grease in Budge Budge (Ex.18). By the letter Ex. 19 the Director of Disposals said that the matter bedeferred until certain outstanding problems had been cleared up and it wasadded that, in any case, the excess which might fall to Bharat could relateonly to those specific types of oil and grease, mentioned in the list on whichBharats offer was based. The final decision of the Directorate was conveyed bythe letter Ex. 9. By this, the Directorate agreed that all shortages andexcesses would be for Bharats account, provided that--

(a) such shortages and excesses relate to the specific oilsand greases set out in the schedule attached to the Release Order No. 1381;

(b) that the excess related to the S.P.B. forms mentioned inhe said schedule;

(c) that all claims by prior purchasers had been satisfied.

75. It was suggested by the learned Advocate-General thatthis decision as conveyed in Ex. 9 was given by Feldman in abuse of hisposition and that this did not add to the legal rights of Bharat by hiscontract of purchase. We do not think it necessary to decide this question forthe purpose of the present case, for in our view, assuming that the decision asconveyed in Ex. 9 did in law give Bharat certain rights, that is of littleassistance to the accused. In the first place, it is to be noticed that theexcess would be limited to only the oils and greases specified in the releaseorder. The prosecution allegation of excess delivery is not, however, limitedto these specified varieties. At best, therefore, it might be said that theaccused did not abuse his position in so far as he gave Bharat delivery of thespecified varieties in excess of the quantities mentioned. But what about thevarieties, not specified, if quantities in excess were supplied Exhibit 9,therefore, does not remove or discharge the burden on the accused to show thatthe prosecution allegation that oils and greases in excess of the quantities towhich Bharat was entitled was delivered by accused to Bharat is probably false.

76. It is further to be noticed that, even as regards thevarieties of oils and greases specified in the Release Order, Bharat wouldbecome entitled to all excesses only if "all claims by prior"purchasers had been satisfied". There is nothing on the record toindicate that all claims by prior purchasers had been satisfied even as regardsS.A.E. 30 oil--the type specified in the Release Order, about which prosecutionmade a specific case that excess had been delivered to Bharat under the orderof the accused.

77. We are of opinion, therefore, that, even if Ex. 9 gave.Bharat certain rights in addition to what the contract of purchase on the faceof it entitled them to, that fact is of no assistance to the accused.

78. Our conclusion is that the accused has failed to showthat the prosecution allegation that he obtained pecuniary advantage forhimself, by abusing his position as a public servant, by dishonestly disposingto the Bharat Purchasing Company oils and greases, is probably false. He hasthus failed to prove the contrary, of any of the three allegations, each ofwhich, taken by itself, would make out a case under Section 5(2) of Act II of1947.

79. The position, therefore, is that the prosecution hasproved that the accused was in possession, for which he could notsatisfactorily account, of pecuniary resources disproportionate to his knownsources of income; the accused has failed to prove the contrary of any of theallegations, each of which constitutes the offence of criminal misconduct, asdefined in Section 5(1) of Act II of 1947. The result of the provisions ofSection 5(3) of the same Act, therefore, is that the Court shall presume thatthe accused is guilty of criminal misconduct.

80. We find, therefore, that the accused has been rightlyconvicted under Section 5(2) of Act II of 1947. The sentence of four yearsrigorous imprisonment and a fine of rupees five thousand, with a further fineof Rs. 49,350 under Section 9(1) of the West Bengal Criminal Law AmendmentOrdinance, 1947 and in default of payment of the fines, to further rigorous imprisonmentfor eighteen months is, in our opinion, proper. We affirm the conviction andthe sentence.

81. As we have found earlier, the charge under Section 409of the Indian Penal Code against the accused has not been proved. The order ofconviction under Section 409 is set aside. The accused must surrender to hisbail.

82. On behalf of the Appellant we have been moved to grant acertificate under Section 205 of the Government of India Act. Section 205refers only to cases involving substantial questions of law as to theinterpretation of the Government of India Act or any Order in Council madethereunder, or of the Indian Independence Act or of any Order made thereunder.None of the questions raised and decided in the appeal now before us touch anyof the Acts or Orders referred to in Section 205 of the Act. Certificate isaccordingly withheld.

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Blythe vs. TheKing (07.04.1949 - CALHC)