Judgment

Majahan, J. - These two appeals by special leave are limited to the question of sentence only. In case No. 1788/P of 1950, which has given rise to Criminal Appeal No. 54 of 1951, the appellant Adamji Umar Dalal was tried along with five other persons on the following charges :

"Firstly, that you at Bombay on or about 29-12-1949 in contravention of Government Notification No. 342/- IV B, dated 27-1-1946 issued under the Essential Supplies (Temporary Powers) Act, 1946 attempted to export by rail out of the State of Bombay to Jalna, a place beyond the limits of Bombay State, 50 barrels of kerosene oil, without having any permit in that behalf, by misdescribing or causing the misdescription of the said barrels of oil as high speed diesel oil and thereby committed an offence punishable under Ss. 7 and 8, Essential Supplies (Temporary Powers) Act.

Secondly, that you at Bombay, on or about 29-12-1949 attempted to export by rail 50 barrels of kerosene oil by misdescribing or causing the misdescription of the same as high speed diesel oil, and abetted each other in the commission of the said offence and thereby committed an offence punishable under Ss. 106 and 107, Railways Act, read with S. 114, Penal Code."

In cases Nos. 1784/P and 1785/P of 1950 the appellant was tried along with the same persons on similar charges in respect of two other lots of 50 and barrels of kerosene oil respectively. These two cases have given rise to Appeal No. 55 of 1951.

2. The circumstances under which these three cases arose are these. On 29-12-1949 three consignments of 50, 50 and 15 barrels had been booked from Wadi Bundar under the description of high speed diesel oil when in fact they contained kerosene oil and were to be despatched to Jalna. The police on getting information of this fact opened the railway wagons and took charge of the barrels kept in them. Accused 2, 3 and 4 are members of a firm of commission agents. They had purchased the barrels of oil from Sunbeam Oil Company on behalf of three different principals. Accused 1 is a representative of one of these firms. Accused 5 and 6 are the godown keeper and the assistant godown keeper of the supplier company. All the barrels seized bore the mark "Prakash Traders High Speed Diesel Oil, U. S. A." Accused 3 engaged two lorries to remove 100 barrels and they were loaded in the lorries and delivered to Sattar Latif, witness, who was the forwarding and carting agent at Wadi Bundar. He was instructed by the third accused for the booking of these barrels for Jalna in Hyderabad State, along with the third lot of 15 barrels. In the consignment note which concerned the 50 barrels purchased on behalf of the first accused his firm was shown as the consignor and the consignee was self. The consignment note was signed by Sattar Latif. In these documents, the good were described as high speed diesel oil. Similar consignment notes and risk notes were prepared in respect of the other two consignments. There was a ban on the export of kerosene oil to any place outside the State of Bombay. All the barrels had a white paint on them. It appeared to be new and below the paint on the barrels the words "kerosene oil" was visible. On these facts the prosecution started three separate cases in respect of the three consignments of 50, 50 and 15 barrels respectively on the charges set out above against all 6 accused persons. All of them pleaded not guilty.

3. Accused 5 stated that accused 2 and 3 brought to him a delivery order asking him to deliver high speed diesel oil but that he delivered to them kerosene oil at their request. Accused 1 admitted that he on behalf of his firm place an order for 65 barrels of high speed diesel oil though accused 2 but denied all knowledge about the alleged delivery of kerosene oil. Accused 2 said that he placed an order for diesel oil with Sunbeam Oil Company for 65 barrels and obtained a delivery order from the company and gave it to accused 3 and sent him to take delivery of the