JUDGMENT

1. This matter has been referred to me on a difference of opinion between Mr. Justice Beachcroft and Mr. Justice Greaves.

2. The accused was charged with three offences. He was acquitted on the second charge by the Magistrate and the Government appeal against that acquittal was withdrawn. Both the learned Judges convicted the accused under the third charge. Therefore, the only matter before me for decision is that on which the learned Judges differed, namely, the first charge, Mr. Justice Greaves being of opinion that the accused should be acquitted and Mr. Justice Beachcroft expressing the opinion that he was guilty of the offence, and if not, of abetment of it though not charged therewith. He would, therefore, have fined the accused Rs. 1,000 on this charge in addition to the fine which both the learned Judges have agreed should be imposed in respect of the third charge.

3. It is not necessary for me to recapitulate the facts, which are set out in the judgments which are before me. The questions are, firstly, as to the meaning of the word "trading" in the first charge, and nextly, whether, if there was a trading here in respect of one case of mica shipped by Sections "Nore," it can be said that, at the date of the operation of the Ordinance, that is, the 14th October 1914, the goods were destined for an enemy country.

4. For the prosecution it is contended that the acts of the accused in directing the Bank to make over the goods to Messrs. Baker and Startin of London the direction to the latter to take up the goods, the direction to the latter to send the goods to Checcacci, an Italian agent at Genoa on his application, and lastly his direction to the latter to deliver the goods to Rheinische Co. and receive payment constitute trading. Now, it seems to me clear that, as the Ordinance was not retrospective, the only acts at which I can look, for the purpose of establishing the offence with which the accused has been charged, are such as took place after it was enacted, namely, the directions to Checcacci to hand over the case of mica to the German firm. The other facts are only relevant as establishing the circumstances under which it is alleged that it became possible to do the last-mentioned act, unless they also amount to ratification of acts done and directions given prior to the date of the publication of the Ordinance.

5. I may here mention that the prosecution does not rely on the letter of the 5th November 1914 as it was never sent, being intercepted by the censor.

6. Now, does the act to which I have referred, assuming for the sake of argument that there is a ratification of instructions given to Messrs. Baker and Startin, amount to "trading"? For the defence it is contended that this term involves an actual handling with the goods and not mere directions such as we have before us, which were in fact not carried out. For the prosecution it is contended that the word "trading" includes all forms of commercial intercourse. Both the learned Judges appear to have rejected the contention on this point which was put forward on behalf of the accused. It is not necessary, however, to go further into this part of the case, for, even assuming in favour of the prosecution that the acts charged amounted to "trading" within the meaning of the Ordinance, I agree with Mr. Justice Greaves that, whether there was a trading or not (which it is unnecessary to decide), the goods were not, on or after the 14th October 1914, the date of the Ordinance, destined for an enemy country. Now, what is the meaning of the word "destined"? For the defence it is contended that if we look at the words "or coming from" in the Proclamation, "destined" must mean going to, that is, on the way to an enemy country. The goods were then, it is said, in London and remained there from before the date of the operation of the Ordinance and were, it is contended, incapable of being sent to an enemy country as export of mica from England had been forbidden exce