JUDGMENT

Mookerjee and Beachcroft, JJ. - The petitioner, Kali Charan Mukherjee, was charged before the Chief Presidency Magistrate of Calcutta with the commission of offences under Sections 46 and 52 of the Bengal Excise Act, 1909. He was convicted under both these sections, and sentenced to rigorous imprisonment for three months u/s 46.

2. The facts which have been indisputably established by the evidence may be briefly stated. On the 14th January 1913, the petitioner made over a bill of lading and invoice to a firm of shipping agents in this city known as Cox & Co. The invoice, on the face of it, referred to goods described as six bales of old wearing apparel shipped by C. Porter & Co. of London to Rasu Prasad at Darjeeling in India; the goods were described as nine hundred jackets worth 33 5s. The bill of lading, on the face of it, described the goods as six packages of old wearing apparel marked "R.P. at Darjeeling via Calcutta."' On the back of the bill of lading were endorsements which purported to be by C. Porter & Co. and Rasu Prasad. The petitioner, when he made over the invoice and bill of lading to Cox & Co., paid to the firm Rs. 30, on account of clearing charges. On the 23rd January, while the goods were under clearance from S.S. "Borneo", a Customs Preventive Officer, who was on board, noticed five packets of cocaine, each of which contained two phials, near or among the bales of old clothes. This aroused his suspicion, and he thereupon seized all the six bales, which, upon examination, were found to contain 731 packets of cocaine weighing 491 ounces and worth, it is said, at least Rs. 10,000. On that very day, the petitioner, with a view to take delivery, presented himself at the office of Cox & Co., who had meanwhile been apprised of what had happened; he attempted to make off and was thereupon taken by one of the assistants of the firm to the Custom House. There he protested that he was not aware of the contents of the bales and had arranged to have them cleared at the request and on behalf of Rasu Prasad. He promised to point out to the Custom Superintendent the man Rasu Prasad for whom he said he was acting. The petitioner then took one of the Custom Officers in a carriage from place to place for about two hours in the streets of Calcutta, but was not able to point out either Rasu Prasad or his place of residence. He was then made over to the police and prosecuted with the result already stated. The Chief Presidency Magistrate has held that the story of Rasu Prasad is an invention. In support of this view, he has relied upon the circumstance that though the accused was given every opportunity by the Custom Officers and by the Court to produce Rasu Prasad, he had not done so, and that, on the other hand, he had not been able to furnish any clue to the whereabouts of Rasu Prasad or even to give any satisfactory evidence of the existence of such an individual either at Calcutta or at Darjeeling. Much reliance, however, has been placed in this Court on a telegram to the following effect discovered at a search of premises No. 97 Mechua Bazar Street which is alleged to have been occupied by Rasu Prasad: "Rasu Prasad, Jubilee Sanitarium, Darjeeling. Borneo shipment. Error, re-ship--Porter."

3. This telegram appears to have been despatched from London on the 6th February 1918, and was received at Darjeeling on the day following. It has been argued, with some plausibility, on the strength of this telegram, that the goods had been shipped by mistake, and that as soon as the mistake was discovered by the exporters, they cabled to the importer to re-ship the goods. In our opinion, reliance cannot be placed on the genuineness of this telegram, and it is unquestionably within the bounds of possibility that, if the cocaine was sought to be imported into this country in contravention of law, as soon as the discovery had been made on the 23rd January, the importer, whoever he might be, might cable to the exporters in London, us