1. This appeal is directed against an order of conviction dated 30-1 1-66 passed by the learned Additional Sessions Judge and Ex-officio Special Judge, Chittagong sentencing the accused- appellant under section 409, P. P. C. To suffer rigorous imprison--ment for two years and to pay 'a fine of Rs. 1000 in default to rigorous imprisonment for one year more.
2. Accused Abu Saleh Chowdhury was the Chairman of Bahar Chara Union Council under Bashkali P.
3. S., District Chittagong in 1963. In May 1963 there was a severe cyclone accompanied with tidal bore which caused immense damage to that locality. There was acute dearth of food, clothes etc. And the Government rushed reliefs in the area and the relief goods were distributed under the supervision of 'Circle Officer, Baskhali P. S. There were Zonal and Assistant Zonal Relief Officers in the area but the operations were more or less carried on with the help of the Chairman of the Union Council along with the members. There were different consignments of relief goods which started coming after the cyclone. In August 1963, 395 maunds of wheat and 78 cartons, of dry milk were allotted to the said Union Council and they were kept in custody of the Chairman. The relief goods were stored at the godown in Mosaref Ali Hat in village Ilsha. P. W. 1 Saber Ahmed Chowdhury was a member of the Union Council at that time. On 5-9-63 he along with P. W. 5 Sultan Ahmed Contractor and the accused Chairman; went to the godown and - to his surprise, he found the stock depleted. P. W. 1 brought it to the notice of the accused Chairman who side-tracked the issue saying that the matter was quite all right.
4. The normal practice for distribution of relief goods was to call a meeting of the Union Council, prepare a priority lists and to distribute the goods to different villages according to the need and requirement as per suggestion of the members of the Union Council. The distribution used to be made generally on the basis of the priority list prepared by the members under the supervision of the local officers. The Chairman or members had no authority to distribute the relief goods without approval or prior permission of the Circle Officer. As the relief goods could not be distributed without the meeting of the Union Council the said depreciation of stock in the godown rose suspicion in the mind of P. W. 1 and he contacted the Circle Officer (Development) directly in the matter. He also went to the Sub-Divisional Officer (South) and reported the matter to him: But finding no response from them, he reported the matter to the Superintendent of Police, Chittagong by a petition. The police went to Ilsha village on 11-9-63 and posted guard around the godown where the relief stock was kept. P. W. 9 S. I. Adiluddin was then the Officer-in-Charge of Baskhali P. S. He went to the locality on the following day and seized relief goods in presence of witnesses from the godown of the accused and one Gura Mia. A seizure list was prepared accordingly. The police also seized some papers including the muster-rolls etc. On verification at that stock it was found that there was a shortage 73 ends of wheat and 2 cartons and 11 packets of dry milk worth about Rs. 5,000 in the godown. The accused could not give any satisfactory explanation of the shortage and .So a first information report was lodged with the local police on the above allegations. The police after completing the investigation and obtaining the sanction for prosecution from the appropriate authority, submitted a charge--sheet against the accused Chairman. He was thus put on trial before the learned Judge to meet a charge under section 409, P. P. C.
5. The plea of the accused was one of innocence. He asserted that he did not misappropriate any relief articles but distributed them among the deserving public to meet the emergency.
6. Ten witnesses for the prosecution and none for the defence were examined in the case. A number of documents were also produced before the Court. The learned Special Judge, on appraisal of the evidence and materials on record, convicted and sentenced the accused-appellant as mentioned above. Being aggrieved thereby he has preferred the present appeal before this Court.
7. Mr. Abdus Salam Khan, the learned Advocate for the appel--lant has taken me through the judgment, depositions and other relevent papers and contended that the main witnesses in the case j are admittedly interested and their evidence cannot be relied on. He has also contended that in a case of criminal breach of trust, the prosecution must prove not only the entrustment or dominion over the property but also that the accused either dishonestly converted, used or disposed of that property himself. In a case where no evidence of misappropriation or conversion is available and the accused gives an explanation and the explanation has a reasonable possibility of being true, the conviction under section 409, P. P. C. Is not justified, inasmuch as the mere circumstances raising some suspicion are not sufficient to warrant a conviction. He has further submitted that the non-examination of the Circle Officers, Sukhlal Das and Nuruzzaman and the Officer-in-Charge of L. S. D., Md. Mia has occasioned a failure of justice in the case and seriously prejudiced the accused-appellant.
8. It is not disputed that there was a severe cyclone in Chitta--gong in 1963 and the Bharchara Union Council under Bashkhali P. S. Was seriously affected by it and that the relief goods rushed to the locality from various be sources to meet the calamity and the Government sanctioned various kinds of relief in' both cash and kind in that connection.
9. There are ample evidence on record that in August 1963, 395 mds. Of wheat and 78 cartons of dry milk were allotted to Bahar-- chara Union Council for distribution among the needy people and these relief goods were received by the accused Chairman and were kept in the godown of Mosharaf Ali Hat in Ilsha village. The allotment letter No. 1114 (25) dated 10-8-63 showing allot-en of 78 cartons 'of dry milk and the allotment letter No. 1158 (26) dated 19-8-63 showing allotment of 395 ends. Of wheat to Baharchara Union Council are on record. The stock register Exh. 6 and the entries therein dated 1$-8-63 marked as Exhs. 6 (4) and 6 (5) show that the above relief goods were received .By the said Union Council. The evidence of P. Ws. 1, 3, 4, 5 and 6 have proved that 395 mds. Of wheat and 78 cartons of dry mills were allotted to the said Union Council and the accused Chairman received the relief goods in question for distribution among the public. The accused also does not deny the receipt of the said relief goods. The entrustment of the said goods to the accused has thus beer. Established beyond reasonable doubt.
10. P. W. 1 Saber Ahmed Chowdhury has stated in his deposition that the accused Chairman constructed a godown with relief bamboos in 1960 at Masharaf Ali Hat. The relief goods receives in August 1963 were kept in the godown of Mosharaf Ali Hat a Ilsha village by the accused. No meeting of the Union Council wit called for arranging distribution of the said relief goods and no goods out of the above stock was distributed to the public. On 5-9-63 he along with the accused Chairman and P. W. 5 Sultan Ahmed Contractor went to the said godown and found the stock depleted. This rose suspicion in his mind and he brought it is the notice of the local authorities. He has further stated that on 11-9-63 the local police went to the godown at Ilsha village any posted guard around the same. P. W. 9 S.1. Adiluddin, the they Officer-in-Charge Baskhali P. S. Went to the locality on 12.9-6 and seized the relief goods. On verification of the stock it was found that there was a shortage of 73 mds. Of wheat and 2 carton and 11 packets of dry milk. The seizure and verification were made in presence of P.Ws. 5-6 and others. P. Ws. 5 and 6 have corroborated P. W- 1 in this respect. The shortage of 73 mds of wheat and 2 cartoons and 11 packets milk from the godown of Mosharaf Ali Hat at Ilsha has thus been established by P. Ws. 1, 5, 6 and 9. This shortage of 73 mds.
11. Of wheat and 2 cartons and 11 packets of dry milk out of the total stock of 395 mds. Of wheat and 78 cartons of dry milk has not also been challenged by the accused.
12. The prosecution case is that the accused Chairman has mis appropriated, converted or disposed of 73 mds. Of wheat and 2 cartons and 11 packets of dry milk from the stock received in August 1963 whereas the defence plea is that the accused as a Chairman of the Baharchara Union Council, has distributed the said 73 mds of wheat and 2 cartons and 11 packets of dry milk as per muster-rolls to the needy and deserving people of his area to meet the emergency as the people were starving and in great need of food. The entrustment of the relief goods in question having been established and the shortage of the above quantity having been proved and not denied by the accused. It requires to be seen where that 73 mds. Of wheat and 2 cartons and 11 packets of dry milk went. The entrustment having been proved and the shortage having not been denied, if the accused fails to give any satisfactory account for the shortage, the presumption, naturally will be that the accused has dishonestly converted, used or disposed of that property. The accused has given an explanation in the case. If the explanation given by him is vague, unreasonable and not supported by any evidence or circumstances] then the law make a presumption of guilt against the accused.
13. But if the explanation is reasonable and if there is no circumstance or evidence of dishonest conversion or disposal, the accused cannot be held liable for misappropriation.
14. Two different versions having been put forward by the parties let us see which of the versions of the story is true and whether --the explanation given by the accused in the case has got a reasonable possibility of being true. The consistent stand of the accused is that in view of the serious deteriorating condition the area and in view of the extreme scarcity of food, he as a representative of the people, distributed the relief goods to the starving public to meet the emergency, without strictly complying with the formalities of rules, in the greater interest of the people.
15. P. Ws. 1, 5 and 6 have stated in their depositions that the consignments of relief goods received in August 1963 covered by a Exhs. 6 (4) and 6 (5) were not distributed to the public. No meeting of the Union Council was held for the purpose according to the standing rules. The accused did not distribute any wheat or milk to the public out of-the said stock.
16. P. Ws. 1, 5 and 6 are the main witnesses in the case to speak about the non-distribution of the relief goods by the accused. The learned Advocate for the appellant has pointed out that these three witnesses who were members of the Union Council at the relevant time, are the sworn enemies of the accused and they are highly interested in the case. The record shows that P. W: 1 Saber Ahmed Chowdhury was originally the Chairman of the Union Board before the election of the accused- appellant as Chairman of the said Union Council. After the removal of the accused Abu Saleh Chowdhury from the Chairmanship due to this case, P. W. 1 was again elected Chairman of the said Union Council. This indicates that some sort of political, rivalry between P. W. 1 and the accused over the post of Chairman was all through going on. It is P. W. 1 who moved the local authorities for action against the accused and ultimately set the ball in motion. There are also materials on record to show that the relationship between these two persons were estranged all along. In the circumstances, although P. W. 1 denied the existence of any ill-feeling or enmity, the possibility of false implication, due to the long-standing political rivalry between them, cannot be altogether ignored.
17. P. W. 5 Sultan Ahmed is the sister's husband of P. W. 1 and it is natural that this witness will try to oblige his brother-in-law. His evidence in Court is not also consistent. He has once stated that after the cyclone in May 1963 the relief goods in huge quantities used to go to the locality almost every month but m another place he has stated that in 1963 the first consignment of relief goods reached the Union Council in September 1963. He stated in his examination-in-chief that the accused did not distri--bute any wheat or milk in the month of August 1963 but in the cross- examination he admitted that the relief goods were distri--buted in August 1963. In view of the close relationship of this witness with P. W. 1 and the inconsistency in his evidence, it seems risky to give full credence on him.
18. P. W. 6 Siddik Ahmed seems to be very friendly with the family of P. W.
1. P. W. 1's brother Ali Ahmed once deposed in favour of this witness in a criminal case. In the circumstances, he cannot also be called absolutely disinterested. The grievance of the learned Advocate for the appellant cannot thus be brushed aside.
19. As against the evidence of P. Ws. 1, 5 and 6 on the question of non-distribution of wheat and milk to the public, there is the evidence of P. W. 2 who categorically stated in Court that the then Chairman (accused) distributed some relief goods by prepar--ing muster-rolls. P. W. 2 stated. "The cyclone and tidal bore of 1963 were very severe and people suffered starvation immediately after cyclone.
20. When relief goods reached the Union Council the then Chairman distributed some goods by preparing muster--rolls. No officer went to the U. C. At that time when the Chairman (in dock) distributed those goods". Thus P. W. 2 hale Mia Choukidar gives clear support to the defence version that the accused distributed some relief goods to the people when the goods reached the Union Council. This evidence of P. W. 2 rave been supplemented by P. W. 5 when he admitted in cross-- examination that the relief goods were distributed in August 1963. The evidence of P. Ws. 2 and 5 are very significant and go contra to the assertion of non-distribution as indicated above. In the circumstances the possibility of distribution of some wheat and dry milk, out of the stock of August 1963, to the public by the, accused to meet the emergency cannot altogether be ignored. I the explanation given by the accused has a reasonable possibility of being truer he will at least be entitled to a benefit on doubt.
21. In this connection, the learned Advocate for the accused has contended that the defence plea of distribution of some wheat and dry milk to the needy public in the month of August, out of the stock of relief goods allotted in August 1963 is in consonance with the muster-rolls seized by the police. P.
22. W. 9 has admitted in his deposition that on 12-9-63 he seized some muster-rolls of relief goods, prepared by the accused Chairman. These muster-rolls have not been formally proved or marked as Exhibits in the case, although the subsequent muster-rolls Exh.7 series have been duly proved by the prosecution. There is nothing on record to show that the entries in these muster-rolls are bogus or spurious. In the absence of any positive evidence to the contrary, the muster-rolls) seized from the accused appellant cannot be called bogus or concocted. These muster-rolls were in the hand of the prosecution. The prosecution could easily produce some alleged recipients of D the relief goods to counteract the genuineness of the muster-rolls. The presumption of correctness of the muster-rolls having not been rebutted, the defence stand cannot be out-right rejected. It is not understood why these muster-rolls are not formally brought on record and marked as Exhibits in the case.
23. The learned Advocate for the State has pointed out that the Chairman cannot distribute any relief goods at his own accord without complying with the rules and formalities of distribution. He has pointed out that according to the standing rules, as deposed to by P. Ws. 1 and 4, the normal procedure for distribu--tion of relief goods was to call a meeting of the Union Council, to prepare a priority list according to the need and necessity of the area as per suggestion of the members concerned and to distribute the goods on the basis of the list. But in the instant case, there was no meeting of the Union Council for arranging distribution of the relief goods received in the month of August 1963 and the meeting was due on 11-9-63. In the circumstances the accused Chairman had no authority to distribute the relief goods without the meeting of the Union Council and without approval or prior permission of the Circle Officer. The procedure as suggested above, might be the prevailing normal practice but in view of the emergency where the people were dying out of starvation, if the Chairman actually distributed some relief goods for the greater g interest of the people, no exception could be taken thereon merely due to non-compliance with the rules. He might be punished byl the controlling authority for disobeying the rules but he could not be held liable for criminal breach of trust for such breaches.
24. The evidence of P. W. 4 shows that generally priority list of deserving persons used to be prepared by the respective Union Councils but in the absence of Zonal Relief Officer or Assistant Zonal Relief Officer distribution could be made by the Chairman. The Chairman could also make a priority list for immediate protection of the men, women and children. There was no bar in distribution of relief goods in cases of emergency. The Chairman could do it with the prior permission of the Circle Officer. Thus the evidence of P. W. 4 indicates that a Chairman was entitled to distribute relief goods in case of emergency by preparing priority list for immediate protection of the men, women and children. Hence, the grievance of the learned Advocate for the State has no force.
25. The contention of the learned Advocate for the State that the accused Chairman has no authority to distribute the relief goods without prior permission of the Circle Officer, does not stand scrutiny.
26. The Circle Officers Sukhlal Das and Nuruzzaman have not been examined in the case. In the absence of these witnesses it cannot be argued that no permission was taken by the accused Chairman or the permission sought for by the Chairman was refused by them. It is not clear why the prosecution withheld these two important witnesses in the case.
27. Mr. Mudabbir, the learned Advocate for the State has also argued that the seizure of 19 bags of wheat weighing about 48 mds. And 31 seers and 25 cartons of dry milk from the house of one Gura Mia,--th mile away from the godown at Masharaf Ali Hat is very suspicious and this leads to an inference that some foul play was going on with the relief goods and the accused Chairman had some hand in the deal. This is, no doubt, a strong circumstance which gives rise to suspicion. But a suspicion cannot warrant conviction in a case. The record shows that there was no permanent godown of the Government for storing the relief goods in that area. The relief articles used to be kept on the convenience of distribution and protection as per convenience, of the Chairman who was in the custody of the same. Both. P. Ws. 1 and 4 have admitted it in their depositions. The accused in his statement under section 342, Cr. P. C. Asserted that some relief articles were kept in the house of one Gura Mia for the convenience of distribution as there was no godown there. In the absence of any permanent godown, if the Chairman keeps some relief goods in the house of Gura Mia for the sake of convenience of distribution no grievance can be made on that score.
28. Thus considering all aspects of the matter, I think, the prosecution case has not been proved beyond reasonable doubt and they accused-appellant, in the circumstances, is entitled to benefit of doubt.
29. For the reasons stated above, this appeal is allowed. The order of conviction and sentence is set aside.
30. The accused-appellant is discharged from the bail bond.