In Re: Yusaf Muhamad Abarath

This is an application under sec. 439 of the Code of Criminal Procedure asking us to set aside an order of the District Magistrate of Howrah directing the Deputy Magistrate to proceed with the trial of a case in which the accused has been charged with an offence punishable under sec. 486 of the Indian Penal Code, and which the Deputy Magistrate had dismissed for want of jurisdiction. The ground upon which the Deputy Magistrate held that he had no jurisdiction to try the case is given in his judgment in the following words. After referring to sec. 486 of the Penal Code, the learned Deputy Magistrate says:-- Now, as I understand and interpret this section, I think this Court has no jurisdiction to try this case. The section says: ''whoever sells or exposes or has in possession for sale or any purpose of trade or manufacture any goods, & c.'' Now looking to the evidence adduced, admittedly the tins of ghee were on transit from Etwa to Rangoon, and they were not intended for sale or any purpose of trade in Howrah or any place within its jurisdiction. Sale is one of the principal ingredients, as I think, to constitute an offence under this section. If those tins of ghee are intended for one''s own consumption or as presents to others, then, I think, the accused can hardly be amenable. Taking this view of the law, I determine that this Court has no jurisdiction to try this case, which is accordingly dismissed, and the accused discharged under sec. 253, Cr. p. C.

Thereupon an application was made to the District Magistrate, who has directed a further inquiry under sec. 435 of the Code of Criminal Procedure, but his order must be taken to have been made under sec. 437, though he refers to sec. 435. And the view, taken by the District Magistrate, is that the Howrah Court has jurisdiction, because within the jurisdiction of the Howrah Court the accused had the goods in his possession for the purposes of sale, though the sale was intended to take place not in Howrah but in Rangoon.

The contention, urged by the learned counsel for the Petitioner before us, is, that in order to give the Court jurisdiction to entertain the case, the offence must be committed within its jurisdiction; and when the offence is constituted by the accused having in possession for sale any particular goods, not only must his having the goods in his possession occur within the jurisdiction of the Court in which the case is brought, but the possession must be for sale, which also must be intended to take place within the jurisdiction of the Court.

We are not prepared to accept this contention as correct. It is quite true that before the possession of goods with a counterfeit trade-mark can be held to constitute an offence under sec. 486, it must be shown that such possession was for sale or any purpose of trade or manufacture. But there is nothing in the law to show that the sale, for the purpose of which the accused has the goods in his possession, must be intended to take place within the jurisdiction of the Court in which the complaint is lodged. It may be that the goods are found in possession of the accused within a particular jurisdiction, and the accused has them in his possession, for sale in a different jurisdiction; and in such a case it cannot be said that before the goods reach the place where they are intended to be sold, the possession of the goods by the accused does not constitute any offence.

It was urged that if that view was correct, it would give any number of Courts, exercising jurisdiction at any distances from the place where the goods are ultimately intended to be sold jurisdiction to try the case.

Though that may be so, we do not see how that supports the view contended for by the learned counsel. We may observe that the provisions of sec. 182 of the Code of Criminal Procedure go to show that the policy of our law is to authorize more Courts than one to try an offence of this kind.

If the view, taken by the learned Deputy Magistrate, was correct, that would go, not so much to show that the magistrate had no jurisdiction to try the case, as to show that no offence was committed, until the goods in question reached the jurisdiction within which they were intended to be sold. That view cannot, in our opinion, be correct.

We are asked to determine, and we must, for the present purpose, determine, the case upon the view of the facts as disclosed in the orders of the Courts below; and upon that view we must hold that the Howrah Court had jurisdiction to try the case.

In making these observations, we wish it to be understood that we do not determine any question of fact in the case. For the foregoing reasons we refuse this application.