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30. The charges against the accused, in respect of which he was convicted, were (i) that during the mouths of September. October and November 1914 and during the continuance of a state of war between His Majesty and the German Empire, he at Calcutta, unlawfully did contravene the provision of Clause 5 (7) of His Majesty's Proclamation of the 9th September 1914. "The Trading with the Enemy Proclamation Number 2" being a Proclamation of His Majesty for the time being in force relating to trade, commercial intercourse and other dealings with any subject of the said German Empire or any person residing, carrying on business or being in the territories of the said German Empire, by trading in goods, wares and merchandise, to wit, one case of mica shipped by the s.s. "Nore" destined for an enemy country, to wit, the said German Empire and for enemies, to wit, certain persons trading and carrying on business together under the name and style of Rheinishche Glimmerwaren fabrik at Weisliug, Cologne, in the said German Empire, and thereby committed an offence punishable under Section 3 of the Commercial Intercourse with Enemies Ordinance No. VI of 1914. (iii) that during the months of September, October and November 1914, during the continuance of the state of war aforesaid, at Calcutta he unlawfully did contraveno the provisions of Clause 5 (7) of the said Trading with the Enemy Proclamation No 2 by supplying to a certain person, namely, one G. Felice Checcacci of Genoa in Italy, certain goods, wares and merchandise, to wit, 11 cases of mica (which had been previously shipped to Marseilles per s.s. "Nevassa" and s.s. "Chybassa ") for and by way of transmission to an enemy country, to wit, the German Empire, and to enemies, to wit, certain persons trading and carrying on business together under the name and style of Jaroslaw Erste Glimmerwaren Fabrik at Berlin in the said German Empire, and thereby traded in the said goods destined for the said enemy country and the said enemies and thereby committed an offence punishable under Section 3 of the Commercial Intercourse with Enemies Ordinance No. VI of 1914.

35. To constitute an offence under the second part of the Sub-clause, there must be a supply of goods by way of transmission to or from an enemy country, or an obtaining of goods by way of transmission to or for the use of the enemy. Under the first part of two Sub-clause the merchant who supplies goods to or obtains goods from the enemy is aimed at, and under the second part of the Sub-clause the person who acts as the medium for the transmission of goods to or from the enemy is aimed at.

36. It is the third part of the Sub-clause which presents the difficulty, but, whatever may be the exact meaning of the words "trade in," the use of the word "destined" makes it in my opinion clear that what is contemplated is an actual dealing in or negotiation with regard to actual ascertained goods or goods capable of ascertainment which are destined for or coming from an enemy country or an enemy, and this, of course, would include a dealing with the documents of titles to the ascertained goods.

58. The next question is whether the mica was "destined" for an enemy after 14th October the date of the Ordinance. The word "destined" in Sub-clause (7) when used in connection with "trade in" implies "intended for" : see Cent. Dict. Vol. II p. 1568 and Webster's Dict. p. 606. The expression "coming from" means "having its origin" in the enemy country, and not "on the way from" it. The question of the destination of goods depends on intension. Goods acquire the character of an enemy destination when the owner or the person having control of them specifically intends to send them to such place and performs overt acts in pursuance of such intention, though they have not been put in the course of transmission nor even moved at all. The directions contained in the appellant's letters of 15 and 22 October to Checcacci, showed that the former intended the mica to go to Genoa for sale to a German firm, and were sufficient overt acts to effectuate his intention. The mica then became destined for an enemy even if the direction to Baker and Start in to send the same to Checcacci is considered to be an act done before the date of the Ordinance. Greaves J.'s view that the mica could not be destined for Germany because of the Proclamation of 15th October prohibiting export of it to Italy, it is respectfully submitted, confuses the distinction between lawful and actual destination. The prohibition was not in the first place absolute: the mica could have been exported to France and thence to Genoa. In the next the question is not whether the goods were legally destinable for Germany bat whether they were in fact so destined. Even it the prohibition had been absolute but the owner determined to send it to Germany in violation of the law the goods would become destined for an enemy country, Baker and Start in took the mica as agents of the appellant, as appears from the directions given by him to Baker and Start in to send it to Genoa, and to Checcacci to apply for it, bring it to Genoa, and sell it to Rheinische against payment. I concede that, if at the time the instructions reached Baker and Start in and Checcacci, the mica had been sold by the former, it could not thereafter be destined for an enemy country, but there is no evidence when the English firm disposed of it so that the ownership of the appellant in it passed to the purchaser. The present case is not one merely of intent, willingness or attempt to trade. The appellant did all lie could to get the mica to his agent at Genoa for sale to Rheinische. The writing and posting of the appellants intercepted letters of October 29 and November 5 may have amounted to an attempt [as to the meaning of which, see Queen-Empress v. Luxman Narayan Joshi (1899) 2 B.com L. R. 286.], but the offence was completed when the letters of the 15th and 22nd October reached Checcacci.

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

66. 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 Start in, 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 except to Belgium, France, Russia, Spain and Portugal (see page 407 of the Manual of Emergency Legislation). I do not assent to all the terms of the argument by which the accused's contention is sought to be supported. But I come to the conclusion on the whole that the contention itself should be given effect to.