NAGINLAL JORAVARMAL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) [His Lordships after stating the facts further observed]

(2.) Before to consider any points raised in regard to the merits of the case Mr. Thakore the learned advocate for the applicants raised a contention that it is essential for the prosecution to establish knowledge or mens rea in respect of the Gujarat Ground Oil (Export Control) Order 1965 the contravention whereof is made punishable under Rule 125(9)(a) of the Defence of India Rules 1962 His contention was that unless that knowledge or mens rea is established which again has got to be done as contemplated in Rule 141 of the Rules no conviction of the applicants can at all be based. The Gujarat Groundnut Oil (Export Control) Order 1965 as already stated hereabove was published in Part IV-A of Gujarat Government Gazette of 26th August 1965 at page 1431. That has been published under a Notification No. GG 528(A) DIR-2565-G. in exercise of the powers conferred by Rule 125 of the Defence of India Rules. That Rule 125(9)(a) of the Rules provides that if any person contravenes any order made under this rule he shall be punishable with imprisonment... It follows therefrom that the Order in question has been made under this role and it is that way that the contravention of that Order made by any person becomes punishable under law. Mr. Thakore invited a reference to some observations made in the case of Ravula Hariprasada Rao v. The State A.I.R. 1951 Supreme Court 204 where the Supreme Court has after quoting the observation from the Privy Council Case reported in A.I.R. 1947 P. C. 135 expressed the opinion that the view of the law as propounded by the Privy Council is the correct view. I would refer to the relevant observations made by the Privy Council in the case of Srinivas Mall v. Emperor A.I R. 1947 P.C. 135 which runs thus:-

(3.) On the other band Mr. Thakar the learned Assistant Govt. Pleader invited a reference to the decisions of different High Courts which have taken a contrary view in that regard. In Debi Prasad v. Emperor A.I R. 1947 Allahabad 191 (F.B. it was held that the publication of the U. P Cotton Cloth and Yarn Control Order in the official Gazette gives rise to the presumption under sec. 114 Evidence Act that the provisions of Rule 119 (1) Defence of India Rules including the provision for determining the most suitable form of publication were fully complied with. In the case of Public Prosecutor v. Badulla Sahib and others A.I.R. 1948 Madras 262 it was held that Rule 119 Defence of India Rules does not say that the authority should declare or state in writing that in its opinion the manner of publication decided upon in a particular case was best adapted for informing the persons concerned of the provisions of the order and where the publication of the order in the Provincial Gazette was done under the authority it can be assumed that unless the Provincial Government is satisfied that a publication in the official Gazette is the proper mode by which the order can be made known to the public that course would not have been taken. In other words publication of any such order in the official Gazette of the State would be enough compliance of rule 119(1) of the Rules. A similar view and that way obviously contrary view to that of the High Court of Bombay referred to hereabove was taken by the Full Beach of the High Court of Patna in the case of Mahadeo Prasad Jayaswal v. Emperor A.I.R. 1946 Patna. There it has been observed by Fazi Ali C.J. speaking on behalf of the majority of the Bench as under.