IN RE: A.V. VISWANATHA CHETTI Vs. STATE

JUDGEMENT

(1.) THE petitioner has been convicted of offences punishable Under Rule 81(4) read with Rule 81(2), Defence of India Rules and has been sentenced to pay a fine of Rs. 60 or, in default, to undergo six weeks rigorous imprisonment. The petitioner, as a result of an inspection of his business premises on 8th June 1943, was found to have failed to exhibit a notice board in front of his shop showing the prices of the food grains for sale and to have failed to maintain his stock account correctly in contravention of Rules 3 and 7 of the license issued to him under the Food Grains Control Order. Rule 81(4), Defence of India Rules, provides that

(2.) THE Food Grains Control Order was made Under Rule 81(2). Mr. Jayarama Ayyar for the petitioner does not challenge the finding that the petitioner had contravened the terms of his license. He argues that no offence punishable Under Rule 81(4) was committed because there has been no contravention of an order made Under Rule 81 but a mere breach of a condition of the license issued under the order. This argument was advanced before Kuppuswami Ayyar J. in In re Chenchu Raghavalu Chetti, A.I.R. 1944 Mad. 41 and he refused to accept it. Mr. Jayarama Ayyar, however, says that he feels justified in pressing the same argument before me because In re Chenchu Raghavalu Chetti, A.I.R. 1944 Mad. 41 was dismissed in limine and because the attention of Kuppuswami Ayyar J. was not drawn to a Bench decision of the Calcutta High Court in Umesh Chunder Ghosh v. Queen Empress, (1999) 26 Cal. 571. The question in Umesh Chunder Ghosh v. Queen Empress, (99) 26 Cal. 571 arose under the Opium Act (1 of 1878). The appellant had been convicted Under Section 9, Opium Act, on the footing that by failing to keep correct accounts of the sale of opium he had contravened a rule made Under Section 5 of the Act. Rule 15 (1) of the rules made Under Section 5 stated that

(3.) The conditions were issued as subsidiary rules by the Board of Revenue and Rule 13 sets out the manner in which accounts of the sale of opium were to be kept. Rule 18 provided that in case of an infringement of any of the conditions the license should be cancelled. I do not find that any general proposition is laid down in Umesh Chunder Ghosh v. Queen Empress, (1999) 26 Cal. 571 such as is contended for by Mr. Jayarama Ayyar, namely, that a breach of a condition in a license issued under an order is not punishable as if it was a breach of the order itself. The learned Judges who decided Umesh Chunder Ghosh v. Queen Empress, (1999) 26 Cal. 571 seem to have founded their decision on the fact that the subsidiary rules which constituted the license were issued separately by the Board of Revenue and not by the Government, that the penalty provided for a breach of the rules issued by the Board of Revenue was cancellation of the license, and that Government had not issued any rule Under Section 5 of the Act which makes the preparation of an incorrect account punishable Under Section 9. In my opinion, the reasoning on which the decision in Umesh Chunder Ghosh v. Queen Empress, (1999) 26 Cal. 571 is founded will not apply to the contravention of a condition of the license issued under the Food Grains Control Order. It is true that the license is actually issued by the Provincial Government or by an officer authorized by the Provincial Government to do so; but Clause (4) of the order states that licences shall be in Form A, a form set forth in Schedule 2 to the Order, and Clause (6)(1) enacts that