EMPEROR Vs. PURSHOTTAM DEVJI PATEL

JUDGEMENT

(1.) THE applicant was tried by the Resident First Class Magistrate, Anand, for having attempted to export 250 maunds of tur, which he had purchased at Sarsa in the Kaira District, to Bakrol in the Baroda State, in contravention of Notification No. W.A.R. 206 issued by the District Magistrate of Kaira in exercise of the powers conferred by Rule 81 of the Defence of India Rules, 1939, directing that no person should remove wheat, wheat products, tur or tur-dal from any place within the limits of the Kaira District to any place outside the District except under a permit granted by the District Magistrate, Kaira. THE offence is alleged to have been committed on the morning of September 1, 1943. He was also charged with trading in tur without a license in contravention of the Bombay Retail Trade Control and Licensing Order, 1942, made and published by the Government of Bombay on July 29, 1942, which provided that no person should engage in any undertaking which involved the sale, or storage for sale, in retail quantities of any controlled articles except under and in accordance with a license issued in that behalf by an officer authorized by the Provincial Government (Section 3(1)). Pulses of all kinds were included in schedule I appended to the Order which specified the controlled articles..

(2.) THE accused pleaded guilty. THE learned Magistrate convicted him under Rule 81(4) read with Rule 121 of the Defence of India Rules for having attempted to export tur without a permit and sentenced him to suffer rigorous imprisonment for two months. He also sentenced him to suffer rigorous imprisonment for one month under Rule 81(4) for trading in tur without a licence. He further directed that the tur attached from the accused, which amounted to 250 maunds, should be forfeited. THE accused made an appeal to the Sessions Judge who confirmed the convictions and sentences, but altered the order of confiscation from one under Rule 81(4) of the Defence of India Rules to one under Section 517 of the Code of Criminal Procedure. THE accused has come to this Court in revision.

(3.) THE next contention is that the conviction of the applicant for trading in tur without a license is wrong. THE view taken by the trial Magistrate was that the accused's act amounted to contravention of the Bombay Retail Trade Control and Licensing Order made by the Government of Bombay on July 29, 1942. That Order directs that no person shall engage in any undertaking which involves the sale or storage for sale, in retail quantities of any controlled articles. What the accused did was to buy 250 maunds of tur in a single transaction at Sarsa in the Kaira District. His act in doing so does not offend against the provisions of Section 3 of the Retail Trade Control and Licensing Order issued by Government, since that Order deals with sale or storage for sale in retail quantities. THE accused neither sold the tur nor stored it for sale in retail quantities. His conviction on that charge must therefore fail.