EMPEROR Vs. HANSRAJ ASTAJI

JUDGEMENT

(1.) THIS revisional application has been referred to us for decision on two points arising under the Defence of India Act. The facts shortly are that the petitioner was charged with and convicted of the offence of purchasing from a merchant eleven bundles of copper wires weighing 545 seers for Rs. 2,445 on April 18, 1943, without a permit under the " Non-Ferrous Metals Control Order, 1942. " The relevant provisions of Clause 6 of the said Order are that no person shall acquire more than twenty lbs. of copper wire in one calendar month without obtaining a permit from the Controller. THIS Order is issued by the Central Government under the Defence of India Rule 81(2)(a), which enacts that the Central Government, so far as appears to it to be necessary or expedient for securing the defence of British India or the efficient prosecution of the War, or for maintaining supplies and services essential to the life of the community, may by order provide, among other things, for regulating or prohibiting the acquisition of articles or things of any description whatsoever. THIS rule is made under Section 2, Sub-section (1) and in particular under Sub-section (2)(xx) under which a rule may be framed for the control, among other things, of trade or industry for the purpose of regulating or increasing the supply of articles or things of any description whatsoever which can be used in connection with the conduct of war or for maintaining supplies and services essential to the life of the community.

(2.) THE purchase of the copper wire without a permit was admitted by the petitioner, but he pleaded a bona fide belief that it did not require a permit. THE trying Magistrate held that the purchase by the, petitioner fell under Clause 6 of the Order, convicted him of the offence under r, 81 (4) of the Defence of India Rules and sentenced) him to rigorous, imprisonment for one day and a fine of Rs. 200. He further directed under Section 517 of the Criminal Procedure Code that the copper wire should be confiscated to Government and sent to the Controller for disposal. THE Additional Sessions Judge confirmed the conviction and the sentence as well as the order of confiscation. Two points are urged before us on behalf of the petitioner. THE first is that Rule 81(a) in so far as it prohibits acquisition of property otherwise than for trade or industry is ultra vires of Section 2(2)(xx); of the Defence of India Act, with the result that the Control Order issued under the said rule is also ultra vires to that extent. THE second point is that the Magistrate had no jurisdiction to pass an order for confiscation under is. 517 of the Criminal Procedure Code, as under Rule 81(4) the confiscation can be made only if it is so provided in the Control Order, and there is no such provision in the Order.

(3.) THE second point relates to the power of confiscation. Rule 81(4) as it originally stood prescribed punishment for contravening any Order made under that rule. In February, 1943, an amendment was made to this rule by addition of the words "and, if the Order so provides, any Court trying such contravention may direct that any property in respect of which the Court is satisfied that the Order has been contravened shall be forfeited to His Majesty. " In the present case the offence has taken place after the amendment and it is, therefore, governed by it. Now, the Control Order of 1942 does not provide for such forfeiture or confiscation. But it is contended by the learned Assistant Government Pleader that the Court's general power under Section 517 of the Criminal Procedure Code to pass any order for the disposal of property which is the subject-matter of an offence by directing its confiscation is not abrogated by the amended provision of Rule 81(4). In support of this contention it is urged that if confiscation is provided in the Order itself it is to be imposed as a part of the penalty, but if it is not provided, the Court can pass the order not as a penalty but as an order for disposal of property as some order must be passed regarding the property produced before it. It is further urged that there are various Acts in which power to order confiscation is specifically provided for in spite of the general power under Section 517, Criminal Procedure Code, which, however, does not cease to apply because of the special provision. In my opinion this argument does not assist the prosecution case. THE provision in the rule is that the order of confiscation may be made if the Order so provides. That shows, to my mind, a clear intention of the Legislature that no order for confiscation can be made if the Order did not provide for it. That would include an order of confiscation by way of disposal of property also. THE Court may have the power to pass any order of disposal other than that of confiscation, but confiscation of property can be ordered if the particular Order issued under the rules provided for it. THE words " if the Order so provides," which cannot be regarded as redundant, must be given their plain meaning, and that meaning, in my view, is that although an order of confiscation can be made by the Court in its discretion under Section 517, that discretion is not to be exercised in those cases in which the appropriate authority issuing the Order did not think it desirable that such discretion should be used. Rule 81(4) imposes special penalty for special offences created by that rule consisting in the contravention of any Order made under the rule, and when it expressly says that the order of confiscation can be made if it is so provided in the Order which is being contravened, it must be taken to mean that if the Order is silent about it, no order of confiscation, and in some Orders issued before the amendment, the power of disposal of property. THEre is no doubt that such a rule abrogating or modifying the provisions of the Criminal Procedure Code could be made by virtue of the provisions of Section 3 of the Defence of India Act. That section expressly says that any rule made under Section 2, and any order made under such rule, shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than that Act. THEre are some Orders issued under this rule after the amendment which do provide for the order of confiscation and in some Orders issued before the amendment, the power of forfeiture was added after the amendment. That clearly shows that the words " If the Order so provides " are not redundant but are purposely added to confine the order of confiscation to those cases where it is so provided in the Order. With great respect, I am unable to accept the view taken by Macklin and Sen JJ. , who have referred this application to us, that it is not clearly expressed in the rule that the Court would not have the power to order confiscation unless the Order provided for it, and that the provisions of Section 517 of the Criminal Procedure Code cannot be abrogated. I agree with the decision of N. J. Wadia and Weston JJ. in Emperor v. Purshottam Devji (1943) 46 Bom. L. R. 449 that the words " If the Order so provides " limit the Court's power to order confiscation under the general provisions of Section 517 of the Criminal Procedure Code.