EMPEROR Vs. MERWAN KHODADAD

JUDGEMENT

(1.) THIS is a reference under Section 432 of the Criminal Procedure Code, 1898, made by; the Presidency Magistrate, Fourth Additional Court, Mazagaon, for opinion on two questions of law which have arisen in the hearing of a case pending before him, in which the accused, who is, a proprietor of a bakery, is being tried for supplying four loaves of baker's bread, weighing thirteen of in all, on July 14, 1943, to a bogus customer sent by the Police Sub-Inspector, without the surrender of a bread ticket.

(2.) TO appreciate the points of law raised by the learned Magistrate, it is necessary to explain the scheme of the Bombay Rationing Order, 1943. That Order was issued by the Government of Bombay in exercise of the powers conferred by Rule 81 of the Defence of India Rules, 1939, and it came into force in the City of Bombay on May 2, 1943. Rule 81, Sub-rule (4), of the Defence of India Rules, makes it a penal offence to contravene any order made under Rule 81. Clause 6 of the Bombay Rationing Order, 1943, provides that no authorised retail distributor or authorised establishment shall supply or offer or attempt to supply any rationed article except for household consumption, establishment consumption, or for the purposes of an establishment other than establishment consumption and except under and in accordance with the provisions prescribed by or under the Order. In the same way Clause 7 provides that no person shall obtain or attempt to obtain any rationed article except for household consumption, for establishment consumption or for the purposes of an establishment other than establishment consumption or in connection therewith and except under and in accordance with the provisions prescribed by or under this Order. These two clauses read together make it an offence under Rule 81, Sub-rule 2(4), of the Defence of India Rules, either to obtain or to supply a rationed article except under and in accordance with the provisions prescribed by or under the Bombay Rationing Order. As regards the obtaining of a rationed article, Clause 9 has expressly provided that a rationed article shall be obtained only by means of a ration document available fori lawful use and lawfully used, and only up to the quantity in relation to that article as specified or as represented by the units specified in the ration document. These Clauses 7 and 9 read together prohibit the obtaining of a rationed article without a ration document and that document must at that time be available for lawful use and must be lawfully used. Clause 13 provides that a ration document is available for lawful use only when it is used by or on behalf of the persons in respect of whom it is issued. The distributor who supplies a rationed article on the surrender of a ration document is not ordinarily in a position to know whether that document is available for lawful use as laid down in Clause 13 Hence Clause 9 does not in terms apply to a distributor but only to the persons seeking to obtain a rationed article. In the Bombay Rationing Order, 1943, there is no clause with regard to the supply of a rationed article corresponding to Clause9. This omission is regarded by the learned Magistrate as a lacuna and he thinks that under the provisions prescribed by the Order the supply of a rationed article without the surrender of a ration document is not prohibited. He has observed that although the intention of the Bombay Rationing Order, 1943, read as a whole, is to prohibit an authorised distributor or establishment from supplying a rationed article without the surrender of a ration document, it is nowhere expressly provided that the supplying of a rationed article shall be made only on the surrender of a ration document. But it appears that according to the scheme of the Bombay Rationing Order, 1943, while the obtaining of a rationed article without a ration document is prohibited by a clause in the Order itself, the prohibition of the supply of a rationed article without a ration document is left to be dealt with by Regulations, since different considerations arise in the cases of different rationed articles to be supplied. Hence separate detailed provisions had to be made regarding the supply of various rationed articles. For this purpose cl. , 12 of the Bombay Rationing Order, 1943, empowers the Provincial Government to make Regulations providing for the conditions subject to which any rationed article may be supplied or obtained and in particular the conditions subject to which the authorised wholesale distributor or authorised retail distributor or authorised establishment may obtain and supply a rationed article. In pursuance of this clause Government of Bombay issued the City of Bombay Rationing Regulation, 1943, on March 4, 1943. In that Regulation different subjects have been dealt with in different chapters and a separate provision is made regarding the supply of each rationed article. Chapter VII of the Regulation deals with baker's bread, and Clause 43 in that chapter provides : Every authorised manufacturing establishment shall, and any other authorised establishment or wholesale or retail distributor may, supply bread to the holder of a bread ticket against the surrender of such ticket during the period for which the ticket is valid and only up to the quantity of bread as represented by the units specified on the bread ticket.

(3.) THE second question referred to us arises out of the definition of " baker's bread". Clause 1-A, Sub-clause (1), defines baker's bread as meaning "baker's bread or loaf of any of the following variety, viz. fourr oz. bread, eight oz. bread, sixteen oz. bread, 4/5 oz. nan or lamba pav or one lb. , two lb. or four lb. sandwich loaf. " THE four loaves sold by the accused to the bogus customer in this case together weighed thirteen oz. and it is not proved that any of them was of the variety mentioned in the definition. THE learned Magistrate says that unless loaves conform to the weights given in the definition, they are not rationed articles. This view is clearly untenable. THE restrictive definition given in the Regulation is only for the purposes of the provisions of that Regulation and not for determining whether a particular kind of bread is a rationed article or not. " Rationed article " is defined in Clause 2, Sub-clause (7), of the Bombay Rationing Order, 1943, as "any article which the Provincial Government may by notification in the Official Gazette in respect of any area specify in this behalf. " THE notification under that clause was issued on March 25, 1943, (No. C. R. 68), whereby "baker's bread or loaf" was included among rationed articles. THE expression "baker's bread or loaf" in that notification is not to be understood to mean " baker's bread" as denned in the Regulation. THE regulation is issued under Clause 12 of the Bombay Rationing Order, 1943, while the notification is issued under Clause 2, Sub-clause (7), of that Order. Hence every kind of baker's bread, whatever be its weight or variety, is a " rationed article ". It is evident that weights are specified in the Regulation to facilitate distribution of baker's bread in terms of units, a unit being equivalent to 28 oz. as laid down in Clause 40 of the Regulation. By another notification (Finance Department (Supply), No. 166(a)-l dated March 6, 1943) manufacture of baker's bread or loaf, for sale, of any variety other than those specified in the definition in the Regulation is prohibited. Hence presumably no other kind of bread will be available for sale. If, however, any manufacturer makes any other variety of baker's bread in contravention of the notification, it will still be a rationed article according to the notification under Clause 2, Sub-clause (7), of the Bombay Rationing Order, 1943. It cannot, therefore, be distributed otherwise than on a ration document unless authorised by the Provincial Government under Clause 2(J of the Order. Such distribution was authorised only for one week from May 1 to 8, 1943, and the authorisation has not been extended or renewed thereafter. Hence now only baker's bread as defined in Clause l-A(i) of the Regulation can be manufactured and can be supplied against the surrender of a bread ticket as provided in Clause 43 of the Regulation. Every other kind of baker's bread also is a rationed article, and unless specially authorised, it cannot be supplied without a bread ticket. It is significant that Clause 43 of the Regulation deals with the supply of " bread " to a holder of a bread ticket and is not restricted to the supply of " baker's bread". Clause 38 in the same chapter deals with the issue of bread tickets for obtaining only "baker's bread", whereas Clause 43 is intended to apply to every variety of bread. We do not, therefore, agree with the view expressed by the learned Magistrate that unless loaves conform to the weights given in the definition of " baker's bread " they are not rationed articles. THE answer to the second question will be given accordingly. Divatia, J.