EMPEROR Vs. MAHOMED BASHIR

JUDGEMENT

(1.) THIS is an application by accused Nos. 1 and 2 who were convicted by the Presidency Magistrate, 2nd Additional Court, Mazagaon, Bombay, for the offence under rule 81 (4) of the Defence of India Rules read with the Commissioner of Police's Notification No.14824/123-C dated September, 12, 1944. Accused No.1 is the proprietor of a hotel called Islami Hotel at the corner of Grant Road in Bombay, and accused No.2 is a manager of the hotel employed by the first accused. The hotel served refreshments consisting of food and non-alcoholic drinks to customers by virtue of a licence issued to accused No.1 in 1941 and renewed from year to year. The charge against the two accused was that they on December 16, 1944, kept their hotel open between the hours of 1 A. M. and 5 A. M. and did sell or supply for consumption on their premises food or drinks to customers and aided and abetted each other in doing so and thereby committed an offence punishable under rule 81 (4) read with rule 121 of the Defence of India Rules and the above-mentioned notification. That notification was issued under rule 81, Sub-rule (2), Clause (a), and it directed that from September 20; 1944, no article of food or drink shall be sold or supplied for consumption between the hours of 11 P. M. and 5 A. M. at any place of entertainment in the City of Bombay except under and in conformity with the conditions of a special permit granted by the Police. The notification was issued on September 12, and it appears that such special permit was issued to the first accused on September 18, authorising him to keep open the said hotel for selling or supplying for consumption articles of food or drink after 11 P. M. up to 1 A. M. As a result of this special permit the accused were entitled to keep their hotel open from 5 A. M. to 1 A. M. on the next morning. The prosecution case was that a bogus customer was sent to the accused's hotel at about 12-50 A. M. and he and other customers were supplied with food after 1 A. M. Thereafter the police raided the hotel and found 31 customers eating and drinking in the hotel. Accused No.2, i. e. the manager, was standing near the till. A panchanama was made of the things found in possession of the accused which included marked notes which" were given to the bogus punter. The panchnama was begun at 1-45 A. M. and concluded at 2 A. M. Thereafter the accused were charged with the infringement of the terms of the notification under Rule 81 (4) of the Defence of India Rules. The bogus customer died after hearing of the case commenced, but the prosecution examined the panch witness, Deputy Inspector Soloman, and Sub-Inspector Khadkei who had taken part in the raid.

(2.) THE learned Magistrate was satisfied on the evidence that about 30 customers were taking food in the hotel after 1 A. M. On behalf of accused No.1, the proprietor, it was urged that he was admittedly not present in the hotel at the time of the raid and; he had left the entire management of the hotel in the hands of accused No.2 and another manager, that he came to the hotel after the raid was over and that the licence was given to the hotel and not to accused No.1 personally. THE learned Magistrate was of the opinion that for the offence under Rule 81 (4) of the Defence of India Rules it was not necessary that there must be a guilty intention in the mind of the person charged, that it was sufficient if accused No.1 was the proprietor of the hotel and that his servants committed the offence. . THE liability of the master for the crime of the servant was to be implied from the very nature of the offence created by that rule. He, therefore, held both the accused liable for the offence and convicted them and sentenced accused No.1 to pay a fine of Rs. 25 and accused No, 2 to pay a fine of Rs. 75. Both the accused have come to this Court in revision.

(3.) MR. Mehta contends that the liability of the accused, if any, was under the licence, and not under the Defence of India Rules. But, in our opinion, although the basis of the liability is the conditions mentioned in the licence itself, the penalty for the infringement of the terms of the licence is provided in the Defence of India Rules. Reading Rules 81 (2) and 81 (4) together, it follows that the notification, which is issued under r; 81 (2), enjoins the accused not to keep the hotel open after 1 A. M. , and for a breach of the terms of the notification the penalty is provided in Rule 81 (4 ). It cannot be said, therefore, that the liability of the accused is only under the licence and not under the Defence of India Rules. If, therefore, the infringement is not merely of the terms of the licence:but that of the terms of the notification issued under the Defence of India Rules, we have to see as to what the object of the Legislature was. In a very recent case, (Mangat Ram v. Emperor Since reported in [1945] A. I. R. Lah. 281) which is still not reported, of a full bench of the Lahore High Court the whole law, English as well as Indian, on this point has been exhaustively discussed by their Lordships. That was no doubt a case under the Hoarding and Profiteering Prevention Ordinance, and the question was " Whether a servant, be he a salesman or a manager, is covered by the term ' dealer' as used in the Ordinance " ?