RAMESHWAR DAYAL Vs. STATE

JUDGEMENT

(1.) The petitioner Rameshwar Dayal was convicted by a first class Magistrate under Section 7, Essential Supplies (Temporary Powers) Act, 1946, for contravention of Clause 24 (i), Cotton Textile (Control) Order, 1948, which prohibits sale of cloth at a price higher than the maximum price fixed by fee Textile Commissioner under Clause 22, and sentenced to imprisonment till the rising of the Court and a fine of Rs. 300/-, or two months' simple imprisonment in default of payment of fine. The Sessions Judge dismissed his appeal. He has now come up in revision to this Court. The charge, which according to the Magistrate the petitioner had failed to disprove, but which the Sessions Judge found proved against him, was that he sold a measure of cloth to one Tika Ram at Rs. 2/-per yard instead of the controlled rate of Rs. 1-3-6 per yard.

(2.) The first contention of the learned coun-sel for the petitioner was that the notification of the Textile Commissioner fixing the maximum price under Clause 22 of tha aforesaid Order had not been produced by the prosecution. And he cited two decisions in this connection, one of this Court, -- 'Abdul Ghani v. State', AIR 1952 Rilaspur 5 (A) and the other reported as -- 'Pannalal v. State', AIR 1953 Madh B 84 (B). It was laid down by this Court in the former, which was also a case of sale above the controlled price, that in order to find whether the provisions of the notification fixing the twice had been contravened it is necessary for the prosecution to produce the notification. That case has no application here since there is no dispute with regard to the controlled price. The petitioner stated that he did not sell the cloth at Rs. 2/- but at Rs. 1/3/6 per yard, and he led evidence in support of this defence. He therefore impliedly admitted the alleged controlled rate, and since a fact admitted need not be proved, it is immaterial that the prosecution did not produce the notification in question. For the same reason the other case has also no application since the controlled price was not admitted there.

(3.) It was also argued that it had not been proved that the notification had been published in the Gazette of India, as required by Clause 9 (1) of the Order. In this connection also the aforesaid decision of this Court was cited. The full facts of that case do not appear. It may be that want of publication was specifically pleaded in that case. If so, it was certainly incumbent on the prosecution to prove it. No such plea was taken before the trying Magistrate, or even in the lower appellate Court. Nor has it been taken in the grounds of revision filed in this Court. It was put forward for the first time only in the course of arguments by the learned counsel for the petitioner. In the circumstance, it was not incumbent on the prosecution to prove publication of the notification for, in the absence of a specific defence plea of want of publication, and fixation of controlled price being impliedly admitted, as adverted to above, the prosecution were entitled to the benefit of the presumption under illus. (e) to Section 114, Evidence Act that an official act, specially one required to be done under a mandatory procedural provision like the aforesaid Clause 9 (1), has been regularly performed.