BILAS RAI BOHIT RAMLA Vs. KING

JUDGEMENT

(1.) THE petitioner has been sentenced to three months' rigorous imprisonment under Rule 81 (4), Defence of India Rules, for contravening Section 18 (2), Cotton Cloth and Yarn Control Order, 1945.

(2.) THE first point taken on his behalf is that there has never been any valid sanction for the prosecution. Section 23 of the Cotton Cloth and Yarn Control Order declares that no prosecution for the contravention of any of the provisions of the Order shall be started without the previous sanction of the Provincial Government, or such officer of the Provincial Government not below the rank of the District Magistrate, as the Provincial Government may, by a general or special order in writing, authorize in this behalf. It has not been contended on behalf of the Provincial Government that any of its officers has been authorized by a general or special order to sanction prosecutions under this order. What is to be seen, therefore, is whether the prosecution was sanctioned by the Provincial Government. THE sanction relied upon by the prosecution in this case is Ex. 5, which is addressed to the Additional Deputy Commissioner of Santhal Parganas and sanctions the prosecution of Bilas Roy Bohit Ramla, which is the name of the appellant. It purports to be signed "By order of the Governor of Bihar" "for" somebody described as "Additional Under-Secretary to Government." It is contended on behalf of the petitioner that this is not a properly authenticated document. Reliance is placed on Section 59, Government of India Act, 1935, which requires that all executive action of the Government of a Province shall be expressed to be taken in the name of the Governor, and that orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor. Under this section Notifn. No. 2094A, dated 1st May 1937, and published in the Bihar Gazette, 1937, Part II, page 321, was issued. It states that all orders or instruments made or executed by or on behalf of the Governor of Bihar shall be expressed to be made by, or by order of, the Governor of Bihar, and save in cases where the officer has been specially empowered to sign an order or instrument of the Government of Bihar, every such order or instrument shall be signed by either the Secretary, the Additional Secretary, the Joint Secretary, the Deputy Secretary, the Under Secretary or the Assistant Secretary to the Government of Bihar. As I have already stated, the so-called sanction in the present case does not purport to be signed by any of these persons but to be signed for an Additional Under-Secretary to the Government. Even an Additional Under-Secretary is not one of the persons referred to in the Notification I have quoted above, but still less is anybody else authorized to sign on behalf of any of those persons. THE sanction in the present case, therefore, has not been proved to be properly authenticated. THE conviction, therefore, must be set aside and the order for forefeiture of the cloth is set aside.