KESRILAL KEDIA Vs. EMPEROR

JUDGEMENT

(1.) This is a reference under Section 438, Criminal P.C., by the Sessions Judge of Darbhanga. The facts were as follows : On 24 September 1939, the accused sold for Section 2-6-0 a pair of dhotis similar to a pair which they had sold on 5th September for Re. 1-13-6. The police submitted a Namokamal charge-sheet alleging the commission of an offence under Rule 34(h)/38, Ordinance Act of 1939. The accused persons were sent in custody to the Sub-Divisional Magistrate who remanded them to hajat until 27 September 1939. The learned Sessions Judge recommends the setting aside of this order taking cognizance of the offence on the ground that no offence has been made out by the facts alleged. The Secs.referred to in the charge-sheet are presumably rules embodied in the Defence of India Rules framed by the Central Government, under Section 2, Defence of India Ordinance, 1939. There is no Rule 34(h) but there is a Rule 34 (6), which defines what is meant by "a prejudicial act" and Sub-rule (h) includes within the definition of "prejudicial act" any act which is intended or is likely to impede, delay or restrict the distribution of any essential commodity. Essential commodity is defined in Rule 34(3) as food, water, fuel, light, power or any other thing essential for the existence of the community which is notified in this behalf by Government.

(2.) There is no evidence before me that the Government has notified clothing to be an essential commodity within the meaning of this Rule. Under Sub-rule (g) of Rule 34(6) it is also a prejudicial act to cause fear or alarm to the public or to any section of the public. An increase of roughly 10 per cent, in the price of a pair of dhotis can hardly be said to be an act likely to cause fear or alarm to the public or to any section of it, whatever other consequences it may have on the public mind. It has also been suggested that the act complained of falls within Sub-rule (p) of Rule 34(6). This Sub-rule refers to acts intended or likely to prejudice the efficient prosecution of the war and the defence of British India or the public safety or interest. The increase in the price of this pair of dhotis is not likely to have any bearing on the efficient prosecution of the war and the defence of India or the public safety; nor, in my opinion, can it be said to prejudice the public interest that a shopkeeper increased the price of a pair of dhotis by 10 per cent.

(3.) I am confirmed in my view that this rule is not aimed at profiteering by a comparison of Rule 38(5) and 81(4). Rule 38(1)(a) prohibits the doing of any "prejudicial act" as defined in Rule 34(6), and Rule 38(5) provides that any person who contravenes the provisions of Rule 38 shall be punishable with imprisonment for a term which may extend to five years and shall also be liable to fine. It is apparently sought to punish the accused under Section 38(5) and if that Sub-rule applies the accused is liable to imprisonment for five years for what is popularly known as profiteering.