EMPEROR Vs. JOYRAM PATHAK

JUDGEMENT

(1.) In the twelve oases of convictions under Rule 81 (4), Defence of India Rules, namely, profiteering cases, this Court of its own motion issued Rules upon the res-pective persons convicted to show cause why their sentences should not be increased. We did so, as I have said, of our own motion because it seemed to us that inadequate sen. tenses were being inflicted, and that the pro-secution was not appealing against them. It is of course the duty of the Government to enforce the law. The High Court is only concerned with seeing that the laws are enforced according to their meaning and tenor; but we have power to call for the records of eases and examine them, and, if we think that they have not been dealt with correctly, to deal with them. But as I have said it is the duty of Government to enforce the law. A.s long as Ordinance 2 of 1942 was in operation, there were serious difficulties in the way of our calling for the records of a ease of profiteering, considering it and enhancing the sentence; but when ordinance 2 of 1942 was repealed we were at liberty to do so, and we did accordingly call for the records of a large number of cases of profiteering which had been dealt with by Magistrates in the Calcutta area. We examined those cases, and in the twelve eases under consideration we issued Rules to show cause why the sentences should not be increased. It necessarily took some time for us to consider the cases and to have the records prepared, and they have been brought on at the earliest possible date. We have no special staff to deal with cases of this kind.

(2.) The first batch of six cases was dealt with by a Magistrate at Alipore who did not follow- ing the usual practice outside the Presidency, give a statement of the reasons why he passed the sentences that he did. The other six cases were decided in the Presidency Division and the Magistrate there gave reasons for what he did. We have perused the reasons that the Presidency Magistrate gave for the sentences that he imposed. In some instances he deals with the individual cases, but he also gives reasons of a more general nature. He says that in most cases the persons convicted and sentenced by him were petty shopkeepers and hawkers and that they only charged one or two annas more than the controlled price. I may point out that in some instances they charged considerably more than one or two annas. He also says: I have seen cases in which the accused stated and proved that they were threatened with prosecution on previous occasions and they avoided it on payment, of certain sums of money to the poor box maintained by the police and to such other funds, and they were prosecuted later as they could not make further payments. In some cases they were acquitted as the charges failed and in some they were let off with fines as it did not seem proper to pass severer sentences than what under the circumstances of the particular cases seemed adequate. Moreover severer sentences of fine can be of no avail as the accused will not be able to pay and will go to jail. Sending these people to jail will also serve no useful purpose. A panic will be created in the city to scare away the petty dealers from the market causing further and untold inconvenience to the public. The bigger dealers are rarely prosecuted and those who sell at the source, never. No action is taken when the cases are found to be false by the Court. Frivolous cases are still coming in as usual. The cumulative effect of all this is that when a petty shopkeeper or hawker is hauled up for trial and pleads guilty and explains why he charges a few pice more than the price fixed by Government and appeals to temper justice with mercy, the Magistrate has to take everything into consideration and pass a sentence which in his discretion and according to the circumstances of the case appears to him to be adequate. He has also to take into account that no sentence based on mere speculation regarding profits being made by the accused persons can be supported by law. Also that they are arrested by police and are not released on bail till they are produced before a Magistrate. It often happens that they cannot give bail and remain in custody for sometime.

(3.) That is a general explanation. As I have said in most instances the over charge is more than one or two annas. As for the rest I cannot agree that that is a reason for not giving sentences which will be an effective deterrent for what is unquestionably a grave and, in my view, a growing evil, namely, profiteering and breaking the law which prescribes that goods and articles should not be sold at more than the controlled prices.