MD SULAIMAN Vs. EMPEROR

JUDGEMENT

(1.) The appellant has been convicted of a charge containing three counts under Rule. 6, Non- Ferrous Metals Control Order, 1941, as amended by a Central Government Notification, dated 8 January 1942, read with Rule 81, Sub-rule (4), Defence of India Rules, which are statutory rules under the Defence of India Act, 1939. The appellant pleaded guilty, and was sentenced to suffer rigorous imprisonment for a period of three months, and to pay a fine of one thousand rupees. The present appeal is directed against the sentence. Mr. Suhrawardy who appears for the appellant has urged us to set aside the sentence of imprisonment, but this prayer has been opposed by the learned Advocate-General, who appearing on behalf of the Crown, has contended that the offences committed by the appellant were so serious that a fine would not be a sufficient punishment, and that a sentence of imprisonment is called for. The material portions of Rule 81, Defence of India Rules, should be set out. Sub-rule 2 (a) is in the following terms: The Central Government (or the Provincial Government), so far as appears to it to be necessary or expedient for securing the defence of British India or the efficient prosecution of the war, or for maintaining supplies and services essential to the life of the community may by Order provide: (a) for regulating or prohibiting the production, treatment, keeping, storage, movement, transport, distribution, disposal, acquisition, use or consumption of articles or things of any description whatsoever and in particular for prohibiting the withholding from sale, either generally or to specified persons or classes of persons, of articles or things kept for sale, and for requiring articles or things kept for sale to be sold either generally or to specified persons or classes of persons or in specified circumstances;" Sub-rule (4) is as follows: "It any portion contravenes (any Order made under this rule), he shall be punishable with imprisonment for a term which mayextendto three years (or with fine or with both)." On 12 July 1941, there was published in the Gazette of India, Notification No. 288 embodying the Non-Ferrous Metal Control Order, 1941. Clause 3 of this Order provides that no person shall be a stockholder or dealer except under and in accordance with the conditions of a license in a prescribed form granted by the Controller. Clause 6 provides that no stockholder or dealer shall sell the metals to which the Order applies unless he has obtained from the Controller a permit in a prescribed form. On 10 January 1942, there was published in the Gazette of India a Notification by the Central Government which had the effect of adding tin and lead to the list of metals to which Non-Ferrous Metal Control Order, 1941, applied. It is not disputed that the appellant was aware of both the Notifications just referred to. In his business premises was found a cutting from a newspaper, Ex. 29/1, dated 12 January 1942, which reproduced a Notice from the Department of Supply informing the public that the Non-Ferrous Metal Control Order would henceforward include lead and tin. This Notice left the position in no manner of doubt, for it stated as follows: All persons interested in these metals are informed that (1) Persons who now have in their possession or under their control two or more tons of tin or lead and persons who have in their possession or under their control quantities of tin or lead which in the aggregate in any one calendar month are not less than two tons, are stockholders" and as such require licenses.. (4) Licenses and certificates are obtainable from the Controller of Non-Ferrous Metals, who is the .Director-General, Munitions Productions, Department of Supply, 6 Esplanade East, Calcutta (5) Sales of tin in lead can be made only under permit from the Controller. (6) Stockholders and dealers .... are required to send the Conlroller within 14 days, and thereafter: by the seventh day of each calendar month, a return of all quantities of tin or lead in their possession or under their control." India received her supplies of tin and lead very largely, if not indeed entirely, from Malaya and Burma. Early in January 1942, supplies from Malaya had ceased, and those from Burma were becoming jeopardised. These metals were in urgent demand for the manufacture of munitions, and Government found it imperative to control all stocks and sales in this country. It accordingly took measures to ensure that all stocks would be disclosed by the holders thereof, and that dealers would not dispose of their stocks without the knowledge and consent of Government. How essential these measures were, and how rigorous was the necessity for their meticulous observance can readily be imagined. The appellant had stocks of these metals, and he dealt in them by way of purchase and sale. It was therefore incumbent on him to obtain forthwith a stockholder's license and never to self without a permit, a permit being required for each sale. It has now to be seen what regard be paid in his dealings to the Order above noted. It may here be stated that it would appear to have been a custom of this firm to enter a transaction in their book as a sale on one day but to make delivery of the goods sold on a day much later. It therefore often happened that there was an appreciable interval of time between the sale and the delivery. Although the Government Order required stockholders and dealers to obtain a permit before selling, it is reasonably clear that what were really sought to be controlled were deliveries, and I am of the opinion that the appellant would have been protected had he obtained a permit even in the interval before delivery, but after sale, in those cases which are described by him as advance sales. But evidence has been given to show that the appellant frequently sold a controlled article without applying for a permit, and that in some instances when he applied for a permit after he had done so, he proceeded to deliver the goods without receiving the permit. Although the appellant knew of the Control Order on 12 January, 1942, he did not apply for a stockholder's license until 23 January. This was issued on 27 January. Even before applying for a stockholder's license he sold fifteen slabs of tin to Ghulam Ali Abdul Hossein, eight slabs on the 14 and seven slabs on 15 January. These were shown in the books of the appellant's firm as advance sales. The eight slabs sold on the 14 were delivered to the purchaser on that day. The seven slabs sold on the 15 were delivered on 21st January. This delivery was the subject-matter of the first count in the charge. The appellant did not even apply for a permit to cover this transaction, and he did not take any steps to inform the Controller that such a transaction had taken place. On 20 January, there was entered in the books of the appellant's firm an advance sale of a quantity of tin to the Kamani Metal Refinery and Metal Industries. On 23rd January, the appellant submitted, as required by the Control Order, a return of his stocks. This purported to show his stocks as they stood on 21 January. Item 2 of this return reads as follows:

(2.) It has been argued on behalf of the appellant that the note in the remarks column relates to the advance sale of 20 January, and was a sufficient intimation to the Controller of the fact that an advance sale had taken place in respect of nineteen slabs. The argument is without substance. The number of slabs is not mentioned, and the identity of the purchaser is not disclosed. No permit was obtained or even applied for in respect of this transaction. It is sale and delivery without permit which constitutes the offence, and it is no answer to say that the Controller had notice that an offence was about to be committed. On 11 February the appellant's firm delivered ten slabs of tin to the Kamani Metal Refinery. This was the subject- matter of the second count. The appellant attempts to justify it as a part of the transaction indicated in the above-mentioned entry in his return of stock submitted on 23 January. As already stated, that was no justification and the sale and delivery were not covered by any permit. It was however argued on the appellant's behalf that he was persuaded to deliver these ten slabs to the Kamani concern by the Chief Controller of Purchase (Munitions), who on 11 February wrote a letter (Ex. 19) to the appellant's firm which is in these terms: Kindly arrange immediately to deliver 25 Ingots of tin to Messrs. Kamani Metal Refinery and Metal industries, Calcutta. The necessary Sanction for releasing the store has already been obtained by this office from Deputy Director of Metal (Non- ferrous) Calcutta to whom an application may be made by you for obtaining the necessary permit to sell the above store. In this connection, it is pointed out that, as the material is urgently required for Government use delivery is considered essential prior to receipt of any confirmation or formal permit from the D. D. M. (N. F.) Calcutta. Kindly confirm urgently that you are taking action accordingly.

(3.) On behalf of the appellant it is contended that as the Chief Controller of Munitions Purchase was pressing tor a delivery of tin to the Kamani concern, the appellant was performing a public duty in complying with this urgent request. The argument would have been sound but for one fact. The Chief Controller of Munitions Purchase was asking for delivery not of ten but of 25 slabs oi tin which the appellant's firm actually delivered to the Kamani concern a few days later, on 16 February. This sale and delivery of 25 slabs is an entirely different transaction. The appellant applied on 6 February for a permit to supply 25 pieces of tin to the Kamani Metal Refinery and Industries (Ex. 8). On 11 February the Controller of Non-Ferrous Metals wrote a letter to the appellant's firm refusing the request for a permit (Ex. 9). On the same date the Controller of Munitions Purchase wrote the letter (Ex. 19) above quoted pressing for delivery of 25 slabs to the Kamani Refinery. The appellant's firm delivered this quantity to the Kamani Concern on 16 February. No charge has been preferred in regard to this sale or delivery, obviously because of the letter, Ex. 19. But if Ex. 19 is to be regarded as justifying a delivery of 25 slabs on 16 February, it can have no relation to the delivery of ten slabs on 11 February which was therefore entirely unauthorised.