EMPEROR Vs. HANSRAJ ASTAJI

JUDGEMENT

(1.) This revisional application has been referred to us for decision on two points arising under the Defence of India Act. The facts shortly are that the petitioner was charged with and convicted of the offence of purchasing from a merchant eleven bundles of copper wires weighing 545 seers for Rs. 2,445 on April 18, 1943, without a permit under the " Non-Ferrous Metals Control Order, 1942." The relevant provisions of Clause 6 of the said Order are that no person shall acquire more than twenty lbs. of copper wire in one calendar month without obtaining a permit from the Controller. This Order is issued by the Central Government under the Defence of India Rule 81(2)(a), which enacts that the Central 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, among other things, for regulating or prohibiting the acquisition of articles or things of any description whatsoever. This rule is made under Section 2, Sub-section (1) and in particular under Sub-section (2)(xx) under which a rule may be framed for the control, among other things, of trade or industry for the purpose of regulating or increasing the supply of articles or things of any description whatsoever which can be used in connection with the conduct of war or for maintaining supplies and services essential to the life of the community.

(2.) The purchase of the copper wire without a permit was admitted by the petitioner, but he pleaded a bona fide belief that it did not require a permit. The trying Magistrate held that the purchase by the, petitioner fell under Clause 6 of the Order, convicted him of the offence under r, 81 (4) of the Defence of India Rules and sentenced) him to rigorous, imprisonment for one day and a fine of Rs. 200. He further directed under Section 517 of the Criminal Procedure Code that the copper wire should be confiscated to Government and sent to the Controller for disposal. The Additional Sessions Judge confirmed the conviction and the sentence as well as the order of confiscation. Two points are urged before us on behalf of the petitioner. The first is that Rule 81(a) in so far as it prohibits acquisition of property otherwise than for trade or industry is ultra vires of Section 2(2)(xx); of the Defence of India Act, with the result that the Control Order issued under the said rule is also ultra vires to that extent. The second point is that the Magistrate had no jurisdiction to pass an order for confiscation under is. 517 of the Criminal Procedure Code, as under Rule 81(4) the confiscation can be made only if it is so provided in the Control Order, and there is no such provision in the Order.

(3.) As regards the first point, the contention is that it is not proved that the petitioner had purchased the copper wire for trade purposes. Section 2(2)(xx) provides for making a rule only for the control of any trade or industry. Rule 811(2), therefore, in so far as it provides for making an order to regulate or prohibit the acquisition of any article whether for the purpose of trade or not is ultra vires of the section. It is true that there is no clear evidence to show that the copper wire was purchased by the petitioner for trading in it and we may proceed on the basis that it was purchased for his own use. The question is whether Rule 81(2) goes beyond its parent section in empowering the regulation or prohibition of any acquisition of property and is therefore invalid.