MADAN LAL DALMIA Vs. EMPEROR

JUDGEMENT

(1.) The petitioner has been sentenced to one month's rigorous imprisonment and to pay a line of Rupees 150 for an offence under Rule 81(4), Defence of India Rules. It is alleged that on the morning of 22 January, 1943, he sold half a seer of sugar to the orderly peon of the Price Control Officer for five annas, whereas the controlled price for this commodity was 6j annas per seer. It has been proved that the Sub-Divisional Magistrate of Deoghar, in exercise of the powers conferred upon him, issued an Order No. 65 on 2l January, 1943, fixing the price of sugar at 6 1/2 annas per seer. R. 119, Defence of India Rules, provides that orders made under the Rules be published in the manner which, in the opinion of the authority making the rule, is best adapted for informing the persons whom the order concerns, and that, when so published, the persons concerned shall be deemed to have been fully informed of the order. There is no direct evidence as to the opinion of the Sub-Divisional Officer relating to the manner best adapted in his opinion for informing the persons concerned of this order or its contents. But the order itself recites that for the information of the public it was being printed. Whether it was actually printed or not we do not know, and if it was printed, how it was distributed is not disclosed. But the clerk of the Price Control Officer has been examined, and he states that on 23 January he sent copies of the notice to the Secretary of the Merchants Association at Deoghar and Madhupur and to the different thana officers for circulation. It may be assumed that this was done in pursuance of the orders given by the Price Control Officer, and that, in the opinion of the latter, the distribution of copies of the notice by thana officers and Secretaries of Merchants Associations was the most effective manner of apprising the public, or those members of it concerned with the price of sugar, of the contents [of the order. But as this was not done until 23 January 1943, the order cannot be held Ito be effective until that date. A somewhat similar question arose in England in Johnson V/s. Sargant & Sons (1918) 1 K. B. 101. An order made by the Food Controller under the Defence of the Realm Regulations was dated 16 May 1917. It was published in the newspapers on the 17th, and until then was not known to the public generally. It was held that the order came into operation only when it became known, that is, on 17 May.

(2.) With regard to the provision in Rule 119 that when a notice has been published the persons concerned shall be deemed to have been duly informed of the order, it was pointed out in 45 Cri L J. 2502 which was also a case under Rule 81, Defence of India Rules, that this legal fiction is applicable only when it has been proved that everything that was required to be done by the authorities or officer was actually done. Until 23 January the Sub-Divisional Officer had not done all that he was required to do, and, therefore, the sale of sugar at a price above the controlled rate on 22 January, 1943, cannot be regarded as an offence. The conviction and sentence are, therefore, set aside, and the fine, if paid, will be refunded. Imam, J.

(3.) I agree.