CHAKRADHAR SAHU Vs. EMPEROR

JUDGEMENT

(1.) The petitioner has been found guilty under Rule 81(4), Defence of India Rules and he has been sentenced to pay a fine of Rs. 50, or, in default, to undergo rigorous imprisonment for two months. The allegation against the petitioner was that he had sold kerosene oil at Re. 1 per seer on 29 July 1943 against the controlled rate of six annas per seer. In the lower Court the petitioner had raised a plea of alibi, which plea was not accepted by the learned Magistrate.

(2.) In support of the petition before me, two points have been urged by the learned advo-. oate for the petitioner. It is admitted that the Sub-divisional Magistrate of Bhadrak is the person authorized to fix prices under Rule 81, Defence of India Rules The place where the petitioner sold kerosene is within the jurisdiction of Bonth Police Station. Exhibit 2 is the list of prices showing that the price of kerosene oil was fixed at six annas per seer. The evidence of Manasranjan Pat-naik (p. W, 4) shows that Ex. 2 was submitted by the Price Control Committee of Bonth. This witness admitted in cross-examination that Ex. 2 had not been approved by the Sub-divisional Magistrate. This statement, therefore, shows that Ex. 2 which fixed the price was not made by a person who was authorized under Rule 81, Defence of India Rules. .In the absence of any evidence that the person authorized under the Defence of India Rules had fixed the price of kerosene at six annas per seer, the petitioner could not be convicted of selling kerosene at a higher price.

(3.) This is not the only difficulty in the way of the prosecution. There is no evidence on the record to show that the mandatory provisions of Rule 119, Defence of India Rules, have been complied with. R. 119 requires that the authority which makes the order shall determine the manner in which notice of the order shall be given. It further requires that notice of the order shall be published in the manner determined by the said authority. There is no evidence on the record to show that the aforesaid requirements of Rule 119, Defence of India Rules, have been complied with. As a matter of fact, in view of the evidence of Mansran-jan Patnaik (P.W. 4) it is clear that a competent authority had not fixed the price of kerosene for the jurisdiction of Bonth Police Station. Exhibit 3 admittedly relates to Bhadrak town only. For the reasons given above the conviction of the petitioner is wrong. I would, therefore, allow the application and set aside the conviction and sentence passed against the petitioner. The fine, if paid, should be refunded to the petitioner.