EMPEROR Vs. MAHOMED BASHIR

JUDGEMENT

(1.) This is an application by accused Nos. 1 and 2 who were convicted by the Presidency Magistrate, 2nd Additional Court, Mazagaon, Bombay, for the offence under rule 81(4) of the Defence of India Rules read with the Commissioner of Police's Notification No. 14824/123-C dated September, 12, 1944. Accused No. 1 is the proprietor of a hotel called Islami Hotel at the corner of Grant Road in Bombay, and accused No. 2 is a manager of the hotel employed by the first accused. The hotel served refreshments consisting of food and non-alcoholic drinks to customers by virtue of a licence issued to accused No. 1 in 1941 and renewed from year to year. The charge against the two accused was that they on December 16, 1944, kept their hotel open between the hours of 1 A.M. and 5 A.M. and did sell or supply for consumption on their premises food or drinks to customers and aided and abetted each other in doing so and thereby committed an offence punishable under rule 81(4) read with rule 121 of the Defence of India Rules and the above-mentioned notification. That notification was issued under rule 81, Sub-rule (2), Clause (a), and it directed that from September 20; 1944, no article of food or drink shall be sold or supplied for consumption between the hours of 11 P.M. and 5 A.M. at any place of entertainment in the City of Bombay except under and in conformity with the conditions of a special permit granted by the Police. The notification was issued on September 12, and it appears that such special permit was issued to the first accused on September 18, authorising him to keep open the said hotel for selling or supplying for consumption articles of food or drink after 11 P.M. up to 1 A.M. As a result of this special permit the accused were entitled to keep their hotel open from 5 A.M. to 1 A.M. on the next morning. The prosecution case was that a bogus customer was sent to the accused's hotel at about 12-50 A.M. and he and other customers were supplied with food after 1 A.M. Thereafter the police raided the hotel and found 31 customers eating and drinking in the hotel. Accused No. 2, i.e. the manager, was standing near the till. A panchanama was made of the things found in possession of the accused which included marked notes which" were given to the bogus punter. The panchnama was begun at 1-45 A.M. and concluded at 2 A.M. Thereafter the accused were charged with the infringement of the terms of the notification under Rule 81(4) of the Defence of India Rules. The bogus customer died after hearing of the case commenced, but the prosecution examined the panch witness, Deputy Inspector Soloman, and Sub- Inspector Khadkei who had taken part in the raid.

(2.) The learned Magistrate was satisfied on the evidence that about 30 customers were taking food in the hotel after 1 A.M. On behalf of accused No. 1, the proprietor, it was urged that he was admittedly not present in the hotel at the time of the raid and; he had left the entire management of the hotel in the hands of accused No. 2 and another manager, that he came to the hotel after the raid was over and that the licence was given to the hotel and not to accused No. 1 personally. The learned Magistrate was of the opinion that for the offence under Rule 81(4) of the Defence of India Rules it was not necessary that there must be a guilty intention in the mind of the person charged, that it was sufficient if accused No. 1 was the proprietor of the hotel and that his servants committed the offence. .The liability of the master for the crime of the servant was to be implied from the very nature of the offence created by that rule. He, therefore, held both the accused liable for the offence and convicted them and sentenced accused No. 1 to pay a fine of Rs. 25 and accused No, 2 to pay a fine of Rs. 75. Both the accused have come to this Court in revision.

(3.) Mr. Mehta on behalf of the petitioners has urged two points before us. The first point is that the offence with which the accused are charged is really the infringement of the terms of the licence and not the infringement of the Defence of India Rules. His first contention is that the licence was given to the first accused in 1941 at which time the old standard time was in existence, and at the time when the accused was charged the new (standard time had come into force which was one hour in advance of the old standard time. The hours of business originally mentioned in the licence were 5 in the morning to 11 P.M. standard time. The licence was renewed from time to time up to March 31, 1945. As the original licence was given under the old standard time, the renewal of the hours of business from time to time must also be considered to be under the old standard time even though the licence was renewed after the introduction of the new standard time, It is further urged that even under the special permit, which was issued in 1944, the time of 11 P.M. which was extended to 1 A.M. must also be read in reference to the old standard time because the time which was mentioned in the licence was extended by the special permit, and therefore the standard of time must be regarded as the same as it was when the original licence was issued. It was contended on that ground that 1 A.M. mentioned in the special permit would be 2 A.M. according to the present standard time, and that being so, no offence was committed because it has not been found that any food or drink was supplied to any customer after 2 A.M. on that night. It is no doubt true that the licence was issued at the time when the old standard time was in force. It is, however, quite clear that the special permit was given in 1944 at a time when the new standard time was in force and after the issue of the notification on September 12. That notification read with the special permit prescribes, so far as the present accused are concerned, the hours of business between 5 A.M. and 1 A.M., and in the absence of any specific mention, it must .be taken that the hours of business which are referred to in the notification must be the hours under the new standard time which was in force at that time and not under the old standard time. In our opinion, therefore, the time mentioned in the notification as well as the time mentioned in the special permit must be the new time which was then in force. The mere fact that the licence was continued from 1944 to 1945 without changing the nature of the standard time does not necessarily mean that even when the special permit was granted the time was intended to be the old standard time and not the new one. In our opinion, therefore, that argument is without any substance, and it must he taken that the customers were found in the hotel between 1 A.M. and 2 A.M. according to the new standard time.