GOGAN RAM Vs. EMPEROR

JUDGEMENT

(1.) The petitioner Gogan Ram has been found guilty of contravening the pro- visions of Clauses 3 and 9, Bihar Cotton Cloth and Yarn Dealers (Licensing and Control) Order, 1944 (hereinafter called the Provincial Control Order for the sake of brevity), and has been sentenced to rigorous imprisonment for six months on each count under Rule 81(4), Defence of India Rules, by the learned Magistrate exercising first class powers at Bhagalpur, which conviction and sentence have been upheld on appeal by the learned Additional Sessions Judge of Bhagalpur. Several questions of law and fact have been raised on behalf of the petitioner and it is necessary to state the facts of the prosecution case against the petitioner.

(2.) The petitioner appears to be the proprietor of a firm, known as Messrs. Gogan Ram Baijnath, dealing in cloth at Bhagalpur. Licenses had been issued to the firm under the Provincial Control Order, and it appears that the firm has two godowns besides a shop. There was a charge against the petitioner that he was keeping a godown at premises other than those mentioned in the license. This charge was found to be not tenable, and does not arise for consideration now. On 4 September 1944, on a certain confidential report received by the District Inspector of Cloth, a raid was made on the shop and godowns of the petitioner. The raiding party consisted of the District Cloth Inspector, other Cloth Inspectors, the Sub- divisional Magistrate and a Sub-Deputy Magistrate. Some of the members of the raiding party went to the shop of the petitioner and others went to the two godowns. Three lists were prepared of the actual stock in the two godowns and at the shop. The petitioner produced four registers as also other papers. As per condition No. 2 of Part I of the license, a register of daily transaction has to be maintained by wholesale and retail dealers; in the form mentioned in condition No. 2, separately for (a) dhotis and saris, (b) cloth normally sold by yardage, (c) other material sold, e.g., chaddars, towels, etc., and (d) yarn by counts in weight. The four registers, which were produced by the petitioner, related to the aforesaid four descriptions of cloth and yarn. The prosecution case is that the stock which was actually found in the shop and the two godowns did not tally with the stock as shown in the four registers mentioned above. Details of the discrepancies have been given in the judgments of the Courts below and I need not repeat those details. It is sufficient to state that except as regards cloth sold by yardage, the actual stock was found much in excess of the stock as shown in the registers in respect of (a) dhotis and saris; (b) towels, chaddars, etc., and (c) yarn. The prosecution case, therefore, is that the petitioner has contravened the provisions of Clause 3, Provincial Control Order, which states that no person shall carry on business as a dealer except under and in accordance with the terms and conditions of a licence in Form B issued by the Licensing Authority under the order. The gravamen of the charge against the petitioner on the first count is that though he carried on business under a licence, he did not comply with the terms and conditions of the licence, inasmuch as he had not correctly maintained a register of daily transactions as required by condition 2 of Part I of the Licence in Form B. The charge on the second count arises in the following way. When the shop and go-downs of the petitioners were raided on 4 September 1944 it was found that the petitioner had failed to exhibit on a notice board a correct account of the respective stocks of (a) cloth and (b) yarn that might be in the shop or place of business concerned, as required by notification No. 12634-Tex-48/44-P.C., dated 23 May 1944 issued by the Cloth Controller, Bihar. The aforesaid notification appears to have been issued under the provisions of Clause (9), Provincial Control Order. That clause reads as follows: Every licensee shall submit correctly such figures of stocks or transactions and furnish such information as the Controller may prescribe or demand and shall carry out such directions as the Controller may issue from time to time.

(3.) By virtue of the authority given to the Cloth Controller under the aforesaid provisions, the Cloth Controller issued the notification in question directing all wholesale dealers to exhibit on a notice board from day to day at each of their respective shops or places of business a correct account of the respective stocks of (a) cloth, (b) yarn and (c) standard cloth. It is stated by the prosecution that the petitioner failed to comply with the aforesaid direction of the Cloth Controller, and thereby contravened the provisions of Clause (9), Provincial Control Order. The defence of the petitioner will appear from the discussion which follows. The main contention of the petitioner was that the stock which was actually in his shop and godowns did tally with the stock as shown in his registers, if all the registers produced by the petitioner were taken into consideration. It is stated that the petitioner produced a fifth register called the "gant" register which was not taken into account in spite of the application of the petitioner. Secondly, it was contended on behalf of the petitioner that he did exhibit on the notice board a correct account of the stock as required by the direction of the Cloth Controller. The Courts below have concurrently found against the petitioner on both points. It would be convenient if some of the questions of law raised on behalf of the petitioner are disposed of at the outset. The first of such questions is if the conviction of the petitioner is bad for want of sanction by the Provincial Government. This point arises out of certain provisions in the Cotton Cloth and Yarn (Control) Order, 1943, made by the Central Government (hereinafter referred to as the Central Control Order for the sake of brevity and convenience). Clause (28), Central Control Order, states that no prosecution for the contravention of any of the provisions of this order (meaning the Central Control Order) shall be instituted without the previous sanction of the Provincial Government. The position of the Provincial Control Order vis-a-vis the Central Control Order, so far as the question of sanction is concerned, has been considered in two decisions of this Court: Kapildeo Vs. Emperor A.I.R. 1945 Pat. 375 and Manohar Lall V/s. Emperor A.I.R. 1945 Pat. 477. As far as Clause 3, Provincial Control Order, is concerned there is a definite decision in Manohar Lall V/s. Emperor A.I.R. 1945 Pat. 477 that no sanction of the Provincial Government is necessary. It has been pointed out therein that the considerations which apply to Clause 8, Provincial Control Order, do not apply to Clause 3. Clause 8, Provincial Control Order, lays down that no licensee shall sell or offer to sell any cloth or yarn at a price in excess of the maximum price fixed for it. The maximum price referred to in Clause 8, Provincial Control Order, has reference to Clauses 10 and 12, Central Control Order. Under Clause 10, Central Control Order, the Textile Commissioner has authority to specify the maximum prices, ex-factory, wholesale and retail, at which any class or specification of cloth or yarn may be sold. Clause 12, Central Control Order, lays down, amongst other things, that no manufacturer or dealer shall sell or offer to sell any cloth or yarn at a price higher than the maximum price specified in this behalf under Clause 10.