MAHADEO PRASAD JAYASWAL Vs. EMPEROR

JUDGEMENT

(1.) This is a revision application on behalf of one Mahadeo Prasad Jaiswal who has been convicted under Rule 81, Clause (4), Defence of India Rules, for breach of certain provisions of the Cotton Cloth and Yarn Control Order and has been sentenced to undergo rigorous imprisonment for three months and to pay a fine of Rs. 500. The petitioner is one of the owners of a cloth shop popularly known as the Jaiswal Cloth Depot and it has been found by the Courts below that on 1st August 1944 he sold to one Iswar Singh, a retail dealer, some pieces of cloth at a price exceeding the mill price by more than 10 per cent, and thereby contravened the provisions of Clauses 12(4) and 12(1), Cotton Cloth and Yarn Control Order. His defence in the Courts below was that he did not know that Ishwar Singh was a retail dealer and he therefore charged him such prices as he was entitled to demand from an ordinary consumer. This defence has however been negatived and it has been found that he sold the cloth to Ishwar Singh knowing him to be a retail dealer. This finding is supported by the receipt which he issued to Ishwar Singh and which purports to be a receipt issued to a retail dealer. The finding of the Courts below cannot be challenged and has not been challenged in this Court.

(2.) The Cotton Cloth and Yam Control Order of 1943 was made by the Central Government under Rule 81(2), Defence of India Rules, and published in the Government of India Gazette on 17 June 1943 (see Notification No. 34-Tex. (1)/43). It was also published by the Provincial Government of Bihar in the Gazette, Extraordinary, of 9 July 1943. The original Order has been amended from time to time and all the amendments have been duly published in the Gazette of India and the Official Gazette of the Bihar Government. The main point urged in this Court on behalf of the petitioner is that his conviction is invalid because the prosecution has failed to prove that the Cotton Cloth and Yarn Control Order was published in accordance with Rule 119(1), Defence of India Rules. Rule 119(1) so far as it concerns this case runs as follows: Save as otherwise expressly provided in these Rules every authority, officer or person who makes any order in writing in pursuance of any of these Rules, shall in the case of an order of a general nature or affecting a class of persons publish notice of such order in such manner as may in the opinion of such authority, officer or person be best adapted for informing persons whom the order concerns...and thereupon the persons concerned shall be deemed to have been duly informed of the order.

(3.) It is contended by the learned Counsel for the petitioner that there has been no compliance with Rule 119(1) because there is no proof that the Central Government had decided that publication of the Cotton Cloth and Yarn Control Order in the Government of India Gazette was best adapted for informing persons whom the order concerns about its provisions. Such a proof, it is said, could be afforded if it was expressly stated by the Central Government that in its opinion publication in the Government of India Gazette was best adapted for informing the persons concerned of the provisions of the Order. A similar contention appears to have been raised and given effect to in Kamta Prasad V/s. Emperor (45) 1945 P.W.N. 374 which was decided by a Bench of this Court on 4 September 1945, but as the Bench before which the present case came up held a contrary view, the learned Judges constituting that Bench have referred it to a Full Bench. Rule 119 occurs in part XVII, Defence of India Rules, which deals with "miscellaneous provisions." The subject which the Bule purports to deal with is indicated in the marginal notes as "Publication, affixation and defacement of notices. The rule clearly lays an obligation on the authority making an order of a general nature under the Defence of India Rules to publish notice of such order and to publish it in such manner as may, in the opinion of the authority concerned, be best adapted for informing persons whom the order concerns. It is only when this is done that the fiction of constructive notice which the latter part of Rule 119 embodies will come into play and "the person concerned shall be deemed to have been duly informed of the order." The manner in which the notice is to be published is left to the discretion of the authority concerned and it is for such authority to decide what form of publication would be best adapted for informing persons whom the order concerns of its provisions. It follows therefore that once the authority has determined the manner of publication as provided in the rule it is not open to a Court of law or to any person to say that the manner of publication was inadequate or was not in fact adapted for informing persons concerned of the provisions of the Order. The Rule does not say that the authority should declare or state in writing that in its opinion the manner of publication decided upon in a particular case was best adapted for informing the persons concerned of the provisions of the Order. Therefore merely because there is no such declaration or statement or because the mode of publication does not appear to be suitable or adequate, we cannot conclude that the requirements of Rule 119(1) have not been complied with. It seems obvious that if a certain mode of publication appears to be inadequate the position is not improved by the order-making authority having made a formal statement that in its opinion it was the most suitable mode of publication. On the other hand, if no such statement has been made, the Court is not debarred from inferring from the manner in which a certain order has been published or other cogent evidence that the requirements of the Rule have been complied with. In the present case the Cotton Cloth and Yarn Control Order was admittedly published in the Gazette of India which, as is well known, is the official organ of the Government of India since 1863 when, by Act 21 of that year, publication in the Gazette of India was declared to have the effect of publication in any other Official Gazette in which publication was prescribed by the law in force at the date of the passing of the Act. The preamble of the Act recites that the Governor-General had resolved to publish an official gazette called the Government of India Gazette containing such publications, notifications and other matters as the Governor-General of India in Council shall direct to be inserted therein.