MANOHAR LALL Vs. EMPEROR

JUDGEMENT

(1.) This is an application in revision against the concurrent orders of the Courts below convicting the petitioner under Rule 81(4), Defence of India Rules, read with Cls. 3 and 8, Bihar Cotton Cloth and Yarn Dealers (Licensing and Control) Order, 1944, (which hereinafter will be referred to as "the Provincial Order"), and sentencing him to rigorous imprisonment for six months and a fine of Rs. 500, and in default of payment of the fine, to further rigorous imprisonment for three months, The facts of this case lie within a very narrow compass, and may be stated as follows : On 20 May 1944, Babu Jamuna Prasad <JGN>Sinha</JGN> , a Cloth Inspector, came to know from one Ganesh Ram Barai that the petitioner, Manohar Lall, who is a dealer in cotton cloth at Daltonganj, had charged him Rs. 5-8-0 as the price of a sari, though the maximum retail price printed on it was Rs. 5-0-6 only. The Inspector, in order to make sure of the position, deputed another person, named Ganesh Prasad, to make a test purchase, and gave him Rs. 6 for the purpose, after satisfying himself that he had no other money on him. Ganesh Prasad went to the petitioner's shop and came back with a sari and eight annas, and reported that the shop-keeper insisted upon Rs. 5-8-0 as the price for the same. The Inspector after taking down their statements, went to the petitioner's shop. The petitioner denied having sold a sari for BS. 5-8-0, and asserted that he had charged only Rs. 5-0-6 but at the same time, according to the Inspector's report, he was prepared to return seven annas and six pies. On being questioned as to why he had not given any of the two purchasers a cash memo, as required, the shop-keeper represented to him that the customers went away in a hurry without waiting for the issue of cash memos. The Inspector thereupon called upon the petitioner to produce his counterfoil book. The book was pro-duced by the petitioner, but it did not contain any entries corresponding to the sales in question. The Inspector then initialled the counterfoil book, and eventually filed a complaint for the petitioner's prosecution for having charged a price higher than the maximum price fixed by Government and for omitting to issue cash memos as required by the terms of his licence. His report (EX 5) was the basis for the prosecution, and cognizance was taken by the Sub-Divisional Magistrate who tried the petitioner, and convicted and sentenced him as indicated above. On appeal, the learned Judicial Commissioner of Chota Nagpur affirmed the orders passed by the trial Court, and dismissed the appeal. Hence this application in revision.

(2.) On behalf of the petitioner, apart from criticising the findings of fact arrived at by the Courts below, the only question of law that has been raised before us, is that, as the prosecution was launched without the sanction of the Provincial Government previously obtained, the orders of the Courts below are wholly invalid. In this connection reliance was placed upon the ruling of the Division Bench of this Court, of which my brother Meredith was a member, in Kapildeo Pandey V/s. Emperor A. I. R. 1945 Pat. 375. In that case it was laid down that Clause 8 of the Provincial Order, did not create an offence, and that the Provincial Order had to be read along with, and as supplemental to, the Central Order, that is to say, the Cotton Cloth and Yarn (Control) Order, 1943, passed by the Central Government. If that case has been correctly decided, then there is no eseape from the conclusion that the petitioner's con-viction and sentence under Clause 8, must be set aside as illegal, in view of the admitted position that no sanction of the Provincial Government to the prosecution of the petitioner for the offence under Clause 8, with which he has been charged had been previously i obtained. On the other hand, it has been contended on behalf of the Crown that their Lordships did not take the correct) view of the legal position in deciding that case and acquitting the accused person for want of the sanction of the Provincial Government. We are bound by that decision unless we take the view that that is not a correct decision, and in that event the case will have to be referred for the decision of a Full Bench. Hence, in this case the principal question that falls to be decided by us is whether the previous decision of this Court, referred to above, making the sanction of the Provincial Government a condition precedent to the institution of a prosecution under the Provincial Order also, has correctly laid down the law.

(3.) By Section 2 (1), Defence of India Act (35 of 1939), the Central Government has been authorised to make such rules as appear to it to be necessary for, amongst other things, "maintaining supplies and services essential to the life of the community." By Sub-section (2) of Section 2, the rules to be made by the Central Government may provide for, and empower any authority to make Orders providing for, certain matters enumerated in detail in that section, including the control of agriculture, trade or industry for the purpose of regulating or increasing the supply of, and the obtaining of information with regard to, articles or things of any description whatsoever which can be used in connexion with the conduct of war or for maintaining supplies and services essential to the life of the community, etc., etc. In pursuance of the rule-making power aforsaid, the Central Government has framed rules entitled "The Defence of India Rules," including Rule 81(2) which provides that the Central Government or the Provincial Government, for the purposes aforesaid, may by order provide for regulating or prohibiting the production, distribution, disposal or consumption, etc., of articles or things of any description whatsoever. The Central Government, under the authority vested in it by Rule 81(2), Defence of India Rules, promulgated the Order, known as "the Cotton Cloth and Yarn (Control) Order, 1943," which was amended several times. As amended in November 1943, Clause 10 of the Order empowered the Textile Commissioner, amongst other things, to specify "the maximum prices, ex-factory, wholesale and retail, at wniob any class or specification of cloth or yarn may be sold." Clause 12 (1) reads as follows: No manufacturer or dealer shall sell or offer to sell any o oth or yarn at a price higher than the maximum price specified in this behalf under Clause 10. "Dealer" has been defined as a person carrying on the business of selling cloth or yarn or bottle whether wholesale or retail, and whether or not in conjunction with any other business.