MADHOLAL AGARWALLA Vs. EMPEROR

JUDGEMENT

(1.) This rule was issued upon the District Magistrate of Dinajpur to sbow cause why conviction and sentence under Section 13 (2), Hoarding and Profiteering Prevention Ordinance (Ordinance 35 [XXXV] of 1943) should not be set aside. The case for the prosecution was that the present petitioner Madholal Agarwalla was the proprietor of a shop known as the Adarsha Bastralaya at Maldapatti in Dinajpur town. On 14-12-1944 two persons Asita Ranjan Banerjee and Kedareswar Chakravarty went to the shop at about 9 30 A.M. to purchase warm coating. Asita Raujan asked the salesman Surja for warm coating, Surja produced a piece of blazer cloth and quoted Rs. 16-8-0 per yard as the price. Asita Ranjan asked for two yards and two giras of the cloth and a piece measuring two yards and two giras was cut and handed over to Asita Ranjan. A cash memo was drawn up in which the total price of Rs. 86-2-6 including sale tax was shown. But 2 annaa 6 pies was deducted and Rs. 36 was paid. A police officer was present in the shop at the time. The police officer seized the cash memo and the roll of cloth from which the piece had been supplied to Asita Runjan and then looked round to see whether a price list of blazer cloth was exhibited in the shop. He saw no price list exhibited and he submitted a report alleging that an offence had been committed. Investigation ensued. Sanction was obtained from the District Magistrate, and the present petitioner and two salesmen were placed on their trial on three charges; that they bad contravened the provisions of the Hoarding and Profiteering Prevention Ordinance, firstly, by selling a piece of cloth at above the controlled price; secondly, by failing to give a cash memo in the prescribed form; and thirdly, by failing to exhibit a price list as required by an order passed under the Ordinance.

(2.) They were tried jointly by a Magistrate of the First Class at Dinajpur. The two salesmen were acquitted of all three charges. The proprietor, Madholal Agarwalla, was acquitted of the charge of using a cash memo other than in the prescribed form, but he was convicted on the other two counts, namely, that he sold cloth at a price exceeding the controlled price and that he failed to exhibit a price list as required by authority under the Hoarding and Profiteering Prevention Ordinance He was sentenced to pay a fine of Rs. 200 and in default to undergo rigorous imprisonment for two months only. He appealed against that conviction but his appeal was dismissed.

(3.) The defence of the proprietor was as follows: When Asita Ranjan and Kedareswar asked for blazer cloth, the cloth was supplied; they were told that the controlled price was not known; they were asked to pay provisionally at the rate of Rs. 16-8-0 per yard and were assured that when the controlled price was ascertained, if it was found that the controlled price was less than Rs 16-8-0 per yard the excess amount realised would be refunded to them.