SANTOSH DAS GUPTA Vs. EMPEROR

JUDGEMENT

(1.) This rule was issued on the Chief Presidency Magistrate of Calcutta to show cause why convictions and sentences under Section 13 of Ordinance (35 [XXXV] of 1943) should not be set aside. The material facts are not disputed. On 13-6-1945, Mohammad Shirajuddin, and N.C. Kabir, Assistant Inspectors of Civil Supplies accompanied by U.K. Pal went to the shop where the three accused, Santosh Das Gupta, Bistodas Mukherjee and Ram Krishna Ghosh were working. They asked for gramophone needles of H.M.V. or any other make, for gramophone springs and for H.M.V. sound boxes. Accused Santosh Das Gupta and accused Bistodas Mukherjee were at the same counter. They replied that they had nothing but gramophone records for sale. The Assistant Inspectors went to another counter and asked whether there was a battery radio set of any make for sale. Accused Earn Krishna Ghosh replied that there were no radio Bets for sale. The Assistant Inspectors produced their identity cards and then searched the shop. A considerable supply of gramophone needles, springs and sound boxes was found on search, but no battery radio set. Santosh Das Gupta and Bistodas Mukherjee were charged under Section 13 of Ordinance (35 [XXXV] of 1943) with refusing to sell needles and sound boxes in contravention of Section 9 of that Ordinance; and Earn Krishna Ghose was charged under the same section with refusing to sell a battery radio set. Earn Krishna Ghosh was acquitted. Santosh Das Gupta and Bistodas Mukherjee were convicted and sentenced each to pay a fine of Rs. 200 and in de-fault to undergo rigorous imprisonment for two months.

(2.) On behalf of the two convicted persons it has been argued that the prosecution evidence proves that they had sufficient cause for refusing to sell gramophone needles and sound boxes. Section 9 of ordinance (35 [xxxv] of 1943) reads as follows: 9. Refusal to sell--No dealer or producer shall, unless previously authorised to do so by the Controller-General or other officer empowered in this behalf by the Central or the Provincial Government, without sufficient cause refuse to sell any article within the limits as to quantity imposed by this Ordinance.

(3.) Mr. Talukdar for the petitioners drew my attention to Gazette Notification No. 1/2 (109)/44-CG (CS) dated Bombay, the 22-9-1944 which appeared in the Gazette of India, 7- 10-1944. The notification reads: In pursuance of Section 9, Hoarding and Profiteering Prevention Ordinance, 1943 (Ordinance No. XXXV of 1943), I hereby authorise : (a) any accredited distributor of, or authorised dealer in gramophone main springs, sound boxes and spare parts of a particular make to refuse to sell any spare parts of that make if--(i) the spare parts are required otherwise than for servicing a gramophone of that make, or (ii) the intending purchaser does not, on a request being made in that behalf, furnish correct information as to the model for servicing whereof the spare parts are required, and the name of the owner thereof; (b) any accredited distributor of gramophones of a particular make to refuse the sell spare parts of that make to a person other than an authorised dealer therein or a dealer approved in this behalf by the Controller-General of civil Supplies; (e) any retail dealer to refuse to sell spare parts of a gramophone unless the intending purchaser returns the spare part in replacement whereof he wishes to purchase the new part. Clause (c) above authorises a retail deader, to refuse to sell a spare part of a gramophone unless the intending purchaser returns a used spare part in its place. It should be noted that there is no provision in this clause to the effect that the dealer shall request the customer to return the old spare part. Both customer and dealer are presumed to know the rule. Mahommad Sirajuddip admits that he did not take any used sound box or used needles with him. It is clear therefore that, in the words of Section 9 of the Ordinance, the accused persons were previously authorised by the Controller to refuse to sell an H.M.V. sound box in the circumstances and that therefore their refusal was not a contravention of Section 9 of the Ordinance. The conviction cannot therefore be sustained in so far as it concerns the refusal to sell a sound box.