BIRA GANDA Vs. EMPEROR

JUDGEMENT

(1.) This petition is directed against an order of conviction of the petitioner under Rule 81(4), Defence of India Rules for having contravened E. 4, Orissa Cattle, Goats and Sheep (Movement and Transaction) Control Order, 1944. He has been sentenced to a fine of Rs. 30 in addition to an order of confiscation of 67 heads of sheep and goats which were the subject-matter of offence charged. The charge against him was that on 19-8-1945 he was found, without a proper license, attempting to carry on business as a dealer in 67 heads of sheep and goats which he had brought from Sonepur State for the purpose of sale in Sambalpur, and that thereby he had contravened the provisions of Clause 4 of the Order. This Order was framed and promulgated by the Governor of Orissa in exercise of the powers conferred by Sub-rule (2) of Rule 81, Defence of India Rules.

(2.) The accused pleaded not guilty to the charge and said that he had a license which was in force at the time of the occurrence. This position seems to me to be obviously correct. I have examined the license and I find, and it has also not been controverted by the Counsel for the Crown, that it was granted on 3-11-1944, that it has been granted for one year which fact is clear on the face of the license itself; but the licensing authority under the column "Period" added certain words which are the basis of all this confusion and the unhappy position of the petitioner. He says that the license is valid for one year up to 25-6-1945. The period, if calculated from the date of the grant of the license up to 25-6-1945, would make about eight months, a period less than a year. The question, therefore, arises whether the licensing authority had power to reduce the period, for which the license is to remain in force, according to his own discretion. This takes us to Rule 6 of the Order which reads as follows: The license shall be valid for a period of one year and may be renewed for a period of one year by an application made to the licensing authority on payment of a fee of Rs. 10. The rule is imperative and leaves no discretion to the licensing authority to grant a license for any period shorter than one year. This rule conveys the interpretation to my mind, that once the licensing authority grants a license, irrespective of his expressing anything as to period, it shall, per force of this rule, remain valid for one year from the date of its grant. In this view, the petitioner had his license in force till 3-11-1945, and, therefore, at any date prior to that he cannot be said to have by carrying on the impugned trade, contravened the order in question. The learned Magistrate in coming to the conclusion that the accused is guilty expressed himself in the following manner: Further in the license itself, it has been noted that the license is valid for one year upto 25-6-1945. I think the Licensing Authority can fix the annual period of validity of a license, unless there is specific direction in the Control Order that a license will be valid for a year from the date of issue of each individual license. For my part, I have not been able to follow what the learned Magistrate means. If what he says amounts to saying that he could grant a licence with a retrospective effect, he would no doubt be making a law himself. Now the period of validity of a license must, under all circumstances, and in all contingencies, be computed from the date of its grant, or some future date which I can easily conceive the law to mean; but there are no words in Rule 6, quoted above, which entitle a licensing authority to grant a licence with a retrospective effect, nor is there any warrant for this sort of view in the text of the Order. I can agree with the learned Magistrate that licensing authority, in granting the license, can fix a period of one year which is to be computed from a certain date after the date of grant till another date which will make up one year; but I cannot agree that the licensing authority, by way of computing the date where the year is to end, can himself contravene the Order in the sense by granting a licence for a period of less than a year, or can give effect to it retrospectively so as to cover a period during which there was no business nor any licence prevailing for it.

(3.) In my view, therefore, the licence was in force at the time of the occurrence, and, hence, the petitioner cannot be said to have contravened the rule in question, and to have committed any offence under Rule 81(4), Defence of India Rules. The order of conviction must, therefore, be set aside. The fine, if paid, should be refunded, and the properties confiscated, or their sale proceeds, must be restored to the petitioner. The rule is thus made absolute.