ARBIND KUMAR DEB Vs. REX

JUDGEMENT

(1.) The questions referred to the Full Bench are set out in the referring order in these terms: (1) Does the mere possession of cloth which was not to be possessed after 31 December 1944, in view of Clause 14, Sub-clause (1) (a), Cotton Cloth and Yarn (Control) Order 1943, amount to so contravening the provisions of that Order as to be punishable under Rule 81 (4), Defence of India Rules or would it amount to such contravention if such possession be without lawful authority or lawful excuse? (2) Whether the general consideration that the authorities did not, either in this Control Order or in directions issued thereunder, provide the mode in which the dealers were to act in the event of such cloth remaining with them undisposed of, would itself amount to a lawful excuse. (3) Whether the existence of lawful excuse depends on the dealers taking some active steps prior to 31 December 1944, for getting rid of the cloth before or after 31 December 1944.

(2.) The full facts of the cases in which the questions mentioned above have arisen are given in the referring order. All that is necessary for us to do is to indicate briefly, in outline, the salient features which have to be borne in mind in appreciating the points raised in these cases. All these cases, 25 in number, have been consolidated. In all of them admittedly retail dealers were found in possession of cloth after 31 December 1944. In consequence, all these dealers have been prosecuted for an offence under Rule 81 (4), Defence of India Rules, for contravening the provisions of Clause 14, Cotton Cloth and Yarn (Control) Order, 1943. In none of these cases has any dealer denied the recovery of cloth from his possession. Their defence, in the main, has been that they were, for one reason or another, quite unable to dispose of the cloth in their possession by the specified date, i.e., 31 December 1944. In some of these cases, the plea taken in defence, in terms, was that the respondents had tried their best to sell the cloth in their possession before the expiry of the period of time prescribed, but that they had failed in their attempt in spite of their best efforts. The trial Court, however, even in cases where it accepted the plea in defence that in spite of his best efforts the dealer was, unable to dispose of the cloth, convicted the accused. On appeal, the learned Sessions Judge set aside conviction. He appears to have done so on two grounds (i) that, in view of the provisions of Clause 15-A, the dealers could, in law, keep and sell any cloth an disposed of within the period specified in Clause 14 and (ii) that the dealers had a lawful excuse within the meaning of that expression as used in Rule 5, Defence of India Rules. The learned Judge appears to have been influenced to a large extent by the fact that no machinery for the disposal of the cloth lying undisposed of with the dealers by 31 December 1944, was provided in the Control Order. Against the order passed by the learned Sessions Judge, the Provincial Government has filed appeals in these cases.

(3.) We have listened to prolonged arguments, on the one hand, from the learned Government Advocate, who appears in support of the Government appeals, and, on the other, from different counsel who appear for different respondents. In the course of their arguments, they have invited our attention to a large number of rulings- They have also brought to our notice the relevant provisions of the Control Order as well as of the Defence of India Rules relevant thereto, in support of their contentions. We shall revert to these rulings after considering the relevant provisions of the Control Order as well as of the Defence of India Rules.