Imperator v. Hansraj Astaji Accused

Lokur, J.:—Government is empowered to make rules to control the purchase or sales and thereby regulate the acquisition.

We submit that prohibition of acquisition of a thing does not effect control of trade and regulation of the supply within the meaning of cl. 20. Under the wide words of the Order, every purchase beyond the specified quantity is made penal, irrespective of the consideration of control of trade and industry.

Dealing with the point 3 relating to the confiscation we submit that the Order does not provide for confiscation of property. The wording in amendment to rule 81(4) is clear viz., “If the Order so provides” then only the Court is empowered to forfeit the property to His Majesty. In the absence of any provision in the Order, power to confiscate cannot be exercised under the provisions of s. 517 of the Criminal Procedure Code. Section 517, Criminal. Procedure Code, provides for mere procedure to be followed after the trial is concluded to dispose of property. The right to confiscate must be granted by some enactment and only when the right is so conferred the Court can deal with the property according to the procedure under sec. 517 of the Criminal Procedure Code.

S.G Patwardhan, Assistant Government Pleader, for the Opponent. We submit that r. 81, cl. 2 of the Defence of India Rules is in no way ultra vires of s. 2, cl. 2, of the Defence of India Act, 1939. There is no conflict between these. It cannot therefore be contended that cl. A of sub-cl. 2 of r. 81 goes beyond the provision of cl. 20, sub-cl. 2 of s. 2 of the Act. The prohibition of sale and even acquisition of copper is controlled for the purposes of war and the Government would have to make rules for that purpose and r. 81(2)(a) is made for the purpose. Under s. 2(2), cl. 20, Government has power to make rules for control of agriculture, trade, industry for the purpose of regulating and increasing the supply thereof. The acquisition of metal requires to be controlled.

As to confiscation of property, we submit that amendment of r. 81(4) does not conflict with s. 517 of the Criminal Procedure Code. Rule 81(4) is a penal section, while 517 deals with the matter of procedure, regarding the disposal of property before the Court and has no connection with punishment. This power of the Court is in no way restricted by the amendment.

Divatia, J.:—What is the effect of the words ‘if the order so provides’.

They mean that by the provision in the order the confiscation is permitted. That merely emphasises the position. It does not, however, mean that the general powers of the disposal of the property after termination of the case conferred by s. 517 of the Criminal Procedure Code are taken away. If the framers of the amendment wanted to do so they would have said so. The amendment is merely an enabling provision.

Divatia, J.:—This revisional application has been referred to us for decision on two points arising under the Defence of India Act. The facts shortly are that the petitioner was charged with and convicted of the offence of purchasing from a merchant eleven bundles of copper wires weighing 545 seers for Rs. 2,445 on April 18, 1943, without a permit under the “Non-Ferrous Metals Control Order, 1942”. The relevant provisions of cl. 6 of the said Order are that no person shall acquire more than twenty lbs. of copper wire in one calendar month without (braining a permit from the Controller. This Order is issued by the Central Government under the Defence of India rule 81(2)(a), which enacts that the Central Government, so far as appears to it to be necessary or expedient for securing the defence of British India or the efficient prosecution of the War, or for maintaining supplies and services essential to the life of the community, may by order provide, among other things, for regulating or prohibiting the acquisition of articles or things of any description whatsoever. This rule is made under s. 2, sub-s. (1) and in particular under sub-s. (2)(xx), under which a rule may be framed for the control, among other things, of trade or industry for the purpose of regulating or increasing the supply of articles or things of any description whatsoever which can be used in connection with the conduct of war or for maintaining supplies and services essential to the life of the community.

The purchase of the copper wire without a permit was admitted by the petitioner, but he pleaded a bona fide belief that it did not require a permit. The trying Magistrate held that the purchase by the petitioner fell under cl. 6 of the Order, convicted him of the offence under r. 81(4) of the Defence of India Rules and sentenced him to rigorous imprisonment for one day and a fine of Rs. 200. He further directed under s. 517 of the Criminal Procedure Code that the copper wire should be confiscated to Government and sent to the Controller for disposal. The Additional Sessions Judge confirmed the conviction and the sentence as well as the order of confiscation. Two points are urged before us on behalf of the petitioner. The first is that r. 81(a) in so far as it prohibits acquisition of property otherwise than for trade or industry is ultra vires of s. 2(2)(xx) of the Defence of India Act, with the result that the Control Order issued under the said rule is also ultra vires to that extent. The second point is that the Magistrate had no jurisdiction to pass an order for confiscation under s. 517 of the Criminal Procedure Code, as under r. 81(4) the confiscation can be made only if it is so provided in the Control Order, and there is no such provision in the Order.

As regards the first point, the contention is that it is not proved that the petitioner had purchased the copper wire for trade purposes. Section 2(2)(xx) provides for making a rule only for the control of any trade or industry. Rule 81(2), therefore, in so far as it provides for making an order to regulate or prohibit the acquisition of any article whether for the purpose of trade or not is ultra vires of the section. It is true that there is no clear evidence to show that the copper wire was purchased by the petitioner for trading in it and we may proceed on the basis that it was purchased for his own use. The question is whether r. 81(2) goes beyond its parent section in empowering the regulation or prohibition of any acquisition of property and is therefore invalid.

Now, under s. 2(2)(xx) the rule is to be made for establishing control of trade for the purpose of regulating or increasing the supply of any article which can be used for the conduct of war and for maintaining essential supplies and services. This means that for the purpose of increasing the supply of certain articles it is necessary to establish control over and regulate trade or business in that article. A trading transaction includes selling as well as buying, and a transaction by which a trader sells the article to a person who is not a trader is as much a transaction of trade as the one by which he sells it to another trader. Any control or regulation of trade, therefore, would include both these transactions, otherwise the object of control would be clearly frustrated, and the articles instead of being controlled might disappear from the market. Any rule made for the purpose of such control would come within the scope of the section and r. 81(2)(a) carries out that object by providing for regulation of acquisition, use or consumption of essential articles. Under cl. 6 of the Control Order it is provided that no person can acquire and no dealer can sell more than twenty lbs. of copper wire to any buyer who is not in possession of a valid permit. In the present case the petitioner has purchased the copper wire from a dealer. In my opinion this provision in the Order is quite in consonance with r. 81(2)(a) which again is within the power conferred under s. 2(2)(xx) on the Central Government. The Order as well as the rule are, therefore, intra vires.

The second point relates to the power of confiscation. Rule 81(4) as it originally stood prescribed punishment for contravening any Order made under that rule. In February, 1943, an amendment was made to this rule by addition of the words “and, if the Order so provides, any Court trying such contravention may direct that any property in respect of which the Court is satisfied that the Order has been contravened shall be forfeited to His Majesty”. In the present case the offence has taken place after the amendment and it is, therefore, governed by it. Now, the Control Order of 1942 does not provide for such forfeiture or confiscation. But it is contended by the learned Assistant Government Pleader that the Courts general power under s. 517 of the Criminal Procedure Code to pass any order for the disposal of property which is the subject-matter of an offence by directing its confiscation is not abrogated by the amended provision of r. 81(4). In support of this contention it is urged that if confiscation is provided in the Order itself it is to be imposed as a part of the penalty, but if it is not provided, the Court can pass the order not as a penalty hut as an order for disposal of property as some order must be passed regarding the property produced before it. It is further urged that there are various Acts in which power to order confiscation is specifically prodded for in spite of the general power under s. 517, Criminal Procedure Code, which, however, does not cease to apply because of the special provision. In my opinion this argument does not assist the prosecution case. The provision in the rule is that the order of confiscation may be made if the Order so provides. That shows, to my mind, a clear intention of the Legislature that no order for confiscation can be made if the Order did not provide for it. That would include an order of confiscation by way of disposal of property also. The Court may have the power to pass any order of disposal other than that of confiscation, but confiscation of property can be ordered if the particular Order issued under the rules provided for it. The words “if the Order so provides”, which cannot be regarded as redundant, must be given their plain meaning, and that meaning, in my view, is that although an order of confiscation can be made by the Court in its discretion under s. 517, that discretion is not to be exercised in those cases in which the appropriate authority issuing the Order did not think it desirable that such discretion should be used. Rule 81(4) imposes special penalty for special offences created by that rule consisting in the contravention of any Order made under the rule, and when it expressly says that the order of confiscation can be made if it is so provided in the Order which is being contravened, it must be taken to mean that if the Order is silent about it, no order of confiscation, and in some Orders issued before the amendment, the power of disposal of property. There is no doubt that such a rule abrogating or modifying the provisions of the Criminal Procedure Code could be made by virtue of the provisions of s. 3 of the Defence of India Act. That section expressly says that any rule made under s. 2, and any order made under such rule, shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than that Act. There are some Orders issued under this rule after the amendment which do provide for the order of confiscation and in some Orders issued before the amendment, the power of forfeiture was added after the amendment. That clearly shows that the words “If the Order so provides” are not redundant but are purposely added to confine the order of confiscation to those cases where it is so provided in the Order. With great respect, I am unable to accept the view taken by Macklin and Sen JJ., who have referred this application to us, that it is not clearly expressed in the rule that the Court would not have the power to order confiscation unless the Order provided for it, and that the provisions of s. 517 of the Criminal Procedure Code cannot be abrogated. I agree with the decision of N.J Wadia and Weston JJ. in Purshottam Devjibhai Patel…Petitioner (Original, Accused); v. Imperator, that the words “If the Order so provides” limit the Court's power to order confiscation under the general provisions of s. 517 of the Criminal Procedure Code.

In the result, the order of confiscation of the copper wire passed by the trial Court is set aside and the rule is made absolute to that extent. The copper wire should be returned to the accused. The order of conviction and sentence is confirmed.

Lokur, J.:—I agree. The facts of this case are not disputed. On April 18, 1943, the applicant purchased from one Abasbhai eleven bundles of copper wire, weighing 545 seers, for Rs. 2,445, without obtaining a permit from the Controller as required by cl. 6 of the Non-Ferrous Metals Control Order, 1942. For this contravention of the Order, the applicant was tried by the City Magistrate, Poona City, convicted under r. 81(4) of the Defence of India Rules and sentenced, and the wire-bundles were ordered to be confiscated. In appeal the learned Additional Sessions Judge confirmed the conviction and the sentence, and made it clear that the order of confiscation was made under s. 517 of the Criminal Procedure Code.

The applicant's conviction is now impeached on the ground that r. 81(2) of the Defence of India Rules and the Non-Ferrous Metals Control Order. 1942, are outside the scope of s. 2, sub-s. (2), of the Defence of India Act, 1939, and, therefore, ultra vires. Clause 6(1) of the said Order provides that no person shall acquire or shall agree to acquire more than one pound of tin or lead fuse wire, or twenty lbs. of nickel or copper wire, or 1 cwt. of any other controlled non-ferrous metal in one calendar month unless lie has prior to such acquisition or agreement made an application to the Controller and has obtained a permit from him. The order is issued obviously under cl. (a) of sub-r. (2) of r. 81 of the Defence of India Rules. Under that clause the Central Government or the Provincial Government, so far as it appears to be necessary or expedient for securing the defence of British India or the efficient prosecution of war, or for maintaining supplies and services essential to the life of the community, may by order provide for regulating or prohibiting the production …… distribution, disposal, acquisition, use or consumption of articles or things of any description. Under this rule the Provincial Government can pass an order like cl. 6(1) of the Non-Ferrous Metals Control Order, 1942, regulating the sale of copper wire, but it is urged that the rule itself is ultra vires. The said cl. (a) of r. 81(2) of the Defence of India Rules is admittedly made in exercise of the powers conferred by s. 2, sub-s. (2)(xx), of the Defence of India Act. It empowers the Central Government to make rules providing for:

“the control of agriculture, trade or industry for the purpose of regulating or increasing the supply of ……articles or things of any description whatsoever which can be used in connection with the conduct of war or for maintaining supplies and services essential to the life of the community.”

It is argued on behalf of the applicant that this clause of s. 2(2) is intended for the control of agriculture, trade or industry and does not contemplate the prohibition or regulation of the acquisition of any property for private use or for purposes other than agriculture, trade or industry. It is true that sub-s. (1) of s. 2 of the Defence of India Act confers unlimited powers upon the Central Government to make any such rules as may appear to it to be necessary or expedient for securing the defence of British India, the public safety, the maintenance of public order or the efficient prosecution of war, or for maintaining supplies and services essential to the life of the community. But it is now well settled that a rule providing for or empowering any authority to make orders providing for any of the subjects mentioned in the thirty-five clauses of sub-s. (2) must not be outside the scope of those clauses. If any rule empowers any authority to make an order providing for any matter not comprised in those thirty-five clauses, the rule is invalid, and where an order is made by virtue of such rule the order must be treated as a nullity (Keshav Talpade v. King-Emperor). But I do not think that r. 81(2) is in any way beyond the scope of s. 2, sub-s. (2)(xx), of the Defence of India Act. Control of trade for the purpose of regulating the supply of any article necessarily includes regulating the sale of that article. Prohibiting or regulating the acquisition of that article by purchase is only a means to that end. The acquisition may not be for the purpose of trade, but the regulation of purchase will necessarily result in the control of the trade in that article even though the purchase itself may not be made for the purpose of trade. Hence both the rule and the Order are intra vires, and valid and the applicant has been rightly convicted.

It is next urged that the order of confiscation of the copper wire purchased by the applicant is illegal, as the Non-Ferrous Metals Control Order, 1942, does not provide for such confiscation. Rule 81(4) of the Defence of India Rules prescribes punishment for contravention of any order made under that rule, and as it originally stood, it made no provision for confiscation of any property in respect of which the order was contravened. But by an amendment made on February 3, 1943, the following words were added to that sub-rule:

“and, if the Order no provides, any Court trying such contravention may direct that any property in respect of which the Court is satisfied that the order has been contravened shall be forfeited to His Majesty.”

It is clear that on a conviction under r. 81(4) of the Defence of India Rules, forfeiture or confiscation of property with regard to which any order is contravened can be ordered only if the Order so provides. Admittedly cl. 6(1) of the Non-Ferrous Metals Control Order, 1942, for the contravention of which the applicant has been convicted, does not provide for forfeiture or confiscation. Hence the learned Additional Sessions Judge has confirmed the order of confiscation as made under s. 517 of the Criminal Procedure Code. That section deals with the disposal of property at the conclusion of an inquiry or trial in a criminal Court. Under the old s. 517, as it stood before the amendment in 1923, there was a conflict of opinion as to whether a Court could order confiscation. But the amended section makes it clear that the power of disposal includes the power to confiscate also. It is argued that although s. 517 of the Criminal Procedure Code gives a wide discretion to the criminal Court to order confiscation of any property regarding which any offence appears to have been committed or which has been used for the commission of any offence, yet where the offence is one punishable under r. 81(4) of the Defence of India Rules, that power is curtailed, since under that rule confiscation can be ordered only if the Order contravened so provides. The language of r. 81(4) as amended clearly implies that no confiscation can be ordered where the Order contravened does not provide for it.

The learned Assistant Government Pleader points out that there is no conflict between r. 81(4) of the Defence of India Rules and s. 517 of the Criminal Procedure Code, as the former provides for confiscation by way of penalty and the latter provides for disposal of property by confiscation. This is really a difference without a distinction, as the practical effect of both would be the same. In the absence of the provision for confiscation, which was added to r. 81(4) of the Defence of India Rules in February, 1943, criminal Courts had power under s. 517 of the Criminal Procedure Code to confiscate any property with regard to which any order under r. 81 had been contravened, and the addition was really superfluous. But in several enactments, even after s. 517 of the Criminal Procedure Code was amended in 1923, provision was made for confiscation of the property used for the commission of an offence under the particular Act, as for instance in ss. 4 and 17 of the Press (Emergency Powers) Act, 1931, in s. 33 of the Dangerous Drugs Act, 1933, in s. 13 of the Indian Aircrafts Act, 1934, in s. 27 of the Indian Petroleum Act, 1934, and in s. 55 of the Indian Forests Act, 1927. Such a provision in all these Acts is superfluous and is evidently intended to emphasise the power of confiscation which the criminal Courts already possessed under s. 517 of the Criminal Procedure Code. If the amendment of r. 81(4) of the Defence of India Rules was only intended for a similar emphasis of that power, it would not have made the exercise of that power conditional upon its being specifically provided for in the order contravened. The object of that condition is obvious. Orders issued under r. 81 of the Defence of India Rules are aimed at curtailing the natural rights of the subject in respect of free trade, contracts, transport of goods, and the like, as a measure of war emergency, in order to secure the defence of British India, the public safety, the maintenance of public order or the efficient prosecution of war or to maintain supplies and services essential to the life of the communities. Hence to avoid unnecessary hardships involved in such emergency measures, r. 81(4) of the Defence of India Rules does not empower confiscation of property in every case, but has expressly restricted it only to such cases as are provided for by the Order contravened. This is undoubtedly a curtailment of the power of confiscation conferred upon criminal Courts by s. 517 of the Criminal Procedure Code and is to that extent inconsistent with that section. But s. 3 of the Defence of India Act provides that any rule made under s. 2 and any order made under such rule shall have effect notwithstanding anything inconsistent therewith, contained in any other enactment. Hence the amended r. 81(4) of the Defence of India Rules must be deemed to have impliedly superseded the provisions of s. 517 of the Criminal Procedure Code regarding the power of forfeiture. Section 5, sub-s. (2), of the Criminal Procedure Code also provides that the application of the provisions of the Criminal Procedure Code to the investigation, inquiry, trial, etc., is subject to any enactment in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with offences. Penal statutes have to be strictly construed in favour of the subject. This is particularly so in the case of enactments which create new offences for meeting an emergency and seek to penalise acts which in normal times would not amount to an offence. Bearing this in mind the Central Government has deliberately limited the power of the Courts to order forfeiture only to cases where the Order contravened provides for it. This was the view taken by N.J Wadia and Weston JJ. in Purshottam Devjibhai Patel…Petitioner (Original, Accused); v. Imperator and I respectfully agree with it. In spite of the restriction on the power of forfeiture thus imposed by the amendment of r. 81(4) of the Defence of India Rules, no provision for forfeiture has been made in the Non-Ferrous Metals Control Order, 1942, and hence the order of forfeiture in this case cannot be upheld. I, therefore, agree with the order proposed by my learned brother.

Rajadhyaksha, J.:—I agree.

In this case the applicant purchased on April 18, 1943, eleven bundles of copper wire weighing in all 545 seers from a trader, Abbasbhai Abdulbhai of Poona, without obtaining any permit under the Non-Ferrous Metals Control Order of 1942, issued by the Central Government in exercise of the powers conferred by sub-r. (2) of r. 81 of the Defence of India Rules. The goods originally belonged to the Baramati Electric Supply Company. They put up new overhead wires, and their agent, Mr. Bharucha, sold the old wires as scrap metal to Abbasbhai on April 16, 1943. Abbasbhai in his turn sold them to the applicant on April 18, 1943. They were attached by the police on April 23, 1943, and the applicant was thereupon put up for trial for having contravened cl. 6(1) of the Non-Ferrous Metals Control Order, 1942, which runs as follows:

“No person shall acquire or agree to acquire, more than one lb. of tin or lead fuse wire, or twenty lbs. of copper wire, or ten lbs. of processed zinc plate or one cwt. of any other controlled non-ferrous metal in one calendar month, unless he has, prior to such acquisition or agreement made an application in form C to the Controller and has obtained a permit from the Controller in form D.”

The applicant admitted having made the purchase, and there is no dispute that if the Non-Ferrous Metals Control Order, 1942, is intra vires, the applicant is guilty of an offence under sub-r. (4) of r. 81 of the Defence of India Rules which provides for punishment for the contravention of any Order made under r. 81. On his own admission of the purchase of the goods, the learned Magistrate convicted the applicant and sentenced him to suffer rigorous imprisonment for one day and to pay a fine of Rs. 200 or in default to suffer rigorous imprisonment for three months. The learned Magistrate further directed that the property before the Court should be confiscated to Government and sent to the Controller for disposal under s. 517 of the Criminal Procedure Code.

Against this order the applicant filed an appeal in the Sessions Court of Poona, and the appeal was heard by the learned Additional Sessions Judge. The learned Judge confirmed the order of the lower Court and dismissed the appeal.

Against that order the applicant applied in revision, and the matter came up before the division bench of this Court consisting of Macklin and Sen JJ. It was contended before them that the Non-Ferrous Metals Control Order, 1942, was ultra vires, and that in any event, the order as regards the confiscation of the property was illegal. The argument in support of the first contention was that the Order was ultra vires in so far as the Order and the rule on which it was based purported to regulate the acquisition of copper otherwise than in connection with trade or industry. The learned Judges thought that in so far as the rule and the Order could be made applicable to trade, it was probable that they were within the section on which they were ultimately based; even assuming for the sake of argument that they would be ultra vires for purposes not connected with trade, it was not established that the applicant accused had acquired the copper for purposes not connected with trade. The learned Judges thought that, prima facie, the accused bought the copper for trade purposes, just as his vendor dealt in it for trade purposes; and if the accused wished to escape liability by pleading the inapplicability of the Order to his act, he must establish facts which would make it inapplicable. As regards the second point in the application, viz. as regards the legality of the order of confiscation, the argument before them was that the order of confiscation was illegal under r. 81(4) of the Defence of India Rules. That rule originally stood as follows:

“If any person contravenes any order made under this rule, he shall be punishable with imprisonment for a term which may extend to three years or with fine or with both”.

On February 5, 1943, the rule was amended by the addition of the following words:

“and, if the Order so provides, any Court trying such contravention may direct that any property in respect of which the Court is satisfied that the Order has been contravened shall be forfeited to His Majesty.”

The Non-Ferrous Metals Control Order made no provision that any property, in respect of which the Court was satisfied that the order has been contravened, shall be forfeited to His Majesty; and the argument addressed to the learned Judges was that as no special provision had been made to that effect, it was not legal to pass any order confiscating the eleven bundles of copper. The learned Judges was that r. 81(4), as amended, was superfluous us in view of s. 517, and that at best it ought not to be taken to be implying its converse, namely that no Court should have authority to order confiscation if the Order did not provide for it. This view of the learned Judges was contrary to the view expressed by N.J Wadia and Weston JJ. in Purshottam Devjibhai Patel…Petitioner (Original, Accused); v. Imperator. They, therefore, thought that in view of their doubts as regards the correctness of the decision in Purshottam Devjibhai Patel…Petitioner (Original, Accused); v. Imperator and of the general importance of the other question involved in the case, viz. as regards the Non-Ferrous Metals Control Order being intra vires, the whole application should be referred to a full bench for decision.

As the prosecution has not established in this case that the applicant obtained the copper for purposes of trade, we must assume in favour of the accused that his purchase of the copper was only for private purposes and not for purposes of trade. Section 6(1) of the Non-Ferrous Metals Control Order under which the applicant was prosecuted does not refer to the acquisition of non-ferrous metal for purposes of trade only, and the act of the accused would ordinarily be punishable if the Non-Ferrous Metals Control Order is legal and intra vires. The first contention urged by Mr. J.C Shah for the applicant therefore is that r. 81(2)(a) of the Defence of India Rules is ultra vires of the Act in so far as it authorises orders being made for the acquisition of goods otherwise than in connection with trade or industry. The rule has been made under s. 2 of the Defence of India Act, and the relevant clause empowering the making of the rule is cl. (xx) of sub-s. (2) of that section which lays down that:

“Without prejudice to the generality of the powers conferred by sub-s. (1), rules may provide for, or may empower any authority to make orders providing for,…

(xx) 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 connection with the conduct of war or for maintaining supplies and services essential to the life of the community.”

Rule 81(2) lays down that:

“The Central Government or the Provincial Government, so far as appears to it to be necessary or expedient for securing the defence of British India or the efficient prosecution of the war, or for maintaining supplies and services essential to the life of the community, may by order provide—

(a) for regulating or prohibiting the production, treatment, keeping, storage, movement, transport, distribution, disposal, acquisition, use or consumption of articles or things of any description whatsoever and in particular for prohibiting the withholding from sale, either generally or to specified persons or classes of persons of articles or things kept for sale, and for requiring articles or thing kept for sale to be sold either generally or to specified persons or classes of persons or in circumstances”;

It was in pursuance of this rule that the Central Government issued the Non-Ferrous Metals Control Order of 1942, cl. 6(1) of which has already been reproduced above. Neither r. 81(2) of the Defence of India Rules nor the Non-Ferrous Metals Control Order refers specifically to the regulation of trade and industry, and it was, therefore, argued by the learned counsel for the applicant that in so far as the rule and the Order regulate the acquisition of specified non-ferrous metals for purposes unconnected with trade or industry, they are ultra vires of the Act. In my opinion, this contention cannot be accepted. It is undoubtedly true, as has been laid down by the Federal Court in Keshav Talpade v. King-Emperor that where rules are made with respect to matters specifically enumerated in sub-s. (2) of s. 2 of the Defence of India Act, the general provision contained in sub-s. (1) of that section must be deemed to be modified to that extent and cannot be resorted to if the actual rule goes beyond the scope of the words used in various paragraphs in sub-s. (2). The question, therefore, for consideration is whether r. 81(2) of the Defence of India Rides can be deemed to be within the rule-making power conferred by cl. (xx) of sub-s. (2) of s. 2 of the Act which refers to the “control of agriculture, trade or industry for the purpose of regulating or increasing the supply of articles or things of any description whatsoever which can be used in connection with the conduct of war or for maintaining supplies and services essential to the life of the community”. A distinction has to be drawn between the purpose for which the rule is made and the manner in which that purpose is to be carried into effect. The purpose of the Non-Eerrous Metals Control Order is undoubtedly of regulating the supply of articles which can be used in connection with the conduct of war and of maintaining supplies essential to the life of the community. But under cl. (xx) of sub-r. (2), this purpose can be carried into effect by control of agriculture, trade or industry. A question, therefore, arises whether the Central Government in enacting r. 81 seeks to control trade or not. “Trade” is defined in the Oxford English Dictionary as “practice of some occupation, business or profession habitually carried on, especially when practised as a means of livelihood or gain”. It is to control trade in this sense that the Non-Ferrous Metals Control Order has been issued. Clause (3) of that Order requires a stock-holder or a dealer to take a license from the Controller. Clause (4) prevents persons from engaging themselves in any undertaking which involves the use or consumption for the purpose of any manufacturing process of more than fifty lbs. of any of the controlled non-ferrous metals in any one calendar month except under, and in accordance with, the conditions of license issued by the Controller. Then we come to cl. 6 which is the impugned clause. Under sub-cl. (2) of that clause, no dealer may sell more than one lb. of tin or lead fuse wire or twenty lbs. of copper wire or twenty lbs. of processed zinc plates or one cwt. of any other controlled non-ferrous metal in any one calendar month to any buyer who is not in possession of a valid permit in form D. It cannot be disputed that this particular clause which prohibits a dealer in metals from selling more than the fixed quantity is intra vires of the Act because it directly controls trade. Sub-clause (1) of cl. 6 is merely a complementary provision which prevents any person from acquiring the metal which the dealer is prevented from selling under sub-r. (2). If this provision under sub-r. (1) had not been there, an anomalous situation would have arisen. The dealer would have been guilty of an offence in selling certain goods but the purchaser would not have been guilty of an offence in acquiring the goods which the dealer was prohibited from selling. The control of trade definitely postulates the control of both selling and buying. The control of trade in a commodity, in my opinion, includes controlling of all transactions by way of selling and buying in connection with that commodity, and in that view, it cannot be said that the non-Ferrous Metals Control Order of 1942 is ultra vires of s. 2, sub-s. (2), cl. (xx) of the Defence of India Act.

The next point that was urged by the learned counsel for the applicant was that even holding that the Non-Ferrous Metals Control Order is intra vires, the order confiscating the eleven bundles of copper wire was not justified by the provisions of sub-r. (4) of r. 81 of the Defence of India Rules. Under that sub-rule, as amended on February 5, 1943, the Court may direct that any property in respect of which the Court is satisfied that the Order has been contravened shall be forfeited to His Majesty, if the Order so provides. The Non-Ferrous Metals Control Order does not provide for the confiscation of the goods in respect of which an offence has been committed. The order of the trial Court, therefore, is not justified by the provisions of r. 81(4) of the Defence of India Rules. Both the trial Court and the Appeal Court, however, are of opinion that the order is justified by the provisions of s. 517 of the Criminal Procedure Code which empowers a Court in passing an order for the disposal of property to order destruction, confiscation or depriving any person claiming to be entitled to the possession thereof. If the general provisions of s. 517 of the Criminal Procedure Code could have been availed of for ordering confiscation of the property, it would not have been necessary to make special provision for confiscation in r. 81(4) of the Defence of India Rules and Orders issued under that rule. The learned Judges before whom this application came up for hearing were of opinion that r. 81(4), as amended, was superfluous in view of s. 517 of the Criminal Procedure Code. With the greatest respect to the learned Judges, I am of opinion that no such redundancy is to be attributed to the Legislature. If the rule had made confiscation compulsory, having regard to the fact that it was discretionary under s. 517 of the Criminal Procedure Code, one could have understood the special provision made to that effect. For instance, under s. 169 of the Indian Penal Code, confiscation of property is made compulsory in spite of the fact that it was open to the Court to order confiscation under s. 517 of the Criminal Procedure Code. But sub-r. (4) of r. 81, as amended, also leaves it to the discretion of the trying Court whether the property shall be forfeited or not. For the Order uses the words “the Court may direct that any property in respect of which the Court is satisfied that the Order has been contravened shall be forfeited to His Majesty”. The effect of the amendment of r. 81(4), therefore, is not merely to emphasize the general power that was already vested in Courts under s. 517 of the Criminal Procedure Code as the learned Assistant Government Pleader argued; the effect of it, in my opinion, is to curtail it by enacting that such a power should be exercised only if the Order made under r. 81 so provided. It is not necessary here to enter into a discussion about the question whether under s. 517 of the Criminal Procedure Code an order of confiscation could be made when there was no special provision in law authorising such confiscation. The Allahabad High Court has held in the case of Emperor v. Ballu Sing that even where there is no special provision made for the confiscation of property, s. 517 of the Criminal Procedure Code can justify an order of confiscation if the Magistrate was unable to say to which of the accused the property belonged. But in the view I take of the effect of the amendment made in sub-r. (4) of r. 81 of the Defence of India Rules, there is a definite bar to an order of confiscation being made if the Order made under r. 81(2) of the Defence of India Rules made no provision for such an order being passed. The effect of an order for forfeiture as a part of punishment under r. 81(4) of the Defence of India Rules and an order of confiscation under s. 517 of the Criminal Procedure Code as a part of the order for the disposal of property is the same, and to hold that under s. 517 of the Criminal Procedure Code, property may be forfeited to Government would be to hold that, in an indirect way, the accused may be subjected to a penalty which the rule which creates the offence and provides the penalty says may be imposed if a special provision is made to made such penalty imposable imposable by an Order made under that rule. Rule 81(4) of the Defence of India Rules was amended on February 5, 1943, by adding the words:

“and if the Order so provides, any Court trying such contravention may direct that any property in respect of which the Court is satisfied that the Order has been contravened shall be forfeited to His Majesty.”

Since that amendment was made, the Central Government has, under several orders issued under r. 81(2) of the Defence of India Rules, made special provision for confiscation. For instance, in cl. 22 of the Cotton Cloth and Yarn (Control) Order issued on June 17, 1943, in cl. 17 of the Motor Vehicles Spare Parts Control Order issued on September 16, 1943, and in cl. 17 of the Drugs Control Order issued on November 11, 1943, special provision is made that any Court trying a contravention of the provisions of the Order may direct that the article in respect of which an offence was committed shall be forfeited to His Majesty. After the amendment, even the Orders issued prior to the amendment were amended by inserting the necessary clause enabling the Courts to order forfeiture, for instance, the Essential Drugs (Census) Order 19 of 1941, did not contain any clause enabling an order of forfeiture being made. But the Order was amended on June 23, 1943, by adding a new cl. 10 that

“the Court trying a contravention of the provisions of the Order may direct that any stocks of essential drugs, in respect of which it is satisfied that such provision has been contravened, shall be forfeited to His Majesty.”

The Foodgrains Control Order, 1942, did not contain any clause enabling an order of forfeiture being made. But since the amendment of sub-r. (4) of r. 81 of the Defence of India Rules, a new cl. 7A was added on February 5, 1943, i.e on the very day on which the rule was amended, to the effect that

“any Court trying an offence under that Order may direct that any stocks of foodgrains, together with the packages and covering thereof, in respect of which the Court is satisfied that an offence has been committed, shall be forfeited to His Majesty.”

Similarly, in the Orders issued on July 29, 1943, by the Government of Bombay, regulating import into and export out of the city of Bombay of foodstuffs special clauses were added on November 2, 1943, that

“any Court trying offences for contravention of the orders may direct that any stocks of the articles in respect of which the Court is satisfied that an offence has been committed shall be forfeited to His Majesty.”

The Bombay Retail Trade Control and Licensing Order, 1942, issued on July 29, 1942, and the Essential Articles Restricted Acquisition Order, 1943, issued on January 19, 1943, contained no clause enabling an order of forfeiture being made by Courts. But both these Orders were amended, the first one by inserting cl. 7A on April 30, 1943, and the second one by inserting a new cl. 4A, on September 27, 1943, providing that any Court trying an offence for the contravention of certain provision of those Orders may direct that any stocks of foodgrains or essential articles, as the case may be, together with packages and coverings thereof, in respect of which the Court is satisfied that the offence has been committed, shall be forfeited to His Majesty. It is, therefore, clear that in every case where the authorities issuing the Orders desired that the Courts may order confiscation of the property made a special provision to that effect in the Orders issued subsequent to the amendment of sub-r. (4) of r. 81 of the Defence of India Rules; and even in cases where the Order itself was issued prior to the amendment, special clauses were added by various amendments to those Orders enabling the Courts to make such an order. But the Non-Ferrous Metals Control Order of 1942 has not been amended. The inference, therefore, clearly is that it was not the intention of the authorities issuing the Order that any order should be passed for the forfeiture of metals in respect of which the Court was satisfied that an offene had been committed. The general powers contained in s. 517 of the Criminal Procedure Code regarding confiscation of property must, therefore, be deemed to be modified in respect of offences made punishable under sub-r. (4) of r. 81 of the Defence of India Rules, and an order of confiscation can be passed only where an Order issued under that rule so directs. Such a result was within the contemplation of the Legislature when it enacted s. 3 of the Defence of India Act which provides that

“Any rule made under s. 2, and any order made under any such rule, shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or any instrument having effect by virtue of any enactment other than this Act.”

With respect, I am in agreement with the view expressed by N.J Wadia and Weston JJ. in Purshottam Devjibhai Patel…Petitioner (Original, Accused); v. Imperator, wherein they observed as follows (p. 454):

“But the language of r. 81(4); which provides that confiscation may be directed only where the order contravened provides for such confiscation, seems clearly to imply that confiscation cannot be ordered in any other case, and by implication it prevents the application of s. 517 of the Code of Criminal Procedure to offences falling under r. 81(4) of the Defence of India Rules. Where a statute specifies a particular mode of enforcing a new obligation created by it, such obligation can as a general rule be enforced in no other manner than that provided by the statute. The wider power of confiscation conferred by s. 517 of the Code of Criminal Procedure must be regarded as impliedly limited by r. 81(4) of the Defence of India Rules.”

I am, therefore, of opinion that r. 81(4) of the Defence of India Rules is intra vires of s. 2 of the Act, and the conviction of the applicant is, therefore, correct. But I hold that the order of confiscation passed by the learned Magistrate cannot be upheld and must, therefore, be set aside. I, therefore, agree with the order proposed by my learned brother.

Order accordingly.

J.G.B