Fazl Ali, C.J:— This is a revision application on behalf of one Mahadeo Prasad Jaiswal who has been convicted under rule 81, clause (4) of the Defence, of India Rules for breach of certain provisions of the Cotton Cloth and Yarn Control Order and has been sentenced to undergo rigorous imprisonment for three months and to pay a fine of Rs. 500.

The petitioner is one of the owners of a cloth shop popularly known as the Jaiswal Cloth Depot and it has been found by the courts below that on the 1st August, 1944, he sold to one Ishwar Singh, a retail dealer, some pieces of cloth at a price, exceeding the mill price by more than ten per cent and thereby contravened the provisions of clauses 12(4) and 12(1) of the Cotton Cloth and Yarn Control Order. His defence in the courts below was that he did not know that Ishwar Singh was a retail dealer and he therefore charged him such prices as he was entitled to demand from an ordinary consumer. This defence has, however, been negatived and it has been found that he sold the cloth to Ishwar Singh knowing him, to be a retail dealer. This finding is supported by the receipt which he issued to Ishwar Singh and which purports to be a receipt issued to a retail dealer. The finding of the court below cannot be challenged and has not been challenged in this Court.

The Cotton Cloth and Yarn Control Order of 1943 was made by the Central Government under rule 81(2) of the Defence of India Rules and published in the Government of India Gazette on the 17th June, 1943, [See notification no. 34-Tex.(1)/43]. It was also published by the Provincial Government of Bihar in the gazette extraordinary, of the 9th July, 1943. The original order has been amended from time to time and all the amendments have been duly published in the Gazette of India and the official gazette of the Bihar Government.

The main point urged in this Court on behalf of the petitioner is that his conviction is invalid because the prosecution has failed to prove that the Cotton Cloth and Yarn Control Order was published in accordance with rule 119(1) of the Defence of India Rules. Rule 119(1) so far as it concerns this case runs as follows:—

“Save as otherwise expressly provided in these rules every authority, officer or person who makes any order in writing in pursuance of any of these rules, shall in the case of an order of a general nature or affecting a class of persons publish notice of such order in such manner as may in the opinion of such authority, officer or person but best adapted for informing persons whom the order concerns…………………and thereupon the persons concerned shall be deemed to have been duly informed of the order”.

It is contended by the learned Counsel for the petitioner that there has been no compliance with rule 119(1) because there is no proof that the Central Government had decided that publication of the Cotton Cloth and Yarn Control Order in the Government of India Gazette was best adapted for informing persons whom the order concerns about its provisions. Such a proof, it is said, could be afforded if it was expressly stated by the Central Government that in its opinion publication in the Government of India Gazette was best adapted for informing the persons concerned of the provisions of the Order.

A similar contention appears to have been raised and given effect to in Kamta Prasad v. King-Emperor which was decided by a Bench of this Court on the 4th September, 1945, but as the Bench before which the present case came up held a contrary view, the learned Judges constituting that Bench have referred it to a Full Bench.

Rule 119 occurs in Part XVII of the Defence of India Rules which deals with “Miscellaneous provisions”. The subject which the rule purports to deal with is indicated in the marginal notes as “Publication, affixation and defacement of notices”. The rule clearly lays an obligation on the authority making an order of a general nature under the Defence of India Rules to publish notice of such order and to publish it in such manner as may, in the opinion of the authority concerned, be best adapted for informing persons whom the order concerns. It is only when this is done that the fiction of constructive notice which the latter part of rule 119 embodies will come into play and the person concerned shall be deemed to have been duly notified of the order. The manner in which the notice is to be published is left to the discretion of the authority concerned and it is for such authority to decide what form of publication would be best adapted for informing persons whom the order concerns of its provisions. It follows therefore that once the authority has determined the manner of publication as provided in the rule it is not open to a court of law or to any person to say that the manner of publication was inadequate or was not in fact adapted for informing persons concerned of the provisions of the order. The rule does not say that the authority should declare or state in writing that in its opinion the manner of publication decided upon in a particular case was best adapted for informing the persons concerned of the provisions of the order. Therefore merely because there is no such declaration or statement or because the mode of publication does not appear to be suitable or adequate, we cannot conclude that the requirements of rule 119(1) have not been complied with. It seems obvious that if a certain mode of publication appears to be inadequate the position is not improved by the order-making authority having made, a formal statement that in its opinion it was the most suitable mode of publication. On the other hand if no such statement has been made, the Court is not debarred from Inferring, from the manner in which a certain order has been published or other cogent evidence, that the requirements of the rule have been complied with.

In the present case the Cotton Cloth and Yarn Control Order was admittedly published in the Gazette of India which, as is well known, is the official organ of the Government of India since 1863 when, by Act XXXI of that year, publication in the Gazette of India was declared to have the effect of publication in any other official gazette in which publication was prescribed by the law in force at the date of the passing of the Act. The preamble of the Act recites that

“the Governor-General had resolved to publish an official gazette called the Government of India Gazette containing such publications, notifications and other matters as the Governor-General of India in Council shall direct to be inserted therein”.

Since this Act was passed it has been the practice of the Central Government to publish all its statutory enactments, rules and orders by notification in its official gazette and I think that we may assume that they are published for the information of the public and be the direction and under the authority of the Central Government. In these circumstances I find it difficult to hold that though the Central Government was alive to the necessity of publishing the order with which we are concerned, it did so without bearing in mind all the provisions of rule 119 by which the publication is made obligatory. I think that we can presume that the Central Government was aware that under rule 119 it was not only necessary to publish the order but it was also necessary to publish it in the manner which in its opinion was best adapted for informing the persons whom the order concerned of its provisions. If there had been no publication at all the position might have been different; but when the order has been published and published in the manner in which all statutory rules and orders are published I cannot hold that rule 119 has not been complied with.

I will now refer to certain cases in which the contrary view has been taken. The latest case is that of Kamta Prasad v. King-Emperor in which a number of persons had moved the High Court against their conviction for breach of certain orders made by the Provincial Government under powers concerned by rule 81 of the Defence of India Rules. These orders had been published in the Bihar Gazette but it was held by a Bench of this Court that it could not be inferred or presumed from the publication of this order in the Bihar Gazette that was the method which in the opinion of the Government was best adapted to inform the persons concerned of the provisions of the order. It seems, however, that in deciding the case the learned Judges who decided it merely followed an earlier decision of this Court in Jagarnath v. King-Emperor as will appear from the following extracts from the judgment of Beevor, J:—

“It was contended on behalf of the Crown that we could infer or presume from the publication of the orders now in question in the Bihar Gazette that was the method which had been chosen by the Government under the provisions of Rule 119 of the Defence of India Rules. This argument was, however, overruled in the case above cited [Jagarnath v. King-Emperor]”.

In view of this observation it become necessary to examine the decision of this Court in Jagarnath v. King-Emperor. In that case a certain person had been convicted not for breach of an order made by the Central or Provincial Government, but of an order made by a Sub-divisional Officer fixing the price of certain grains. Das, J., who delivered the judgment in that case, pointed out in his judgment that there was no direct evidence to show that the Sub-divisional Officer had determined the manner in which his order should be published. In that case the only evidence on the record was the statement of a clerk employed in the price control office and all that he stated was that the rate fixed by the Sub-divisional Officer had been circulated to merchants and consumers in all markets of the sub-division. There was no evidence to show whether this was the manner of publication determined by the Sub-divisional Officer or by some one connected with the price control office and whether the circulation was before or after the date when the offence is said to have been committed. In these circumstances while allowing the application Das, J. observed—

“It was essential for the prosecution to prove in this case that the Sub-divisional Officer had determined the manner in which notice of the order was to be published, and that the order had been so published before the alleged offence had been committed by the petitioner”.

It is contended before us that there is no difference in principle between an order made by a Sub-divisional Officer and an order of the Central or Provincial Government for the purpose of Rule 119 of the Defence of India Rules. This is undoubtedly correct, but it cannot be overlooked that so far as the Central and Provincial Governments are concerned, the normally and usually publish their statutes and orders in their official gazette and therefore if an order under the Defence of India Rules is published in the official gazette, it may well be presumed, for reasons already stated, that has been done because, in the opinion of the authority concerned, (whether the opinion be right or wrong) that was the manner best adapted for the purpose of conveying information of the order to the persons concerned. The position is, however, somewhat different where the order is made by an authority or officer subordinate to the Central or Provincial Government who has not at his disposal any recognised machinery or medium for publishing and notifying the orders made by him and who has to select in each case his own method of promulgating them. In such a case it may become necessary to enquire whether there was any publication at all of the order and if so, whether the publication was made by the authority or officer in full compliance with the provisions of rule 119(1) including the provision as to his determining the most suitable form of publication. If it is found that the authority or officer concerned has acted in an arbitrary or careless manner the onus must fall heavily on the prosecution to show that rule 119 was intended to be, and was in fact complied with.

In Madan Lal Dalmia v. Emperor the position was not very different from the case which I have just now discussed. In that case also the accused was charged with breach of an order passed by a Sub-divisional Officer and it was found that there was no direct evidence as to the opinion of the Sub-divisional Officer relating to the manner best adapted for informing persons concerned of the order or its contents.

In Ramkishore Prasad v. Emperor which was also a case involving the breach of an order made by the Sub-divisional Officer, Agarwala, J. observed—

“In the present case there is no evidence on the record that the order prohibiting the sale of kerosene oil in bulk or fixing the maximum price of it was promulgated in the manner directed by the Sub-divisional Magistrate of Siwan, or indeed that the Sub-divisional Magistrate gave any directions in this behalf at all”.

In Krishna Chundra v. Emperor Mulla, J. set aside the conviction of an accused person who had been convicted for breach of an order made by the District Magistrate and observed—

“It was for the District Magistrate to prescribe the method of publication and upon the evidence on this record it appears to me that no such method was prescribed by the District Magistrate who passed the order dated October 7, 1942”.

In Mhatarji Bhau Patil…Applicant; v. Emperor also the conviction was for a breach of an order made by the District Magistrate but the accused was acquitted on the finding that there was no due publication of the order at all.

In Leslie Gwilt v. Emperor a Bench of the Bombay High Court acquitted two persons who were charged with the breach of an, order made by the Provincial Government of Bombay and published in the Bombay gazette. The learned Judges who decided the case rightly pointed out that unless the prosecution shows that there was due compliance with the provisions of rule 119 it would not be entitled to the presumption regarding notice to the accused mentioned in the last part of sub-rule (1); but they also proceeded to hold that where there was absence of evidence as to how, in the opinion of the authority issuing the notification, the notification was to be published recourse could not be had to the provisions of section 114 of the Evidence Act and the presumption did not arise that the issuing authority had decided that the notification was to be published in the Bombay Government Gazette alone. As to why the presumption under section 114 was not available to the prosecution the learned Judges observed as follows:—

“The meaning of section 114, Illustration (e), Evidence Act, is that if an official act is proved to have been done, it will be presumed to have been regularly done and that it does not raise any presumption that an act was done of which there is no evidence and the proof of which is essential to the case. It seems to us that the burden of proving the manner which in the opinion of the authority issuing the notification was best adapted to inform the persons concerned was on the prosecution and that burden has not been discharged.”

section 114 of the Evidence Act is a general section and it provides that the Court may

“presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events, human conduct and public and private business in relation to the facts of the particular case.”

The Illustrations which are appended to the section are not exhaustive, but merely illustrate the principle underlying the main provision. The presumption to be drawn under this section is one of fact and whether it should be drawn or not in a particular case must depend upon the facts of that case. It seems to me that where the order has been notified in an official publication where all statutory rules and orders are published normally and usually and it appears that the order as been so published because its publication is essential under rule 119, it may be presumed that the publication was made not merely in partial compliance with rule 119 but in compliance with all its provisions including the provision as to the determination of the most suitable form of publication. I have come to this conclusion not because I consider that mere publication in the official gazette must necessarily be regarded as an adequate form of publication, but because in my judgment that is the only correct conclusion one can come to upon the language of rule 119(1) as it stands at present. I am aware that a vast majority of the persons who are affected by the numerous orders made under the Defence of India Rules seldom read the official gazettes and though it is expected that the important orders and notifications published in the official gazettes will be copied and re-published by all the leading newspapers, that is not always done. In these circumstances there is obviously a great responsibility on the authority issuing, orders of a general nature under Defence of India Rules to exercise the discretion which the law vests in him as to the choice of the most suitable form of publication properly and wisely and it seems to me that the Central Government has taken a step in the right direction by stating in its notification dated the 21st July, 1945, which re-publishes the Cotton Cloth and Yarn Control Order that it will issue a press note summarising and explaining its provisions.

The learned Advocate-General contended that in the Defence of India Act and the rules framed thereunder a distinction has been drawn between the Provincial and the Central Government on the one hand and “an authority, officer or person” subordinate to the Central and Provincial Governments on the other [See sections 2(3), 2(4) and 2(5);] that the word “authority” as used in rule 119 does not refer to or include the Provincial or Central Government; and that rule 119(1) is intended to apply only to those cases where an order has been made by an authority, officer or person subordinate to the Central or the Provincial Government to whom the power of making the order may have been delegated under rule 2, clauses (4) and (5). It is contended by him that so far as the Central and Provincial Governments are concerned, it was not necessary to make any provision for the publication of the orders made by them because their orders are usually published in their official gazette. It was, however, necessary to prescribe some mode of publication in the case of subordinate authorities and section 119 was enacted for this purpose.

This argument, however plausible it might have appeared to be, upon the language of the section as it originally stood, can have in my opinion no force now in view of sub-rule 1-A of rule 119 and certain notifications issued by the Central and the Provincial Governments while re-publishing the Cotton Cloth and Yarn Control Order. Rule 1-A runs as follows:—

“Where any of these rules empowers an authority officer or person to take action by notified order, the provision of sub-rule (1) shall not apply in relation to such order and all persons whom the order concerns shall upon its notification be deemed to have been duly informed of it”.

According to the Defence of India Rules notified orders and notification respectively mean “notified orders and notification in the official gazette”. Therefore, obviously rule 119(1-A) will cover orders made by the Central and the Provincial Governments and it has been enacted on the supposition that the word “authority” has been used in the wider sense so as to include the Central and the Provincial Governments also. Again, the Cotton Cloth and Yarn Control Order has been re-published it the Gazette of India on the 21st July, 1945, in these words—

“In exercise of the powers conferred by sub-rule (2) of rule 81 of the Defence of India Rules, the Central Government is pleased to make the following order and to direct with reference to sub-rule (1) of rule 119 of the said rules that notice of the order shall be given by the publication of the same in the official gazette and by the issue of a press note summarising and explaining its provisions.”

Similarly, the Bihar Government have re-published the order on the 17th July, 1945, after specifying that the Governor of Bihar is of the opinion that publication of notice of the said order in the Bihar Gazette is the manner of publication best adapted for informing persons whom the said order concerned of the terms thereof.

In some of the cases to which I have referred, it was assumed that the word “authority” used in rule 119 was wide enough to cover Central and Provincial Governments and this view has apparently been accepted in the notifications cited above which were issued to meet the point raised by those decisions. It cannot therefore be urged now that rule 119 does not apply to an order made by the Central or the Provincial Government.

I shall now say a few words in regard to a matter arising out of the following observations of Meredith, J., one of the Judges who have referred this case to the Full Bench:—

“Rule 119 seems to me to have been inserted so as to enable the prosecution if a certain course has been adopted, to claim a presumption that the accused must have known of the order in question. If the procedure has been followed the rule says that the person concerned shall be deemed to have knowledge. In my opinion the only effect of failure to comply with the provisions of rule 119 will be that the person concerned cannot be deemed to have knowledge and it will be necessary for the prosecution to prove it independently. I cannot see how, if the statutory rule is regularly made by Government which states that it will come into force upon a certain date, it will fail to come into force on that date, because a particular procedure enjoined for publication has not been followed. The same view which I have just stated as my own has been adopted by a Bench of the Bombay High Court in Emperor v. Rayangouda Lingangouda, and with respect I find myself in agreement with the reasoning of those learned Judges”.

In the case to which reference has been made by Meredith, J. [Emperor v. Rayangouda] Macklin, J. after referring to rule 119(1) observes—

“We think that the consequence of failure to carry out the provisions of rule 119 is practical rather than legal. The result would be that the prosecution would lose a simple method of establishing beyond controversy that the person affected had received notice of the order affecting him and that the person affected would find it easier to establish the fact that he had not received notice, assuming that in any particular case the burden of proof were upon him to prove affirmatively that he had not received notice.”

In my opinion if rule 119(1) is not complied with at all the consequences may be disastrous. If there is no publication whatsoever, how can it be proved or said (1) that the order in question, has become operative and (2) that the accused had knowledge of the order contravened? Therefore it will be going too far to say that non-compliance with rule 119(1) will involve no legal consequences and will merely deprive the prosecution of a simple method of establishing that the person affected had notice of the order affecting him. The reason for enacting rule 119 appears to me to have been correctly stated by my brother Agarwala in Ramkishore Prasad v. Emperor in these words:—

“Although there is the ordinary presumption of law that every citizen knows the law, rule 119, Defence of India Rules, is apparently based on the fact that no citizen, however diligent he may be, can hope to keep pace with the issue of the rules made under the Defence of India Act and their various amendments. It has therefore been provided that the person making orders under the Defence of India Rules shall take steps to ensure that the orders are promulgated in such a manner that they will reach the persons who will be affected by them”.

It will be noticed that when rule 119(1) was originally enacted on the 3rd of September, 1939, the words

“thereupon the persons, corporation, firm or person concerned shall be deemed to have been duly informed of the order”

did not occur in the rule. These words were subsequently inserted on the 10th of January, 1942, (See notification no. 1020.OR/1/41). This by itself should suggest that publication of the orders of a general nature or orders affecting a class of persons was held to be essential when the rule was originally framed. Obviously such orders cannot be assumed to have come into operation unless they are published and this can be illustrated by a simple example. Let us suppose that, the authority or the person who makes an order puts it in a safe after signing it and decides to publish it a fortnight later. I doubt very much if in such a case a person who contravenes the order before its publication can be punished for contravening it merely because it is proved that by some means he had become aware of the contents of the order. Similarly, I doubt if in the case before us the petitioner could have been convicted if he had sold the cloth before the Cotton Cloth and Yarn Control Order was published by the Central and the Bihar Governments. I am, however, prepared to concede that if there is some evidence as to the publication of an order, though the publication may be seemingly inadequate, and it is also proved that the accused had knowledge of the order, then the courts will not, as a rule, insist on very strict proof of the other ingredient of the rule, namely, that the authority or the officer making the order had exercised his mind to determine that the order was to be published in the manner best adapted, for informing the persons concerned of its content. This point, however, need not be pursued because in my opinion this case can be disposed of on the short ground that there has been no contravention of, the provisions of rule 119(1).

It will be noticed that the provision as to the determination of the most suitable form of publication applies only to orders of a general nature or order affecting a class of persons. It does not apply to orders which are addressed to an individual person or an individual corporation or firm. In regard to such offers all that rule 119 requires is that they should be served in the manner provided in the rule and where such service is effected the presumption embodied in the latter part of the rule will automatically follow. As far as I am aware no difficulty has been experienced up till now in the working of this part of the rule and I do not consider it necessary to deal with it in this judgment.

As the only substantial point which is raised on behalf of the petitioner fails I would dismiss the petitioner's application and uphold his conviction and sentence.

Agarwala, J.:— The question of law which led to this case being referred to a Full Bench is not, in my opinion, of any real importance in the present instance.

By section 2(1) of the Defence of India Act, 1939, the Central Government was empowered to make, “by notification in the official Gazette”, such rules as appear to it to be necessary or expedient for, inter alia, maintaining supplies essential to the life of the community. In exercise of this power the Central Government made the Defence of India Rules by notification no. 221/1-OR, which were published in the Gazette of India Extraordinary, dated the 3rd September, 1939., Rule 81(2) of these Rules authorised the Central Government (and, later, the Provincial Government) to make orders, so far as appears to it to be necessary or expedient for, inter alia, maintaining supplies essential to the life of the community. Clauses (a) to (f) of rule 81(2) particularize the kind of orders contemplated, e.g,

“clause (b) for controlling the prices or rates at which articles or things of any description whatsoever may be sold……………….”.

Rule 119(1) prescribed the method of publishing orders made in pursuance of the powers conferred by the various provisions of the Defence of India Rules, including, of course, rule 81(2), and declared that “thereupon” the persons, corporation, firm or person concerned shall be deemed to have been duly informed of the order. The word

“thereupon”

in this context must, I think, mean,

“on publication of the order in the manner required by this rule,”

and it has not been suggested that it means anything else. Rule 119(1) requires different methods of publication according to whether a particular order—

(a) is one of a general nature or affecting a class of persons, or

(b) is one effecting a individual corporation or firm, or

(c) is one affecting an individual person.

The order we are concerned, with is an order effecting a class of persons viz., persons dealing in cotton cloth and yarn. Rule 119(1) requires the authority, officer, or person making such an order to publish notice of it in such manner; as may, in the opinion of such authority, officer or person, be best adapted for informing persons whom the order concerns. It has, of course, never been suggested that an order purporting to be made in exercise of powers conferred by an of the Defence of India Rules would be effective without publication, but in cases which have come before this and other High Courts two questions have arisen with regard to the manner of publication, viz.,

(i) whether, in the case of an order made by a Provincial Government, mere publication in the official Gazette is a sufficient compliance with rule 119(1) without proof that the Provincial Government was of opinion that publication in the Gazette is the manner best adapted for informing persons whom the order concerns, and

(ii) whether, in the case of an order made by any other authority, officer or person, proof was necessary that the order had been published in such manner as, was, in the opinion of the authority, officer or person making the order, best adapted for informing persons whom the order concerns.

In the two cases in which the first of these questions arose it was answered in the negative; see Leslie Gwilt v. Emperor and Kamta Prasad v. King-Emperor. The second question has been answered in the affirmative, or it has been indicated that it would have been so answered had it been necessary to decide the question, in Jagarnath v. King-Emperor, Madan Lal Dalmia v. Emperor, Chakradhar Sahu v. Emperor, Ramkishore Prasad v. Emperor, Shakoor Hazan Kachhi Memon v. Emperor, L.M Wakhare v. Emperor, Krishan Chandra v. Emperor, and Mahtarji Bhau Patil v. Emperor. In the last mentioned case the order had been made by a District Magistrate and published in the official Gazette, out it was not proved that this was the manner which, in the opinion of the District Magistrate, was best adapted for informing the persons concerned. The contrary view was taken in Imperator v. Rayangouda Lingangoudq Patil(11).

It is noticeable that some of the Defence of India Rules tenable action to be taken by a to “notified order”, e.g rules 26 (5)(5)(a), 27A, 50A(1). 51L, 67A(2), 84(2) and (3), 68(1), 80A(1), 92, 94(2) and (3) and 115(2). Of these rules 26(5)(B)(a), 27A and 51L enable either the Central or Provincial Government to proceed by way of a “notified order”, while the remainder apply only to the Central Government. “Notified” means notified in the official Gazette, vide rule 2(3). In the case of a notified order the provisions of rule 119(1) do not apply—vide section 119(1)(A). Rule 81(2) does not authorize either the Central or the Provincial Government to proceed by way of a mere notified order. Consequently, it is arguable that the framers of the Defence of India Rules did not intend either the Central or the Provincial Government to do so (except, of course, when that is considered the best method of publication) or they would have said so as in the case of the rules enumerated above; alternatively, when clause (1)(A) was added to rule 119 they would have said that sub-rule (1) did not apply to an order published in the official Gazette.

What we are concerned with in the present case, is an order of the Central Government, namely, the Cotton Cloth and Yarn (Control) Order, dated the 17th June, 1943, and published with notification no. 34-Text. A(1)/13/43 which was published in the Gazette of India on the 22nd January, 1944. It was not proved that at the date of its original publication the Central Government was of opinion that in its opinion the manner of publication best adapted for informing the persons., concerned was publication in the Gazette of India. It was re-published on the 21st July, 1945, with a declaration that in the opinion of the Central Government publication in the Gazette of India was the manner best adapted for informing the persons concerned. The petitioners, however, were charged with a breach of this Order committed on the 1st August, 1944, i.e before re-publication of the Older in the Gazette of India. What has to be decided, therefore, is whether the original publication was a sufficient compliance with the requirements of the law. The answer to that question must, in my opinion, be in the affirmative in the present case. As I have already stated at the beginning of this judgment the Central Government was empowered by section 2(1) of the Defence of India Act, to make, to “by notification in the official Gazette”, rules for maintaining supplies essential to the life of the community. Control of, prices and rates of supplies is essential for the life of the community in times of such extreme emergency as we have been and are passing through, and the Order in question was published in the official Gazette. It is true that the Order purports to be made in pursuance of powers conferred by rule 81(2) of the Defence of India Rules, but that, in my opinion, is immaterial, the Defence of India Rules are merely rules framed to give effect to section 2 of the Defence of India Act and so far as the Central Government is concerned, an order which it has power to make in pursuance of the Defence of India Rules is also within the powers it has under section 2(1) of the Act which merely requires publication in the official Gazette, as was done in the present case.

Manohar Lall, J.:— I have had the advantage of reading and considering the judgment prepared by my Lord the Chief Justice. I agree generally with the reasons for the conclusion arrived at, but in deference to the able arguments addressed to us by the learned Counsel for the petitioner and the learned Advocate-General, and to the different views which have been taken by the learned Judges in this Court and in other High Courts, it is but right and proper that I should make some observations of my own.

The facts have been fully stated, in the judgment of my Lord the Chief Justice. The question for decision is as to whether the provisions of rule 119(1) of the Defence of India Rules have been proved to have been complied with so that the accused must be deemed in this case to have been duly informed of the order—the Cotton Cloth and Yarn Control Order—hereinafter to be described as the Cotton Order.

There is no dispute that the Cotton Order was made by the Central Government under rule 81(2) of the Defence of India Rules and published in the Government of India Gazette on the 17th of June, 1943, and that it was again re-published in the Government of India Gazette on the 22nd January, 1944, and was later on published by the Provincial Government of Bihar in the Gazette Extraordinary of the 18th of February, 1944. The contention of the petitioner is that in none of the publications was it stated that in the opinion of the Central Government or the Provincial Government this mode of publication was best adapted for informing persons whom the order concerns, and, therefore, the accused cannot be deemed to have been duly informed of that order.

My Lord the Chief Justice has shown that ever since 1863 it is the recognised practice of the Central Government to publish all its statutory enactments, rules and orders by notification in the official gazette of the Government of India, and similarly all the statutory enactments, rules and orders of the Provincial Government are being published in the official gazette of the province, and this practice is fully known to the public. In the present case the Central Government has followed this practice, and the question is whether the omission to state in the gazette, or the omission by the prosecution to prove by other evidence that this mode, of publication was in the opinion of the Central Government best adapted for informing the persons concerned, results in the conclusion that the accused cannot be deemed to have been duly informed of the order. I am of the opinion that where the Central Government or the Provincial Government publish the notification in question in their official gazette, which is the normal way in which such notifications are published by these authorities, no further question can arise for the consideration of the Courts. But if the adopt an unusual made of publication, then they must satisfy the Courts that the particular abnormal mode of publication was adopted by them because in their opinion it was best adapted in the circumstances for informing the persons whom the order concerned. It must be remembered that the Courts cannot question the manner, however inadequate it may appear to them, in which the authority decides that the notification should be published.

I am unable to accept the view that the Court in such cases should, or is entitled to, draw a presumption under section 114 of the Evidence Act that the Central Government or the Provincial Government, as the case may be, formed such an opinion before the publication was ordered although this may appear to be an easy and attractive solution of the difficulty. If a presumption can be drawn it is obvious that it must be a rebuttable presumption so that the accused would be entitled to show either by direct evidence or by requiring the Crown to prove that this ingredient of the rule has been complied with. The onus is always upon the Crown and never shifts on to the accused except where the statute so directs [see Woolmington v. Director of Public Prosecutions and Atty galle v. The King]. It would be unreasonable to require the accused to produce evidence which is in the possession of the Crown. Now, if the prosecution must produce that evidence it may lead to an impossible and unworkable situation in the case of the Central or the Provincial Government and this could never have been the intention of the rule making authority, and unless we are forced by the language of rule 119 it should be so construed as to avoid the unreasonable result indicated. This can be done by construing the rule in the manner stated by me above, and this in my opinion is not a strained construction of the rule.

If may be suggested that in a way I am drawing a presumption that the Central Government had formed the opinion that the publication in the official gazette was best adapted for informing the persons of the Cotton Order, but upon a proper construction of the rule I am adopting the view that the Central Government or the Provincial Government is required to form the opinion only in cases where they are going to adopt a manner of publication other than the normal manner in which their Acts and notifications are published in the official gazette. The reason for the insertion of the general words in the rule directing the determination of the manner best adapted to the circumstances appears to be that the rule applies equally to the Contral Government or the Provincial Government or to any other authority, officer or person who may be authorised to pass an order of a general nature affecting a class of person. Except the Central Government or if he Provincial Government, the other officers, or authorities, or persons have no recognised mode in which they bring their orders to the notice of the public, and, therefore, in their case it is necessary, that the rule should be strictly construed and the prosecution should establish that the authority, officer or person did form an opinion that the particular manner of publication adopted in that case was best adapted for informing the persons whom the order concerned.

Learned Counsel for the petitioner contended by drawing attention to the well-known principles in Craes on Statute. Law and Maxwell on Interpretation of Statutes that where a statute directs a particular thing to be done in a particular way, the thing must be proved to have been done in that way and in no other way before the statute can be validly enforced. The principle so laid down is well recognised and cannot be questioned. In the present case the publication has been made, and as it is not made in a manner other than the normal mode in which the orders and enactments of the Central Government are made, I must hold that the requirements of rule 119(1) have been complied with.

The learned Advocate-General presented an attractive argument that rule 119(1) has no application to a case where the Central Government or the Provincial Government makes an order in writing in pursuance of any of the Rules of the Defence of India Act. This argument is strongly supported by a consideration of the various provisions of the Defence of India Act and Rules. But in my opinion, after the insertion of rule 1(A) in rule 119 on the 6th of May, 1944—which is before the date upon which the accused is said to have committed the offence in the present case—this argument is not available to the learned Advocate-General apart from the fact that in the numerous cases which have been brought to our notice, and which have been considered by my Lord the Chief Justice in his judgment, this contention was never advanced on behalf of the Crown. The learned Advocate-General also stated that the alteration of the rule by this amendment was made in deference to the various decisions of the High Courts and did not lead to the inference that those decisions were correct. It is enough to state, as was stated by their Lordships in the case of Bharat Insurance Company, “that an alteration by the legislature of the law as settled by the decisions of the Courts does not raise any inference that those decisions were wrong or even that those who had proposed the alteration were of that opinion”.

I may also observe that in my opinion even if the accused is able to prove that he never knew in fact of the passing of a particular order of a general nature, he will not fee entitled to an acquittal if the prosecution establish that the requirements of rule 119(1) have been complied with, because the essence of the matter is that whether the accused knew or did not know of such an order, he shall be deemed to know as is provided by the rule. Observe that the concluding words of the rule are

“thereupon the person shall be deemed to have been duly informed of the order”.

Now, when a person is ‘deemed to be’ something, the only meaning possible is that whereas he is not in reality that something the Act of Parliament requires him to be treated as if he were: per Viscount Dunedin in the case of Commissioner of Income-tax, Bombay v. Bombay Trust Corporation Limited. The publication required by section 119 results, in so the rule enacts, in it being deemed that the person concerned has been duly informed, although in reality he has not been duly informed. This supports me in the view that the prosecution is relieved from the burden of proving that the accused has been in fact informed; he may not have been informed, but he shall be deemed to have been informed, if the requirements of the rule are complied with.

An argument was advanced that upon a proper interpretation of rule 119(1A), inserted on the 6th of May, 1944, before the date of the alleged offence in the present case, it should be held that the rule making authorities have now accepted the interpretation placed by the various High Courts in India that it is only in cases where action is permissible by a notified order under the various rules that the persons whom the order concerns shall, upon notification, be deemed to have been duly informed of it, and as in the present case the Central Government is not empowered under rule 81 to take action by a notified order with regard to the Cotton Order, the provision in sub-section (1) of rule 119 must be accurately complied with. This argument appears to be plausible, but a proper interpretation of rule 119(1) even after this amendment leads me to the conclusion which I have already expressed above.

Although after considering the able arguments addressed to us I have come to the conclusion that the contention of the accused should not prevail, it is desirable to point out that the Central Government and the Provincial Government, should, in future, direct the publication of the relevant orders by inserting a statement that this mode of publication is best adapted for the information of the persons concerned so that the accused may have no grievance whatsoever.

I am refraining from making my own observations as to the cases cited before us from this Court and from the other High Courts as they have been sufficiently dealt with in the judgment of my Lord the Chief Justice.

For these reasons I am in agreement with the order proposed by my Lord the Chief Justice that the application of the accused should be dismissed.

Shearer, J.:— I agree with the conclusion arrived at by my Lord the Chief Justice, and in the main I also agree with the reasoning by which that conclusion is supported. As Maule, J. said in Martindale v. Mary Falkner. “There is no presumption that every person knows the law: it would be contrary to commonsense and reason if it were so”. There is, and has, however, for centuries been a rule that ignorance of the law shall not excuse a man or relieve him from the consequences of a crime. Rule 119 of the Defence of India Rules merely embodies that rule and provides that when an order of this kind has been made and has been duly published, then, from the moment it has been duly published, ignorance of the existence of the order is no defence; in other words, it provides that the order comes into operation from the moment it has been duly published. The words

“in such manner as may in the opinion of such authority, officer or person be best adapted for informing persons whom the order concerns”

appear to me to have been inserted in order to prevent its being contended, or in order to reduce the number of cases in which it might plausibly be contended, that what had been done in a particular case did not amount in law or in fact to publication. In the absence of some such words it might, for instance, have been argued that publication in a newspaper was not sufficient to fix the person charged with contravening an order with knowledge of it, unless there were evidence to show that he subscribed to the newspaper or was likely to have seen the particular copy of it in which the order had been printed. The words “publish” and “publication” occur in various English statutes and have been the subject of judicial interpretation, and it would have been easy to find decisions to support arguments of that kind. The rule-making authority intended, in my opinion, to lay stress on the word “publish” rather than on the words “in such manner, etc.”, which are no more than a kind of adverbial qualification of, the “word” “publish”. That, I think is clear for two reasons. In the first place, as my Lord the Chief Justice has pointed out, the rule does not require the authority, officer or person to set out in writing the manner in which the order he has made is to be published, and this would not, I think, have been so if it had been intended that any omission to carry out a single one of his directions was to have the cited of rendering the order wholly nugatory. Secondly, it is obvious that in the great majority of cases the actual publication of the order must be left to a number, and perhaps a large number, of agents, some of them reliable and some of them a good deal less reliable. Can it be supposed that an omission on the part of one of these agents to carry out in every respect the directions which he had received is to have such serious consequences? If this is so, officers making orders will certainly be discouraged from giving explicit and detailed instructions regarding the manner in which they are to be published, and persons adversely affected by them may be encouraged to bribe some underling charged with their publication to disobey his instructions. Das, J. in Jagarnath Sahu v. King-Emperor refers to the “legal fiction of rule 119, and in this and other decisions there is an implication that rule 119 embodies some principle of a novel and harsh kind. But is this really so? The rule that ignorance of the law is no defence to a crime may be a harsh rule. But there is nothing new about it. It is of universal application and is as old as law itself. Promulgation has never been a condition precedent either in England or in India to statutes coming into operation. Publication of orders of this kind is, however, required. If, on one and the same day, an Order of this kind affecting the public in a particular local area was made and duly published by a sub-divisional magistrate, and an Act was passed by the Central Legislature, would the persons affected by both of them be at all likely to become acquainted with the Act sooner than with the Order? The persons who make these orders make them for the purpose of achieving some object and they have sufficient commonsense to realise that the best way of achieving the object is to try and ensure that the order is made generally known. Rule 119, as I have already said, merely contains a provision as to when and how orders of this kind are to become operative. There must be “publication” and the publication must be

“in a manner ordered or approved by the, authority, officer, or person who made the order”.

If the person who made the rule ordered it to be proclaimed by beat of drum at a certain place and time, and some subordinate had a number of handbills printed containing the order and distributed them more or less widely, there might perhaps be publication, but it would not be publication in a proper manner. On the other hand, if the maker of the order directed it to be sent to half a dozen newspapers I for publication, and same of them published it and others did not, the position would, I am inclined to think, be very different. As wide publicity might not have been given to the order as was aimed at by the authority who made it and a court would, no doubt, be justified in taking that into consideration in awarding punishment. But there would, in such a case, be “publication” and there would also be “publication in the manner ordered or approved by the authority”. The words that occur in rule 119 are “in such manner” and not “to such extent” and it has to be remembered that if the order does not, in consequence of what has actually been done come into operation, then persons who may be perfectly well aware of it commit no offence by disobeying it. I do not myself think that the words “in such manner” are, in this context, capable of being construed as synonymous with “to such an extent” or “not less widely than” but even if there were room for ambiguity I should not feel at liberty to construe them in the latter way. This is emergency legislation. During six years of war our deliberations have never been disturbed even by the drone of a hostile aeroplane. But the point we are now called upon to decide might as well have arisen out of an order passed by, let us say, the Deputy Commissioner of Kohima when the Japanese invasion was impending and some measure of precaution for the public safety had to be taken immediately, as out of an order passed by a sub-divisional magistrate, possibly, in an excess of zeal, in some peaceful part of Bihar, and being a point of Law it has to be decided precisely in the same way in either case. In Motteram v. The Eastern Counties Railway Company a person was charged with having contravened a bye-law of the railway company. The statute required that the bye-laws of the company should be exhibited on notice-boards at every one of their stations and wharves. At the trial evidence was adduced to show that the bye-laws had been exhibited at the station at which the person charged got into the train and also at the station at which he got out of it. It was contended that evidence should have been adduced that the bye-laws had also been exhibited at every one of the other eighty or more stations of the company. This contention was overruled and it was held that in the circumstances the presumption omina ritu esse acta might be applied. Erie, C.J, observed “there is a strong presumption that a public body has performed the duty which the law casts upon them”. The duty which rule 119 casts on an authority, officer or person making an order is a duty to publish it in such manner as in his opinion is best adapted to inform the persons concerned. If the rule had required him to publish it in a certain specified manner, and there was evidence of publication, it would certainly Save been open to a court to presume that the duty imposed on him by the rule had been performed. What difference, in principle, can it make that he is given a discretion to choose his own mode of publication? If one officer is required to do a certain act in a particular manner, and another is required to do precisely the same act but given a discretion as to how he is to do it, why should it be permissible to presume that the former has done the act and not at all permissible to presume that the latter has done it? I should myself have thought that the presumption in the latter case was, if anything, stronger than in the former. Das, J., who dealt with this difficult point rather more fully than anyone else, assumed that two quite separate and distinct duties were imposed on the authority, officer or person making an order, namely, a duty to determine the manner of publication and then a duty to see that publication was actually made in that manner. To construe the rule in this way is, I think myself and have already said so, to put something of a strain on the language used. Assuming it, however, to be correct, does it make any real difference? Publication must be made generally, if not always, through agents. Surely, regard being had to

“the ordinary course………………………………..of human conduct and public and private business”

a presumption arises that the agent did what he was told to do and not something quite different. But that amounts to a presumption that the authority, officer or person who made the order had performed the first of the two duties which Das, J. supposes to be cast on him. It seems to me impossible to dissociate the mental process from the act which follows it. It is in the last resort to what is actually done that we must look. If a single copy of an order is stuck up on an obscure notice-board, one might legitimately presume not that there was no publication, because, in point of fact, there would in such a case be some publication, but that the publication was not a proper or valid publication. What difference can it make if, in such a case, the person who has made the order has directed that it should be published in that manner? A court would be bound to presume, from what was done, that as no reasonable man could suppose this was the maimer best adapted for informing the persons concerned, the opinion was not an opinion formed or entertained in good faith. In the case with which we are now concerned, the order was an order of the Central Government and was published in the Gazette. It would be ridiculous not to presume that this publication was not ordered or approved by the Central Government. I do not myself think that this was the manner of publication best adapted or indeed at all well adapted or informing the persons concerned; but as, for a great many years this has been the usual method of publishing orders of this kind, it is scarcely possible to say that there was not a proper exercise of discretion. Between these two extreme cases there may be a, great variety of others. I agree with my Lord the Chief Justice in thinking that in every case a court must look to the evidence relating to publication and decide for itself whether or not any ??? can be drawn from it. But, speaking for myself, I think the courts should not be over-cautious in making use of these presumptions? The rule does not require an authority, officer or person making an order to state in writing how it is to be published still less, does it provide that such writing or a certified copy of it shall be received as prima facie evidence. In every case, therefore, where it has to be proved what the mode of publication decided on was, it will be necessary to put the actual maker of the order into the witness-box. If this has to be done frequently, there is bound to be much dislocation of public business, and the rule-making authority may well consider that the only remedy is to require the authority, officer or person to give a certificate stating that it has been published in a certain manner and provide further that such certificate shall be received as conclusive proof of publication. I think myself, it would be a great pity if such a course had to be adopted. I am unable to subscribe to the view implicity, if not very clearly or rather definitely expressed in Jagarnath Sahu v. King-Emperor and some other decisions that, once an authority, officer or person making an order has given directions as to the manner of its publication, these directions are to have precisely the same legal effect as a provision in an English statute requiring a local body or a railway company to, publish its bye-laws. The rule-making authority has given, and, I imagine, had to give, a wide discretion to every authority, officer or person making such orders to decide in what manner they should, be published. It is not, I think, for the courts to ascertain in every single case exactly how this discretion has been exercised. It is only when the evidence relating to publication creates a suspicion that the discretion has been exercised in such a way as to amount in law to no exercise, in good faith, of the discretion at all that the matter need or ought to be further investigated, if necessary, and, in the last resort, as matters now stand, by putting the person who made the order into the witness-box.

No doubt it is incumbent on the prosecution to prove every fact necessary to bring home a charge to an accused person. If, on appeal, it is contended that some such fact has not been proved, it is no answer for the Crown to say that the fact was never disputed at the trial, and that if it had been, proof of it could very easily have been, given. The reason, presumably, is that, in the absence of the necessary evidence, the judge or magistrate was not and could not have been satisfied of the existence of the fact. The existence of a law, or of a rule or order having the force of law, may in the last resort be a fact but is it a fact which stands on precisely the same footing? At a trial for a contravention of an order of this kind the existence of the order may be well known to the presiding magistrate the public prosecutor and the pleader for the defence. No one may dispute either its existence or that it was in operation prior to the date of the alleged offence. If, in such a case, the trying magistrate wrongly assumes a knowledge of it without proof, is a court of appeal or a court of revision bound to interfere and set a conviction aside? In The King v. Governor of Brixton Prison, Ex parte Servini, a magistrate erroneously took judicial notice of an order in council. On the hearing of an application to the King's Bench Division for a writ of habeas corpus an affidavit was put in stating that the magistrate and other magistrates at the same court were constantly dealing with and were familiar with the order in council in question, and the writ was refused. In Mews' Digest, Volume 21, page 430, certain Scotch cases are cited in which a similar point appears to have arisen in connection with orders made under the Defence of the Realm Regulations, 1915. This is an aspect of the matter which as yet does not appear to have been considered and which, I think myself, ought to be considered at some future date.

Sinha, J.:— I agree with My Lord the Chief Justice.

Application dismissed.

K.D