Meredith, J.:— This application in revision is directed against the conviction of the petitioner under R. 81(4), Defence of India Rules.

2. The petitioner, a coal merchant of Muzaffarpur, has been convicted under this provision for selling for four annas soft coke, on 21st January 1942, to a clerk in the Muzaffarpur Collectorate, at a rate in excess of that fixed by the District Magistrate of Muzaffarpur under R. 81(2)(b) of the said Rules. The sentence was rigorous imprisonment for two months and a fine of Rs. 50 or in default a further two months' rigorous imprisonment. The petitioner's appeal has been dismissed by the learned Additional Sessions Judge, Muzaffarpur. In a list issued by the District Magistrate on 21st January 1942, the maximum price for soft coke had been fixed at annas ten per maund. The same maximum price had been fixed for steam coal. In the previous weekly list issued on nth January 1942, the same rates had been specified. The findings of the Courts below are that on the morning of 21st January the petitioner sold soft coke to the complainant at the rate of Re. 1 per maund in contravention of the orders which had been duly passed under the rule I have referred to.

3. I should have found no reason for interfering with this conviction upon the merits. A defence was set up at the trial that the petitioner had sold not soft coke, but hard coke, in respect of which no orders had been passed. This, however, was a belated defence, and was, in my opinion, rightly rejected by the Courts below.

4. Nor could I have accepted the argument put forward for the petitioner that the complainant, a clerk in the Muzaffarpur Collectorate, was not a public servant within the meaning of the rules. Rule 130(1) lays down that:

No Court or Tribunal shall take cognizance of any alleged contravention of these rules, except on a report in writing of the facts constituting such contravention, made by a public servant.

5. Rule 2(10) says that:

‘Public servant’ includes any public servant as defined in the Indian Penal Code and any servant of any local authority or railway administration.

6. We must, therefore, turn to the definition of “public servant” in the Penal Code. That definition is to be found in S. 21 of the Code. The ninth class of public servant as defined in that section is as follows:

Every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of the Crown, or to make any survey, assessment, or contract on behalf of the Crown or to execute any revenue process, or to investigate or to report, on any matter affecting the pecuniary interests, of the Crown, or to make, authenticate or keep any document relating to the pecuniary interests of the Crown, or to prevent the infraction of any law for the protection of the pecuniary interests of the Crown, and every officer in the service or pay of the Crown or remunerated by fees or commission for the performance of any public duty.

7. We have not been told what the duties of the complainant were, but, whatever they may have been, he falls, in my judgment, merely by reason of the fact that he was a clerk in the Government Collectorate, within the terms of the definition, as an “officer in the service or pay of the Crown.” It has been argued by Mr. S.N Banerjee for the petitioner that these words are to be read as governed by the subsequent words “for the performance of any public duty.” In my view, that interpretation is not correct. I think the words “for the performance of any public duty” govern only the words “remunerated by fees or commission.” But even upon Mr. Banerjee's interpretation I think that the duties of a Collectorate clerk, whatever they may be, in connexion with his official employment, must be considered public duties. In either view, therefore, it follows that a clerk in a Government Collectorate is a public servant within the meaning of cl. (9) of S. 21, Penal Code, and so within the meaning of the Defence of India Rules.

8. As for the sentence, in regard to which I was also addressed, I should not have been prepared to hold that the sentence was in any way too severe. Persons who take advantage of disturbed conditions for profiteering in the necessities of life of the common people deserve no sympathy at all from the Courts.

9. There is, however, in my judgment, a fatal defect in the conviction. Though the matter was not raised in argument before me, I thought it desirable to ascertain whether District Magistrates had actually been legally empowered to regulate the price of I soft coke at the time of the sale. The result is that, in my judgment, the District Magistrates had not any legal power to regulate the price of soft coke until 2nd February 1942, some time after the alleged contravention of the rules by the petitioner. Rule 81(2)(b), as it originally stood, provided only that the Central Government, so far as it appeared 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, might by order provide for controlling the prices or rates at which articles or things of any description whatsoever might be sold or hired.

10. The procedure at first followed by the Central Government was apparently to delegate its powers in respect of specific articles, and subject to certain conditions, to the Provincial Governments, which in turn delegated powers to the District Magistrates. This was done under Section 2, cls. (4) and (5) of the Defence of India Act (86 of 1939). Section 2(4) of that Act reads:

The Central Government may by order direct that any power or duty which by rule under sub-s. (1) is-conferred or imposed upon the Central Government shall in such circumstances and under such conditions, if any, as may be specified in the direction be exercised or discharged: (a) by any officer or authority subordinate to the Central Government, or (b) whether or not the power or duty relates to a matter with respect to which a Provincial Legislature has power to make laws, by any Provincial Government or by any officer or authority subordinate to such Government, or (c) by any other authority.

11. Section 2(5) says:

A Provincial Government may by order direct that any power or duty which by rule made under sub-s. (1) is conferred or imposed on the Provincial Government, or which, being by such rule conferred or imposed on the Central Government, has been directed under sub-s. (4) to be exercised or discharged by the Provincial Government, shall, in such circumstances and under such conditions, if any, as may be specified in the direction, be exercised or discharged by any officer or authority, not being (except in the case of a Chief Commissioner's Province) an officer or authority subordinate to the Central Government.

12. My attention has been drawn to a number of notifications issued under these provisions, but Mr. C.P Sinha for Crown has had to concede that none of them cover soft coke. The first of these notifications under sub-s. (4) of S. 2) which has been placed before me, is Notification No. 20 of the Government of India, Department of Commerce, dated 8th September 1939, delegating powers to the Provincial Government in respect of certain articles. This was duly followed in turn by Notification No. 1696-VIIC. 25/39, com. of the Governor of Bihar, dated 7th October 1939, directing, subject to certain conditions, that the power to control prices at which scheduled articles might be sold should be exercised by District Magistrates in their respective districts. Neither of these notifications, however, covers soft coke, or indeed coke, or coal of any sort.

13. On 25th May 1940, the Central Government issued Notification No. 501-Ind-War (11)/40, delegating powers to the Provincial Government in respect of certain further articles specified in the schedule. Amongst the articles specified are charcoal, steam coal and firewood. This was followed in due course by Notification No. 317-Com. R. of the Provincial Government, dated 1st June 1940 delegating the powers in turn to District Magistrates and the Sub-divisional Officer of Dhalbhum in his sub-division. The schedule includes charcoal, steam coal and firewood; but in neither of these notifications is soft coke included in the schedule.

14. There was a further notification of the Provincial Government No. 963-Com. R. dated 3rd October 1940, extending the powers also to the Sub-divisional Officers of Supaul and Madhipura, but here again, while the schedule includes steam coal, it does not include soft coke.

15. On 29th November 1941, the Central Government appears to have abandoned the practice of delegation of power by notification under S. 2(4), and instead amended S. 81 so as to confer power under that rule upon the Provincial Governments as well as upon the Central Government. Defence Co-ordination Department Notification No. 899 SM/41, dated 29th November 1941, provided that in sub-rule (2) after the words “Central Government” wherever they occur, the words “or the Provincial Government” should be inserted.

16. After that date it was, of course, open to the Provincial Government to empower the District Magistrates to regulate the prices of any articles, but it is not contended that any notification covering coal or coke was so issued by the Provincial Government before Notification No. 318-P.C./42-Com., dated 2nd February 1942, which delegated the powers to District Magistrates, Additional District Magistrates, and Sub-divisional Magistrates within their respective jurisdictions, subject to certain conditions, in respect of certain scheduled articles. The schedule to this notification includes soft coke and steam coal. This notification has unquestionably put matters upon a legal basis with regard to soft coke, but as I have said, it was issued subsequent to the date upon which the petitioner made the sale for which he has been convicted, and it cannot, therefore, be used to support the conviction.

17. Being anxious to give the Crown every possible opportunity to produce a notification covering soft coke should any exist, I twice gave adjournments in this case, and Mr. C.P Sinha referred the matter to the Local Government. He has placed before me the reply which he has received, which is to this effect:

With reference to your letter No. 2163, dated 3rd September 1942, I am directed to say that soft coke as a distinct and separate variety of coal was not included in the basic list of controlled commodities before 2nd February 1942. The view of the Government of India in their telegram No. Econad (PC) 15/41, dated 22nd December 1941 (copy enclosed) was that the term coal covered all varieties including soft coke. Soft coke as a distinct commodity from steam coal was specified in the notification No. 318-Com., dated 2nd February 1942 to make the position clear beyond doubt. Copies of relevant notifications are enclosed.

18. The telegram referred to runs: Reference telegram dated 14th December. Stop, Term coal therein covers all varieties including soft coke.

19. There might have been something to be said for the view put forward in this letter and telegram had the word used in the notifications been “coal” in the general sense (though I must not be taken as expressing the opinion that even in those circumstances I would have accepted that view) but when the term used in the notifications is not the general word “coal,” but the words “steam coal,” which is definitely recognized as describing a particular variety of coal which is quite different and distinct from coke, then the view put forward in the letter of Government, which I have quoted, cannot, in my opinion, possibly be supported. Coke, whether hard or soft, is quite distinct from steam coal. It is a substance which is produced by the treatment of coal in such as manner as to remove therefrom certain gases. The provisions with which we are concerned are penal provisions, and must be construed strictly, in favour of the subject.

20. Upon the view I take the District Magistrate of Muzaffarpur had no legal power to regulate the price of soft coke on 21st January 1942. His order purporting to do so was illegal, and a conviction for contravention of that order cannot be supported. The result is that this application succeeds. The conviction and sentence of the petitioner are set aside, and he is acquitted and must be discharged from his bail forthwith.

21. Before concluding I should like to draw attention to a defect in the wording of the penal clause of R. 81. Rule 81(4) runs:

If any person contravenes any of the provisions of this rule he shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both.

22. The expression “contravenes any of the provisions of this rule” is unfortunate. The rule is merely an empowering rule. Its sole provisions are empowering provisions. It is difficult to comprehend how any person, except possibly the Central or Provincial Government, could contravene any of these provisions. What was evidently meant was that a person should be punishable for contravening the provisions of any order passed under the rule, not for contravening any provisions of the rule itself which provisions in themselves do not fix any prices. It is unnecessary to consider the possible effect of this defect in the wording of sub-r. (i) in the present case, as the conviction is set aside upon other grounds. Its effect may have, however, to be seriously considered in an appropriate case should such arise.

R.K

23. Conviction set aside.