1. This Rule was issued on the Chief Presidency Magistrate of Calcutta to show cause why conviction and sentences under sec. 13 of Ordinance XXXV of 1943 should not be set aside.

2. The material facts are not disputed.

3. On the 13th June, 1945, Md. Shirajuddin, and N.C Kabir, Assistant Inspectors of Civil Supplies accompanied by U.K Pal, went to the shop where the three accused, Santosh Das Gupta, Bistodas Mukherjee and Ram Krishna Ghose, were working. They asked for gramophone needles of H.M.V or any other make, for gramophone springs and for H.M.V sound boxes. Accused Santosh Das Gupta and accused Bistudas Mukherjee were at the same counter. They replied that they had nothing but gramophone records for sale. The Assistant Inspectors went to another counter and asked whether there was a battery-radio set of any make for sale. Accused Ram Krishna Ghose replied that there were no radio sets for sale.

4. The Assistant Inspectors produced their identity cards and then searched the shop. A considerable supply of gramophone needles, springs and sound boxes was found on search, but no battery radio set.

5. Santosh Das Gupta and Bistudas Mukherjee were charged under sec. 13 of Ordinance XXXV of 1943 with refusing to sell needles and sound boxes in contravention of sec. 9 of that Ordinance; and Ram Krishna Ghose was charged under the same section with refusing to sell a battery radio set.

6. Ram Krishna Ghose was acquitted. Santosh Das Gupta and Bistudas Mukherjee were convicted and sentenced each to pay a fine of Rs. 200 and in default to undergo rigorous imprisonment for two months.

7. On behalf of the two convicted persons, it has been argued that the prosecution evidence proves that they had sufficient cause for refusing to sell gramophone needles and sound boxes. Sec. 9 of Ordinance XXXV of 1943 reads as follows.

“9. Refusal to sell—No dealer or producer shall, unless, previously authorised to do so by the Controller General or other Officer empowered in this behalf by the Central or the Provincial Government, without sufficient cause refuse to sell to any person any article within the limits as to quantity imposed by this Ordinance.”

8. Mr. Talukdar for the Petitioners drew my attention to Gazette Notification No. 1/2(109)/44-CG(CS) dated Bombay, the 22nd September, 1944, which appeared in the Gazette of India, October 7th, 1944.

9. The Notification reads:

“In pursuance of sec. 9 of the Hoarding and Profiteering Prevention Ordinance, 1943 (Ordinance No. XXXV of 1943) I hereby authorise:—

(a) any accredited distributor of, or authorised dealer in gramophone main springs, sound boxes and spare parts oif a particular [make to refuse to sell any spare parts of that make if—

(i) the spare parts are required otherwise than for servicing a gramophone of that make or

(ii) the intending purchaser does not, on a request being made in that behalf, furnish correct information as to the model for servicing whereof the spare parts are required, and the name of the owner thereof;

(b) any accredited distributor of gramophone of a particular make to refuse to sell spare parts of that make to a person other than an authorised dealer therein or a dealer approved in this behalf by the Controller-General of Civil Supplies;

(c) any retail dealer to refuse to sell spare part of a gramophone unless the intending purchaser returns the spare part in replacement whereof he wishes to purchase the new part.”

10. Cl. (c) above authorises a retail dealer, to refuse to sell a spare part of a gramophone unless the intending purchaser returns a used spare part in its place.

11. It should be noted that there is no provision in this clause to the effect that the dealer shall request the customer to return the old spare part. Both customer and dealer are presumed to know the rule.

12. Md. Shirajuddin admits that he did not take any used sound box or used needles with him.

13. It is clear therefore that, in the words of sec. 9 of the Ordinance, the accused persons were previously authorised by the Controller to refuse to sell an H.M.V sound box in the circumstances and that therefore their refusal was not a contravention of sec. 9 of the Ordinance. The conviction cannot therefore be sustained in so far as it concerned the refusal to sell a sound box.

14. It remains to be considered whether the accused persons refused to sell needles “without sufficient cause.”

15. There can be no doubt that they refused to sell. They did not explain their refusal on any-such ground as that they had exhausted their daily quota, or that the purchasers were not shown to be bona fide purchasers. They merely stated that they had no needles for sale.

16. In my opinion, the fact that they gave no explanation is not in itself sufficient to show that they refused without sufficient cause. It is true that the burden of showing that they had sufficient cause was on the accused persons; it is equally true that failure to give any cause to the intending purchaser is a circumstance which may properly be taken into consideration by the Court in considering whether a cause subsequently put forward as the cause for refusing was indeed the true cause; but it is obvious that a shop-keeper who has in fact sufficient cause for refusing to sell, can scarcely be blamed for stating to an intending customer that he is out of stock. If the shop-keeper states that he has a stock but will not sell because he has exhausted his daily quota or for some other sufficient cause, he is likely to antagonise a customer and render his own position difficult. I am not aware of any law that compels him to tell the truth to his own detriment, if indeed he has a sufficient cause for refusing to sell.

17. The defence produced a number of printed notices issued by such companies as The Gramophone Company, Ltd., The Columbia Gramophone Company, Ltd., and The Twin Record Company, Ltd., and also a letter No. D/II-14 dated 2nd June, 1945, from the Assistant Controller General of Civil Supplies addressed to the Secretary, Bengal National Chamber of Commerce.

18. This letter reads:

“Sub: Sale of Gramophone needles.

I am directed to acknowledge receipt of your letter No. G.I/1A/4/1701 dated the 4th April, 1945, and to say that gramophone dealers cannot be permitted to regulate their sales of needles on the basis of and in proportion to the purchase of records as the use of gramophone needles in a household seldom bears any relation to the purchase of records. The dealers are however authorised to refuse to sell under sec. 9 of the Hoarding and Profiteering Prevention Ordinance, 1943, if they are satisfied that the customer is not a genuine one.

For Asst. Controller General of Civil Supplies.”

19. Each of the printed notices referred to above contains the following paragraph under head “General Information and Instructions.”

“2. The basis of rationing of stocks of needles to dealers and to the trade in general as at the present in practice has been approved by the Assistant Controller General olf Civil Supplies in his letter, dated November 8, 1944, Referenee No. Ord. 1/28/43.CG (CS)

Note Carefully.—

(a) You must sell, say one packet of long playing or one tin, of steel needles to any bona fide customer who enters your shop and demands them tout you are permitted to use a reasonable quantity of the supplies which you receive from us for use in demonstrating records to customers.

(b) You must not insist upon customers buying records as a condition of the Bale of needles,

(c) while the expression ‘bona fide customer’ is elastic in its meaning the following notes may serve you as a guide:—

(i) all persons regularly buying records from you are bona fide.

(ii) all persons known to possess and own gramophones and records are bona fide.

(iii) all persons who enter your shop and purchase records and then desire to buy needles are bona fide.

(iv) while the situation is delicate one feels that you are at liberty to question the bona fides of a customer who comes in regularly for needles and is not known by you to be a record purchaser.”

20. The letter of the Assistant Controller authorises dealers to refuse to sell needles if satisfied that the customer is not a genuine one. The fact that all the printed notices, coming from established firms, contained identical instructions, justified dealers in assuming that those instructions had official sanction or at all events could be followed safely.

21. In these circumstances I am satisfied that if the accused refused to sell the needles because they considered that Md. Shirajuddin and his companions were not bond fide purchasers, as indicated in these instructions, then they had sufficient cause for refusal, and their refusal did not amount to a contravention of sec. 9 of the Ordinance. If now, the facts of the present case are considered it is apparent that Md. Shirajuddin and his companions were not bona fide customers within the meaning of cl. (c)(i), (ii) and (iii) above. Indeed, it is open to question whether a test purchaser whose object in purchasing is not to use the article purchased can ever be described as a bona fide purchaser.

22. There was nothing in their conduct from which the accused could infer that they were bond fide customers. On the other hand, their conduct in demanding any kind of needle and any kind of gramophone spring and in seeking to purchase a sound box without returning an old one was such as to suggest to the salesmen that they were not bona fide purchasers. The accused had, therefore, in my opinion, good reason for holding that Md. Shirajuddin and his companions were not bond fide purchasers.

23. There is one other aspect of the matter which seems to me relevant.

24. Supplies of needles were limited. No dealer could be blamed if he rationed his stock and instead of selling out his entire stock at once, decided to fix a daily or a weekly quota for sales.

25. In the present case, a notice (Ex. B) was exhibited in the shop showing supplies received and containing the following sentence Ten packets and boxes allotted for Daily Sale.

26. The Assistant Inspectors, in the course of their search, seized cash memos showing that an amount slightly in excess of this daily allotment had been sold on that particular day, thus indicating that honest sales up to the daily allotment had already been made that day.

27. From the facts that the accused had apparently good reason for suspecting that the Assistant Inspectors and their companion were not bona fide purchasers, and that the accused had apparently made honest sales that day up to their daily allotment, I am convinced that they had sufficient cause for refusing to sell the needles.

28. In this view the refusal to sell gramophone needles was not in the circumstances a contravention of sec. 9 of the Ordinance.

29. I therefore order that the rule be made absolute, thalt the convictions and sentences be set aside, and that the accused Santosh Das Gupta and Bistudas Mukherjee be acquitted. Let the lines if paid be refunded.