Yorke, J.:— This application, in revision has been referred to this Full Bench on the view that in the case of Emperor v. Baij Nath(1), decided by Mr. Justice. Sinha and Mr. Justice Mansur Alam, on the 25th July, 1946: the interpretation of section 119 of the Defence of India Rules adopted by another Division Bench consisting of the then Chief Justice and Mr. Justice Braund in Emperor v. Raj Bahadur(2) had been doubted. The judgment in Criminal Revision No. 1271 of 1945 was not available to the learned single Judge and in my own personal opinion the statement made to him by the learned Government Advocate and learned counsel, Mr. Pathak, was not a correct statement. (It is said that this was due to a misapprehension.) However, the case having come before us has been argued at length for more than three days and it has been contended before us that the view of rule 119 taken by the Division Bench is unsound and that this Full Bench should overrule it.
The matter a rises in this way: Section 2(1) of the Defence of India Act provides that:
“The Central Government may by notification in the Official Gazette, make such rules as appear to it 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 community.”
Sub-section (2) of this section contains a very, long list of matters for which the rules may provide or for which the rules may empower another authority to make provision by means of orders. Clause (iv) of sub-section (3) provides that:
“The rules made under sub-section (1) may confer powers and impose duties:
(b) upon any Provincial Government or officers and authorities of any Provincial Government as respects any matter notwithstanding that matter is one in respect of which the Provincial Legislature has no power to make laws.”.
Under the provisions of section 2 of the Defence of India Act the Defence of India Rules were made by the Government of India. Among the rules enacted is rule 81. Sub-rule (2) of rule-81 provides 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 war, or for maintaining supplies and services essential to the life of the community, may by order provide.”
for a large number of matters, for example—
“(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….”
In exercise of the powers conferred by this rule the Government of India issued a Cotton, Cloth and Yarn (Control) Order in 1943. The United Provinces Government also issued such a Cotton Cloth and Yarn Control Order on the 26th May 1943. But this order was replaced by the later order with which we are concerned in this case—The v.p Cotton Cloth and Yarn Control Order, 1943. (Notification No. M-5786.C.S., dated the 21st of July, 1943). At a subsequent date, namely the 4th July, 1944, the Provincial Government added a fresh clause, 6-a, to this order, and this amendment, published in the form of a notification in the United Provinces Government Gazette of the 15th of July, 1944, provides that:
“Every dealer except a hawker registered under sub-clause (1) of clause 4 of this order shall maintain correct accounts of the business-carried on by him.”
Earlier in the order there is to be found a definition of the word “dealer” as “a person carrying on the business of selling cotton cloth or yarn or both, whether wholesale or retail, and whether or not in conjunction with any other business.”
The applicant, Debi Prasad, prior to the year 1945 was carrying on a grocery business in the town of Kanpur. Subsequently he obtained a licence to sell cloth to the public as a retail dealer and it is stated that he started his business as a retail cloth dealer on the 18th of January, 1945. He claims to have purchased two bahi khatas, that is blank books of the ordinary kind used for keeping shop accounts, but he took only one of these into use and admittedly he maintained no accounts of any kind except a rokar bahi which may be called a daily cash account. For about a fortnight before the shop was opened the applicant was obtaining cloth on credit from wholesale dealers but was not paying for the cloth, the custom of the trade allowing him 15 days for payment. From the 18th (or 19th) the business of selling cloth 3 was started. On the 4th July, 1945, an Inspector of the Textile Control and Enforcement Force searched the shop of the applicant and his residential house which was above the shop. In the course of this search he found in a room on the shop floor adjoining the shop items of cloth, Exs. 16 to 92. From the residential portion of the house on the first floor he recovered items, Exs. 1 to 15. The applicant himself appeared at some stage of the proceedings and made over to the inspector the rokar bahi and a statement Ex. P-4 which is supposed to be a copy of a statement of the stock of cloth as present in the shop on the 2nd July. It was further stated that Exs. 16 to 92 were more or less concealed underneath some sacks. By admission there was at this time no entry in the books of the applicant in respect, at any rate, of Exs. 16 to 92, and it was doubtless for this reason, that when questioned as an accused on the 2nd October, 1945, the applicant said that it was not Exs. 16 to 92 which were found, in the room behind the shop but only Exs. 1 to 15. Not only did he make this statement at this date, but having stated on the 2nd October that he would file a written statement, he proceeded on the 7th December in the said written statement to elaborate the original statement and to allege that items 16 to 92 were articles which he had collected bit by bit for a gauna ceremony in the family. As regards Exs. 1 to 15, he said that they were included in an invoice which was received at the shop in his absence on the 26th June and that as he only returned home from this absence on the 4th July after the search had been made, he not had any opportunity to enter these items in his account book Ex. P-2. The defence was rejected on facts because it was held that Exs. 16 to 92 were found in the room behind the shop. It being the applicant's own contention that these were not found there but somewhere else and were items which he had not entered in his accounts, nor (by implication) had ever intended to enter in these accounts, once it was found that they were a part of the stock, the conclusion was irresistible that the accounts were not being correctly maintained and that this was intentional on the part of the applicant. In these circumstances, the Magistrate convicted the applicant of an offence under rule 13 of the U.P Cotton Cloth and Yarn Control Order and taking the view that this cloth had been put aside for black marketing, he sentenced the applicant and his son each to undergo 18 months' rigorous imprisonment and also each to pay a fine of Rs. 1,000 with a further 6 months' rigorous imprisonment in default. He also directed that the cloth recovered from the room should be forfeited to Government.
The matter was taken in appeal to the court of the Sessions Judge of Kanpur where a number of points, which do not appear to have been taken in the trial court, were taken. The learned Sessions Judge held that the story of the cloth being found under the sacks was correct. He further held that the applicant had failed to maintain correct accounts. In this connection he remarked that it had been argued that the cloth, Exs. 16 to 92, had been included in the report Ex. P-4 made to the district authorities on the 2nd July, 1945, and therefore its absence from the account book, that is the rokar bahi, was unimportant. About this he said: “This argument is bound to fail because according to the defence Exs. 16 to 92 were not included in the books as they were not part of the trade stock; therefore, they could not have been included in Ex. P-4 either. I do not think Ex. P-4 clearly shows that any stock not shown in the account books was included in the return; it merely gives a figure for the stock held on the 2nd July without other details. There is no proof that it covers any of the exhibits for which the appellants have been tried; if it does cover any of them, they can only be Exs. 1 to 15 according to the defence.” This view is clearly correct and the only argument which has been put forward to meet it is one which will be dealt with in its proper place and is completely unconvincing.
The second main argument put before the learned Sessions Judge raised the point for the consideration of which the present, application (though, as I think wrongly) was referred to this Full Bench, namely the correct interpretation of rule 119 of the Defence of India Rules. As I have mentioned already, rule 81 provides for the making of orders providing for various matters. There are numerous other rules which empower the Central Government or the Provincial Government to make orders. By some of these rules the Government is to make an order by notification. In others there is no such provision for the publication or communication of the order made by the Government or by the authority which is authorised to make the order. For these rule 119 of the Defence of India Rules provides. This rule has been the subject of a number of amendments, but at the dates of the issue of the Cotton Cloth and Yarn Control Order and of the amendment which introduced clause 6-a it ran as follows:
“Save as otherwise expressly provided in these rules, they authority, officer or person who makes any order in writing 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, be 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.”
As has been said by some learned Judges, the rule provides something in the nature of an exception to the general rule ignorantia legis non excusat; but only to this extent that it provides in effect that unless and until there has been publication of notice of an order [for example an order under rule 81(2)] no one can be punished for a breach of the order. It does not, however, require that any given person should have actually been informed of the order and should have actual knowledge of it. On the contrary, after publication of the order the persons concerned, that is those whom the order concerns, shall be “deemed” to have been duly informed of the order. In the case of an order affecting an individual person (not being a corporation or firm, for which there is a separate provision) the rule provides that the authority shall serve or cause the order to be served on that person—
(i) personally, by delivering or tendering to him the order, or
(ii) by post, or
(iii) where the person cannot be found, by leaving an authentic copy of the order with some adult male member of his family or by affixing such copy to some conspicuous; part of the premises in which he is known to have last resided or carried on business or personally worked for gain, and thereupon the person concerned shall be deemed to have been duly informed of the order.
Rule 119 is thus a composite rule providing for publication in the case of an order of a general nature or affecting a class of persons and for personal service or some kind of substituted service in the case of an individual. Thus looked at as a whole, the rule clearly aims at securing that persons concerned with an order shall get either direct or constructive notice of the order.
Different High Courts in this country have taken different views of the nature and effect of the provisions of rule 119. The view to which I am personally rather inclined is that rule 119 is procedural, if I may say so, and that the only object of the rule is to secure either direct or constructive notice of the order to the person or persons concerned, and that the validity of the order is not affected at all by the rule. What is affected by the rule—119—is the operation of the original order in the sense that in the absence of communication, direct or constructive, a breach of the order cannot be made punishable. That view has not found general favour and the view more generally taken in that the provisions of rule 119 are mandatory and it is generally said that an order which has been made is not law at all and in fact is not binding on any one unless and until there has been publication as required by rule 119. Further to this, a number of courts have taken the view that the words “shall publish notice of such order in such manner as may, in the opinion of such authority, officer or person, be best adapted for informing persons whom the order concerns” should be interpreted very strictly so as to throw a burden on the prosecution in cases of alleged breach of any such order to prove, first, that the authority which passed the order formed an opinion and decided the manner best adapted for informing persons whom the order concerns, secondly that in pursuance of that opinion and decision it directed such publication and thirdly that such publication was made in exact accordance with the direction given by the authority, officer or person on the basis of the opinion which he was proved to have formed. It will be noted that the matter so regarded becomes one of the most petty fogging technicality and goes far beyond any principles of commonsense. It will, however, be convenient to note the history of these various views as shown by decisions of our own and other Courts.
Our attention has been drawn to two cases decided by Mr. Justice Mulla in 1945, Emperor v. Girdhari and Emperor v. Krishan Chandra. It will be convenient to quote the head notes.
In the first case the head-note runs as follows:
“No order passed by the District Magistrate under, the Defence of India Rules. Rule 119 incorporates a mandatory provision which has been duly published as required by rule 119 of the Defence of India Rules. Rule 119 incorporates a mandatory provision which must be strictly carried out.”
Reliance was placed on a decision of the Nagpur High Court, Shakoor Hasan Kachhi Memon v. Emperor.
In the second case the head-note runs as follows:
“The most important ingredient of rule 119 of the Defence of India Rules is that it is for the authority passing the order to exercise its mind and to decide upon some method of publication. This power cannot be exercised by anyone other than the authority passing the order. Before a person can be charged with infringement of an order passed under the Defence of India Rules, it is incumbent on the prosecution to establish that the authority passing that order had prescribed a certain method of publishing that order and that method had been carried out.”
In the second of these two cases I should like to note that at one stage of the argument Mr. Justice Mulla was prepared to assume for the purposes of argument that it was under the District Magistrate's direction (as indicated by certain details endorsed on the order of the District Magistrate) that copies of his order were sent to various officers for consideration. In the result, however, he took the view that the mere fact that copies of the order were sent to various officers in accordance with these endorsements was not sufficient to fulfil the requirements of the law and there was no proof in fact that the District Magistrate had prescribed the method of publication. Personally I am inclined to the view that where an order of any District Magistrate is sent out from the District Magistrate's office to a number of different authorities for publication, it is a reasonable presumption that this was done under the orders of the District Magistrate himself. An authority, officer or person who makes an order under the Defence of India Rules is presumed to have the provisions of rule 119 in his mind and, when he wants publication, to make a direction after a consideration of what is necessary in the circumstances of the case. These were, however, cases of orders made by District Magistrates. The case of an order made by the Provincial Government was for the first time considered by my brother Wali-ullah in Akbar v. Emperor. It will be convenient to quote the head-note which runs as follows:
“The provisions of rule 119 of the Defence of India Rules necessitate proof of two matters: (1) it must be shown that the authority making the order—in the case in question the Provincial Government—indicated some manner, which in its opinion was considered best adapted for informing the person concerned; and (2) that such direction given by the authority concerned was actually carried out. Where there is no indication whatsoever that the authority making the control order ever even applied its mind to the consideration of this rule in regard to the publication or notification of the order in question, then the mere publication in the Official Gazette cannot be held to comply, with the provisions of rule 119. The presumption, therefore, that the person concerned must be deemed to have been duly informed of the order does not arise.
Where the accused pleaded ignorance of the U.P Cattle, Sheep-and Goats (Slaughter) Control Order, 1943, and it was established that the Control Order in question was not published in accordance with the provisions of rule 119 of the Defence of India Rules, held that the accused could not be convicted for any contravention of the Control Order.”
In this judgment the matter was discussed at some length and reliance was placed on the same Nagpur case of Shakoor Hasan Kachhi Memon v. Emperor mentioned earlier. The most important passage in the Nagpur judgment is that quoted in this judgment at page 501 which runs as follows:
“This rule (119) lays an obligation on the officer making the order to publish notice of such order. The manner in which such notice is to be published is no doubt left to the discretion of that officer. If he adopts a mode of publication however inadequate or unreasonable, it is not liable to be questioned in any Court of law. (It may be noted that other Courts do not at all accept this proposition). But the burden of proving publication of the notice of that order in the manner contemplated by the officer making the order lies on the prosecution. In other words, it must be shown that the officer making the order himself prescribed the manner of its publication and that the publication was made in that manner. The obligation laid on the officer passing the order is a statutory-obligation and it is incumbent on the prosecution to prove that, the statutory obligation was duly discharged. The prosecution cannot in such a case merely rely on the presumption of section 114, clause (e), Evidence Act, for the only reason that the making of the order and the direction to publish notice of it were official acts.”
I would remark here that it is a peculiar feature of the decision in Shakoor Hasan Kachht Memon's case that the application in revision was ultimately dismissed on the ground that it had not been proved that publication was not made in complete accordance with the direction of the officer passing the order. I would also like to remark that there is no such thing as clause (e) of section 114. What the learned Judge was referring to was illustration (e) and in my judgment the illustrations in section 114 of the Indian Evidence Act are nothing but illustrations and it is always open to a court to go back to the main section and consider whether that section, as it stands, is applicable to any given set of facts so as to enable the court to draw inferences from those facts. The same view is said to have been taken by Mr. Justice Sinha in another unreported case of a Magistrate's order in the case of Emperor v. Shankar Deo. By the time the matter came before the Court again on the 4th April, 1946, in Emperor v. Bala Prasad, the question had been considered by a Full Bench of the Patna High Court in Mahadeo Prasad Jayaswal v. Emperor(3) in which the first head-note runs as follows:
“It is a well-known practice of the Central and Provincial Governments to publish their Acts and Notifications in their Official Gazettes. Therefore, when an order passed by the Central or Provincial Government is published by it in the Official Gazette, it may be presumed that the Government, while publishing the order, was aware of the provisions of rule 119(1) and the publication was made in compliance with all its provisions including the provision as to the determination of the most suitable form of publication.”
I took the view that I was justified by this decision in differing from the view taken by my brother Judge and accordingly rejected the reference. A month later, on the 9th May, 1946, the proper interpretation of rule 119 was considered by a Division Bench consisting of the late Chief Justice, Sir Iqbal Ahmad, and Mr. Justice Braund in Emperor v. Raj Bahadur(4). It will again, I think, be sufficient to quote the first head-note which runs as follows:
“When an order passed by the authority has been published by it in the Official Gazette, it may be presumed that it was aware of the provisions of rule 119 of the Defence of India Rules and that the publication in the Gazette was made in considered compliance with all its provisions, including the provision as to the determination of the most suitable form of publication. There is nothing in rule 119 which, required the authority to set out what its opinion, was or how it was arrived at.”
This part of the head-note is a quotation from the Patna case. The head-note continues:
“If a principle were to be introduced that, wherever, by statute or rule, a discretion is reposed in any person to do an act, he had to prove affirmatively his mental processes in exercising discretion, it would lead to impossible results. Nor is it in accordance with well accepted legal principles. There is great difficulty in understanding why, once the act of publication itself has been proved, it should not, in conformity with section 114 of the Evidence Act, be presumed that the official process of considering and forming are opinion as to the best method of publication has been regularly performed.”
It is this paragraph which sums up the conclusions of the Division Bench.
The last case of this Court to which our attention has been drawn is the decision of Mr. Justice Sinha and Mr. Justice Mansur Alam in Emperor v. Baij Nath connected with Nos. 1270 to 1282 in which a reference was made to Raj Bahadur's case. In their judgment in this case the learned Judges referred to the fact that the publication provided by rule 119 is itself a departure from the principle of law embodied in the maxim ignorantia legis non excusat and they went on to refer to an English case Johnson v. Sargant and Sons, where a distinction was drawn between an ordinary law enacted by Parliament after due publicity and the Defence of the Realm Regulations. The learned Judge remarked that there was about statutes a publicity even before they come into operation, which was absent in the case of many orders such as that with which the Court was then dealing and, indeed, if certain orders were to be effective at all, it was essential that they should not be known until they were actually published. He therefore said that he was unable to hold that the order came into operation before it was known, that is to say before the morning of 17th May. I have been unable to find that this decision has any real bearing. We have to interpret our own rules and cannot, get much help from rules which were differently framed and in respect of which so far as appears, there was no such provision as rule 119. Even as the remarks of the learned Judge were worded, lie would have had to hold that the order was in operation as soon as it was known to the offender even if it was before the publication of the order in the ordinary way. Be that as it may, the attention of the learned Judges of this Court was then drawn to the decision in Raj Bahadur's case and they remarked that authority did not affect the case before them and that all it decided was that the publication in the Gazette was a good publication and it was not necessary for the prosecution to prove that it was made in a manner which was proper in the opinion of such authority, officer or person. They went on to say:
“We shall assume that the Governor or the Secretary of the department concerned directed its publication and that it was done in the manner prescribed. But the object of the publication is mentioned in the rule itself. It is intended for ‘informing persons whom the order concerns’. It is still open to the applicants to contend that, even if there was a publication, the Gazette never reached them. Once it has reached them and conveyed the necessary information, it is not open (to them) to take exception to the manner or method in which the information was conveyed, but the receipt of the information is a sine qua non.”
They went on to hold that these persons were not guilty of the breach of the order of the 21st April, 1943, because they received the information on the testimony of one of the prosecution witnesses himself only on the 5th May, 1943.
It seems to me evident that this decision was not in conflict with the decision in Raj Bahadur's case. With the greatest respect I am, however, quite unable to accept the view expressed in the last paragraph. Admittedly at the date in question rule 119 was in force in the form in which I have quoted it earlier and it was not necessary for the prosecution to prove actual information, that is actual communication, to the alleged offenders. Once publication had been made the persons affected by the order were to be deemed to have been informed and in my judgment when a person is deemed to have been informed, it is not open to him to show that he was not actually informed. Rule 119 lays down, as I have said earlier, that there may be either actual information or constructive information and either is equally effective.
We have been asked by Mr. Peary Lal Banerji to re-consider the decision in Raj Bahadur's case in the light of some decisions of other High Courts. Reliance was placed on the Nagpur case, Shakoor Hasan Kachhi Memon v. Emperor. In that case reliance was first of all placed on the analogy of English law and the case of Johnson v. Sargant and Sons. The learned Judge took the view that an order passed by a District Magistrate under rule 81 could not bind the persons concerned unless it was published in accordance with rule 119 of the Defence of India Rules. The learned Judge seems to have taken the view that the presence of an endorsement below the order itself implied that there was a direction by the District Magistrate after the District Magistrate had decided upon the method best adapted for publication. He then turned to the question whether there could be any presumption that publicity was actually given in accordance with the direction. But in this connection he concluded that as that point, which was a point of fact, had not been raised in the trial court and the witness who could have given evidence on the point was not cross-examined, the applicant accused could not be allowed to take advantage of his own default and it must consequently be held that wide publicity as contemplated by the District Magistrate was given and the applicant, had in point of law notice of the District Magistrate's order. The conviction was accordingly upheld.
In a subsequent Bench case of the Nagpur High Court, L.M Wakhare v. King-Emperor it was held that:
“The provisions of rule 119 of the Defence of India Rules are mandatory and not directory, and failure of service of notice of an order of detention in the manner prescribed under rule 119 of the Defence of India Rules makes a detention under rule 26(1)(b) of the Defence of India Rules illegal, and when an ineffective and inoperative order passed under rule 26(1)(b) of the Defence of India Rules is sought to be continued by the passing of a fresh order under section 9 of the Restriction and Detention Ordinance there is no legal order of detention under the Defence of India Rules.”
The argument in this case was to the effect that rule 119 is intended to give information to the person concerned so that the person be fixed with a knowledge that an order has been passed against him. It was remarked that this was an order directing that a particular person be detained and was not therefore an order to which rule 119 applied in items. Nonetheless the view was taken that an order passed, while a person was already in detention under another order, was not legal because of the absence of service. With the greatest respect, I find great difficulty in accepting this view. The whole point of rule 119 is to saddle a person with knowledge, direct or constructive, in order that person may be liable to punishment if he commits a breach of the order: The information or communication really serves no other purpose and if in fact the person concerned in this particular case was of opinion that he was being detained without there being any legal order for his detention, the natural course was for him to move the Court by an application under section 491 of the Code of Criminal Procedure at once. The applicant waited from 1942 until 1944 and it was only on receipt of the order dated 23rd June, 1944, on the 4th July, 1944, directing that the order made on the 16th November, 1943, would continue that he claimed to have received notice of the detention order of the 16th November, 1943. It does not seem to me that there is anything in this case which can lead us to take a different view from that which has been taken by the Division Bench.
Reliance was next placed on three Bombay cases. The first of these is Emperor v. Rayangouda Lingangouda Patil. The Division Bench took the view that:
“Where an order is addressed to a private individual, it is difficult to hold that mere publication of it in the local official Gazette is sufficient notice to that individual of an order passed against him, unless there is reason to believe that he is in the habit of reading the Gazette or has read it in a particular instance.”
This was a case of an order under rule 26(5-B) of the Defence of India Rules and if rule 119 applied to it at all, then that portion of rule 119 which refers to publication in the manner which the authority considers best adapted does not apply at all. Rule 119 itself contains provisions for service of notice addressed to an individual and the procedures mentioned therein do not include publication in the Official Gazette. The learned Judges, however, went on to hold that:
“Where in fact the individual concerned knows perfectly well that an order has been passed against him and acquires his knowledge by other means, it cannot be said that he has not received notice of the order merely because notice is not given to him in the form prescribed by rule 119.”
In effect the learned Judges adopted the view of rule 119 for which I have already indicated my own preference.
The second Bombay case relied on by Mr. Banerji is Lealie Gwilt v. Emperor. This was a case of a Government order requiring the submission of weekly returns of stock of a shop in which, beside other articles, rice, wheat and bajri were sold. The notification requiring the submission of these returns was published in the Bombay Government Gazette. The point taken on behalf of the applicant to the High Court was that there was no evidence as to the manner which in the opinion of the authority issuing the order was best adapted for informing the persons whom the notification concerned and, that being so, no presumption could arise under rule 119(1) that the accused was duly informed of the said notification. To put it more accurately, the accused persons could not be deemed to have been duly informed of the said order. The learned Judges remarked that there was an entire absence of evidence as to how, in the opinion of the authority issuing the notification, the notification was to be published. They did not think that in a case of this nature recourse should be had to the provisions of section 114, Evidence Act and that any presumption arose that the issuing authority had decided that the notification was to be published in the Bombay Gazette alone. They went on to remark:
“As pointed out by Woodroffe, J. in Narendra Lal v. Jogi Hari, the meaning of section 114, illustration (e) of the 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.”
The learned Judges thus apparently took the view which has not been accepted in this Court that it cannot be presumed under section 114 of the Indian Evidence Act from the mere fact of publication in the Government Gazette that the officer who directed chat publication is the same officer who made the order which was to be published or if it was the same, that he gave his mind to the consideration of the question whether that was the method best adapted for informing the persons concerned. With all respect, I. see no reason, (and, indeed, the learned Judges have not, put forward any reasoning) to prefer this view to the one embodied in our Division Bench ruling. On the contrary, it seems to me that where an authority, ex hypothesi an official acquainted with the Defence of India Rules, makes an order which again ex hypothesi he is aware should be published in the manner best adapted for informing the persons concerned, it is to be presumed that he must have given thought to the method of publication. It was suggested by Mr. Banerji that publication might have been more or less automatic, that is to say that because it was a Government order, it went into the Official Gazette. But that seems to me to take the matter very little further. It is, of course, impossible to say who actually sent the order to the Government Gazette and it may well have been some one different from the officer who actually signed the original order either of his own motion or under the direction of the Governor himself. The authority—the Provincial Government—operates through different persons, the Governor, the Minister or under section 93 the Adviser, the Secretary or the Deputy Secretary; but when an order is made by any of these,; it is sent through ordinary channels to the Official Gazette and the mere fact that it is sent on by the higher officer implies that it has to go through the lower ranks to the proper destination. To my mind, illustration (e) of section 114, Indian Evidence Act covers the whole of the procedure which leads to the publication of a Government order under the Defence of India Rules in the Official Gazette, and there is nothing in this decision which could lead us to a different view.
The only other Bombay case to which reference was made is Mhatarji Bhau Patil…Applicant; v. Emperor, and learned counsel has not been able to show us in what way it is applicable to the present case.
To sum up, I find no force whatever in the contention of learned counsel that the only presumption which can be made under section 114 of the Indian Evidence Act is that some one, not necessarily the authority which made the order, decided on the best form of publication and ordered publication in the Official Gazette.
I have not thought it necessary in the remarks I have made above to discuss the subsequent amendment by which rule 119(IB) was added to the Defence of India Rules. By that amendment it was provided as follows:
“If in the course of any judicial proceedings a question arises whether a person was duly informed of an order made in pursuance of those rules, compliance with sub-rule (1) or, in a case to which sub-rule (1A) applies, the notification of the order, shall be conclusive proof that he was so informed; but a failure to comply with sub-rule (1):
(i) shall not preclude proof by other means that he was so informed; and
(ii) shall not affect the validity of the order.”
This amendment was made by a notification dated 21st July, 1945, and it has been contended by Mr. Banerji that it could not have retrospective effect. In my judgment, there is no question of retrospective effect because the amendment provides merely for a rule of evidence to be adopted in future judicial proceedings. The amendment as a whole merely has this effect that whereas under the order as it stood formerly compliance with sub-rule (1) had the result that the persons concerned were deemed to have been duly informed, compliance with sub-rule (1) now becomes conclusive proof that the person concerned was so informed. Provision (i) has this effect that even a person who before publication in the Gazette saw the completed and signed order on the table of the Secretary to Government and thereafter proceeded to contravene that order would be punishable for a breach of the order. Provision (ii), as it seems to me, goes no further than to support the view which I previously held that the publication or communication of the order and its validity are two entirely separate matters. The order itself when once it is signed is a perfectly good and valid order, but no one can be convicted for a breach of the order unless and until there has been a communication either direct or constructive by publication in accordance with the terms of sub-rule (1). In the light of the decision of the Division Bench, the applicant has not a leg to stand on. If it be considered that sub-rule (1) was still applicable, he is deemed to have been informed both of the original Cotton Cloth and Yarn Control Order and the amendment 6-a, and if sub-rule (IB) was applicable, then the admitted fact of publication, which I hold to be a compliance with sub-rule (1), is conclusive proof that he was so informed. I have already held at the beginning of this order that the failure of the applicant to enter these exhibits in his books did amount to a breach of rule 6-a. The applicant was, therefore, rightly convicted and there is no force in this application.
Before I leave the case, I should perhaps remark that Mr. Banerji addressed to us an ingenious argument by the effect that, by the applicant's system of accounts, he did not enter any cloth received on invoice in his accounts until, at or before the expiry of the 15 days' time allowed by the local business custom; he paid his vendor for that cloth. This cloth having come in on the 26th of June was not yet due to be entered in the accounts. It will be sufficient to say that there is no evidence whatever on the record to support this alleged method of keeping accounts and, secondly, that was not the applicant's case. On the contrary, he attributed his failure to enter Exs. 1 to 15 (and not exhibits 16 to 92) in his accounts to the fact that he was away from Kanpur from the 20th June to the 4th July and from start to finish he claimed that as exhibits 16 to 92 were his private property collected for the purpose of the gauna ceremony, he never intended to enter these exhibits in his accounts at all.
Finally on the question of sentence I agree with my learned brother that in the circumstances of this case the sentence of imprisonment may be reduced to the period already undergone.
Verma, C.J:— I agree with the order proposed by my brother Yorke.
Mr. Pearey Lal Banerji argued the case with his usual ability, thoroughness and fairness and cited all the relevant decisions, reported as well as unreported. There is a clear conflict of judicial opinion and it is undeniable that there are several decisions which support the contentions put forward by the learned counsel. Upon a careful consideration of the whole matter, however, I find myself in entire agreement with the decision of a Bench of this Court, consisting of Iqbal Ahmad, C.P, and Braund, J., in Emperor v. Raj Bahadur which, we are told, has so far been published only in the Allahabad Weekly Reporter and is to be found at page 428 of the volume for 1946. I should also like to place on record—if I may do so with respect—my sense of indebtedness to the very instructive judgment of Fazl Ali, C.J, in the Full Bench case of Mahadeo Prasad v. King-Emperor.
Wali-ullah, J.:— I also agree with the order proposed by my learned brother, Yorke, J.
As I was responsible for the decision in Akbar v. Emperor, I should like to mention that the question of a presumption under section 114 of the Evidence Act was neither specifically raised by the counsel for the parties nor was it discussed by me in the judgment. However, on a full consideration of the whole matter, particularly in the light of the Bench decision of this Court in Raj Bahadur v. Emperor and the Full Bench decision of the Patna High Court in Mahadeo Prasad v. King-Emperor, I feel satisfied that the publication of the control order in the Official Gazette gave rise to the presumption under section 114 of the Evidence Act that the provisions of rule 119(1) of the Defence of India Rules, including the provision for determining the most suitable form of publication, were fully complied with.
Mootham, J.:— I agree with the proposed order, and with the reasons therefor.
Mathur, J.:— I also agree and have nothing to add.
By the Court—The application for revision is allowed only to this extent that the sentence of imprisonment is reduced to the period already undergone. The applicant need not, therefore, surrender to the bail allowed to him by the order made by this Court on 7th of March, 1946. In other respects the application is dismissed. The sentence of fine and the sentence of imprisonment in default of the payment of fine are maintained. The order made by this Court on the 7th of March, 1946, staying the realisation of the fine imposed on the applicant, Debi Prasad, is hereby discharged.