The State represented by the learned Public Prosecutor has preferred the above six appeals challenging the order of acquittal passed in S.T.C. Nos, 544, 545, 546, 741, 773 and 774 of 1979 on the file of the Judicial First Class Magistrate, Tiruchirappalli, acquitting all the accused in the above cases of the charge for contravention of sub-clause (2) of clause 20 of Cotton Textile (Control) Order, 1948 as per Textile Commissioner’s Notification No. C.E.R. |10|1977. dated 15th April, 1977, punishable under section 7 (1) (a) (ii) of the Essential Commodities Act, 1955 as amended in 1974.
2. Now, I shall give the brief facts of these cases, which are similar, leading to the prosecution. The, Textile Inspector (P.W. 1) inspected the respective power loom factories of the accused in each of these cases on various dates noted in the respective complaints and found that the accused had produced dhoties with borders exceeding 6.35 mm. in width containing coloured yarn in the dhoti border. P.W. 1 seized the material objects marked in each of the cases and recorded statements from the concerned accused persons. Show cause notices were issued for contravention of the notification of the Textile Commissioner. As the explanations given by the accused were not satisfactory and convincing, the complaints were preferred against the accused in each of the cases. All the accused denied the offence.
3. All these cases have ended in acquittal for the following common reasons: (1) As the prosecution has been launched after one year from the date of the inspection, the prosecution is time barred. (2) The notification has not been filed before the Court. (3) On the side of the prosecution, no judicial pronouncement of the High Court of Tamil Nadu has been brought to the notice of the trial Court to the effect that the Court can take judicial notice of the existence of the notification .
4. I shall now examine the above reasonings of the learned Magistrate in the light of provisions of the Code of Criminal Procedure, and the decisions of the Supreme Court and the various High Courts.
5. So far as the first reasoning of the learned Magistrate is concerned, I may straightway dismiss it saying that as the penal provision for contravention of cause 20 of the Cotton Textile (Control) Order, 1948 (hereinafter referred to as the Order) falls within the ambit of section 7 (1) (a) (ii) of the Essential Commodities Act, 1955, as amended in 1974 (hereinafter referred to as the Act), which prescribes the punishment of imprisonment upto a maximum period of seven years and also imposition of fine, this prosecution cannot be said to have been barred under the provisions of section 468 of he Criminal Procedure Code.
6. Now, coming to the other two above reasons, given in the order of acquittal they can be answered by deciding the following important questions, viz.,
“(1) What does the expression ‘notification’ mean?
(2) Whether a notification issued under a particular statute, ordinance or order would fall within the meaning of the expression ‘existing "law"’ or ‘the "law" in force’?
(3) Whether the Court can take judicial notice of such a notification?”
7. Now, I shall answer the first question. The term “notification” is not defined in the General Clauses Act, 1857 (Central Act X of 1897). but has been defined under the various State Acts which I shall presently refer to. Section 2 (19-A) of the Tamil Nadu General Clauses Act, 1891 as well as section 2 (m), of the Criminal Procedure Code of 1973, defines the term ‘notification’ as meaning “a notification published in the official Gazette”. In the Andhra Pradesh General Clauses Act, the term is defined as meaning “a notification published in the official Gazette by a "law"ful order”. The definitions given in the General Clauses Acts of Assam, Bihar Madhya Pradesh and other States are similar to the one given by the Tamil Nadu Act. In the Punjab Act, the term is defined as meaning “a notification published under proper authority in the official gazette”. From the above definitions it is clear that the meaning of the term ‘notification’ is the issue of an order and the publication of the same for the information of the public (See Adbul Jalil and others v. State1). While dealing with the question whether a notification has the force of "law", the Supreme Court, in State of Bombay v. F.N. Balsara2, has observed that an order made by the Government in exercise of the powers conferred by a section in an Act owes its efficacy to the section and therefore, in the eye of the "law", the notification has the force of "law" as if made by the Legislature itself.
8. It need not be over-emphasized that any notification issued by the State Government or the Central Government should be in substantial compliance of Article 166 or Article 77 of the Constitution of India, as the case may be. For example, a notification signed by the Secretary by the order of the Governor was held to be in substantial compliance with clause (1) of Article 166, in State of Bombay v. Purushottam3See also Manickam v. Union Territory of Pondicherry4Therefore, it is clear that a notification issued by the Government should be in pursuance of the power conferred upon it by the statute concerned.
9. The next important requisite conditions for a valid notification is the publication in the official Gazette. In Kishori Lal Badra v. State of Punjab5, it has been ruled that a ‘notification’ means “a notification published under proper authority in the official Gazette” so that, unless publication was made, a notification could not be deemed to have taken effect. See Raju Chettiar, In re6. The Supreme Court in Mahendra Lal v. State of Uttar Pradesh7, while considering the validity of a notification issued under the provisions of the Uttar Pradesh Forest Act, has held that
"a notification under
section 4 of the Forest Act is required to be published in the Gazette and unless it is so published, it is of no effect. The notification of 23rd March, 1955, was published in the Gazette and was therefore a proper notification"
. See also Prannath Samantarai v. Bhagirathi Sahoo8, Abdul Jalil v. State9and P. C. Gupta v. State10.
10. On a reading of the above decisions, it would be clear that any notification issued under any statute, in order to be valid and proper, should have been made in pursuance of the power conferred upon the authority by the particular statute and also should have been published in the official Gazette, and the said notification takes effect only from the date of its publication.
11. Now, I shall deal with the next two questions by referring to the decisions rendered by the Supreme Court and various High Courts touching on them.
12. In Nanak Chand v. Emperor11, the Lahore High Court, following its earlier decision in Bawa Sarup Singh v. Emperor12, held that when a copy of Gazette notification is produced even for the first time before the High Court in revision, the High Court can presume its genuineness under section 81 of the Evidence Act and can hold the production of it as sufficient even if it had been tendered in evidence.
13. Subba Rao, J. (as he then was in Public Prosecutor v. Thippayya13, has observed as follows:
"Under
section 57 (1) of the Evidence Act, the Court should take judicial notice of all Indian Laws. ‘Law Indian’ is defined by the
General Clauses Act under section 3 (27-a). It includes any Law, Ordinance, Order,
by-"law", rule or regulation passed or made at any time by any competent Legislature, authority or person in British. India."
14. In State v. Nilam Das1, the Judicial Commissioner of the Himachal Pradesh Judicial Commissioner’s Court, while constructing sections 57 and 81 of the Evidence Act has held:
"Neither the Orders nor the notifications in question need proof as the Court will take Judicial notice of the former under
section 57, Evidence Act, and it will presume the genuineness of the latter under
section 81 of that act as the same were published in the Gazette of India."
15. A Full Bench of the Madhya Bharat High Court in State v. Gopal Singh2, has, While examining the question whether a notification is within the definition of "law", held as under:
"But there can be no doubt that if a notification is part of any Act, Ordinance, or Order, it would be within the definition of "law" or ‘existing "law"’.
* * * * *
....... judicial notice can be taken of a notification issued by the Government or any competent authority in the exercise of delegated power of legislation; that judicial notice cannot be taken of a notification issued by any authority in the exercise of its executive functions; that under the last paragraph of section 57, Evidence Act, a Court has a discretion to refuse to take judicial notice of a notification made in the exercise of delegated power of legislation, unless the notification is produced."
16. In State v. Gokulchand3, a Division Bench of the Gwalior Bench of the Madhya Pradesh High Court, following the decision of the Supreme Court in Edward Mills Co. Ltd. v. State of Ajmer4, in which a question arose for determination whether a notification issued under section 94 (3) of the Government of India Act, 1935 could be said to be a "law" in force within the meaning of Article 372 (1) of the Constitution, has held thus:
"In the present case notification in question is issued by the State Government in exercise of its powers delegated to it under Essential Supplies Temporary (Powers) Act. This was an order and could be included within the term ‘Indian Law’ as used in
section 3 (29) of the General Clauses Act, in accordance with the view of their Lordships. It also is an existing "law" as well as ‘Law in force’. If this is so there is no reason why the Court cannot take judicial notice of this "law" in force in the territory of India’ in accordane with
section 57 (1) of the Indian Evidence Act."
Ultimately it concluded that "the order relied upon need not have been proved and mere production of copy of he material Gazette notification of the same was enough. (See also Secretary M.M. Committee v. Bapputty5.
17. In Chattanatha Karayalar v. E.O. Puthalam Panch6, K.N. Mudaliyar, J., after referring to some of the rulings of the various High Courts, which I have referred to above, has held that in view of section 57 of the Evidence Act, the Court can take judicial notice of the existence of a notification.
18. A single Judge of the Mysore High Court in Abdul Rahimar v. State of Mysore7, agreeing with the view expressed in Public Prosecutor v. Thippayya8and State v. Gopal Singh9, held that under section 57 of the Evidence Act, a Court can take judicial notice of a notification issued by the Government or any competent authority in the exercise of delegated power of legislation.
19. A Full Bench of the Madhya Pradesh High Court in State of M.P. v. Ramcharan10, went into the question whether the impugned notification therein issued under section
of the Telegraph Wires (Un"law"ful Possession) Act, 1950, has the force of "law", of which judicial notice can be taken; and the Full Bench, after having referred to sections 57 and 78 of the Evidence Act and after deeply going into the definition of the term
"law"
concluded as follows:
"As a result of the above discussion, it is clear that under our legal order and jurisprudence based on the Constitution, ""law"" is not limited to legislative enactments. All forms of delegated legislation and conditional legislation amount to "law". All orders and notifications made and issued under statutory powers and which are legislative in nature amount to "law". A statutory order or notification will be legislative in nature if in substance it adds to, supplements, modifies or amends a statute or exempts certain matters from its operation.
* * * * *
In our opinion, therefore, the notification amounts to "law"."
In that case, before the Full Bench, the learned Government Advocate produced a book published under the authority of the Central Government containing the notification and the relevant Gazette in which the notification was printed. The learned Judges after going through the book and the Gazette produced before them held:
"We, therefore, find no difficulty in holding that judicial notice must be taken of the notification under section 57 (1) of the Evidence Act."
20. In Slate of Bombay v. F.N. Balsam1, the Supreme Court has ruled thus:
"An order made by the Provincial Government in exercise of the power conferred by this section 139 of the Bombay Prohibition Act, 1949, owes its legal efficacy to this section and therefore in the eye of the "law" the notification has the force of "law" as if made by the legislature itself.
* * * * *
...... these notifications being made in exercise of the power given by the Act it-
self, have undoubtedly the force of "law" and must be read along with the Act."
21. Before the Supreme Court in Kailash Nath v. State of U.P.2, the validity of a notification issued by the Uttar Pradesh Government under the provisions of the U.P. Sales Tax Act came into question. The Supreme Court on examination of this question held as follows:
"This notification having been made in accordance with the power conferred by the statute has statutory force and validity"
....
22. In State of Bihar v. Hira Lal Kejriwal3, it was contended that the Cotton Textile (Control of Movement) Order of 1948, made under the Essential Supplies (Temporary Powers) Act of 1946 and saved by section 16 of the Essential Commodities Ordinance of 1955 fell with the repeal of that Ordinance and hence the order was not continued under the Essential Commodities Act of 1955. The Supreme Court repelled that contention and held that the Order of 1948 made under the Act of 1946 was validly continued by virtue of the saving provisions by section 16 of the Ordinance of 1955 read with section 16 (2) of the Essential Commodities Act of 1955 and hence the prosecution under section 7 of the Essential Commodities Act read with the Order of 1948 was validly launched against the accused therein. See Shree Meenakshi Mills Ltd. ; v. Union Of India. of India4, wherein the Supreme Court has held that the Cotton Textiles Control Order of 1948 continued under the Essential Commodities Act of 1955. See also Lotus Industrials, Kallai, Malabar v. State of Madras, Development Department, Madras5.
23. I think it will be appropriate here to add that although the Constitution of India, does not contain any generic definition of "law", it defines ""law"" for purposes of Article 13 to include "any ordinance, order, bye-"law", rule, regulation, notification, custom or usage having in the territory of India the force of "law"" as defined under Article 13 (3) (a). In this connection reference can be had to the decision of the Division Bench of the Bombay High Court in Ms. Bhikusa v. Singamner. A.T.B.K. Union1, wherein the following observation has been made:
"It is to be noted that Article 13, clause 3, does not confer upon the order, rule, regulation, notification, etc., the character identical with the character of the Act of the Legislature: All that it states is that the order, notification, etc., shall have the same force and shall be treated on the same footing as the Act of the Legislature."
Having observed thus, the Bench has held that a notification issued under section 10 (2) of the Minimum Wages Act would have the same force as if it were the "law" of the land.
24. Article 366 (10) of the Constitution also defines "existing "law"" to mean any "law", Ordinance, order, bye-"law", rule or regulation passed or made before the commencement of this Constitution by any legislature, authority or person having power to make such a "law", Ordinance, order, bye-"law", rule or regulation. Another definition which is relevant here is the definition of the expression "Indian "law"" in General Clauses Act of 1897. Section 3 (29) of this General Clauses Act defines "Indian "law"" to mean-
"Any Act, Ordinance, Regulation, rule, order, bye-"law" or other instrument which before the commencement of the Constitution had the force of "law" in any province of India or part thereof, or thereafter has the force of "law" in any Part A State or Part C State or part thereof, but does not include any Act of Parliament of the United Kingdom or any Order in Council, rule or order instrument made under such Act."
25. Section 20 of the General Clauses Act reads:
"Where, by any Central Act or regulation, a power to issue any notification, order, scheme, rule, form or bye-"law" is conferred, then expressions used in the notification, order, scheme, rule, form or bye-"law", if it is made after the commencement of this Act, shall, unless there is anything repugnant in the subject or context, have the same respective meanings as in the Act or Regulation conferring the power."
These definitions go to confirm that under our legal order ""law"" does no: include only Legislative enactments but it also includes rules, orders, notifications, etc. made or issued by the Government or any subordinate authority in the exercise of delegated legislative power.
26. Section 78 of the Evidence Act enacts that
"Acts, orders or notifications of the Central Government in any of its departments, or of the Crown Representative or of any State Government or any department of any State Government"
may be proved by the records of the departments, certified by the heads of those departments respectively, or by any document purporting to be printed by order of any such Government, or, as the case may be, of the Crown Representative. Section 81 deals with the presumptions to be raised as regards the genuineness of Gazettes, newspapers, private Acts of Parliament and other documents.
27. Though a Court should take judicial notice of the fact mentioned in section 57, it could only take such notice if unimpeachable books or documents are put before it or otherwise accessible for its references. Under the last paragraph of the section the Court is given the discretion to refuse to take judicial notice of any fact unless such person calling upon the Court to take judicial notice of such fact produces any such book or document as it be necessary to enable it to do so.
28. Now, I shall see whether in the present case P.W. 1 has satisfied the Court about the existence of the notification enabling it to take judicial notice of the notification concerned. All the above cases were tried before the Court below simultaneously. It is seen from the records concerned in S.T.C. No. 545 of 1979 (C.A. No. 898 of 1980) that a photostat copy of the Gazette of India,‘ dated 11th June, 1977, has been produced, though not marked, in which Gazette at page 2725 the notification No. CER|10|77 issued under clause 20 of the Cotton Textile Control Order, 1948, is found published. As regards the original notification, P.W. 1 has given evidence in S.T.C. No. 771of 1979 (C.A. No. 901 of 1980) and S.T.C. No. 774 of 1979 (C.A. No. 902 of 1980) that the notification had been filed before the Court of the Judicial First Class Magistrate
No. I of Tiruchirapalli in some other case which was then pending before it. Had the learned Magistrate wanted to verify the original notification he would have called for that notification from the file of the other case or insisted the complainant to cause production of the original notification in the manner known to "law" for its satisfaction of the existence of such a notification. In the cases on hand there cannot be any legitimate complaint that the prosecution had not at all let in evidence regarding the existence of the notification. In fact, the Court below has not given any finding doubting the existence of any notification. What the lower Court has stated is that as no judicial pronouncement of this Court had been produced before it, ruling that the Court can take judicial notice of the notification, it cannot take judicial notice of the notification concerned in these cases. Therefore, for all the discussions made above, I hold that notification issued in exercise of the statutory powers conferred by the "law" amounts to "law" and judicial notice can be taken of it.
29. In the result, the orders of acquittal passed in all the cases are set aside and all the matters are remanded to the Court below for a fresh enquiry and disposal of the cases. It is open to the prosecution to produce a copy of the Gazette publication in addition to the photostat copy produced in one of these cases which is found in the unfiled documents sent to this Court in a manner known to "law" soas to satisfy the Court below about the genuineness of the notification. Similarly, it is also open to the accused persons to raise all the contentions in support of their defence before the Court below which after hearing the respective parties shall dispose of these cases in accordance with "law".