1. I have to decide in this revision the question which was raised before me in Cri. Revn. No. 113 of 1944.1 I left the matter open there. The applicant has been convicted under R. 8(4), Defence of India Rules, read with the Government of India's Foodgrains Control Order of 1942 for selling masoor without a licence. An agreement to sell 250 bags was made on 16th July 1943 and the grain was measured out on 28th July 1943 and 29th July 1943. The Foodgrains Control Order of 1942 was issued on 21st May 1942. It sets out in para. 3(1) that

“No person shall engage in any undertaking which involves the purchase .. sale .. in wholesale quantities of any foodgrain except under and in accordance with a licence issued in that behalf by the Provincial Government or by an officer authorised by the Provincial Government in this behalf.

“Foodgrains” is defined to mean “such one or more of the commodities specified in Sch. 1 to this order as the Provincial Government may from time to time by notification in the official Gazette declare to be a foodgrain to which this order applies.”

2. Schedule 1 includes masoor among the foodgrains which may be notified. The cumulative effect of these provisions is that no licence to sell masoor was necessary until the Provincial Government declared by notification that masoor was a foodgrain to which the Foodgrains Control Order of 1942 applied. The first notification of the Provincial Government was issued on 8th June 1942. It said nothing about masoor. Accordingly no licence was required at that date for the purchase and sale of masoor. This notification was superseded by Notification No. 9323–1549-VIII-P.C, on 30th December 1942. This latter notification included “masoor” as a foodgrain to which the Foodgrains Control Order of 1942 applied. Accordingly masoor could not thereafter be sold in wholesale quantities without a licence. The applicant applied for a licence under the earlier notification and was given one. It covered a number of foodgrains, but naturally no mention was made of masoor. No fresh licence was asked for after 30th December 1942 or given. Accordingly the sale on 28th and 29th July 1943 was without a licence and was in contravention of the Foodgrains Control Order of 1942. The main question I have to decide is whether it is necessary to fix the applicant with notice of the notification of 20th December 1942, or whether it is enough to show that it was published in the Gazette. This depends upon the interpretation of R. 119, Defence of India Rules, as also upon the general law. Rule 119 provides that

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

3. Now I can see no point in this Rule unless the intention was to introduce a fiction to meet a class of case which would not be covered by the ordinary law. If a man is guilty and punishable in any event whether the order is published or not, and whether or not the authority making the order brings his mind to bear on the question of the best means of informing those whom it is to concern about it, then what is the point of bringing in this fiction? I can only see point in the Rule if the mere making of the order is not enough under the ordinary law to render a person who innocently or unknowingly contravenes it liable to punishment.

4. I can understand that it will often be necessary to render innocent, (or perhaps ignorant would be a better term), persons liable to punishment if some of these Rules are to be effective. It will naturally be impossible for Government to inform every person in a large class personally every time an order is made. Therefore a wide discretion is left to the authorities to decide what will be the best and fairest means of publication in any given case so that all who take the trouble to ascertain the facts can do so without disproportionate inconvenience to themselves or detriment to their business. But that means that the intention of the Legislature was that innocent persons who did not know and who could not reasonably be expected to know about these orders should not be rendered liable to punishment until such precautions as the authority making the order considered fair and reasonable had been complied with.

5. Sen, J. has pointed out the difference between orders of the kind we are considering here and an Act of Parliament in Cri. Revn. No. 17 of 1944,2 and pertinently remarks that surely it was never intended to place orders made under the Defence of India Rules by, for example, District Magistrates, on a higher footing than Royal Proclamations issued by His Majesty in Council. Viewed in that light, there does seem to be a lack of perspective in the claims made on behalf of the Crown. Sen, J. refers to the English law and shows that even Royal Proclamations do not become law until they are actually published and the reason for the rule is obvious. Acts of Parliament receive wide publicity before they become law. Everyone therefore has ample opportunity to know or to find out what the law is to be. That does not apply to other orders. This factor has been considered in English cases. Sen, J. quotes (1918) 1 K.B 1013 as an example. I do not think there is much difficulty about the position in India as it exists today because R. 119 was amended on 6th May 1944. Another sub-rule called sub-rule 1-A was added. The amendment is as follows:

“Where any of these Rules empowers an authority, officer or person, to take action by notified order, the provision of sub-r. (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.”

6. The amendment makes it reasonably plain that notice of one sort or another is considered necessary; also that the fiction that all concerned shall be deemed to have had notice of the order whether or no they have actual notice is limited to the class of case in which the Defence of India Rules authorise publication in the Gazette. Therefore it would seem that after this amendment all other orders must comply with sub-r. (1) before the fiction introduced by that sub-rule can be brought into play. But what was the point of introducing even this limited amendment if the law as it stood before the amendment was as wide as the Grown contends? If the mere making of the order was enough why have R. 119 at all? If publication in the Gazette was enough why introduce this amendment?—unless of course it be contended that the object was to limit a law (namely, the law for which the Crown contends) which was considered harsh and oppressive, to the cases specified in sub-r. 1-A. But if that was the case why was R. 119 made? I am clear that the amendment shows that the law as it stood before the amendment was considered to be what Sen, J. has said it was, and that it was considered desirable to modify it. If that be the position, then the law applicable to this case (which was before the amendment) is what Sen, J. says it was. The Crown relies upon 1944 ALL. E.R 485.4 But it has no application. The only point raised there relevant to the present case was left undecided. Four persons were tried at the Liverpool Assizes upon an indictment of 8 counts. Only two of these counts were considered material in appeal. The first count charged all four with a conspiracy to contravene the provisions of the Prices of Goods Act, 1939, by re-selling price-regulated goods at a price in excess of the permitted price. The second count charged them with a similar conspiracy to contravene an Order of 1942 (which fixed the price), read with the Goods and Services (Price Control) Act of 1941 under which the Order was made, by re-selling price-controlled goods in contravention thereof.

7. The facts were as follows. In May 1943 one Mulholland approached one of the three appellants and offered to buy from them controlled articles at pricess in excess of the controlled price. The appellants agreed to sell on those conditions. There was nothing in this contract to show that Mulholland had mentioned any particular price. All that was shown was that he offered to buy at prices in excess of the permitted price and the appellants agreed to sell on those terms. The first count refer, red to this agreement. It had no reference to any particular transaction of sale. The second count referred to an actual transaction of sale which took place in pursuance of the above agreement. In this case the price paid was proved, as also the order fixing the permitted price. What was not proved was that the appellants had notice of this order.

8. It will be necessary to understand what these Acts and Order were before the true import of the decision can be grasped. The Goods and Services (Price Control) Act of 1941 corresponds, so far as the present matter is concerned, to our Government of India Foodgrains Control Order of 1942. (Our Order is set out at p. 1, Central Provinces and Berar Food Manual). Section 1(1) of the English Act, (like para. 3(1) of our Order) prohibits the sale, etc., of price-controlled commodities at a price above the maximum price fixed for that commodity. In each case the permitted prices were to be fixed by separate Orders. The permitted price referred to in the second count was fixed by an Order of 1942 set out in that count. No attempt was made, so far as the first count was concerned, to show what price had been fixed there nor was any Order fixing the price mentioned. It will be seen that the issue raised in the second count (apart from the question of conspiracy) was the same as the issue here. The decision regarding that issue was as follows:

“The conviction on count 1 is upheld. Both counsel stated that they drew no distinction between counts 1 and 2, and any further discussion as to count 2 would be merely academic since the only penalty imposed was an order that Jacobs and Carr (two of the appellants) should each pay half the costs of the prosecution which have not been increased by the insertion of count 2. The conviction, therefore, on that count also will stand, but we think it right to say that, if count 2 had stood alone we should have required further argument as to the proof of the illegality of the agreement.”

9. The portion underlined (here italicized) is the important one for present purposes. The argument on behalf of the Crown was that it was not necessary to show that the appellants knew of the price fixed, the same argument which we have here. That was left undecided. In order to understand the rest of the decision it will be necessary to examine the facts further. The first count relates to an earlier Act, the Prices of Goods Act 1939. So far as the present matter goes, this Act is much the same as the Act of 1941—in fact the Act of 1941 was only an Amending Act. It prohibited the sale, etc., of goods at a price in excess of the permitted price. This permitted price also had to be fixed by an Order of the Board of Trade. But—and here lies the importance of the distinction—the indictment makes no reference to the Order which fixed the prices in this case because it was unnecessary for the purposes of the first count either to know or to prove what the permitted price was.

10. The reason for the distinction is this. The charge in the first count was a conspiracy to sell above the permitted prices. For the purpose of that conspiracy it was not necessary that any member of it should have known what the permitted price was at the date of the conspiracy, nor indeed need the price have been fixed at that date. The agreement was to sell above the permitted prices whatever those prices might be and it was this agreement which constituted the offence of conspiracy to which the first count related. As a matter of fact, however, the purchaser Mulholland knew what the permitted price was and that was proved. He pleaded guilty and naturally did not appeal. It was also proved that he told the other three that he was willing to buy their goods at a price greatly in excess of the permitted price, and that the others agreed to sell to him on these conditions and did so. Now, on those facts, it is clear, so far as the first count is concerned, that it did not matter whether the other three knew what the permitted price was. Mulholland knew what the permitted price was (though in my opinion even that was not essential, but it was proved that he did know) and he told the others that the price he was offering was above that price. The others believed him and agreed to sell to him at prices above the permitted price. It is clear that constitutes the offence of conspiracy.

11. The offence charged in the first count was the common law misdemeanour of conspiracy and not a breach of the order. The statute prohibited selling above the permitted price. The orders merely fixed the permitted prices from time to time. Any agreement to contravene a law, whether statute—made or other, wise, would be an offence in itself irrespective of whether at the date of the conspiracy the conspirators knew what the permitted price was. That they could ascertain later. This was the reason why the first count made no reference either to the Order or to the price fixed. All that had to be established under that count was that there was a law prohibiting sales above a permitted price and that there was an agreement to contravene that law. The statute proved itself, and as an Act of Parliament falls within the rule that every person must be presumed to know the law, no one could be heard to plead that he did not know about the Act. Also, in any event, it was obvious on the facts proved that the three appellants did know of the statute, though it was not proved, and not charged, that they knew what the permitted price was. All this is clear from Wrottesley, J.'s charge to the jury. He said:

“I must remind you that the prosecution in this case do not set out to prove that these men knew what the price was or ought to have been…. All they set out to prove is that in fact a sale at what I will call a wrong price took place and that these four men were all in it, were all engaged in it and knew of it. If that is so…. it is not necessary that you should find…. that they knew exactly what the right price was or that the price in question was the wrong one. It is not necessary that every member of the conspiracy should know that. The offence is to sell at the wrong price, and in so far as they all agreed to do that, or any of them agreed to do that, they are guilty of that with which they are charged by the prosecution.”

12. The remarks of the Court of Appeal must be read in the light of those facts. They said:

“That count (count No. 1) does not charge any offence against this or any other statute, nor does it even involve the proposition that any such offence has been committed. It charges a common law misdemeanour, the accepted definition of which for centuries before 1834 was ‘an agreement between two or more persons to do an unlawful act’…. The unlawful act alleged to be the subject of the agreement in this case is the selling of price regulated goods at a price in excess of the permitted price.”

13. So it was the agreement to sell at an unauthorized price which constituted the crime and not an agreement to sell above any particular fixed price.

14. The remarks about ignorance of the law have relation to that. Once a man comes to you and tells you that he is prepared to sell you goods above the control rates you are put on your guard. The prohibition to do this was statutory and so needed no proof. The fact whether the price agreed was above the rates fixed in the Order of the Board of Trade could easily have been ascertained once the appellants were told what Mulholland told them. Therefore, as it was not necessary to prove the exact rate fixed, this plea of ignorance of the law was of no avail. In the second count the matter was otherwise. There the agreement specified in the charge was not to sell above the permitted prices generally, but to sell at an exact price X, X being above the permitted price. It had reference to a particular transaction of sale and not to a general agreement to engage in an undertaking, or undertakings, in contravention of the law. Therefore, before any conviction could be obtained on that count it would be necessary to prove that X was above the permitted rate, which meant proving the permitted rate, and as to that the Court of Appeal held they were not prepared to apply the maxim about ignorance of the law in the absence of further argument. There, fore that case is not in point here. The next case on which the Crown relies is (1901) 1 K.B 673.5 It turned on Section 6 of the Coal Mines Regulation Act of 1896. The section runs:

“A Secretary of State on being satisfied that any explosive is…. dangerous, may, by order, of which notice shall be given in such manner as he may direct, prohibit the use thereof in any mine, etc.”

15. The Secretary of State made an order under this section relating to a certain explosive substance. The order was sent to the Queen's Printer, and was printed and sold by him in accordance with Section 3 of the Rules Publication Act of 1893. (This last fact we get from the Law Journal Report of the case.) It was proved that the appellant received a copy of the order. Therefore there was no doubt that he had notice of it. But what was argued was that the Secretary of State had not given him notice. Also that the Secretary of State had not directed in what manner the notice should be published. It was held that neither of these things was necessary as the provisions in Section 6 of the Coal Mines Regulation Act of 1896, relating to them were directory and not mandatory. I find considerable difficulty in applying this case because I do not know what Regulations the order was published under. Counsel's argument as given in the Law Journal Report shows that it was contended by the side which won that the Order in question had the force of a statutory Rule under Section 3 of the Rules Publication Act of 1893. Section 3(4) of the Act shows that there are in England regulations providing for

“the different treatment of statutory rules which are of the nature of public Acts, and those which are of the nature of local and personal or private Acts.”

16. I do not know whether those regulations place such an order on the same footing as an Act of Parliament or not. If they do then it is easy to see that the provisions of S. 6 regarding notice could be regarded as directory. But however that may be I am clear that R. 119 cannot be regarded as directory. It is much fuller than Section 6 of the Coal Mines Regulation Act of 1896 and although a few words are the same, the language on the whole is different. Also, unless there is something special in that case it appears to conflict with other English cases. For example, there is (1918) 1 K.B 101 which Sen, J. quotes in his judgment in Cri. Revn. No. 17 of 1944. That deals with the Order of the Food Controller under the Beans, Peas and Pulse (Requisition) Order 1917—a wartime measure of the last war. It was held there that an Order of this kind does not come into operation until it is made known to the public, and the difference between an Order of this kind and an Act of Parliament is stressed; and that seems to be correct for England as 32 Halsbury's Laws of England (Hailsham Edition) p. 150, Note (r), para. 221, as also 6 Halsbury's Laws of England (Hailsham Edition) p. 601, para. 776, footnote (a) show. This is quoted by Sen, J. in his judgment. Then there is another English case dealing with a wider position, which refers to (1901) 1 K.B 673 as also to a House of Lords case, (1895) A.C 328,6 as authority for the proposition that

“Orders which it is alleged do not follow the procedure necessary to their making may be challenged.”

17. This case is (1930) 2 K.B 98.7 The passage quoted occurs at p. 172. It is a decision of the Court of Appeal. Certain observations of the learned Lords of Appeal, though made with reference to different facts, can, I think, be applied here. For example, Scrutton L.J says at page 146:

“I decline, without clear words or authorities clearly binding on me, to hold that when Parliament delegates to a Minister the authority to deprive citizens of property without compensation on certain defined conditions, Parliament has allowed him to make such an Order without complying with those conditions, so that his order shall have the effect of unquestioned law.”

18. Greer L.J said at page 156:

“In my judgment the statute provides for conditions precedent to the making of an Order, and it is only an Order made after compliance with these conditions precedent that has effect as if enacted in the Act.”

19. Slesser L.J at page 170:

“I do not think that the mere fact that the Minister describes the Order as an Order necessarily constitutes it one.”

20. I prefer the reasoning of these later cases to (1901) 1 K.B 673 assuming always that (1901) 1 K.B 673 deals with the general law and not with something special to that case. So far as India is concerned the decisions are all one way. There is ILR 1944 KAR 1078 which holds that before a person can be punished for an offence under the Defence of India Rules, notice as required by R. 119 must be proved and in this Province there is the decision of Niyogi, J. in I.L.R (1944) Nag. 150.9 I have already referred to the decision of Sen, J. in Cri. Revn. No. 17 of 1944, and there is a previous decision of mine in Cri. Revn. No. 75 of 1943.10 I know of no other cases.

21. My previous decision conflicts with a passage in Sen, J.'s judgment. According to Sen, J. the Crown can prove either that the accused had notice of the Order, and if it does that then it will not matter how he came to know of it, or it can prove publication in accordance with rules made under R. 119, and in that case it can rely on the presumption which R. 119 raises. With all respect to my learned brother I prefer my view. As far as I can gather from 6 Halsbury's Laws of England (Hailsham Edition) para, 776 p. 601, footnote (a), the rule in England is that Acts of Parliament become law from the first moment of the day on which they receive the Royal assent, but Royal Proclamations only when actually published. Now a Royal Proclamation is the highest kind of the law, other than an Act of Parliament, known to the British Constitution. But even in this august sphere it was necessary to have a special Act of Parliament to justify its becoming law by mere publication in an Official Gazette, and even then publication in the London Gazette will not make the Proclamation valid in Scotland, nor will publication in the Edinburgh Gazette make it valid for England. That, to my mind, shows conclusively that the mere signing of Proclamation is not enough. There must be publication before it can become law, and the nature of the publication has to be prescribed by law. The Act of Parliament regulating this matter is the Crown Office Act of 1877 (40 and 41 Vict Ch. 41). That Act, in addition to making provision for publication in certain Official Gazettes, also provides for the making of rules by Order in Council for the best means of making Proclamations known to the public.

22. Now I know of no decision on the point, and possibly there is none because I presume a Royal Proclamation would always be published in the Gazettes, but seeing that publication is necessary, and seeing that Parliament insists in the Crown Office Act that His Majesty in Council should carefully consider the best mode of making these Proclamations known to the public and empowers the Council to draw up rules for the same and embody them in an Order in Council, I imagine that if there is no publication in the Gazette then the Proclamation would not become law unless it was published strictly in accordance with the rules prescribed by the Order in Council. It seems absurd to me that Parliament should solemnly constitute an authority for considering the best mode of publication (publication being necessary to make the Proclamation law) and when that authority says that mode A is the best method, it will be enough if mode B is followed. Such a conclusion would mean either that the authority who prescribed mode B is substituted for the august authority prescribed by Parliament, namely His Majesty in Council, or that the Courts, in defiance of what Parliament prescribes, are setting themselves up as the authority to decide what the best means of publication are in any given case. I cannot see how such a conclusion could lawfully be reached. Rule 119, Defence of India Rules, and the corresponding Orders in England, seem to follow the same general pattern. They assume that publication is necessary, and that assumption raises the question, what kind of publication? Rule 119 leaves that to the authority making the order to decide. If he decides on mode X how can the Courts say that mode Y will do? If the District Magistrate says that copies of his order must be given to each merchant so that the merchant will have something with him in his shop to which he can refer and which he can exhibit to the public as authoritative (that was the case in Cri. Revn. No. 75 of 1943 which I decided), how can the Courts say it will be enough for a Sub-Inspector of Police merely to show the merchants a copy of the Order and take it away again?

23. Many important matters have to be considered in these cases by the authority making the order. One is what is the fairest mode to the merchants who have to sell to the public at large. They must be inconvenienced as little as possible and their business must not be disrupted more than necessary. That is a most important consideration and involves an issue of public policy; and as a matter of fact Section 15 of the Defence of India Act, expressly enjoins that. Then the customer has to be thought of. Very few cases of breaches of these orders can be detected, and unless the customer has something authoritative he can see for himself and demand to be shown, in most cases he will not know whether he has been charged the right price or not. If then District Magistrate concludes, after weighing these and a host of other considerations, that in any particular case the best mode of publication is actually to leave a copy of his order in the shop how can the Courts go behind that and say that because a Sub-Inspector of Police, or some other authority under whose orders he acted, thought he knew better than the District Magistrate, what he has done is good enough? That, in my opinion, does not give effect to Rule 119.

24. I must not be regarded as suggesting that the Sub-Inspector's method of publication in the previous case was not a good and effective one. That is not the point. The District Magistrate prescribed the mode and as R. 119 leaves the authority making the order to prescribe the mode the Courts cannot go behind what he prescribes. Had the District Magistrate in the previous case prescribed what the Sub-Inspector did I would have upheld the prosecution.

25. There is also this grave objection. Once it is conceded that these orders are discretionary and not mandatory, and can be ignored, it will be for the Courts to decide in every case what is good enough, because, as I have said, some sort of publication is necessary before the order can become law. That would lead to the utmost confusion, one Judge thinking one thing and another another. If for instance, a District Magistrate decides that in some locality like a village proclamation by beat of drum is the best mode the Courts could easily say that is not good enough and that something more must be shown. In my opinion it would be dangerous to go behind what to me is the very evident intention of the Legislature and hold that though the Legislature says one thing in R. 119 the Courts can ignore its directions and say that something else will do or what would be much more dangerous to the authorities, that something else must be done in addition to or in substitution for that which the authority empowered under R. 119 to decide has prescribed.

26. In all the English cases it must be remembered that there was publication. In (1901) 1 K.B 673, for example, there was publication and sale of the order by the Queen's Printer and it was proved that the appellant had actually been given a copy of it. So also in (1918) 1 K.B 101 there was publication in all the papers though not till the day following the alleged offence and it seems as if there are special rules in England regulating the matter of publication.

27. Now I do not mean to hold that if the Legislature prescribes a mode of publication as sufficient (as it now does in R. 119(1-A)) and also leaves it to the authority making the order to make such additional rules as it likes, it will be necessary to prove both methods of publication. In that sort of case obviously, or at any rate it appears obvious to me, the matter would be discretionary. If the law prescribed by the Legislature directs that publication A (e.g, publication in a Gazette) will be sufficient to make the order law, then publication in other ways becomes unnecessary however desirable they may be. But if the Legislature leaves this to the authority making the order and that authority prescribes a particular mode, no Court can in my opinion go behind it; and in that event it will be for the Crown to establish that the mode prescribed was strictly followed. In my judgment publication is a condition precedent. If some law prescribes the mode of publication, then all the Crown need do is to show that mode was observed. If, on the other hand, the matter is left to the authority making the order, then it is imperative that he should prescribe the mode, and then the Crown must prove, both that he prescribed a particular mode and that publication was strictly in accord with what was prescribed. Until that is done, the order will not be accepted as law. It will not be enough to say that because the matter in published in mode A (e.g, a Government Gazette) therefore it must be presumed that the authority in question thought that was the best mode of publication. The Crown must show that the authority applied its mind to the matter and prescribed the mode relied on.

28. Another argument remains for consideration. It was contended on behalf of the Crown that R. 119 does not apply to the Crown because the word “authority” does not include the Provincial Government. It was said that both the Act and the rules refer to the Central and Provincial Governments as such whenever they are included in any of their provisions. I do not agree. The word “authority” is not defined; and in the absence of anything delimiting its scope it must be given its ordinary meaning. That includes both the Central and the Provincial Governments.

29. Returning now to the present case, the crucial order here is the one of 80th December 1942. This was made by the Provincial Government and was published in the local Gazette. There is no proof that the Provincial Government applied its mind to the provisions of R. 119(1) and considered that this was the best method of publication. Therefore unless some law expressly authorises publication in this manner the order cannot be regarded as operative. The law relied on is the Government of India's Foodgrains Control Order of 1942, dated 21st May 1942, which I have already quoted. It is the definition of “Foodgrains” which is said to be crucial. “Foodgrains” is defined as

“any one or more of the commodities specified in Sch. 1 to this Order as the Provincial Government may from time to time by notification in the Official Gazette declare to be a foodgrain to which this Order applies.”

30. Now that prescribes the mode of publication, but the mode is not prescribed by the authority making the crucial order, namely the order of 80th December 1942 made by the Provincial Government, but by the authority enacting the prohibition. The question is, is that enough? There can be no doubt that the Central Government would have had power to make the Order which the Provincial Government made on 30th December 1942. In fact, instead of leaving the matter to the Provincial Government, it could straight way have said in its order of 21st May 1942 that “foodgrains” means the commodities specified in Sch. 1. But though it had power to do this it did not do it. Instead, it left the matter to the Provincial Government. In my opinion, that is not a delegation of authority. It is only a method of prescribing how and when and where the Foodgrains Control Order of 1942 is to come into force. Say the Central Government had included masoor among the prohibited foodgrains from the beginning but had said that its order relating to masoor would not have effect till a certain date. Can it be pretended that would have been wrong? Say instead of prescribing a date it had made the operation of the order conditional upon the happening of an uncertain event such as the failure of the monsoons in a particular area by a specified date, and had defined failure to mean less than a given quantity of rainfall over a prescribed period. Would that have been wrong? Again, I think not. In my opinion the Central Government has done no more than that there. Instead of prescribing failure of the rains as the condition precedent to the operation of the order, it has prescribed another contingency, namely the making of an Order by a Provincial Government; and it has prescribed the mode of publication. Having done that it has complied with the law. Accordingly its Order of 21st May 1942 (the Foodgrains Control Order of 1942) became effective with respect to masoor from 30th December 1942. I may say that the validity of the Foodgrains Control Order of 1942 was not questioned before me.

31. The applicant raised a question of fact. He says that he did not purchase the masoor but that Dulichand (P.W 2) made the purchase. This, however, is a question of fact. Both the lower Courts hold that the applicant made the purchase. The prosecution evidence justifies that conclusion and I refuse to go behind that finding. On the question of sentence, two matters are relevant for consideration. The first is that though publication in the Gazette may make the order operative in law in the circumstances I have set out above, it does not follow that the accused in this case must therefore have known of it, or could, but for negligence or wilful default, have known of it. Naturally a man who commits a technical breach of the law, or breaks it through ignorance, is not treated as severely as one who breaks it deliberately, or who deliberately abstains from finding out what the law is so that he will be in a position to plead ignorance. Therefore, this question, though irrelevant to the matter of conviction, is material on that of sentence. Publication in a Gazette may be convenient from a Government point of view—it naturally saves the authorities a lot of trouble—but unless steps are taken to make the Gazettes readily available to members of the public, and unless it is published in a language the accused can understand, this mode of publication, has not got much real value for publicity purposes. In this case I am confronted with two positions and that brings me to the second point. On the one hand, the order in question was made on 30th December 1942 while the offence took place on 16th July 1943. There was therefore ample time for the accused to ascertain the law, and had it not been for another matter I would have concluded either that he was not ignorant of it, or that his ignorance was either deliberate or negligent. In either case he would have merited a severe sentence. In this case, however, I find that 52 other merchants were found by Government to have broken the same law. But they have not been prosecuted. Instead the Deputy Commissioner has contented himself with issuing a warning to them. (See Ex. D-1, dated 27th August 1943). Now this shows that either no less than 53 merchants, (when the accused is included), did not know of the order of 30th December 1942, or that they all deliberately set out to break it. If it was the latter, then it would seem unreasonable to prosecute only one of them. On the other hand, if it was the former it would appear to indicate that publication in the Gazette was not in fact adequate publicity however much the Central Government may have thought it ought to be. I conclude from Ex. D-1 that the local authorities considered that a warning to all and a token prosecution in the case of one would suffice. But if that is the case, then the one proceeded against should not be given a severe sentence. Also there is the undoubted fact that the accused had applied for a licence covering the other foodgrains set out in the Notification of 8th June 1942, so it does not look as if he was trying to break the law. Also it seems he would have been given a licence for masoor if he had asked for it. In the circumstances I can hardly think that his omission to do so was deliberate, particularly when we find 52 other merchants of the locality in similar plight. The accused has been fined Rs. 250. I think Rs. 50 will suffice in this case. But I make it plain that I reduce the sentence in this case because of the special circumstances obtaining here. Ordinarily, I am strongly of opinion that severe sentences are both called for and necessary. I allow the revision on the question of sentence only and while maintaining the conviction reduce the fine to one of Rs. 50, and in default, one month's rigorous imprisonment. The balance of the fine, if paid, will be refunded.

32. Sentence reduced.