Shakoor Hasan Kachhi Memon v. Emperor

1. This is an application to revise the judgment of the Sessions Judge, Nagpur, in Criminal Appeal No. 110 of 1943, decided on 11th May 1943. The applicant is by profession a grocer who was convicted of two offences under R. 81(b) in respect of infringement of R. 81(b), Defence of India Rules, for selling one bag of crystal sugar to Jagdish and four bags of the same article to Laghate at prices in excess of the maximum price of sugar fixed by the District Magistrate of Nagpur in his order of 12th June 1942 and was sentenced to 4 months rigorous imprisonment on each count and fine of Rs. 100 and 200, respectively. His appeal having failed he has moved this Court in revision.

2. In exercise of the powers conferred on the District Magistrate by the Provincial Government in pursuance of Section 2(5) of the Defence of India Act, the District Magistrate by an order dated 12th June 1942, fixed the wholesale price of crystal sugar at Rs. 14-12-0 per maund. At that rate a bag of crystal sugar could not be sold at any rate higher than Rs. 41-5-0 whereas the applicant sold one bag at the rate of Rs. 54 and the other four bags at the rate of Rs. 57 per bag. This he did on 16th June 1942, four days after the order was made. The applicant in his defence denied knowledge of the promulgation of the order and also that he had: sold the sugar at a rate considerably in excess of the rate fixed by the District Magistrate. Both the Courts below agreed in the finding that the applicant sold sugar at a price in excess of the maximum fixed. That is a pure finding of fact which is not open to question in revision and it has therefore not been rightly questioned on behalf of the applicant. The contention that is raised on behalf of the applicant is that in the absence of due publication of the District Magistrate's order the applicant was not affected by the order and that consequently his conviction is wrong. That contention involves consideration of two points: (1) Whether the order took legal effect as soon as it was made on 12th June 1942, irrespective of its publication. (2) Whether the publication of the notice of that order was in accordance with law and effective enough to fix sugar dealers with the knowledge of it. Rule 81(2)(b) of the Defence of India Rules runs as follows:

“(2) 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 the war, or for maintaining supplies and service essential to the life of the community, may by order provide—

(b) for controlling the prices or rates at which articles or things of any description whatsoever may be sold or hired and for relaxing any maximum or minimum limits otherwise imposed on such prices or rates.”

3. This power, which was conferred on the Provincial Government was by virtue of Section 2(5) of the Defence of India Act, delegated to the District Magistrate, Nagpur, under the order already referred to above. The District Magistrate was therefore competent to make the order. Rule 81(4) of the Defence of India Rules says:

“If any person contravenes any order made under this rule, he shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.”

4. The question is: does the order come into operation and affect the person concerned even if it is not duly promulgated so as to bring it to the knowledge of the person who is accused of having contravened it? It appears to me to be highly unreasonable to assume that could be the intention of the framers of the rules. If the District Magistrate merely makes an order, leaves it on his table and no action is taken on it by anybody to bring it to the notice of the persons affected by that order, I do not think that the order can have any legal effect. In (1918) 1 K.B 101 (1918) 1 K.B 101 , 87 L.J.K.B 122 , 118 L.T 35 , 62 S.J 88 it was held that an order made by the Pood Controller under the Defence of the Realm Regulations came into operation when it became known to the public. It was pointed out in that case that the publicity, which attaches to statutes even before they come into operation, is absent in the case of orders such as the order made by the Pood Controller under the Defence of the Realm Regulations and it was stressed that “if certain orders are to be effective at all, it is essential that they should not be known until they are actually published.” The learned Judge, who decided the case, expressed his liability in the absence of authority to the contrary to hold that the order came into operation before it was known to the public. That seems to be the intention underlying R. 119 of the Defence of India Rules which prescribes publication of notice of such order passed by any authority, officer or person competent to make the order under the Defence of India Rules. I do not see my way to accept the learned Sessions Judge's view that the Defence of India Rules being essentially administrative provisions for the smooth prosecution of the war, Rule 119 standing by itself does not make publication a necessary condition for the legal operation of such order. In Cri. Revn. No. 75 of 1943 Cri Revn. No. 75 of 1943 Bose J. took a different view of R. 119 of the Defence of India Rules. In that case he had found that the District Magistrate's order had not been properly published and expressed his opinion that the accused was entitled to have his conviction set aside. The conviction was not set aside because he (the accused) had not filed a revision against his conviction but acquiesced in it. The learned Sessions Judge's view cannot be sustained on any principle of law and is decidedly opposed to the authorities both of the English Court and of this Court. I have therefore no hesitation in holding that any order passed by the District Magistrate under R. 81 cannot bind the person concerned unless it is published in accordance with R. 119 of the Defence of India Rules. Rule 119 of the Defence of India Rules, runs as follows:

“Save as otherwise expressly provided in these Rules, every authority, officer or person who makes any order in writing in 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 in the case of an order affecting an individual person 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)…and thereupon, the persons or person concerned shall be deemed to have been duly informed of the order.”

5. This rule 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. 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 Cl. (e) of the Evidence Act, for the only reason that the making of the order and the direction to publish notice of it were official acts. If it is imperative to publish notice of the order and the order comes into operation only on such publication the prosecution must in the first instance show that all requirements of law have been carried out. In 13 Cal. 1973 it was held that where under an Act certain things are required to be done before any liability attaches to any person of any right or obligation, it is for the person who alleges that liability has been incurred to prove that the things prescribed in the Act have been actually done: see also 53 Cal. 718. (’26) 13 A.I.R 1926 Cal. 966 , 96 I.C 264 , 27 Cr. L.J 920 , 53 Cal. 718 , 30 C.W.N 713 As pointed out by Woodroffe J. in 82 Cal. 1107 (’05) 32 Cal. 1107 , 2 C.L.J 107 the presumption under Section 114(e) of the Evidence Act, applies when an official act is proved to have been done; 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 plaintiff's case.

6. The prosecution was no doubt conscious of the necessity to lead evidence on the point of due publication of the District Magistrate's order passed on 12th June 1942. The prosecution has produced the copy of the District Magistrate's order and the copy of the Nagpur Times issues on 14th June 1942. The copy of the order does not show the names of the persons to whom it was sent. I sent for the original office order to have it made clear. Below the order there is an endorsement made by the District Magistrate as follows:

“Copy forwarded to…. for information and (wide publicity)

(???) for editors of presses, Tahsildars and N.T Kamptee.”

7. By the side of that endorsement several parties to whom the copy was forwarded are noted as follows:

“(1) Secretary to Government, Central Provinces and Commerce and Industry Department. (2) Chief P.C Officer. (3) Commissioner, Nagpur Division. (4) The Deputy Commissioner, Amraoti, Betul, Chhind-wara, Bhandara, Chanda, Wardha. (5) District Superintendent of Police, Nagpur. (6) C.M (7) S.D.Os (all), (8) Tahr. (all) (9) N.T Kamptee (10) Reader to D.C, Editor Nagpur Times, Hitvada, Independent, Maharashtra, Nav Bharat.”

8. In pencil are added Mr. C.J.B Naidu, Representative Times of India, Associated Press, Mr. Karkare and Mr. Venkat Raman, Editor New India. It is clear from the endorsement that the copies were sent to the editors of presses for wide publicity. The copy forwarded to the officers named was only for information and therefore any information received by them would be for their own guidance but it was certainly not intended that they should give wide publicity. That task was assigned to the editors of presses and the Tahsildars. Although there are number of editors and some press representatives mentioned the prosecution has produced a copy of Nagpur Times and that too of only one date, viz., the 14th June. One fails to understand why no copy was sent to any sugar dealers although they were the persons directly affected by it. The explanation appended to the order tends to show that the District Magistrate intended that the copies of the order should be sent to the dealers in sugar as is clear from explanation (3) which says:

“Dealers in sugar shall display or keep displayed in a conspicuous place in their shops or other places of business a copy of this order.”

9. The copies appear to have been issued from the office of the District Magistrate on 13th June 1942 and it may well be presumed that they were received by the persons to whom they were addressed. But here the question arises should it be presumed that the notice of this order was published in Hitvada, Independent, Maharashtra, Nav Bharat and other newspapers? There can be no such presumption unless the editors were under, some law or agreement with the authorities, bound to publish it. There is no such law; nor is there any evidence of any agreement with the District Magistrate whereby they were bound to publish it. In the absence of the copies of the named newspapers before me I cannot hold that the order was published in all the papers.

10. So the position is that while the District Magistrate thought that wide publicity to his order should be given by the notice being published in all the named papers, in fact and it in truth it came to be published only in one paper and that only on one day. This cannot be regarded as a publication done in the manner intended by the District Magistrate who made the order. The trying Magistrate sought to make up the defect in publication by the assumption that the Nagpur Times is a very widely read newspaper in Nagpur and that in view of the importance of the order the news must have spread all over the town as soon as it had appeared in the newspaper, and he thought it reasonable

“to suppose that the business community who naturally are on the watch for such orders…. must have come to know of the order as soon as it appeared in the paper.”

11. That is but an assumption, if not a mere speculation, but it is certainly not a legal inference from the evidence on the record. The Nagpur Times is published in English and the applicant does not know English. The District Magistrate rightly regarded that for wide publicity it was necessary to have the order published in Maharashtra and Navabhaiat which are read by non-English knowing people. There is no evidence to show that it was so published in these papers. That cannot be regarded as publicity, wide and effective enough to warrant the inference that everybody concerned in Nagpur was fully apprised of the order. Rule 119, Defence of India Rules, embodies a legal fiction in that it says that the persons concerned shall be deemed to have been duly informed of the order. The expression “deemed to be” means that whereas A is not in reality B the law requires A to be treated as if it were B: see, 54 Bom. 216 (’30) 17 A.I.R 1930 P.C 54 , 121 I.C 532 , 57 I.A 49 , 54 Bom. 216 (P.C), Commissioner of Income-tax at p. 223. This legal fiction can be applied only when it is proved that everything that was required to be done by the authority or officer was actually done.

12. On a strictly technical view the prosecution cannot invoke the legal fiction embodied in R. 119 in the absence of such wide publicity as was intended by the District Magistrate. But in the present case it is however not open to the applicant to turn the defect in publication to his own advantage. The question, whether the notice was published in the named newspapers other than the Nagpur Times, is a question of fact. It was incumbent on the applicant to expose the defect in publication by cross-examining Mr. Deshpande (P.W 10) on those lines. He made no such attempt either in the trial Court or in this Court where Mr. Warsi (from the District Magistrate's office) was examined. If he had done so it is possible that the prosecution could have produced copies of other newspapers. As the applicant failed to avail himself of the opportunity that offered itself to him, he is not entitled to question the adequacy of publicity. To allow him to do so would be to allow him to take advantage of his own default. It must consequently be held that wide publicity as contemplated by the District Magistrate was given and that the applicant had in point of law notice of the District Magistrate's order. On this view the conviction of the applicant must be upheld. As regards the sentence, however, I think the sentence of imprisonment is excessive and uncalled for in the circumstances of the case. The District Magistrate's order was published on the 14th in the Nagpur Times which is issued in the evening. There is, in fact, no evidence that it was published in other newspapers. The offence occurred on the 16th only two days after the meagre publication. The interval was too short to justify the inference that every sugar dealer came to know about it. The sentence of imprisonment would be perfectly proper had it been proved that the applicant had in fact knowledge of the order and that he deliberately flouted it. I would have had no hesitation in regarding it established had the prosecution examined at least one sugar dealer in the city to prove that he had knowledge of the order on the 16th. That was not done. The conviction rests only on a legal fiction. I am aware of the importance of the orders which are intended to prevent profiteering and I agree that the persons offending against such orders must be severely dealt with. But it cannot be overlooked that on their part the officers charged with the duty of carrying out the intention of the emergency legislation have also to exercise due care and attention in the strict observance of the formalities prescribed by law and the onus of proof in that behalf lies on the prosecution. The applicant succeeds so far that the sentence of imprisonment is set aside. His bail bond is discharged. His conviction and sentences of fine are upheld.

13. Order accordingly.