John Beaumont, Kt., C.J.
1. In this case the accused was convicted under Rule 81 (4) of the Defence of India Ordinance, V of 1939, read with Government Notification No. 3682/33(b), General Department, published in the Government of Bombay Gazette, dated September 9, 1939. Under the notification of Government it is provided that prices are to be fixed according to the price prevalent on September 1, 1939, at a stage of the transaction) of sale in any area to whichthis order applies plus twenty per cent, on the amount of such price as the maximum price chargeable at such stage of the transaction of sale of the commodities mentioned below. One of the commodities mentioned below is rice of all kinds. So that what it comes to is, that dealers may not sell rice at more than twenty per cent, in excess of the price prevalent on September 1, 1939.
2. The accused sold certain rice to a police agent on September 21 at Rs. 70 per Khandi. He gave evidence that he had purchased that rice on the day before at the price of Rs. 65-6-0 per Khandi, the vendor having purchased it in June at the price of Rs. 65 per Khandi. But that evidence is not really relevant. The question is whether Rs. 70 is more than twenty per cent, above the price prevalent on September 1 for rice of that quality. I should have thought that the proper way to prove that would have been for the police to have purchased rice at a particular price from the accused, and then to have proved by the evidence of an expert what price prevailed on September 1, 1939, for that class of rice and that such price was more than twenty per cent, less than the price charged by the accused. It is not disputed that there are many kinds and qualities of rice, and what the police actually did in this case was to obtain from the Market Inspector a sample of rice, which is exhibit A, and is of a quality said to have been selling at Rs. 50 on September 1. A police constable was then sent round to the accused's shop to purchase rice similar to the sample, exhibit A. According to the evidence of the police constable the accused showed him two samples of rice which he did not approve, but the accused ultimately showed him a third sample which the police constable thought corresponded with exhibit A, and that was purchased and is exhibit D-l. Now, there being evidence that the price pre- valent on September 1, 1939, for rice of the quality of exhibit A was Rs. 50 per Khandi, and the price charged by the accused being Rs. 70 per Khandi, the conviction is justified if it is established that the sample of rice which the accused sold on September 21, i.e. exhibit D-l, is similar to the sample, exhibit A. But all the witnesses admit that the two samples are not similar. The principle witness called for the Crown, Morarji Deoji, definitely states that exhibit D-l is superior to exhibit A, but then he says that he only deals in cheap qualities of rice and that he has not got rice of the sample, exhibit D-l. That is not a satisfactory type of witness to call ; somebody ought to have been called who is dealing in the particular sort of rice in question. Two defence witnesses were called, whose examination-in- chief was largely contradicted by their cross-examination, and I think that they are not reliable.
3. To my mind the prosecution have not established their case and, as I have said, have proceeded on the wrong basis. They have not proved satisfactorily what was the price prevailing on September 1 of rice of the quality sold by the accused.
4. I think, therefore, that the appeal must be allowed. Fine, if paid, to be repaid.
5. I agree.