1. This is an appeal against the appellant's conviction under Rule 81(4) of the Defence of India Rules, 1939, for keeping in his possession 18020 yards of cloth in contravention of Clause 15A of the Cotton Cloth and Yarn (Control) Order, 1943. The appellant is a partner in the firm of Bhagwandas Cursondas, holding a license to deal in cotton cloth. It is admitted that his firm was in possession of 18020 yards of unbaled cotton left undisposed of, which had been manufactured before August 1, 1943, and he is prepared to take the responsibility for it. To determine whether he thereby contravened any of the provisions of the Cotton Cloth and Yarn (Control) Order, 1943, it is necessary to analyse some of its clauses and the numerous amendments which were issued in quick succession in the course of two years and which are so scattered that they are not easily accessible for ready reference. We will, however, confine ourselves only to those portions of the various clauses of the Order, the notifications and. their amendments which deal with the possession of loose or unbaled cotton cloth manufactured before August 1, 1943.
2. In exercise of the powers conferred by Sub-rule (2) of Rule 81 of the Defence of India Rules, the Central Government made the Cotton Cloth and Yarn (Control) Order, 1943, on June 17, 1943. Clause 14, Sub-clause (1), of that order, as amended by notification No. 34-Tex. A(1) 12/43, dated November 24, 1943, runs as follows:
No cloth ... manufactured before the 1st August 1043, shall, unless expressly authorised by the Textile Commissioner,-
(a) be kept by any person in unopened bales or cases after the 31st August 1943;
(b) be kept undisposed of by any dealer, or by any person holding on behalf of a dealer, after the 81st December 1943.
3. It is admitted that the cloth found in the possession of the appellant's firm was manufactured before August 1, 1943, and was lying loose. Hence under Sub-clause (1) (b) of Clause 14 it could not be kept undisposed of after December -31, 1943, unless expressly authorised by the Textile Commissioner under Clause 15. The clause enjoined that such cloth must be disposed of not later than December 31, 1943, but did not provide what was to happen if any such cloth remained undisposed of after that date. It is quite conceivable that there might be no demand for a particular kind of cloth and the dealer might find it impossible to dispose of it within the specified date. So on December 30, 1943, a notification No. 34.-Tex.A(15)/43 was issued by the Textile Commissioner authorising all dealers land persons holding on behalf of dealers to keep cloth manufactured before August 1, 1943, provided that such cloth was stamped in accordance with the directions issued in that behalf by the Provincial Government. A new Clause 15A was then inserted by notification No. 34-Tex.A(l)/ 13/43 on January 22, 1944, in these terms:
Notwithstanding anything contained in clauses 14(1) (6) and 14(2) (6), cloth or yarn not disposed of within the period specified in those clauses may be kept and sold by a dealer subject to the conditions notified in this behalf by the Textile Commissioner prescribing the special markings to be made on such cloth or yarn, the agency by which the marking shall be made and the fee payable for such marking.
Provided, however, that no such cloth or yarn shall be kept undisposed of by any dealer, or by any person holding on behalf of a dealer, for more than six months after the date of such marking.
4. Then a new notification No. T.C.(6) 2/44 was issued on January 27, 1944, in exercise of the powers conferred by cls. 10 and 15A in (supersession of the previous notification providing for the special marking on cloth and yarn in accordance with the provisions of Clause 15A. Accordingly the appellant made an application on April 5, 1944, and deposited Rs. 2,300 to get his undisposed of cloth pieces marked in order to get the benefit of the proviso to Clause 15A, That application was granted and the cloth was 'texmarked' on July 21, 1944. Under the proviso to Clause 15A the appellant had to dispose of the cloth pieces within six months thereafter, that is to say, January 21, 1945.
5. In the meantime Clause 14(^) was amended and by notification No. T.B.(1) 29/44 dated November 4, 1944, the following new Clause 14(i) was substituted:
No dealer shall, after the 31st December 1944, buy or sell or have in his possession-
(a) any cloth or yarn manufactured in India before the 1st August 1943;
(b) any cloth or yarn manufactured in India and packed after the 31st July 1943 and before the 1st January 1944.
6. In view of this new Clause 14(-f) a press note was issued on December 30, 1944, threatening prosecution and suspension or cancellation of the licences of those who failed to dispose of the time-barred goods by December 31, 1944. Neither the amended Clause 14 nor the press note say what was to be done with such undisposed of cloth. On December 16, 1944, by Notification No. T.B.(l) 32/44 a new Clause 18B was inserted in the following terms:
18B (1) The Textile Commissioner may, with a view to securing a proper distribution of cloth or yarn or with a view to securing compliance with this order, direct any manufacturer or dealer, or any class of manufacturers or dealers:
(a) to sell to such person or persons such quantities of cloth or yarn as the Textile Commissioner may specify;
(b) not to sell or deliver cloth or yarn of a specified description except to such person or persons and subject to such conditions as the Textile Commissioner may specify, and may issue such further instructions as he thinks fit regarding the manner in which the direction is to be carried out.
7. The amendment of Clause 14 did not affect the appellant's right to keep his cloth undisposed of till January 21, 1945, since he had already got it marked under d. 15A and was allowed by the proviso to that clause to dispose of it within six months thereafter. But as he thought that he might not be able to dispose of all the cloth within that period, the appellant, on January 11, 1945, before the period of six months had expired, made an application seeking instructions as to what he should do with the unbaled cloth manufactured before August 1, 1943, which was in his possession and of which he had already submitted the particulars. But no reply was given to his application. He sent a reminder on February 2, 1945, but to no effect. Under Clause 18B, Sub-clause (1), the Textile Commissioner had to issue instructions for the disposal of the time-barred cloth, which had not been disposed of, and the dealer was bound to comply with his directions and instructions. The learned Government Pleader candidly admits that no such directions or instructions were issued by the Textile Commissioner. When the appellant was waiting for a reply to his application and its reminder sent on February 2, 1945, the Textile Inspector visited his godown on February 13, 1945, seized the cloth, removed it from the godown and lodged a complaint against him for contravening the provisions of Clause 15A and thereby committing an offence under Rule 81(4) of the Defence of India Rules.
8. Rule 81(4) of the Defence of India Rules makes it penal to contravene any order made under Rule 81, and the Cotton Cloth and Yarn (Control) Order, 1943, having been made under Rule 81(2), if, as is alleged, the appellant be proved to have contravened Clause 15A of that order, he would be liable to be convicted under Rule 81(4), 'Contravention' of an Order has a technical meaning in the Defence of India Rules and is defined in Rule 5 as follows:
If any person to whom any provision of these Rules relates, or to whom any order made in pursuance of these Rules is addressed or relates, or who is in occupation, possession or control of any land, building, vehicle, vessel or other thing to which such provision relates, or in respect of which such order is made-(a) fails without lawful authority or excuse, himself, or in respect of any land, building, vehicle, vessel or other thing of which he is in occupation, possession or control, to comply, or to secure compliance, with such provision or order, ... he shall be deemed to have contravened such provision or order.
9. This makes it clear that a mere breach of Clause 15A of the Order is not 'contravening' it but the failure to comply with it would amount to a contravention of it only if it is without lawful excuse, and in this case we are satisfied that the appellant had a lawful excuse for keeping his undisposed of cloth after January 21, 1945, which was the last date before which he should have disposed of it, since the Textile Commissioner issued no directions or instructions under Clause 18B with a view to securing compliance with the various injunctions contained in the Cotton Cloth and Yarn (Control) Order, 1943. He cannot, therefore be said to have contravened the provisions of Clause 15A and must, therefore, be held to have committed no offence under Rule 81(4) of the Defence of India Rules.
10. The appellant's conviction and the fine imposed on him are, therefore, set aside and he is acquitted and discharged. The fine, if recovered, should be refunded to him. The order regarding the disposal of the cloth is maintained.