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Emperor Vs. J.C. D'Souza (27.06.1946 - BOMHC) - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case Number Criminal Appeal No. 585 of 1946
Judge
Reported inAIR1947Bom151; (1946)48BOMLR754
AppellantEmperor
RespondentJ.C. D'Souza
DispositionAppeal dismissed
Excerpt:
cotton cloth and yarn (control) order, 1943, clause 23 - offence-prosecution-'previous sanction' of the provincial government.;the words 'previous sanction ' in clause 28 of the cotton cloth and yarn (control) order, 1943, relate to a prosecution for a contravention. it is incumbent on government in each case to show that such a sanction has been given. the sanction must specify the particular act of contravention in respect of which a breach of the order is alleged. - .....under i. 81(4) of the defence of india rules and within the cognizance of this court.2. the learned government pleader has stated at the outset that the point involved is a technical one and that it is with regard to whether a sufficient sanction has been given within the true meaning of clause 23 of the order. clause 23, so far as is material in this ease, reads:no prosecution for the contravention of any of provisions of this order shall be instituted without the previous sanction of the provincial government.3. the clause in my view is not very happily worded as it does not specify the precise sanction which has to be given, but used in that context the words ''the previous sanction'' must relate to a prosecution for a contravention, and in my opinion it is incumbent on.....
Judgment:

Leonard Stone, Kt., C.J.

1. This is an appeal by Government against the order of acquittal made by Mr. T. S. Vyas and dated June 20> 1945. The charge with which the accused was brought before the learned Magistrate is in. these terms:

That you being the manager in the firm of Chunilal Mulchand & Co., having its shop at Waterloo Mansion, Mayo Road, Bombay, were on January 23, 1945, found to have in possession of 3,343 1/2 yards of cloth bearing November 43 Tex-mark and 402 yards of cloth bearing T. C. B. June 1944-Mark Exhibits A and A-l respectively and thus contravened cls. 14(J) (6) and 15-A of the Cotton Cloth and Yarn(Control) Order, 1948, which contravention is punishable under i. 81(4) of the Defence of India Rules and within the cognizance of this Court.

2. The learned Government Pleader has stated at the outset that the point involved is a technical one and that it is with regard to whether a sufficient sanction has been given within the true meaning of Clause 23 of the Order. Clause 23, so far as is material in this ease, reads:

No prosecution for the contravention of any of provisions of this Order shall be instituted without the previous sanction of the Provincial Government.

3. The clause in my view is not very happily worded as it does not specify the precise sanction which has to be given, but used in that context the words ''the previous sanction'' must relate to a prosecution for a contravention, and in my opinion it is incumbent on Government in each case to show that such a sanction had been given. It must be borne in mind that clauses of this character are for the public benefit.

4. The only evidence that sanction to this particular prosecution was given which has been advanced is a Resolution of Government dated March 20, 1945, which is in these terms:-

Government is pleased to accord sanction under Clause 23 of the Cotton Cloth and Yarn (Control) Order, 1943, to the prosecution of Mr. J. C. D'Souza, the manager of the firm Messrs. Chunilal Mulchand, Bombay, for breach of the provisions of Clause 15-A and new Clause 14(1) (6) of the said Order.

5. It is to be noted that in that Resolution there is not specified any particular act of contravention in respect of which a breach of the order is alleged. The Resolution may be conveniently compared with the charge which I have already read. The onus to show that the requisite sanction has been given must obviously rest with the prosecution, and as the prosecution have only adduced in evidence this Resolution and nothing more, it is my opinion that Clause 23 has not been sufficiently complied with and that accordingly the learned Magistrate was right in acquitting the accused.

6. For these reasons in my opinion this appeal must be dismissed.

Bavdekar, J.

7. I agree.


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