1. This is a reference made by the learned District Magistrate of Surat in a case in which one Mahomed Musa Natali has been, found guilty of contravening the provisions of Clause 3 of the Bombay Retail Trade Control and Licensing Order, 1942, and sentenced under Rule 81(4) of the Defence of India Rules, 1939, to a fine of Rs. 40. The accused had a shop at a village in the Surat District which was visited by the Distributing Supervisor of the taluka in order to check the accounts of kerosene of which the accused is a licensee. He noticed that there were about sixteen seers of jowar in the shop and thereafter he made further inquiries and checked the accounts of the accused and found entries regarding the sale of jowar and other foodgrains made by the accused, who had no license for such sale. Accordingly, the accused was prosecuted. But all that was stated in the charge-sheet submitted by the police against him was that he had sold without a licence certain quantities of jowar to two persons Sukhabhai and Chhani and that, therefore, he was liable under Rule 81(4) of lie Defence of India Rules, 1939. At the trial the evidence of the Supervisor, Sukhabhai and Chhani was given and the accused was asked whether he had anything to say with regard to the prosecution led against him. He admitted that lie had sold the jowar 'because he took pity on the persons concerned' and when the charge was read out and explained to him he pleaded guilty. The learned Magistrate thereupon convicted and sentenced him as above. The learned District Magistrate of the District has sent up this case to us for en-chancing the sentence on the ground that the sale of controlled articles without a license is a grave and growing evil in his District and that such evils must be strongly put down. It seems to us that neither the learned trial Magistrate nor the District Magistrate has paid any particular attention to the requirements of a prosecution of this nature. The prosecution is under Clause S of the Retail Trade Control and Licensing Order, and Sub-clause (1) of the said clause reads thus:
No person shall engage in any undertaking which involves the sale, or storage for sale, in retail quantities of any controlled article except under and in accordance with a licence issued in that behalf by an officer authorised by the Provincial Government.
It is clear that it is not the sale but the engaging in an undertaking involving the retail sale or storage of any controlled article that is prohibited by this clause. The word ''undertaking ' has been interpreted in Rule 81 of the Defence of India Rules to mean any undertaking by way of any trade or business, so that it would not be isolated instances of sale but a regular course of business or trade that would be required to be proved against a person charged under Clause 3 of the Order. Neither the charge in this case nor the evidence led for the prosecution suggests that the accused had been engaged in a course of business or trade which could be said to constitute an undertaking of the nature referred to in Clause 3. All that the two principal witnesses stated was that the accused had sold jowar, on two occasions to Sukhabhai and once to Chhani, and that in two of those sales the quantities sold were substantial, being 1J maunds and 1 maund respectively. The accused's explanation of these transactions is that 'he took pity on his customers, probably meaning that the customers had no ready cash on the said occasions, or that the customers were unable to obtain their needs from any authorised dealer, and that he sold the jowari to oblige his customers. It has not been shown that he charged any higher price than the rate authorised by Government or that he sold for any profit at all. It was incumbent on the prosecution to prove not only that he had engaged in the particular sales but something more, namely, that he had been engaged in a course of business or trade in the particular commodity; and, as I have already said) there is no indication that this was the prosecution case either in the charge or in the questions put to the accused when his statement was recorded; and the accused cannot be said to have been given notice that he was called upon to meet the case that he had engaged in the kind of undertaking that is referred to in Clause 3 of the Order. That being so, we are- of the opinion that his plea of guilty does not really amount to an admission that he had committed an offence under Clause 3, as we are satisfied that in this case the prosecution not only did not prove all the necessary elements of the offence-that is clearly shown by the points for determination to be found in the judgment- but also that the prosecution did not even make any attempt to formulate their case or to lead evidence to prove all the elements of the case which it was essential to establish against the accused. The conviction in this case cannot, therefore, be said to be justified and must be set aside. We, accordingly, set aside the conviction, acquit and discharge the accused, and direct that the line, which has been paid, should be refunded to him.
2. I agree and I wish to add to the remarks of my learned brother's strong- criticism of the carelessness with which the Magistrates concerned have dealt with this case. It is surely elementary to read through the sections under which a person is to be charged with an offence before charging him with it. If the learned Magistrate who tried the case and the learned District Magistrate who referred the matter to us had taken the trouble to do so, they would have seen that the offence consisted not of selling without a licence or trading without a licence but rather engaging in an undertaking that involves the storage of grain. It is an offence to engage in such an undertaking even before any sale actually takes place. What matters is the storage of grain and not the selling. The fact that sales took place is no doubt useful as evidence of trade; but proof of sales is not essential for the establishment of the offence. In point of fact the statement of the accused that he sold this grain out of pity, though it may well be an untrue statement, is very nearly a denial of the allegation that he sold it by way of trade. That allegation not having been met, the charge discloses no offence and the plea of guilty is meaningless.