Leonard Stone, Kt., C.J.
1. The petitioner-accused was summarily tried by Mr. Basit, City Magistrate, First Class, Poona, for offence alleged against him under Rule 81 (4) of the Defence of India Rules and el. 6 of the Bombay Rationing Order, 1943, and he was found guilty by the learned Magistrate after a summary trial and was sentenced to pay a fine of Rs. 150. The matter at the instance of the petitioner-accused went in revision to Mr. Nagarkar, the Sessions Judge of Poona, who dismissed the application. The petitioner-accused now applies to us in revision in order to review the circumstances of the case.
2. The prosecution case in the trial Court was that at 7-30 a.m. on the morning of December 2, 1944, the petitioner sent by a hamal 224 lbs, of sugar from his licensed rationing shop at Poona with instructions to the hamal that he should hand it over to one Gatarmal. It appears that the police had reason to suppose that the petitioner had been selling sugar in the black market and so a watch was being kept on his shop. That watch on the night of: December 1-2 was kept by Police Constable Kamuruddin Aha mad Saheb and his evidence as taken down by the learned Magistrate at the summary trial is quite short and is to this effect:
I had kept a watch from December 1, 1944, on the shop of the accused. Hari Barake is his hamal and on December 2, 1944, at about 7-80 a. m. Barake and the accused were the only persons in the shop, The accused took the bundle which is before the Court and put it on the head of Barake and Barake went out of the shop and I followed him. I accosted him on the road near Daruwalla Chauki, In the presence of one Haidarally, he told me that there was sugar and he was taking it for sale and that the sugar was from the shop of the accused. That Halwai denied knowledge. So I produced him before the Police Sub-Inspector. The bundle was opened and Police Sub-Inspector attached the sugar under a panchnama.
3. Then under cross-examination he said:
This happened in the morning, Barake is a. hamal as I have seen him working in the shop of accused. I do not know whether Motilal is the partner of the accused.
4. It does not appear from that that the Police Constable's evidence on the main facts of the story was in any way challenged.
5. The hamal. Hari Narayan Barake, gave evidence which is in no way inconsistent, with that of the Police Constable. But his evidence goes a little further in that he says:
On the night previous to the day on which this bundle was attached from me I had been to the accused's at about 10-30 p.m. It was Friday night and the accused was alone in the shop. Accused told me that a bundle of sugar is to be carried and he asked me to come next morning at about 6-30 a.m. The same night accused told me that the bundle of sugar was to be taken to one Gatarmal Halawai near Datta Mandir. At half past six I found accused in his kirana shop and from there we came to his ration shop. Accused told me to take this bundle as instructed yesterday and said that he would follow me. The sugar he said was 11 1/4 seers. This sugar was from accused's own shop.
6. The rest of his story confirms the evidence of the Police Constable.
7. It appears that after the hamal had been stopped by the Police Constable in, the presence of Haidarally, they arrived at Gatarmal's shop, but that gentleman 's suspicions were aroused and he refused to take the sugar.
8. Mr. Jahagirdar on behalf of the petitioner has made two main points before us. After critically examining the evidence of the Police Constable and the hamal, he has pointed out that the remaining stock of sugar in the accused's shop on the morning of December 2 was apparently found to be what it should be. But we cannot see how that affects the matter one way or the other because 22 1/2 lbs. of sugar undoubtedly left that ration shop at 7-30 on the morning of December 2 in the circumstances described by the two witnesses.
9. Mr. Jahagirdar's second contention raises a purely legal point and it is that the Bombay Rationing Order of 1943 is ineffectual because it was irregularly made. He points out that in its preamble it says that 'In exercise of the powers conferred by Rule 81 of the Defence of India Rules and of all other powers enabling it in this behalf the Government of Bombay is pleased to make the following order.' It appears from the Gazette that the notification of the order is signed by the Secretary to Government by order of the Governor, and the suggestion is that the Secretary to Government has no power to sign such an order which must be made by the Governor in his individual discretion. Under Section 59 of the Government of India Act, 1935, it is provided by Sub-section (1) that all executive action of the,Government of a Province shall be expressed to be taken in the name of the Governor, but by Sub-section (3) it is also provided that the Governor shall make rules for the more convenient transaction of the business of the Provincial Government. In fact on April 16, 1937, the Governor did make rules for the more convenient despatch of business of this Province and the rules commence as follows:
The following rules have been made by His Excellency the Governor of Bombay under Section 59 of the Government of India Act, 1935, after consultation with his Ministers and are published for general information.
10. The rules contain the power for a Secretary, Deputy Secretary, Under Secretary, or the Assistant Secretary to Government to affix his signature to authenticate such an order or notification as the one in question. Mr. Jahagirdar's point is that these rules of business became obsolete when the Administration under Section 93 of the Government of India Act came into force because they were made after consultation with the Ministers and therefore did not apply to a different set of circumstances, namely when the Governor was himself, by virtue of Section 93 and the proclamation of November, 1939, the Government of Bombay. In our opinion there is no substance in this submission. There cannot be any reason why such rules of business which were made by His Excellency the Governor after consultation with the Ministers, when such Ministers were in power, should become obsolete or be abrogated when the Governor assumed to himself the total functions of Government. In our opinion accordingly this point fails. That being so, the conviction stands and it is necessary for us to consider the question of sentence.
11. When a rule was granted for this matter to come before this Court in revision, notice for enhancement of the sentence was given. The case itself discloses the commission of a grave breach of the rationing regulations involving the deliberate black marketing of 22 1/2 lbs. of sugar. In times of food scarcity people who do this sort of thing are committing a crime against society of a most despicable character. Persons who, like the petitioner, enrich themselves by breaches of the regulations imposed by Government to secure the fair distribution of foodstuffs are unlawfully enriching themselves at the expense of their fellow citizens, especially the poorer ones who cannot afford to pay the black market prices which are thus created. We regard this type of offence as a most contemptible crime and one which calls for a deterrent sentence in all eases in which it is deliberately committed. In this case we can see no extenuating circumstance whatever. The transportation of this 22 1/2 lb. of sugar had been arranged by the petitioner on the previous evening and was to take place in the early morning when few people were about. The fine of Us. 150 inflicted by the learned Magistrate is grossly inadequate and is the sort of sentence which only encourages further commission of this type of crime because it is so profitable. It is the duty of this Court when enforcing the law to see to it that crimes are not committed because sentences are so lenient that the crime in question still remains lucrative. If this case had not been tried summarily, the maximum sentence which a First Class Magistrate could have given, if regularly tried, would have been two years' rigorous imprisonment and a fine of Rs. 1,000. Because he tried it summarily, he limited his powers to three months' rigorous imprisonment and a fine of Rs. 1,000 by virtue of Section 262(2) of the Criminal Procedure Code. Why this case should have been dealt with summarily it is difficult to understand. We have carefully considered what in our opinion would have been the proper sentence for the Magistrate to have imposed if he had tried this case as a regular one, as he undoubtedly ought to have done. In our opinion the proper sentence would have been six months' rigorous imprisonment and a fine of Rs. 1,000. Although we have the power to do so under Section 439(3) of the Criminal Procedure Code (see the case of Imperatrix v. Shaikh Husein walad) Shaik Mahomed (1883) Crim. Review No. 131 of 1883, decided on July 30, 1883, by Bayley C.J. and Pinhey J., (Unrep.)) we do not think that it would be fair to the accused in this case for us to exceed the maximum sentence which the Magistrate could have inflicted when he tried the case summarily, that is to say, three months' rigorous imprisonment and a fine of Rs. 1,000, and that is the sentence which we impose. In default of payment of the fine, the petitioner will go to prison for a further nine months' rigorous imprisonment.
12. We direct that copies of this judgment be sent to the Secretary, Home Department, to all Sessions Judges, to all District Magistrates and to the Chief Presidency Magistrate, Bombay, for information.