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Emperor Vs. Purshottam Devji Patel - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Application for Revision No. 491 of 1943
Judge
Reported in(1944)46BOMLR449
AppellantEmperor
RespondentPurshottam Devji Patel
Excerpt:
.....emergency-act passed under provincial legislative list- powers of central legislature-defence of india rules, 1939, rules 81(2)(a), 81(4), 121, 130-transport of controlled articles outside district-notification- ultra vires-tur or tur-dal-export-forfeiture-criminal procedure code (act v of 1898), section 517-bombay retail trade control and licensing order, 1942, section 3-sale or storage for sale in retail quantities-whether one deal of large quantity amounts to such sale.; section 297 of the government of india act, 1935, which deals with provincial legislatures or governments, provides that their power to legislate with regard to production, supply and distribution of commodities is subject to the limitation that they cannot prohibit or restrict import into or export from the..........the district magistrate of kaira in exercise of the powers conferred by rule 81 of the defence of india rules, 1939, directing that no person should remove wheat, wheat products, tur or tur-dal from any place within the limits of the kaira district to any place outside the district except under a permit granted by the district magistrate, kaira. the offence is alleged to have been committed on the morning of september 1, 1943. he was also charged with trading in tur without a license in contravention of the bombay retail trade control and licensing order, 1942, made and published by the government of bombay on july 29, 1942, which provided that no person should engage in any undertaking which involved the sale, or storage for sale, in retail quantities of any controlled articles except.....
Judgment:

N.J. Wadia, J.

1. The applicant was tried by the Resident First Class Magistrate, Anand, for having attempted to export 250 maunds of tur, which he had purchased at Sarsa in the Kaira District, to Bakrol in the Baroda State, in contravention of Notification No. W.A.R. 206 issued by the District Magistrate of Kaira in exercise of the powers conferred by Rule 81 of the Defence of India Rules, 1939, directing that no person should remove wheat, wheat products, tur or tur-dal from any place within the limits of the Kaira District to any place outside the District except under a permit granted by the District Magistrate, Kaira. The offence is alleged to have been committed on the morning of September 1, 1943. He was also charged with trading in tur without a license in contravention of the Bombay Retail Trade Control and Licensing Order, 1942, made and published by the Government of Bombay on July 29, 1942, which provided that no person should engage in any undertaking which involved the sale, or storage for sale, in retail quantities of any controlled articles except under and in accordance with a license issued in that behalf by an officer authorized by the Provincial Government (Section 3(1)). Pulses of all kinds were included in schedule I appended to the Order which specified the controlled articles..

2. The accused pleaded guilty. The learned Magistrate convicted him under Rule 81(4) read with Rule 121 of the Defence of India Rules for having attempted to export tur without a permit and sentenced him to suffer rigorous imprisonment for two months. He also sentenced him to suffer rigorous imprisonment for one month under Rule 81(4) for trading in tur without a licence. He further directed that the tur attached from the accused, which amounted to 250 maunds, should be forfeited. The accused made an appeal to the Sessions Judge who confirmed the convictions and sentences, but altered the order of confiscation from one under Rule 81(4) of the Defence of India Rules to one under Section 517 of the Code of Criminal Procedure. The accused has come to this Court in revision.

3. The first contention urged on behalf of the accused is that the notification issued by the District Magistrate, Kaira, under Rule 81(2) is ultra vires. Rule 81(2) provides that the Central Government or the Provincial Government, so far as appears to it to be necessary or expedient for securing the defence of British India or the efficient prosecution of the war, or for maintaining supplies and services essential to the life of the community, may by order provide for regulating or prohibiting the transport of articles or things of any description whatsoever. By a notification issued by the Provincial Government, No. S.D./W. 3401 of December 19, 1941, in exercise of the powers conferred by Sub-section (5) of Section 2 of the Defence of India Act, 1939, the Government of Bombay directed that the powers or duties conferred or imposed on it by Rule 81 of the Defence of India Rules should be exercisable or dis-chargeable by all District Magistrates within the limits of their respective jurisdictions. The accused was charged with having attempted to export tur from the Kaira District into the Baroda State. It is contended that under Section 297 of the Government of India Act no Provincial Legislature or Government can, by virtue of the entry in the Provincial Legislative List relating to trade and commerce within the Province, or the entry in the list relating to the production, supply and distribution of commodities, have power to pass any law or take any executive action prohibiting or restricting the entry into, or export from, the Province of goods of any class or description. By Section 102 of the Government of India Act power is given to the Federal Legislature to legislate for a Province or any part thereof with respect to any of the matters enumerated in the Provincial. Legislative List, if the Governor General has declared that a grave emergency exists whereby the security of India is threatened. The preamble to the Defence of India Act states that such a state of grave emergency had been declared to exist by a proclamation by the Governor General under Section 102 of the Act. It is conceded that in these circumstances the Central Government had power to make rules under the Defence of India Act dealing with subjects falling within the Provincial Legislative List, and in particular dealing with trade and commerce within the Province which is one of such subjects. It is contended, however, that the power given to the Government of India by Section 102 of the Act to legislate on such matters would be subject to the same restrictions to which the Provincial Government would be subject and since under Section 297 a Provincial Government could not legislate so as to prohibit export from the 'Province, the Government of India also could not do so, and therefore the notification of the District Magistrate which was issued in the exercise of the powers conferred by Rule 81(2) of the Defence of India Rules was ultra vires of Section 297 of the Government of India Act. In our opinion there is no force in this contention. Section 297 deals with Provincial Legislatures or Governments and provides that their power to legislate with regard to production, supply and distribution of commodities is subject to the limitation that they cannot prohibit or restrict import into or export from the Province. But when the Government of India acquires powers under Section 102 to legislate with regard to Provincial subjects, there is nothing in the Act to show that its legislation on such matters is subject to the restrictions laid down in Section 297. That section does not refer to the Federal Legislature at all, and since all province are subject to the Federal Legislature, that Legislature would have power to make legislation prohibiting or restricting import into or export from a province.

4. The Notification issued by the District Magistrate prohibiting the removal of tur or tur-dal from any place within the limits of the Kaira District to any place outside that District was therefore properly issued, and the accused has been rightly convicted for having attempted to export tur in contravention of it.

5. The next contention is that the conviction of the applicant for trading in tur without a license is wrong. The view taken by the trial Magistrate was that the accused's act amounted to contravention of the Bombay Retail Trade Control and Licensing Order made by the Government of Bombay on July 29, 1942. That Order directs that no person shall engage in any undertaking which involves the sale or storage for sale, in retail quantities of any controlled articles. What the accused did was to buy 250 maunds of tur in a single transaction at Sarsa in the Kaira District. His act in doing so does not offend against the provisions of Section 3 of the Retail Trade Control and Licensing Order issued by Government, since that Order deals with sale or storage for sale in retail quantities. The accused neither sold the tur nor stored it for sale in retail quantities. His conviction on that charge must therefore fail.

6. There is also another ground on which that conviction must fail. Rule 1310 of the Defence of India Rules provides that no Court shall take cognizance of any alleged contravention of these rules, except on a report in writing of the facts constituting such contravention, made by a public servant. A charge sheet sent by a Sub-Inspector of Police would be a report within the meaning of this rule. But the charge-sheet sent in this case by the Sub-Inspector of Police makes no reference at all to the offence of contravention of the Bombay Retail Trade Control and Licensing Order. It mentions only the attempt to export tur from the Kaira District to a village in the Baroda State. On this ground also the conviction and the sentence of one month's rigorous imprisonment for trading in tur without a license must be set aside.

7. It is finally contended that the order made by the learned Magistrate forfeiting the 250 maunds of tur seized from the accused is illegal. The learned Magistrate made the order under Rule 81(4) of the Defence of India Rules. That rule as it originally stood provided that if any person contravened any order made under Rule 81 he should be punishable in a certain manner. By an amendment made on February 5, 1943, the following words were added ' and, if the order so provides, any Court trying such contravention may direct that any property in respect of which the Court is satisfied that the order has been contravened shall be forfeited to His Majesty.' Since the order issued by the District Magistrate on December 25, 1942, prohibiting the removal of wheat and tur from any place in the Kaira District to any place outside the District did not direct that any grain in respect of which the order had been contravened should be liable to forfeiture, the Court clearly had no power under Rule 81(4) to direct forfeiture of the 250 maunds of tur. This defect was realised by the learned Sessions Judge, when the matter came up before him in appeal, and he therefore altered the order of confiscation made by the trial Magistrate, and directed that the confiscation should be under Section 517 of the Code of Criminal Procedure, and not under Rule 81(4) of the Defence of India Rules. If there had been no provision with regard to confiscation in Rule 81(4) of the Defence of India Rules, the Magistrate undoubtedly would have had the power to direct confiscation under Section 517 of the Code of Criminal Procedure. But the language of Rule 81(4), which provides that confiscation may be directed only where the order contravened provides for such confiscation, seems clearly to imply that confiscation cannot be ordered in any other case, and by implication it prevents the application of Section 517 of the Code of Criminal Procedure to offences falling under Rule 81(4) of the Defence of India Rules. Where a statute specifies a particular mode of enforcing a new obligation created by it, such obligation can as a general rule be enforced in no other manner than that provided by the statute. The wider power of confiscation conferred by Section 517 of the Code of Criminal Procedure must be regarded as impliedly limited by Rule 81(4) of the Defence of India Rules. Section 517 of the Criminal Procedure Code was not therefore applicable to the present case.

8. The conviction of the petitioner under Rule 81(4) of the Defence of India Rules for having attempted to export tur without a permit from the Kaira District, and the sentence of two months' rigorous imprisonment passed upon him must therefore stand. His conviction under the same rule for trading in tur without a license and the sentence of rigorous imprisonment for one month passed upon him are set aside. The order directing the forfeiture of the 250 maunds of tur is also set aside. The tur attached from him, or, if it has been disposed of, its proceeds, should be returned to the applicant. The accused must surrender to his bail to serve the remainder of his sentence.


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