John Beaumont, C.J.
1. This is an application in revision against the conviction of the accused for withholding sugar from sale--contrary to the Defence of India Rules.
2. Under Rule 81(2) (a) of the Defence of India Rules, the Central Government or the Provincial Government may make rules for regulating or prohibiting, amongst other things, the distribution, disposal or consumption of articles or things of any description whatsoever and in particular prohibiting the withholding from sale, either generally or to specified persons or classes of persons, of articles or things kept for sale. Under that rule, Government on June 10, 1942, ordered that sugar, for which the Government of India had fixed maximum wholesale prices under the Notification mentioned, should not be sold wholesale or retail at any place in the City of Bombay at prices higher than those mentioned. The prices were mostly concerned with sales wholesale, different prices being fixed for a Bengal maund of 82 2/7 pounds in respect of different classes of sugar. There was only one retail price of six annas per seer. Then Sub-clause (2) of the Notification provides that the dealers in sugar shall not withhold it from sale to any person on demand and an offer of such price.
3. What happened in this case was that the accused, who keeps a small grocery shop, had a stock of sugar consisting of four pounds only, and on July 13, 1942, a customer came in to purchase sugar, but as the accused, according to his statement, was not in the shop, and as there was no one in the shop who had authority to sell, that customer was refused any sugar. The evidence does not confirm that the accused was not in the shop; indeed, the customer says that the accused was in the shop. But the evidence does not show on what date that customer endeavoured to buy sugar, so that there is no evidence that, at the time when the customer sought to buy sugar, the accused had any sugar for sale. It is only in the accused's own petition to this Court that he admits that the customer came on July 13, but in that statement he says that he was not himself in the shop. I, therefore, ignore the evidence as to that customer.
4. But later on that day another customer, sent by the police, asked the accused for one pound of sugar, for which he was willing to pay the fixed price, and the accused refused to sell him more than one anna worth of sugar. He has, therefore, been prosecuted for withholding sugar from sale.
5. I must confess that I feel the greatest doubt as to what was the meaning and intent of this Notification. If the prosecution view is right, and if a man with a certain quantity of sugar refuses to sell the whole of it on demand to the first person who is willing to pay the price, then it seems to me the Notification is a sort of hoarders charters. It means that any rich man can go and buy the whole of the sugar in the neighbourhood, and keep it for his own consumption, and it is difficult to suppose that Government intended to encourage grossly selfish conduct of that kind. The accused says that having only four pounds of sugar, and having a considerable number of regular customers, he was anxious to sell his sugar to them, and he was not prepared to sell one-fourth of his stock to somebody whom he did not know; and certainly that does not seem to be an unreasonable attitude to adopt. If one construes the word 'withhold' in the sense in which the prosecution asks us to construe it, it must be conceded that the accused did withhold from sale to the particular customer three pounds of sugar. But, in my opinion, one cannot construe the word 'withhold' in that sense. As I put it to the learned Advocate General in argument, supposing a grocer, when he opens his shop in the morning, finds a queue of persons waiting who want to buy sugar, and he sees amongst the queue many regular customers, and supposing the first person in the queue, who does not happen to be a regular customer, demands to purchase the whole of the grocer's stock, can it be seriously suggested that the grocer, in refusing to comply with that order, is withholding sugar from sale, when he has every intention to sell sugar to the other people in the queue in their turn? And if it be conceded that in such a case it cannot be said that he was withholding sugar from sale, the position must be the same, although his regular customers are not visible, but from his past experience he knows that they are likely to come in to buy sugar in the course of the day. It seems to me that one must construe the word 'withhold' in relation to the facts of each particular case. I do not think that we can read it, as Mr. Pardiwala has invited us to do, as 'unreasonably withhold,' because the word 'unreasonably' is not in the Notification, and we cannot put it there. But we can and ought to say, in my opinion, that a man has not withheld sugar from sale to any person, if he has sold some sugar to any person demanding it, and has not evinced any unwillingness to sell the rest of the sugar to other persons, I think in order to bring home the offence, the police will have to go much further than they have gone, and show that the accused was, over a period, withholding his sugar from sale. I do not think that a dealer is bound to sell his whole stock, or a large part of it, to the first customer who demands it. If at the end of a period, it is found that a dealer has not sold his stock, although asked to do so, there may be a case for prosecution.
6. In my opinion, therefore, the application should succeed, and we must set aside the conviction and sentence.
7. Bail-bond to be cancelled.
1. I agree.