1. This is an application by the accused against his conviction by the trial Magistrate, and confirmed by the Sessions Judge at Nasik, for breach of the District Magistrate's order of December 27, 1943, to report the stock of Bajri in his possession, punishable under Rule 116 of the Defence of India Rules, 1939. The charge against the accused was that on February 6 last he failed to report his stock of Bajri to the Talati either orally or in writing within the time prescribed by the District Magistrate's order of December 27, 1943, which was published in the Bombay Government Gazette of January 6, 1944, and thereby he committed an offence punishable under Rule 116 of the Defence of India Rules.
2. It is common ground that the order was published in the Bombay Government Gazette of January 6 last to the effect that stocks of certain cereals, viz., Bajri, Jowar, Nagli, Paddy and Rice, should be declared in the first week of every month in the manner prescribed in the notification, if they exceeded a certain quantity, viz., 25 maunds or 8 bags. The main defence of the accused was that the notification had not been duly promulgated according to law, that he was not aware of the said notification, and that he had not, therefore, committed any breach of Rule 116. That defence has been repelled in the lower Courts. It has been held by the learned Sessions Judge in appeal that the notification had been promulgated in the village where the accused lived by beat of drum and that the District Magistrate had authorised the publication of the notification in that manner.
3. It is contended by Mr. Coyajee on behalf of the accused that there is nothing in the evidence to show that the District Magistrate had authorised any particular manner in which the order was to be promulgated under the provisions of Rule 119 of the Defence of India. Rules, and secondly, even if he had authorised the manner, the whole of the notification including the quantity of stock which was to be declared, the manner in which it was to be declared and the last date before which it was to be declared was not announced to the public by beat of drum. Now, Rule 119 says that every officer who makes any order in pursuance of any of the Defence of India Rules shall publish notice of such order in such manner as may, in the opinion of such officer, be best adapted for informing persons whom the order concerns. In our opinion, there is evidence in the case which shows that the District Magistrate had directed that this notification should be published by beat of drum in all villages. It appears that it was sent to Mamlatdars, who authorised Circle Inspectors to get it published by beat of drum in the villages. In' the present case although the Mahar, who is alleged to have; announced the order in this particular village by beat of drum, has denied having done so, there is other evidence from which the lower Courts have come to the conclusion that the District Magistrate had ordered that the people should be informed by beat of drum. But although we are satisfied that the District Magistrate had directed the manner in which it was to be published, it appears from the evidence that the whole of the notification which required to be duly published had not been promulgated by beat of drum. Two of the prosecution witnesses admit that all that was published by beat of drum was that grain more than nine maunds should be reported. It is also admitted that no other order about grain was published by beat of drum. The Circle Inspector, who is alleged to have visited this village on the 22nd or the 23rd, i.e. after the alleged promulgation of the order by beat of drum on January 16, has merely stated that when he went to the village he called the villagers in the Chavdi and asked them to thresh out grain and report their stock to the Talati or else there might be prosecution, but he does not say that they were informed of all the contents of the order including the last date in every month by which the stock was to be declared. The notification contains a proviso and two schedules containing the manner in which stocks of specified cereals of more than a certain quantity were to be declared in a prescribed manner during the first week of every month. Publication of the order means publication of all its material particulars. It is clear that the illiterate Mahar, who was asked to announce this notification by beat of drum, could not have published all such particulars. In fact, there is no evidence whatever that the whole of the notification had been duly published by beat of drum.
4. In a recent unreported decision in Emperor v. Leslie Gwilt (1944) 47 Bom. L.R. infra. this Court has pointed out that the mere publication of a notification in the Government Gazette is not sufficient to charge a person with liability for infringement of the terms of the notification. It must be proved by the prosecution that it was published in such manner as the District Magistrate considered proper. Even though the manner of publication by beat of drum may be considered as proper, it is essential that all the material contents of the order must be so announced in that manner. What is to be published under Rule 119 is notice of the order. That does not merely mean the fact of the order but the order itself. This is very important because such notifications affecting a very large number of agriculturists and traders and involving penal liability should be properly brought to the knowledge of the public, especially as such persons living in villages are not expected to read the Government Gazette. It is no doubt true that the District Magistrate is empowered to decide the best manner of publishing the notice and in this case he decided that it should be published by beat of drum. In our opinion, this method of promulgation is unsatisfactory because an illiterate Mahar is not expected to understand, much less to announce, all the particulars of an order like this which the public are entitled to know. The best course would be that the summary of the notification should be published by beat of drum in every village and a translation of the notification in the language of the District should be put up in the Chavdi or Chora of the village, and it should be announced to the people while publishing its summary by beat of drum that a translation of the notification has been put up in the village Chavdi. The number of orders relating to food grains and other articles affecting the public is increasing from day to day and there is every likelihood of illiterate persons being harassed by prosecutions on account of incomplete publication of the order such as we have in the present case. It is very desirable, therefore, that the attention of the authorities concerned should be drawn to the necessity of a proper and complete promulgation of all such notifications in future.
5. As a result, we are of opinion that in the present case the material particulars of the notification had not been published as required by law and that the accused cannot be held guilty of disobeying an order the material terms of which he did not know. We, therefore, set aside the conviction of the accused of the offence as also his sentence and make the rule absolute. The fine, if recovered, should be refunded. The bail bond is cancelled.