1. This is an application in revision by accused Nos. 1 and 2 against their convictions and sentences under Section 13(1) read with Section 6 of the Hoarding and Profiteering Prevention Ordinance. The case for the prosecution was that accused: No. 1; was the proprietor, and accused No. 2 was a salesman of P. H. Shah, Silk Merchants, in Bombay, and that on September 1, 1944, accused No. 2 on behalf of accused No. 1 sold nine yards of artificial silk dress fabric at a price of Rs. 11 per yard when the landed cost, as certified by the Assistant Controller General was Rs. 4-8-0: per yard. The defence of accused No. 1 was that he had purchased the articles at Rs. 9-8-0 per yard from K. Manilal and 'Company and hence the profit earned by him was less than twenty per cent. It was also urged that the landed cost certificate was not duly proved because Mr. Kedarnath the Assistant Controller General who had given the certificate had not been examined to prove that the articles in respect of which he gave the certificate were the very articles which were the subject matter of this offence.
2. The sanction required under Section 14 was granted by Mr. S. N. Mehta, the Deputy Controller General of Civil Supplies in Bombay. It does not seem to have been contended in the lower Court that the sanction was invalid; but it was urged in this Court that it was illegal on the ground that the officer who granted the sanction, Mr. S. N. Mehta, the Deputy Controller General, was not lawfully empowered to grant it, as the notification of the Government of India under which he purported to grant the sanction was ultra vires, inasmuch as it was not issued according to the provisions of Section 14 of the Ordinance.
3. As the point about sanction goes to the root of the whole case, we propose to examine that point first. The sanction exhibit II in this case is signed by Mr. S. N. Mehta, Deputy Controller General of Civil Supplies, and it purports to be issued under Section 14 of the Hoarding and Profiteering Prevention Ordinance read with Government of India Notification No. F. 22(7) C. S. (C)/43 dated February 19, 1944. This notification empowers the Controller General of Civil Supplies to grant sanction in respect of any offence committed under the Ordinance in any province in British India and among other officers, the Deputy Controller General of Civil Supplies (Western Region), Bombay, is empowered to grant sanction in respect of any such offence committed in the Provinces of Bombay, Madras, etc. Under Section 14 no prosecution for any offence punishable under the Ordinance shall be instituted except with the previous sanction of the Central or the Provincial Government, or of an officer not below the rank of a District Magistrate empowered by the Central or the Provincial Government to grant such sanction. It is clear therefore that the sanction can be granted by three authorities, firstly the Central Government, secondly the Provincial Government and thirdly by any officer not below the rank of a district Magistrate empowered by the Centra or the Provincial Government. In this case the sanction cannot be deemed to have been given either by the Central Government or the Provincial Government because it purports to have been granted under the terms of the notification by which, certain classes of officers are specially empowered under the last part of the section. The question therefore is whether the Deputy Controller General-whoever may be the person holding that post-is an officer not below the rank of a District Magistrate. The notification itself is silent on the question as to whether these particular officers are holding such a rank. So also the definition of 'Controller General' in Section 2(c) of the Ordinance is silent as to such rank. It merely says that ' Controller General' means the Controller General of Civil Supplies appointed by the Central Government and includes the Deputy Controller General or Assistant Controller General of Civil Supplies so appointed.
4. It is the contention on behalf of the petitioner that a District Magistrate is a creature of the Criminal Procedure Code and apart from that Code there is no test to find out whether any person is an officer not below the rank of a District Magistrate. There is nothing in the Code to determine the rank of a Deputy Controller General in the hierarchy of Magistrates. These officers are also not invested with powers as District Magistrates under the notification, and it is therefore urged that the notification is illegal and ultra vires. We think there is considerable force in this contention. Under Section 10 of the Criminal Procedure Code in every district outside a presidency town a first class magistrate may be appointed by the local Government as a District Magistrate for a particular district. Section 11 says that any officer who is in charge of the Chief executive administration of a district shall have all the powers of the District Magistrate. There is no provision of law pointed out to us or which we have been able to find, other than the Criminal Procedure Code which creates either the powers or the rank of a District Magistrate. The learned Advocate General has contended that when the Central Government issued the Notification, it must be taken that it had the provisions of Section 14 of the Ordinance in mind and it must therefore be presumed under Section 114, ill. (e), of the Indian Evidence Act that judicial and official acts have been regularly performed which means, according to him, that the officers mentioned in the notification must be deemed to have been given a rank not below that of a District Magistrate. It is further urged that the burden of showing that this presumption cannot apply to the present case is on the accused, and as that burden cannot be discharged the presumption is practically conclusive.
5. In our opinion it is not correct to say that such a presumption applies in the present case. The presumption under Section 114, ill. (e), is that of the regularity of the official acts, whether judicial or executive, and not that of the acts themselves being done. If, for instance, a notification is issued under the powers given by law, there is a presumption that it was regularly published and promulgated in the manner in which it was required to be done. But there is no presumption that it was issued according to the terms of the section which empowers it. In a very recent decision in Emperor v. Gwilt (1944) 47 Bom. L.R. 431 it has been held by this Court that:
the meaning of Section 114, 111. (e), is that if an official act is proved to have been done, it will be presumed to have been regularly done. It does not raise a presumption that an act was done of which there is no evidence and the proof of which is essential to the case.
And that is also the principle underlying the decisions of the other High Courts, for instance, Jagarnath v. King-Emperor I.L.R (1944) Pat. 29, Narendra Lal Khan v. Jogi Hari I.L.R (1905) Cal. 1107 and Kumari v. Raj Kumer A.I.R  Ran. 207. In the present case the act required to be proved is the empowering of an officer not below the rank of a District Magistrate to grant sanction. It must be proved by the prosecution that the officer empowered held a rank not below that of a District Magistrate. No such proof has been given. Such a rank, as I said before, has not been created either in the definition of the Controller General or in Section 14 itself. Assuming that the rank of a District Magistrate can be created without investment of powers of a District Magistrate, it must be created lawfully before the empowerment can take place. A rank may be created or recognised statutorily, as for example, in Section 14, Section 166. and Section 167 of the Criminal 'Procedure Code and Section 35 of the Bombay Civil Courts Act. The term ' rank ' as used in Section 14 does not, in our opinion, mean social rank as in the warrant of precedence. As the prosecution has not thus proved that the officers mentioned in the notification hold a rank not below that-of a District Magistrate, the notification issued by the Government is, in our opinion, invalid and ultra vires, with the result that the sanction is also of the same nature. As regards the individual officer, Mr. S. N. Mehta, it appears that before he was appointed as Deputy Controller General he was at one time a Deputy Commissioner in the Central Provinces and it is said that as such he was holding a rank not below that of a District Magistrate. Even assuming it is so, the sanction is given by him under the powers conferred on him by the notification,, and if the notification is bad, the sanction granted by him is also illegal, even if he enjoyed at one time the powers of a District Magistrate. For these reasons we are of opinion that the sanction granted is invalid, and as a valid sanction is a condition precedent for prosecution under the Hoarding and Profiteering Prevention Ordinance, the prosecution fails, with the result that the convictions and the sentences of the accused must be set aside.
6. I may add that sitting with Bavdekar J. for hearing Criminal Appeals Nos. 105 and 198 of 1946, both he and I had come to the same conclusion which we have reached in the present application. The delivery of the judgments in those appeals was withheld as we had already heard the present application partially before it was adjourned to enable the learned Advocate General to appear.
7. It is not therefore necessary to deal with the other points as to the validity of the certificate etc. As the whole prosecution fails on account of the invalidity of the sanction, even assuming that the certificate of the landed costs was valid, the conviction is; bad in law.
8. Accordingly the rule is made absolute, the convictions and the sentences of both the accused are set aside, and the fines, if paid, are ordered to be refunded.
9. Bail bonds to be cancelled.