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Emperor Vs. Pandurang Bhikhaji Joshi - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Appeal No. 167 of 1943
Judge
Reported in(1943)45BOMLR890
AppellantEmperor
RespondentPandurang Bhikhaji Joshi
DispositionAppeal allowed
Excerpt:
.....of india rules, 1939, rule 116-notification of government of bombay under rule-declaration of rice stocks-notification, applicability of, to persons residing in bombay city or. suburb-'every person in the city of bombay'-interpretation.;the expression 'every person in the city of bombay', used by the government of bombay in a notification issued by them under rule 116 of the defence of india rules, 1939, refers to a person who is physically present in the city of bombay on the material date. therefore, a person who is absent from the city of bombay, either temporarily or permanently, on the material date, is under no obligation to make a declaration under the notification. - - 6. the words of the notification are perfectly plain. well, if there is evasion of that nature, it will be the..........be resident outside the province of bombay, and are, therefore, not amenable to the orders of the bombay government. a man may reside and carry on business in calcutta, but he may have a branch business in bombay in connection with which declarable stock may be held. it is impossible to suppose that the government of bombay intended to order the owner in calcutta to make a return. in such a case the man to make the return would be the local manager who is covered by the words of the notification requiring a return to be made of stock held on account of any other person. the notification in referring to 'every person in the city of bombay' draws no distinction between a man who is temporarily outside bombay, and a man who is living permanently outside bombay. a man who is in nasik for a.....
Judgment:

John Beaumont, Kt., C.J.

1. This is an appeal by the accused against his conviction by the Presidency Magistrate, 4th Additional Court, of an offence under Rule 116(2) of the Defence of India Rules.

2. Rule 116, so far as material, enables the Provincial Government to require any person to furnish or produce to any specified authority or person any such information or article in his possession as may foe specified in the order, being information or an article which that Government considers it necessary or expedient in the interests of the defence of British India, the efficient prosecution of the war, or the public safety or interest to obtain or examine. Under that rule Government issued a notification on February 5, 1943, which, so far as is material for the present purpose is in these terms :-

The Government of Bombay is pleased to order that every person in the City of Bombay and Bombay Suburban District shall, on every Tuesday beginning with February 9, 1943, furnish to the Director of Civil Supplies (Statistics section), Bombay, a full and correct statement in the form specified of the stock of rice, paddy and rice flour held by him on his own account or on account of or in partnership with any other person on Sunday immediately preceding such Tuesday, if such stock amount to 10 maunds or more.

3. It is not disputed that on Sunday February 14, the accused held stock of rice exceeding ten maunds and the charge against him is that he did not declare that excess of stock on Tuesday February 16. His evidence, which the learned Magistrate accepted, is that he was out of Bombay, staying at Nasik, from February 4 to February 17. He was not, therefore, in Bombay on February 16.

4. The first point argued in the accused's favour is that he did not know about the notification. When he left Bombay first in January, another notification had been in force under which the amount of rice allowed was twenty-one maunds, and he says that he did not know that the notification had been changed. But that is obviously no excuse. These notifications, when duly issued, become part of the law of the land, and it is the duty of everybody to acquaint himself with their terms in so far as they affect him. I daresay that many people have been convicted under the Indian Penal Code who were not aware that what they were doing was an offence under that Code, but obviously that is no defence. People have to acquaint themselves with the law and to obey it.

5. A more serious defence raised is that the accused was not liable to make a declaration on February 16 because he was not on that day ' a person in Bombay'. this Court in Emperor v. Dattatraya Ramchandra Agashe (1943) Criminal Appeal No. 68 of 1943, decided by Beaumont C.J. and Rajadhyaksha J. on July 1, 1943 (Unrep.). considered this notification, and we pointed out that it is difficult, indeed impossible, to read the notification as applying only to a person holding stock in Bombay, because there is nothing to show that the stock to be declared must be locally in Bombay. But we were not called upon to decide what was the exact meaning of the phrase 'every person in the City of Bombay', because in that case the accused had been in Bombay on the Tuesday on which the declaration had to be made. The question, however, arises for decision in this case.

6. The words of the notification are perfectly plain. They apply to 'every person in the City of Bombay and Bombay Suburban District,' and they require such a person to make a certain declaration on every Tuesday. If one takes the words literally, it is clear that the accused, who was at Nasik, was not a person in Bombay on Tuesday February 16, which was the day for making the declaration.

7. The learned Magistrate thinks that to give a literal construction to the notification would defeat the intention of Government. But if the notification is clear, the Court is bound to give effect to it. In a report made under Section 441 of the Criminal Procedure Code, 1898, the learned Magistrate has enlarged upon his views as to the construction of this notification, and he considers that the expression 'every person in the City of Bombay and Bombay Suburban District' ought to be read as 'every person carrying on or employed in connection with an undertaking in rice in the City of Bombay or Bombay Suburban District.' With all deference to the learned Magistrate that is reading into the notification words which are not there, and words moreover which would certainly give rise to difficulties of their own. If the notification was to extend to every person carrying on an undertaking in the City of Bombay, it would cover persons who may be resident outside the Province of Bombay, and are, therefore, not amenable to the orders of the Bombay Government. A man may reside and carry on business in Calcutta, but he may have a branch business in Bombay in connection with which declarable stock may be held. It is impossible to suppose that the Government of Bombay intended to order the owner in Calcutta to make a return. In such a case the man to make the return would be the local manager who is covered by the words of the notification requiring a return to be made of stock held on account of any other person. The notification in referring to 'every person in the City of Bombay' draws no distinction between a man who is temporarily outside Bombay, and a man who is living permanently outside Bombay. A man who is in Nasik for a few days is no more physically in Bombay than a man who resides permanently in Calcutta or Madras. In my opinion, Courts will get into very serious difficulties, if they read words into the notification which are not there. The learned Magistrate considers that if one confines the notification to persons physically in Bombay on the date on which the declaration has to be made, it will be easy to evade the obligation contained in the notification. He points out that a man may leave Bombay habitually on Monday night and return on Wednesday morning, so that he will never be in Bombay on Tuesday. Well, if there is evasion of that nature, it will be the business of Government so to amend the notification as to stop such evasion. I doubt myself whether anybody is likely to make a practice of going out of Bombay for twenty-four hours once a week, leaving no one in charge of his stock in Bombay who can be required to make a declaration. No doubt, as the notification is worded, the owner of the stock may evade personal liability by going out of Bombay, and leaving a manager in charge, but that is not the concern of the Court. All we can do is to give effect to the perfectly plain language which Government have chosen to use, and say that a man who is not in Bombay on the date on which a declaration has to be made is not a person required by the notification to make a declaration.

8. The appeal, therefore, must be allowed, and the accused discharged. Fine, if paid, to be refunded.

Rajadhyaksha, J.

9. I agree.


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