1. This is an appeal against an acquittal by the Government of the Province of Bombay. The accused is a petty dealer in ghee at Surat and when his house was searched by the Police Sub-Inspector on August 21, 1943, he was found to have in his possession Rs. 47-9-3 in small coins in excess of his personal and business requirements for the time being. This being in contravention of Rule 90(2)(e) of the Defence of India Rules, he was tried by the City Magistrate of Surat, convicted under Rule 90(5), and sentenced to pay a fine of Rs. 75, or in default to suffer rigorous imprisonment ,for one month. In appeal the conviction and fine were set aside by the Sessions Judge of Surat on the ground that Rule 90(2)(e) was ultra vires of the Central Government, being in excess of the rule-making power conferred upon it by Section 2 of the Defence of India Act, 1939. Rule 90(2)(e) of the Defence of India Rules provides that no person shall possess coin to an amount in excess of his personal or business requirements for the time being. This rule is evidently made in exercise of the rule-making power conferred upon the Central Government by Section 2(2)(xxii). of the Defence of India Act, 1939. That clause is now amended by Ordinance No. XXVI of 1944 after the Sessions Judge acquitted the accused in this case. Before its amendment the clause empowered the Central Government to make rules 'controlling the use or disposal of, or dealings in, coin, bullion, securities or foreign exchange.' Now by the amending Ordinance the word 'possession' is added before the word 'use' It is argued that in the absence of that word the Central Government had no power to make any rule prohibiting the possession of small coin. This contention was accepted by the learned Sessions Judge who held that the expression 'use or disposal' did not include 'possession.' He seems to have thought that as there is no comma between 'use' and 'or disposal,' the words 'use' and 'disposal' are intended to be synonymous. This inference is not sound. No comma is used between the words 'use' and 'disposal,' since both of them are followed by the preposition 'of', whereas the following word 'dealings' is followed by the preposition 'in' The words 'use' and 'disposal' are not synonymous. Using a thing cannot mean disposing of it. The clause in question empowers the Central Government not merely to prohibit the use or disposal of coin but also to control it. The dictionary meaning of the word 'use' is 'employment for any purpose.' Any one may hoard any quantity of money in his safe, but Rule 90(2)(e) says that no one shall 'use' small coins for that purpose. It does not impose an absolute prohibition against the possession of small coins, but merely prohibits their hoarding, that is to say, keeping them in excess of the normal requirements. In other words, the rule requires every one to 'use' the excess for the purpose of circulation and not hoarding. This clearly falls within the power to control the use of coins. The obvious object of the rule is that small coins in excess of the normal requirements must not be kept out of circulation. Even according to the restricted meaning given to the word 'use' by the learned Sessions Judge, power to control the ' use ' includes the power to compel the use, and the rule in question does in effect require every one to 'use' the small coin in excess of his normal requirements and not to retain it or keep it out of circulation. The word 'possession' was not expressly used in the rule as the expression 'controlling the use' has a very wide significance and includes the controlling of the use of extra coins in swelling the cash balance in hand. It is pointed out that in Clause (xxv) of the same ; sub-section the expression used is 'prohibiting or regulating the possession, use or disposal.' But that clause deals with articles of a different kind, explosives, arms, ammunitions, vessels, wireless telegraphic apparatus, aircraft, photographic and signalling apparatus and any means of recording information. In the case of these articles one may use them and still be in possession of them, but in the case of coins, if they are used for any purpose other than hoarding they go out of possession. Hence in their case the Legislature seems to have thought that the power to control the use would include the power to prohibit hoarding, whereas in the case of other articles, as they can be possessed and used simultaneously, both the terms had to be specifically used. The same reasoning applies to Clauses (iv), (xviii) and (xxvii) which are referred to in the judgment of the learned Sessions Judge. A critical examination of the different clauses of Sub-section (2) shows that in conferring rule-making powers upon the Central Government in respect of various objects, words appropriate to those objects are used in the different clauses dealing with them., It would not, therefore, be proper to compare the use of one expression in connection with a particular object in one clause with the use or absence of that expression with regard to a different object in another clause. Current coins which are intended for circulation stand on an! altogether different footing and the power to control their use includes power to compel their being put into circulation, which obviously means the power to prohibit their hoarding. We, therefore, hold that Rule 90(2)(e) of the Defence of India Rules is valid and not beyond the rule-making power conferred upon the Central Government by Section 2(2), Clause (xxii), of the Defence of India Act, 1939.
2. On the merits it is argued that the coins found in the possession of the accused were not in excess of his normal requirements. On this point both the learned Magistrate and the learned Sessions Judge have held against the accused. When the Police Sub-Inspector first questioned the accused he first produced before him coins of Rs. 12-2-0 and told him that those coins were required for his use. He was, therefore, allowed to keep them,, but as the Police Sub-Inspector suspected that he must have concealed some more coins, he took him upstairs and asked him to unlock the cupboard. When the cupboard was opened, he found there forty-five rupee coins and Rs. 47-9-3 in small coins. The accused explained that they belonged to different members of his family, but led no evidence to prove it. This explanation itself shows that he had not kept them in the cupboard for the purpose of his normal ; use. It is true that he had then employed some labourers for repairing his house. This is frankly admitted by the Police Sub-Inspector himself and the Mistry Nagindas, who was examined for the defence, says that the labourers were paid daily wages at the rate of ten or twelve annas every day, but Nagindas admits that he himself never received his wages in small coins but was paid at the end of the month. No labourer has been examined and it is unusual to pay the labourers every evening in small coins. The evidence shows that the accused keeps accounts but he has not produced his account books. The Police Sub-Inspector believed him when he told him that the coins of Rs. 12-2-0, which were found on the ground floor, were intended for his normal use. It is obvious that the small coins in the cupboard kept upstairs which he disowned were in excess of his personal or business requirements for the time being, and as they are proved to have been in his possession, he is liable to be convicted under Rule 90(3) of the Defence of India Rules. The fine imposed on him by the learned Magistrate is not excessive.
3. The learned Magistrate has further ordered the confiscation of the small coins under Section 517 of the Criminal Procedure Code, and it is contended that according to the ruling in Emperor v. Hansraj Astaji : (1944)46BOMLR529 , the order of confiscation under Section 517 of the Criminal Procedure Code is illegal. But in that case the conviction was under Rule 81(4) of the Defence of India Rules for contravention of an Order made under Rule 81(2) and Sub-rule (4) expressly permits confiscation only if the Order contravened so provides. There was no such provision in the Order said to have been contravened in that case. There is no similar provision in Rule 90(3) and hence the power of confiscation given by Section 517 of the Criminal Procedure Code on a conviction under that sub-rule is unaffected.
4. We, therefore, allow the appeal, set aside the order of acquittal of the accused by the learned Sessions Judge and restore the order passed by the City Magistrate, First Class, Surat.
5. I agree and I have only a few words to add.
6. It is, I think, permissible that Judges should retain some sense of realities when considering legislation and rules made thereunder, intended to meet the abnormal conditions created by war. One such abnormal condition bearing hardly on the poorer classes is the inadequacy of existing currency, particularly small coin, to meet the requirements of the public, by reason of increased prices, greater volume of purchases and a tendency to hoard. Rule 90(2)(e) of the Defence of India Rules obviously was made to minimise this difficulty, and it seems to me plain that such a rule can be brought within the general powers conferred by Section 2(1) of the Defence of India Act. It is said, however, that by Clause (xxii) of Sub-section (2) of Section 2 of the Act the Legislature expressly defined the power to make rules dealing with coin, and directed that such rules may provide for controlling the use or disposal of, or dealings in, coin, and must be taken, therefore, not to have granted permission to interfere by rule with possession of coin. It is argued, on the authority of the decision of the Federal Court in Emperor v. Keshav Talpade (1943) 46 Bom. L.R. 22 that it is not permissible to look to the general provisions of Sub-section (1) of Section 2 of the Act to justify Rule 90(2)(e), which in terms interferes with the possession of coin, and that this rule, therefore, is ultra vires of the Act as it stood at the material time.
7. The decision in Emperor v. Keshav Talpade, however, does not lay down that, when a particular subject is mentioned in one of the 35 clauses of Sub-section (2) of Section 2, then the powers stated in that clause must be regarded as exhaustive of the particular subject. What the decision does lay down is that where in any of the clauses of Sub-section (2) certain express limitations are imposed in relation to any particular subject, it is not permissible to avoid those limitations by recourse to the general provisions of Sub-section (1) of Section 2. In my opinion, if Rule 90(2)(e) is not covered by Clause (xxii) of Section 2(2), as it stood, it is intra vires under Section 2(1) of the Defence of India Act.
8. I agree, however, with my learned brother that the rule can be brought within Clause (xxii) of Section 2(2) without doing violence to the language of that clause. It is true that as Clause (xxii) stood before its later amendment it did not mention expressly 'possession' of coin. The rule, however, does not prohibit posesssion of coin, except above the reasonable requirements of individuals. It requires that persons shall deal with coins in the same manner as they would deal with them if the times were normal ; persons are compelled by the rule to put into circulation all coins they do not require for their legitimate purposes. To say that such a rule is not a rule controlling the use or disposal of coin seems to me to ignore its plain meaning and purpose ; and in my opinion Rule 90(2)(e) does fall within the powers conferred by Clause (xxii) of Section 2(2) as it then stood.
9. On the facts of the present appeal, I agree with my learned brother and I agree-with the order he has proposed.