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The State Vs. Mahipatram Chunilal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case Number Criminal Appeal No. 1506 of 1953
Judge
Reported in(1954)56BOMLR273
AppellantThe State
RespondentMahipatram Chunilal
Excerpt:
.....under section 3(1) of the essential supplies (temporary powers) act, 1946, the order bore the date april 19, 1952, but it appeared in the gazette of india dated april 21, 1952. the accused contended that he had not committed any offence as it had not been shown that the copies of the gazette containing the order had become available before the alleged offence was committed.;that it was sufficient for the prosecution to show that the order was published at a particular time in delhi,;that it was proper to presume in the case that the gazette was published in delhi on april 22, 1952,;that it should be taken that the order became law from april 22, 1952,;that, therefore, the accused had committed the offence, and;that the short interval of time between the commission of the offence and..........this meant a gazette of india under the general clauses act. the order in this case bears the date april 19, 1952; but it is not in dispute that it appeared in an issue in the gazette of india bearing date april 21, 1952. there is no evidence, however, as to the date upon which this gazette was published, and it is contended that the appellant could not be convicted of an offence which he appears to have committed, if at all, on april 26, 1952, because it has not been shown that the copies of the gazette of india containing the order had become available in bombay before the goods of the appellant were seized.2. now, it is quite true that there is no evidence with regard to when exactly the gazette of india extraordinary bearing date april 21, 1952, was published in delhi. but in.....
Judgment:

Bavdakar, J.

1. [His Lordship, after dealing with points not material to the report, proceeded] : It is said, however, that even upon the footing that the Order is a valid Order, the appellant in this case has not committed any offence, inasmuch as the Order in this case being a statutory order came into force only upon its publication. The statute authorises the publication of the orders issued thereunder in the Official Gazette. Inasmuch as the power which was conferred to issue the Order was conferred upon the Central Government, this meant a Gazette of India under the General Clauses Act. The Order in this case bears the date April 19, 1952; but it is not in dispute that it appeared in an issue in the Gazette of India bearing date April 21, 1952. There is no evidence, however, as to the date upon which this Gazette was published, and it is contended that the appellant could not be convicted of an offence which he appears to have committed, if at all, on April 26, 1952, because it has not been shown that the copies of the Gazette of India containing the Order had become available in Bombay before the goods of the appellant were seized.

2. Now, it is quite true that there is no evidence with regard to when exactly the Gazette of India Extraordinary bearing date April 21, 1952, was published in Delhi. But in this case nothing very much turns upon the point, because the appellant has imported into Greater Bombay skimmed milk powder on April 26, 1952. It is proper to presume that the Gazette which bears date April 21, 1952, about the issue of which there is no doubt, must have been published in Delhi at least on April 22, 1952, and the order, therefore, came into operation on April 22, 1952. It is said, however, that that is not enough. The appellant could not possibly have known of this order on April 26, 1952, for the reason that copies of the Gazette of India Extraordinary would not reach Bombay by the time. It appears that this notification was reissued in the copy of the State Government Gazette, but that Gazette again was published only on the 26th. It appears to us, however, that inasmuch as the Order in this case was a statutory Order it was not necessary for the prosecution to show that the appellant knew of the Order. Immediately it was shown that the Order came into force, contravention of it became an offence, though undoubtedly in case the offence was committed soon after, the fact would be taken into consideration in awarding the sentence. Mr. Purshottam has drawn our attention in this connection to the case of Emperor v. Balkrishna Hirlekar (1930) 33 Bom. L.R. 82. There are words used in that case which lend scope for the argument that it is necessary for the prosecution to show, not necessarily that the accused persons but persons living in the area in which the offence is alleged to have been committed must have had sufficient opportunity to become aware of the order. But we do not think that that is really what was decided in that case. What was actually decided was that where the Gazette bore date the 14th and the offence was alleged to have been committed on the 15th, the Court must be satisfied that the Gazette had actually been published before the offence was committed on the 15th. Looking to the short interval of time between the date which the Gazette bore and the date upon which the offence was alleged to have been committed, it was necessary to show by evidence when the Gazette was actually published and not that it was certain that copies became available to the public before the time when the offence was alleged to have been committed. We cannot possibly hold that it must be shown that a person who is alleged to have contravened an order in Bombay had means of knowing that it was an offence under that Order to import skimmed milk powder. That would be to argue that there are different times upon which the order came into force into different places. Had it been necessary for the prosecution to bring home to an accused person the knowledge of the Order, that would undoubtedly be a different matter. But where all that the prosecution has got to show is that the Order came into force, it is sufficient to show where the Order was required to be published in the Gazette of India and that it was published at a particular time in Delhi. We think that in this case it being proper to presume that the Gazette was published in Delhi on the 22nd, it must be taken that the Order became law from the 22nd. If the offence in this case was committed on the 26th, then, the short interval of time between the commission of the offence and the publication of the Gazette of India can be taken into consideration only in awarding the sentence....

3. We, therefore, set aside the order for confiscation, for the reason that the offence in this case was committed at a time when the appellant could not have come to know of the order which was issued by the Central Government. There was an order issued by the Government of Bombay earlier, but it is common ground that that order was to expire on the 24th, and, as a matter of fact, it did expire on the 24th. We, therefore, think that this is not a case in which it was necessary to impose a heavy fine either. We reduce the fine to a sum of Rs. 100. Excess fine, if paid, should be refunded.


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