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Mahipatram Chunilal and ors. Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Judge
Reported in1954CriLJ1434
AppellantMahipatram Chunilal and ors.
RespondentThe State
Excerpt:
- - 1 to 4) as well as one mahipatram (accused no. 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......on patrol duty. on a search being made 53 cases containing two tins of 56 ibs. each of skimmed milk powder were found inside the lorry. as there was no permit to cover the import of the skimmed milk powder into greater bombay, the persons in the lorry (accused nos. 1 to 4) as well as one mahipatram (accused no. 5,) who had imported the skimmed milk powder were charged under sections 7 and 8 of the essential supplies (temporary powers) act, 1946, read with government of india notification no. p30-14/51-e.p., dated april 19, 1952, the relevant portions of which were as follows:-in exercise of the powers conferred by section 3 of the essential supplies (temporary powers) act, 1946 (24 of 1946), the central government hereby makes the following order....2... (b) controlled area means any.....
Judgment:

1. On 26-4-1952, a motor lorry was stopped at about 5 a.m. on Maroshi Road near Aarey Milk Colony by police-officers who were on patrol duty. On a search being made 53 cases containing two tins of 56 Ibs. each of skimmed milk powder were found inside the lorry. As there was no permit to cover the import of the skimmed milk powder into Greater Bombay, the persons in the lorry (accused Nos. 1 to 4) as well as one Mahipatram (accused No. 5,) who had imported the skimmed milk powder were charged under Sections 7 and 8 of the Essential supplies (Temporary Powers) Act, 1946, read with Government of India Notification No. P30-14/51-E.P., dated April 19, 1952, the relevant portions of which were as follows:-

In exercise of the powers conferred by Section 3 of the Essential Supplies (Temporary Powers) Act, 1946 (24 of 1946), the Central Government hereby makes the following order....

2... (b) Controlled Area means any of the following areas, namely-

(i) Greater Bombay....(d) Export means to take out of a controlled area by road, rail, water or air....

3. Prohibition against export, import, sale or obtaining of skim milk powder.-Except under and in accordance with the conditions of a permit issued by an authorised officer no person shall-

(i) export or import or cause to be exported or imported skim milk powder, or

(ii) sell, supply or distribute or cause to be sold, supplied or distributed skim milk powder in any controlled area; or

(iii) acquire or cause to be acquired or attempt to acquire skim milk powder in any controlled area, or

(iv) transport in transit any skim milk powder through the limits of any controlled area.

2. The trying Magistrate acquitted accused Nos. 1 to 4 and convicted accused No. 5 and sentenced him to one day's simple imprisonment and to pay a fine of Rs. 1,500, rejecting his contention that the Government of Bombay were aware and the Central Government were also aware of this fact that if the order was made applicable to Bombay, notice should be given in Bombay, on the ground that according to Section 3, it was not necessary for the Central Government to instruct the Bombay Government nor incumbent on the State to republish it in their Gazette or in the papers and if one were to consider that this notification was nothing but an extension of a previous notification, then it would be necessary for any person who desired to import skimmed milk powder at the expiry of the notification of the 24th January 1952, to make diligent inquires before importing such article. There was also a direction to confiscate the goods seized by the police.

Bavdekar, J.

3. (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 19-4-1952; but it is not in dispute that it appeared in an issue in the Gazette of India bearing date 21-4-1952. There is no evidence, however, as to the date upon which this Gazette was published, and it is con-tended that the appellant could not be convicted of an offence which he appears to have committed, if at all, on 26-4-1952, 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.

4. Now, it is quite true that there is no evidence with regard to when exactly the Gazette of India Extraordinary bearing date 21-4-1952, 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 26-4-1952. It is proper to presume that the Gazette which bears date 21-4-1952, about the issue of which there is no doubt, must have been published in Delhi at least on 22-4-1952, and the order, therefore, came into operation on 22-4-1952.

It is said, however, that that is not enough. The appellant could not possibly have known of this order on 26-4-1952, 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 Balkrishna Anant v. Emperor : AIR1931Bom132 . 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....

5. 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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