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Public Prosecutor Vs. D. Bhadraiah and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1967CriLJ316
AppellantPublic Prosecutor
RespondentD. Bhadraiah and ors.
Excerpt:
- - on the first ground, it is necessary to read rule 119 of the defence of india rules,1939, in juxtaposition with rule 141 of the defence of india rules, 1962. defence of india rules, 1939: rule 119 (1). save as otherwise expressly provided in these rules every authority, officer or person who makes any order in writing in pursuance of any of these rules shall, in the case of an order of a general nature or affecting a class of persons, publish notice of such order in such manner as may, in the opinion of such authority, officer or person, be best adapted for informing persons whom the order concerns in the case of an order affecting an individual corporation or firm serve or cause the order to be served in the manner provided for the service of a summons in rule 2 of o. defence of..........of the essential articles (price control) order, 1963, made under rule 125 of the defence of india rules, 1962, for not prominently displaying on a special board, a list of essential articles held by him for time to time in stock for ready delivery and the past and present prices of the articles at which he proposes to sell them, in terms of para. 4 of that order. the accused in each case pleaded that he had not so displayed it, but stated that he was not aware of the rule and, therefore, he did not exhibit the price lists. the magistrate acquitted them on two grounds, namely, that under rule 141 of the defence of india rules, 1962, it is essential that individual notices of the promulgation of the order must be served and (2) that since there is no date mentioned for the.....
Judgment:

Jaganmohan Reddy, J.

1. These are four appeals against acquittal of the four accused for contravention of the Essential Articles (Price Control) Order, 1963, made under Rule 125 of the Defence of India Rules, 1962, for not prominently displaying on a special board, a list of essential articles held by him for time to time in stock for ready delivery and the past and present prices of the articles at which he proposes to sell them, in terms of Para. 4 of that order. The accused in each case pleaded that he had not so displayed it, but stated that he was not aware of the rule and, therefore, he did not exhibit the price lists. The Magistrate acquitted them on two grounds, namely, that under Rule 141 of the Defence of India Rules, 1962, it is essential that individual notices of the promulgation of the order must be served and (2) that since there is no date mentioned for the commencement of the order, the order had not come into effect.

2. In my view, both these grounds are untenable. On the first ground, it is necessary to read Rule 119 of the Defence of India Rules,1939, in juxtaposition with Rule 141 of the Defence of India Rules, 1962.

Defence of India Rules, 1939:

Rule 119 (1). Save as otherwise expressly provided in these Rules every authority, officer or person who makes any order in writing in pursuance of any of these rules shall, in the case of an order of a general nature or affecting a class of persons, publish notice of such order in such manner as may, in the opinion of such authority, officer or person, be best adapted for informing persons whom the order concerns in the case of an order affecting an individual corporation or firm serve or cause the order to be served in the manner provided for the service of a summons in Rule 2 of O. XXIX or Rule 3 of O. XXX as the case may be in the first Schedule to the Code of Civil Procedure, 1908 and in the case of an order affecting an individual person (not being a corporation or firm) serve or cause the order to be served on that person

i) personally, by delivering or tendering to him the order, or

(ii) by post, or

(iii) where the person cannot be found, by leaving an authentic copy of the order with some adult male member of his family or by affixing such copy to some conspicuous part of the premises in which he is known to have last resided or carried on business or personally worked for gain.

Defence of India Rules, 1962:

Rule 141 (1). Save as otherwise expressly provided in these Rules, every authority, officer or person who makes any order in writing in pursuance of any of these Rules shall, in the case of an order of a general nature or affecting a class of persons, publish notice of such order in such manner as may, in the opinion of such authority, officer or person, be best adapted for informing persons whom the order concerns in the case of an order affecting an individual corporation or firm serve or cause the order to be served in the manner for the service of a summons in Rule 2 of O. XXIX or Rule 3 of O. XXX as the case may be, in the first Schedule to the Code of Civil Procedure, 1908 (5 of 1908) and in the case of an order affecting an individual person (not being a corporation or firm) service or cause the order to be served on that person-

(i) personally, by delivering or tendering to him the order, or

(ii) by post, or

(iii) where the person cannot be found by leaving an authentic copy of the order with some adult male member of his family or by affixing such copy to some conspicuous part of the premises in which he is known to have last resided or carried on business or personally worked for gain, and thereupon the persons, corporation, firm or person concerned shall be deemed to have been duly informed of the order.

2. If in the course of any judicial proceedings, a question arises whether a person was duly informed of an order made in pursuance of these Rules, compliance with Sub-rule (1) or where the order was notified, the notification of the order, shall be conclusive proof that be was so informed; but a failure to comply with Sub-rule (1)-

i) shall not preclude proof by other means that he had information of the order,

(ii) shall not affect the validity of the order....'

A careful comparison of these two Rules would show that in Rule 119 of the Defence of India Rules, 1939, there is no provision corresponding to Sub-rule (2) of Rule 141 of the 1962 Rules which now specifically lays down that if in the course of any judicial proceedings, a question arises whether a person was duly informed of an order made in pursuance of these rules, compliance with Sub-rule (1) or where the order was notified, the notification of the order, shall be conclusive proof that he was so informed. Under both these rules it is apparent that the orders contemplated are orders of a general nature and orders affecting an individual corporation or a firm. In the first case, namely, an order of a general nature or affecting a class of persons, a notice of the order has to be published in such manner as may, in the opinion of the authority, be best adapted for informing persons whom the order concerns. In the case of individual corporations, etc., notice should be served in the manner provided for service of a summons in Rule 2 of Order 29 or Rule 3 of Order 30, as the case may be, in the first Schedule to the Code of Civil Procedure.

In the case of individuals, a notice of the order should be served on the person, namely, by personal delivery, by post, or by delivering an authentic copy to some adult male member, or by affixing such copy to some conspicuous part of the premises in which he is known to have last resided or carried on business or personally worked for gain. Under both these rules, where there is general order, it need not be served individually on each one of the persons of the general public or class of persons who will be affected by it. All that is necessary is that the authority making the order should satisfy itself of the manner in which it shall be published as best suited to inform the public. It may be published in the Central or State Gazette, in which case, under Sub-rule (2) of Rule 141, notification of the order is conclusive proof that the person affected is duly informed. Even under Rule 119 of the Defence of India Rules, 1939, there was difference of opinion in the several High Courts.

In some High Courts, such as Nagpur and Bombay, it was held that the actual knowledge of the notification is necessary the Bombay High Court observing that it is not everyone who would subscribe to the Gazette, and as such no person can be deemed to have knowledge of a Gazette notification. This view, however, was not accepted by the Patna, Allahabad and Madras High Courts. It is not necessary for me to refer to all these cases, except to advert to the Madras case. In Public Prosecutor v. Badulla Sahib AIR 1948 Mad 262, Govinda Menon, J., delivering the judgment of a Bench of that Court, reviewed exhaustively the case law and held that where the publication of an order in the Provincial Gazette is done, under the authority of the Governor in whom the administration of the Province vested under the Government of India Act, 1935, it can be assumed that unless the Provincial Government is satisfied that a publication in the official Gazette is the proper mode by which the order can be made known to the public, that course would not have been taken and that Rule 119, Defence of India Rules, does not say that the authority should declare or state in writing that in its opinion that manner of publication decided upon in a particular case was best adapted for informing the persons concerned of the provisions of the order.

The present rule to which I have referred does not leave the matter in any doubt, in that under Sub-rule (2) of Rule 141 it is now clearly and specifically laid down that notification is a conclusive proof of knowledge to the person concerned. This view also has been taken under the present Rule 141, by a recent decision of the Punjab High Court in Bhagwan Singh v. State . The Magistrate, is, therefore, not justified in taking the view that individual notices should be served on all these who are charged with the offence.

3. On the second question, that since there is no date, the notification does not come into existence, I may at once say that when an order is published in a gazette, if that order is silent as to the date on which it comes into operation, the date of publication of the order itself is the date on which it comes into operation. I may refer to a Full Bench decision of Madhya Pradesh High Court in Ramjilal v. Piparia Municipality, A I R 1959 Madh Pra 82 at p. 84 in which Hidayatullah C J., (as he then was) observed thus:.. where no date is specified, it shall be presumed that the imposition of the tax has not been postponed. As a consequence, the tax shall take effect from the date on which the notification directing its imposition has been published.

4. Mr. Raghuvir has raised a further contention, namely that an order published under the Essential Article (Price Control) Order, 1963, itself postulates a further service of notice on the retailers fixing the past prices and until that is done, there is no obligation on the part of a retailer or a wholesaler to display the past prices. I cannot accept this contention. The order under consideration in Para. 2 (c) defines 'past price' in relation to an essential article sold in any area to mean the price at which that article is normally sold by wholesale dealers or retail dealers as the case may be in that area on or before 1-2-1963, and contravention of the rule, as I said, is for not displaying a list of essential articles held by him from time to time in stock for ready delivery and the past and present prices of the articles at which he proposes to sell them. Mr. Raghuvir contends that it is not open to a retailer or a wholesaler by himself to say what was the past price at which he was selling, unless the correct past price in that area prevalent before 1-2-1963 is communicated by the authority making the order. I can see no justification for this contention, because the words 'normally sold' by a wholesaler or a retailer as the case may be in that area, indicates the wholesale or retail price normally prevalent in that area, which every dealer, wholesaler or retailer, is presumed to know. The object of Para. 4 is to give notice to the public of the essential matters upon which they have interest. The price at! which the article was sold before 1-2-1963,1 whether in retail or in wholesale, would be known to the customers so that any wrong publication in this behalf would at once be made the subject-matter of complaint.

5. In the view I have taken, the order of acquittal would not be justified; but having regard to the fact that the notification was published on 1-3-1963 in Delhi while the contravention is said to have taken place on 6-5-1963, and the contravention alleged having, taken place nearly two years ago and the respondents having clearly and frankly stated that they had no knowledge of these orders and that is why they did not display the same, I think interests of justice will be served in not further pursuing these proceedings. The learned Public Prosecutor also does not insist on the trial going on. In these circumstances, these appeals are dismissed with the above observations.


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