1. This is an application in revision made by one Mangi Lal who was tried summarily by a Magistrate of the First Class at Muttra for an offence under Rule 81, Sub-section (4), Defence of India Rules and was sentenced to three months' rigorous imprisonment and a fine of Rs. 200. It appears from the record that the summary trial in this case took place as if it was a summons case. An offence under Rule 81, Sub-section (i), Defence of India Rules, is punishable with imprisonment for a term which may extend to three years or with fine or with both. No provision made by any rule contained in the Defence of India Rules was put before me to show that the definition of a warrant case and a summons case as given in the Criminal Procedure Code has been altered. Now, a warrant case as defined by the Criminal Procedure Code is a case relating to an offence punishable with death, transportation or imprisonment for a term exceeding six months. It is clear therefore that a case relating to an offence under Rule 81, Sub-section (i), Defence of India Rules, would be a warrant ease. Ordinarily such a case could not be tried summarily, but R.130, Sub-section (4), Defence of India Rules, provides that
any Magistrate or Bench of Magistrates empowered for the time being to try in a summary way the offences specified in Sub-section (1) of Section 260, Criminal P.C. 1898, may if such Magistrate or Bench of Magistrates thinks fit on application in this behalf being made by the prosecution, try a contravention of any such provision of these rules or any order made thereunder as the Central Government may by notified order specify in this behalf in accordance with the provisions contained in Sections 262 to 265 of the said Code.
It may be presumed that the learned Magistrate who tried this case had power to try in a summary way the offences specified in Sub-section (1) of Section 260, Criminal P.C., and further that an oral application was at least made to him on behalf of the prosecution to try the case summarily, but the important point remains that the case had to be tried in accordance with the provisions contained in Sections 262 to 265 of the said Code. Now, Section 262, Criminal P.C. lays down that
In trials under this Chapter, the procedure prescribed for summons-cases shall be followed in summons-cases, and the procedure prescribed for warrant-cases shall be followed in warrant-cases except 'as hereinafter mentioned.
This is obviously an imperative provision and a breach of this provision is in my opinion not merely an irregularity, but an illegality. What is shown by the record to have happened in the present case is that the applicant was brought before the learned Magistrate and the particulars of the case against him were put to him at once and he was asked to plead guilty or not guilty. I have also seen the Urdu order sheet which confirms my conclusion. No attempt was made by the prosecution to adduce any evidence of any kind. The applicant pleaded guilty and having recorded that plea the learned Magistrate proceeded to record his judgment in which he convicted the applicant and sentenced him to three months' rigorous imprisonment and a fine of Rs. 200. It may be mentioned here that the learned Magistrate further directed that the property of the applicant to which the offence related will be confiscated. It appears that the applicant is a licensed dealer in sugar. The learned District Magistrate of Muttra had passed an order on 11th September 1943, which contained the following direction:
All kinds of sugar and Misri dealers in the above area shall maintain a stock register showing therein opening balance, receipts, sales and closing balance of each day which shall be open to inspection to the following officers:
(1) All Stipendiary Magistrates,
(2) Supply and Marketing Inspectors,
(3) A. R. P. Service Depot Superintendents.
The case against the applicant was that on a certain date a Supply Inspector inspected his shop and found therein seven hags containing boora which were not shown in any stock book or register maintained by the applicant. It was further found that the applicant had not put up a list of prices as he was bound to do under a condition of his licence. It was on these grounds that a complaint was made against him by the officer who had inspected his shop and upon that complaint a case under Rule 81, Sub-rule (4), was instituted against him. The order passed by the learned District Magistrate of Muttra was presumably passed under the power delegated to him by the Provincial Government under Section 2, Sub-section (5), Defence of India Act. The Provincial Government could have made the order in question under Sub-rule (2) of Rule 81 and it may safely be presumed that this power was delegated to the learned District Magistrate of Muttra who passed the order in question. As stated above, the applicant pleaded guilty and was convicted upon that plea. It must, however, be pointed out that a portion of the sentence imposed by the learned trying Magistrate upon the applicant was illegal. As stated above, the learned Magistrate, besides imposing a sentence of three months' rigorous imprisonment and a fine of Rupees 200, further directed that the bags of boora found in the applicant's possession should be confiscated. He could have passed this order of confiscation only if the order of the District Magistrate, contained a provision to that effect. A copy of the order made by the. District Magistrate is on the record of the case and I find nothing therein to show that any provision was made for the confiscation of any property to which the offence related. At the end of the order I find the following:
Any contravention of this order shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.
There is obviously no provision for confiscation of any property. Sub-rule (4) of Rule 81 runs as follows:
If any person contravenes any order made under this rule he shall be punishable with imprisonment for a term which may extend to three years or with fine or with both and if the order so provides, any Court trying such contravention may direct that any property in respect of which the Court is satisfied that the order has been contravened shall be forfeited to His Majesty.
It appears to me that the learned trying Magistrate did not realize that the word 'order' used in this sub-rule refers to the 'order made by the District Magistrate which is contravened and not to the order recorded by the trying Magistrate. It is obvious, there-fore, that the portion of the sentence imposed by the learned trying Magistrate which directs the confiscation of the bags of boora found in the applicant's possession must be set aside as illegal and beyond the jurisdiction of the Magistrate. It appears that this point was not noticed by the learned Sessions Judge who dealt with the appeal made by the applicant from his conviction; nor did the learned Judge notice the illegality in the trial as pointed out above. The learned Judge maintained the sentence imposed upon the applicant in spite of his finding that there was nothing to show that the case was 'a bad case of black marketing' as observed by the trying Magistrate. The application was admitted by a learned Judge of this Court only on the question of sentence, but I do not think that I am prevented from considering the case as a whole and holding that there is an illegality in the trial and the sentence imposed upon the applicant. I would have set aside the conviction and sentence of the applicant and would have ordered a retrial, but in all the circumstances of the case I do not consider it proper or advisable to do so. I feel, however, that the sentence imposed upon the applicant must be considerably reduced in the circumstances and I, therefore, set aside the sentence of imprisonment imposed upon the applicant and reduce the fine of Rs. 200 imposed by the trying Magistrate and maintained by the Sessions Judge to Rs. 75 only. I further order that the bags of boora which were recovered from the possession of the applicant shall be given back to him. In default of payment of fine the applicant shall suffer two months' simple imprisonment.