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Roshan Lal and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Reported inAIR1946All161
AppellantRoshan Lal and ors.
RespondentEmperor
Excerpt:
- - rule 81(4) provides that if a person contravenes an order made under the 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. 29. if it can point to legislative powers for the purpose derived from any other entry in the provincial legislative list, then its legislation cannot be challenged under section 297(1)(a). the ratio decidendi indicated here would hold good equally in the case of an executive order passed by the provincial government. if the provincial government can point to any source, other than the.....wali ullah, j.1. these three applications in revision are connected with cri. revn. nos. 518, 542 and others. all these revisions have been connected and heard together because there is one common question involved in all of them, viz., the question of the validity of the u.p. food grains and oil seeds (movement) control order, 1943. the applicants in these three revisions are three sets of persons who were accused of an offence under rule 81(4), defence of india rules, inasmuch as they were alleged to have contravened the provisions of para. 3, u.p. food grains and oil seeds (movement) control order, 1943. the three applicants of revn. no. 508 are roshan lal, ram das and puran mal. they are the proprietors of the firm of grain dealers messrs. roshan lal durga prasad of bareilly. in revn......
Judgment:

Wali Ullah, J.

1. These three applications in revision are connected with Cri. Revn. Nos. 518, 542 and others. All these revisions have been connected and heard together because there is one common question involved in all of them, viz., the question of the validity of the U.P. Food Grains and Oil Seeds (Movement) Control Order, 1943. The applicants in these three revisions are three sets of persons who were accused of an offence under Rule 81(4), Defence of India Rules, inasmuch as they were alleged to have contravened the provisions of para. 3, U.P. Food Grains and Oil Seeds (Movement) Control Order, 1943. The three applicants of Revn. No. 508 are Roshan Lal, Ram Das and Puran Mal. They are the proprietors of the firm of grain dealers Messrs. Roshan Lal Durga Prasad of Bareilly. In Revn. No. 509 the applicant is Harihar Prasad, the railway dalal who, according to the prosecution, had arranged for the export of grain by the firm of Roshan Lal Durga Prasad. In Revn. No. 536 the applicant is Durga Prasad, the Station Master of Bhitaura railway station, some four or five stations north of Bareilly, from where the consignment of grain was despatched. In. the trial Court, along with these five persons there was another set of the accused consisting of four persons, viz., Girdhari Lal, Lachhmi Narain, Ram Kumar and Suraj Bhan, in whose names the railway receipts were prepared at the time of despatch of the grain. These four persons were acquitted by the learned Magistrate substantially on the ground that they were merely men of straw and were mere tools in the hands of the firm Roshan Lal Durga Prasad. The three sets of applicants, however, were convicted by the learned Magistrate. Roshan Lal, Ram Das and Puran Mal were convicted under Rule 81(4) read with Rule 122, Defence of India Rules, and sentenced each to rigorous imprisonment for six months and a fine of Rs. 1000, in default further rigorous imprisonment for two months each. Harihar Prasad, the railway dalal, was convicted under Rule 81(4) read with Rule 121, Defence of India Rules, and sentenced to rigorous imprisonment for three months with a fine of Rs. 500, in default to undergo-three months' further rigorous imprisonment. Lastly, Durga Prasad, the Station Master of Bhitaura Station, was convicted under Rule 81(4), Defence of India Rules, and sentenced to six months' rigorous imprisonment and a fine of Rs. 1000 or in default two months' further rigorous imprisonment. The arhar which was seized was also directed to be forfeited to his Majesty after the period of appeal.

2. On appeal to the Sessions Judge, the convictions of the applicants were affirmed but the sentences of Roshan Lal, Ram Das and Puran Mal were reduced to four months' rigorous imprisonment and the amount of fine was reduced from Rs. 1000 to Rs. 100 each. In default of payment of fine, it was directed that each of them will undergo one month's further rigorous imprisonment. The sentence of Harihar Prasad was also reduced to one month's rigorous imprisonment and the sentence of fine was reduced to Rs. 350 or in default six weeks' further rigorous imprisonment. In the case of Durga Prasad, the Station Master, the learned Sessions Judge reduced the sentence of imprisonment to the period already undergone and the amount of fine was reduced to Rs. 500 only with one month's rigorous imprisonment in default. Against the orders of the learned Sessions Judge the applicants have come up in revision to this Court.

3. The case against the applicants in substance was that in contravention of Para. 3, U.P. Food Grains and Oil Seeds (Movement) Control Order, 1943, they exported arhar without a permit from railway station Bhitaura in the United Provinces to Howrah (a place outside the United Provinces) on 29th and 3lst August 1943. It was alleged that four wagon loads of arhar were despatched from Bhitaura railway station. Of these four wagons, it is in evidence, two of them actually arrived at their destination and delivery was actually taken by the consignees. The other two wagons also arrived at Howrah but before delivery could be taken, it was stopped by the intervention of the authorities. It may be stated at the outset that the facts alleged by the prosecution, generally speaking, are all admitted and the points of controversy which arose in this case were almost all confined to questions of law. In the Court of the learned Magistrate all the accused pleaded not guilty. Roshan Lal, Bam Das and Puran Mal admitted to be the partners of the firm Roshan Lal Durga Prasad, and Roshan Lal admitted that he despatched the arhar in question to Howrah but he set up the plea that he was ignorant of the prohibitory Order and further that he learnt from the Station Master, Bhitaura, that arhar could be booked for Howrah. Durga Prasad, the Station Master, admitted to have booked the arhar from Bhitaura railway station but he said that he did so with the permission of the Divisional Superintendent. Harihar Prasad, the railway dalal, admitted that he had arranged with the Station Master at Bhitaura railway station for the despatch of the arhar in the four wagons in question, but he said that he had been informed by the Station Master that the law had been changed and that arhar could be booked to Howrah. The prosecution examined no less than fourteen witnesses in support of its allegations and nine witnesses were examined on behalf of the defence in support of the defence case. On a consideration of the entire evidence and the circumstances of the case, the learned Magistrate came to the conclusion that it was established that the three proprietors of the firm Roshan Lal Durga Prasad took an active part in connection with the despatch of the four wagon loads of arhar from Bhitaura and that, therefore, they were all guilty of the offence with which they were charged. Similarly he found that Harihar Prasad, the railway dalal, had taken a very active part in the export of the arhar in question, that he was the man who had engaged carts for the transport of the arhar in question from Bareilly to Bhitaura railway station and, finally, that he was the man who produced the forwarding notes (the applications) for wagons before the Station Master. Lastly, regarding the Station Master, the learned Magistrate held that he must be deemed to be aware of the legal position and that he had as a matter of fact secured the wagons for the despatch of arhar to Howrah without informing the Divisional Superintendent that no permit had been obtained for the same. In view of the findings mentioned above the learned Magistrate convicted all these five applicants and sentenced them as already stated. The learned Sessions Judge on appeal, as has already been mentioned, affirmed the findings arrived at by the learned Magistrate, confirmed the convictions of all these applicants but modified the sentences as indicated above.

4. We have heard Dr. Katju, the learned Counsel for the applicants, at great length and we have also heard the learned Government Advocate who has appeared to support the conviction. Learned Counsel for the applicants has contended that in the first place para. 3 of the Control Order in question, which prohibited export of grain outside the United Provinces, was ultra vires the powers of the Governor in view of the provisions of Section 297, Constitution Act. The learned Counsel has in the next place contended that Rule 81, Defence of India Rules, does not give power to the Governor to promulgate a prohibitory order containing pro. visions similar to those of para. 3 of the Control Order in question. In the alternative, so contends the learned Counsel for the applicants, if Rule 81 gives such power to the Governor, it is ultra vires the powers of the Central Government in so far as it enables discrimination against inter provincial trade and commerce. The contention is that the topic of inter-provincial trade and commerce could not be dealt with except under the limitations prescribed by Section 297, Constitution Act.

5. Before examining these arguments, it is necessary to set out the relevant provisions of the Defence of India Rules. Rule 81 Sub-clause (2)(a) empowers the Provincial Government so far as appears to it to be necessary or expedient for securing the defence of British India or the efficient prosecution of the war or for maintaining supplies and services essential to the life of the community by order to provide, inter alia, for regulation or prohibition of movement, transport, distribution and disposal of articles or things of any description whatsoever. Rule 81(4) provides that if a person contravenes an order made under the 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. Rule 121 provides that a person who attempts to contravene, or, abets, or attempts to abet, or does any act preparatory to, the contravention of any of the provisions of the Rules or of any Order made thereunder, shall be deemed to have contravened that provision, or as the case may be, that Order. Rule 122 provides that if the person contravening any of the provisions of these Rules, or of any Order made thereunder, is a company or other body corporate, every director, manager, secretary or other officer or agent thereof shall, unless he proves that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention, be deemed to be; guilty of such contravention. The U.P. Food Grains and Oil Seeds (Movement) Control Order, 1943, with which we are concerned in this case, was made by the Governor of the United Provinces in exercise of the powers conferred by Rule 81, Defence of India Rules. It was promulgated by means of a notification (No. 2647 C.S. dated 2lst April 1943) published in the U.P. Gazette dated 1st May 1943. Paragraph 3 of this Order prohibited the export of food grains and oil seeds or their products specified in the schedule annexed to the Order - which includes arhar - from any place within the United Provinces, to any place outside the United Provinces, by rail, road or river, except under the general or special order of the Provincial Government, or of any officer appointed by them in this behalf. Paragraph 6 of the Order provided in effect that a contravention of the provisions of the Order shall be punishable under Rule 81(4), Defence of India Rules, with imprisonment for a term which may extend to three years or with fine or with both and any Court trying any offence under the Order may also direct that any food grains in respect of which the Order has been contravened be forfeited to His Majesty. The provisions of Rule 81(2)(a), Defence of India Rules, are very comprehensive and on the face of them they embrace a power of 'regulating or prohibiting the movement' or 'transport' of articles or things of any description. It is, therefore, difficult to see how para. 3 of the Control Order can be said to go beyond the limits of the powers conferred by Rule 81(2)(a), Defence of India Rules. The contention of the learned Counsel on this part of the case is that by reason of the limitations imposed by Section 297, Constitution Act, the Provincial Government could not prohibit the movement of grain and its export beyond the limits of the United Provinces and this is so in spite of the wide powers conferred by the provisions of Rule 81(2)(a). I confess that I feel great difficulty in appreciating this argument. Section 297(1)(a) enacts that no provincial Legislature or Government shall, by virtue of the entry in the Provincial Legislative List relating to trade and commerce within the Province, or the entry in the list relating to the production, supply and distribution of commodities, have power to pass any law or take any executive action prohibiting or restricting the entry into, or export from, the Province of goods of any class or description. As observed by their Lordships of the Federal Court in Bohla Prasad v. Emperor ('42) 29 A.I.R. 1942 F.C. 17 at p. 20 where their Lordships were considering the scope of the limitations imposed by Section 297, Constitution Act:

It is plain beyond words that this provision only refers to legislation with respect to entry No. 27 and entry No. 29 in the Provincial Legislative List: it has no application to legislation with respect to anything in entry No. 31. A Provincial Legislature, if it desires to pass a law prohibiting export from, or import into, the Province, must therefore seek for legislative authority to do so in entries other than entry No. 27 or entry No. 29. If it can point to legislative powers for the purpose derived from any other entry in the Provincial Legislative List, then its legislation cannot be challenged under Section 297(1)(a).

The ratio decidendi indicated here would hold good equally in the case of an executive order passed by the Provincial Government. If the Provincial Government can point to any source, other than the Constitution Act, for its authority for promulgating a prohibition like that comprised in Para. 3 of the Control Order, it seems to me that the prohibitions contained in Section 297(1)(a) will not be applicable. Here the Provincial Government, in making the Control Order, has acted in exercise of the powers conferred upon it by Rule 81(2)(a), Defence of India Rules. It would, therefore, follow that the limitations imposed by Section 297(1)(a) of the Constitution Act are not at all applicable to this Order. There is, to my mind, therefore, no substance at all in this contention of the learned counsel. I find that this very principle has been followed by two learned Judges of the Patna High Court in Ragho Sao v. Emperor ('44) 31 A.I.R. 1944 Pat. 205. That was a case in which the price of kerosene oil had been fixed by an Order issued under Rule 81(2)(b). On contravention of the Order, the petitioner Ragho Sao was prosecuted under Rule 81 Sub-clause (4), Defence of India Rules. He was convicted and sentenced. It was contended on his behalf before the Patna High Court that the fixing of the price at which a particular commodity may be sold in the Province was invalid as contravening the provisions of Section 297(1)(a), Constitution Act. This contention was repelled by the learned Judges of the Patna High Court. It was held that:

The fixing of the price at which a particular commodity may be sold in the Province does not fall within the prohibition contained in Clause (a) of Section 297(1). The mere fact that the Legislature has been prohibited from restricting the entry of a particular commodity into the Province does not interfere with its powers to legislate with regard to that commodity in other respects.... Further more, Clause (a) of Section 297(1), merely provides that the entries in the Provincial Legislative List relating to trade and commerce and the production, supply and distribution of goods are not by themselves to be taken as conferring on the Provincial Legislature the power to prohibit or restrict the entry into, or export from, a Province of goods of any class or description.... It is not by virtue of the entries in the Provincial Legislative List that the Provincial Legislature has taken steps to control prices. It is by virtue of power derived not from the Constitution Act, but from another Act altogether-an Act of the Central Legislature, viz. the Defence of India Act.

It was consequently held that Section 297(1)(a) cannot affect the power of the Provincial Government to control the prices. It may be noted here that a power to 'control' includes a power to 'prohibit' the movement of or transport. The Court of appeal in England in Reg. v. Croydon and Norwood Tramways Co. (1886) 18 Q.B.D. 39, has also affirmed this principle. In that case Lindley, L.J., observed : 'If I prohibit a man from doing a thing, I control him to that extent.' It is true that a power to 'regulate' (e.g., trade) does not include a power to 'prohibit' that trade altogether, as was observed by the Federal Court in Bohla Prasad v. Emperor ('42) 29 A.I.R. 1942 F.C. 17. But their Lordships were considering the question of 'regulation' in the sense of prohibition or prevention of a trade altogether, and it was observed that a power to regulate may well imply the continued existence of a thing to be regulated. Reference was made to the case in Toronto Municipal Corporation v. Virgo (1896) 1896 A.C. 88, where an Act of the Ontario Legislature had given local authorities the power to make byelaws for licensing, regulating and governing the hawkers and petty chapmen; and this was held not to authorize a byelaw prohibiting hawkers from plying their trade at all in an important portion of the city. It was observed in that case by Lord Davey:

Their Lordships think there is marked distinction to be drawn between the prohibition or prevention of a trade and the regulation or the governance of it and indeed a power to regulate and govern seems to imply continued existence of that which is to be regulated or governed.

The observations of Lord Davey were quoted very briefly by Lord Watson in delivering the judgment of the Judicial Committee in Attorney-General for Ontario v. Attorney-General for Canada (1896) 1896 A.C. 348 at page 363 in which it was decided that the power given to the Dominion Parliament by Section 91(2), British North America Act, to make laws for the 'regulation' of trade and commerce did not enable the Dominion Legislature to enact legislation to 'prohibit' the traffic in intoxicating liquors. In Public Prosecutor v. Venkayya : AIR1944Mad452 , two learned Judges of the Madras High Court, while dealing with the question whether the Food Grains Control Order, (1942), promulgated by the Central Government under the powers conferred by Rule 81(2), Defence of India Rules, was intra vires the Central Government, held that a power to 'control' included a power to 'prohibit' and relied upon the case in Reg. v. Croydon and Norwood Tramways Co. (1886) 18 Q.B.D. 39, in support of their opinion. They went on to observe as follows:

Section 2 (of the Defence of India Act) confers power to prohibit a person carrying on a particular trade, should this course be deemed necessary in the interest of the community in these days of national peril.... One way of controlling or regulating a trade is by insisting on those engaged in it upon taking out licences. The power to grant a licence must contain a power to refuse one if this is deemed to be expedient. In our judgment the Central Government had the power under Rule 81(2) to issue the Food Grains Control Order and the provisions of Clause 3 are in all respects intra vires notwithstanding that there is a discretion in the matter of issuing licences.

Similarly, in In re Chinnavan Rowther : AIR1944Mad479 , the same two learned Judges of the Madras High Court, while dealing with a case similar to the one before us, held that the order issued by the Governor under Rule 81(2), prohibiting export of paddy or rice from the Madras Presidency outside that Province was intra vires the powers of the Governor. Similarly, the notification issued by the Additional District Magistrate in pursuance of the powers delegated to him by the Provincial Government prohibiting the export of paddy or rice from any place in the district to places outside it, except under a permit, was held to be intra vires and perfectly valid. From what has gone before, to my mind, it is perfectly plain that para. 3 of the Control Order in question was intra vires the powers of the Governor. Next, it may be considered whether Rule 81(2)(a) in so far as it authorises the Provincial Government to make an order prohibiting export of food grains is itself ultra vires the powers of the Central Government, keeping in view the provisions of Section 297, Constitution Act. The argument addressed to us may be summed up thus : The Central Legislature has not been given any power to deal with 'trade and commerce within the Province' or with the 'production, supply or distribution of goods.' These subjects have been specifically assigned to the Provincial Legislature by Entries Nos. 27 and 29 of the Provincial Legislative List. On the issue of the proclamation of emergency under Section 102, Constitution Act, the entire field of legislation comprised in all the three Legislative Lists no doubt becomes open to the Central Legislature, but the Central Legislature can legislate for a Province in respect of any of the subjects comprised in the entries (e. g., Entries Nos. 27 and 29 of the Provincial List), only as if it were substituted in place of the Provincial Legislature in regard to these subjects. The argument is that, the Central Legislature qua the entries Nos. 27 and 29 of the Provincial List, acts subject to the limitations imposed upon the Provincial Legislature by Section 297, Constitution Act. In effect, therefore, so the argument runs, the Central Legislature cannot legislate in regard to the topics comprised in Entries Nos. 27 and 29 so as to discriminate against, inter-provincial trade and commerce. This line of argument necessitates a consideration of the important question whether, after a proclamation of emergency under Section 102, Constitution Act, the powers of the Central Legislature to enact laws in respect of the subjects contained in the Provincial Legislative List are hampered by the restrictions imposed by Section 297, Constitution Act. It is obvious that Section 297, Constitution Act in terms is not at all applicable to either the Central Legislature or the Central Government. On the proclamation of emergency under Section 102 the Central Legislature becomes invested with

power to make laws for a Province or any part thereof with respect to any of the matters enumerated in the Provincial Legislative List : vide Section 102(1), Constitution Act.

6. This language is quite clear and it does not imply restrictions of any sort or kind on the powers of the Central Legislature such as are referred to in Section 297 with regard to the Provincial Legislature and the Provincial Government. The Defence of India Act, 1939, itself was enacted by the Central Legislature on 29th September 1939 after the proclamation of emergency had been made by the Governor-General under Sub-section (1) of Section 102, Constitution Act. Reading Section 2 of this Act, particularly Sub-sections (1), (2), (4) and (5) together, it becomes perfectly obvious that the powers given by Sub-section (2) to Central Government to make rules are very comprehensive and entirely unfettered by any such restrictions as are contemplated by Section 297, Constitution Act. In exercise of the very wide powers conferred on it the Central Government has framed Rules 81, Defence of India Rules. Sub-section 4(b) of Section 2, Defence of India Act, affords a clear indication that the Legislature intended that the Central Government had power to invest a Provincial Government to deal with a matter under the provisions of the Defence of India Rules with respect to which the Provincial Legislature itself might have had otherwise no power to make laws. The Defence of India Act has been held both by the Federal Court as well as by this Court to be intra vires the powers of the Central Legislature. In this connexion reference might also be made to the case in Ragho Sao v. Emperor ('44) 31 A.I.R. 1944 pat. 205 decided by a Bench of two learned Judges of the Patina High Court where at p. 207 it was observed:

After the issue of the proclamation by the Governor-General, the Central Legislature had full authority to legislate with regard to any matter contained in the Provincial Legislative List. It was suggested that the Central Legislature could not, in exercising the power conferred by Section 102(1), delegate any power with which it was itself invested to an authority prohibited by the Act, and that, as Section 297(1)(a) bars the Provincial Legislature (or Provincial Government) from prohibiting or restricting the import or export of goods into the Province, the Provincial Legislature could not, in exercise of powers conferred on the Central Legislature by Section 102, be invested with powers to legislate on these matters. No bar, however, was pointed out to us in the Constitution Act which would prevent the Central Legislature from delegating to the Provincial Legislature the power to deal with matters referred to in Section 297(1)(a).

7. Again, in Shib Nath Benerji v. A.E. Porter : AIR1943Cal377 , a case decided by a Special Bench of three learned Judges of the Calcutta High Court, at p. 382 Mitter, J., observed as follows:

The real effect of Section 102(1) in my judgment is to destroy the separation of the subject matter of legislation in regard to Governors' Provinces, which have been created by Section 100 Sub-section (3), on a grave emergency being declared by the Governor-General. On such a declaration List II is to be regarded as part and parcel of List I and the Central Indian Legislature which has by virtue of Section 99(1) the power to legislate over the whole of British India, would acquire the power to legislate over whole of the said area (which necessarily include all Governors' Provinces) in respect of matters contained in List II.

The Federal Court also in Niharendu Dutt v. Emperor ('42) 29 A.I.R. 1942 F.C. 22 at p. 23 has observed thus:

By Section 102, Constitution Act, if the Governor-General has issued a proclamation declaring that a grave emergency exists, whereby the security of India is threatened, whether by war or internal disturbance, the Federal Legislature has power to make laws for a Province or any part thereof with respect to any of the matters enumerated in the Provincial Legislative List. Such a Proclamation was in fact issued by His Excellency on 3rd September 1939 and on 29th September 1939, the Defence of India Act, 1939, was enacted.

I might also refer in this connexion to the case in Madho Saran Singh v. Emperor : AIR1943All379 decided by a Full Bench of three learned Judges of this Court. That was a case in which their Lordships were concerned with the question whether Ordinance No. 19 [XIX] of 1948 was intra vires the legislative powers of the Governor-General. At p. 515 Iqbal Ahmad C.J., is reported to have observed as follows:

It is admitted that proclamation under Section 102, Constitution Act, was made by the Governor-General and it is, therefore, manifest, in view of the provisions of Section 102 read with Section 316 of that Act, that the Indian Legislature has the power to make laws with respect to all the matters enumerated in 7th Schedule of the Act. It is also clear that the power vested in the Governor-General by Section 72 of 9th Schedule to make and promulgate Ordinances is co-extensive with the power of the Indian Legislature to make laws.... Is it within the competence of the Indian Legislature to pass an Act containing provisions identical with those contained in the Ordinance No. 19 [XIX]? In the consideration of this question one must take note of the fact that it is well settled that even though the powers of the Indian Legislature are 'limited by the Act of Parliament which created it,' that Legislature has, when acting within those limits, plenary powers of legislation as large and of the same nature as those of Parliament itself' : vide Queen v. Burah ('79) 4 Cal. 172; United Provinces v. Mt. Atiqa Begum and Emperor v. Binoari Lall Sarma .

It is significant that no restrictions of any sort or kind on the powers of the Central Legislature to legislate with respect to the matters enumerated in the Provincial Legislative List are even hinted, at in anyone of the authorities referred to above. Learned Counsel for the applicants has attempted to reinforce his arguments on this part of the case by referring us to a decision of their Lordships of the Privy Council in James v. Commonwealth of Australia (1936) 1936 A.C. 578. It is, however, clear that that was a case concerning the provisions of the Constitution Act of the Australian Commonwealth. Section 92, Commonwealth of Australia Constitution Act, (1900) provides that trade, commerce and intercourse among the states shall be absolutely free. In view of this provision, it was held that this provision binds the Parliament of the Commonwealth of Australia equally with the States. It was further laid down that the language of the section, which is quite general and is in terms not subject to any exception or limitation, affords no countenance for the contrary view. It is the declaration of a guaranteed right. This case, therefore, is entirely distinguishable and, in my judgment, it lends no support whatsoever to the contention of the learned Counsel for the applicants. On the contrary, the principle underlying the decision goes against that contention. In this connection I may observe that it is well to remember the salutary principles laid down by the Federal Court in In the matter of the Central Provinces and Berar Sales of Motor Spirit and Lubricants Taxation Act, 1938 , with regard to the value of decisions of the Canadian, Australian and the United States Courts. Gwyer C.J., observed thus at p. 5:

The decisions of Canadian and Australian Courts are not binding upon us, and still less those of the United States, but, where they are relevant, they will always be listened to in this Court with attention and respect, as judgments of eminent men accustomed to expound and illumine the principles of jurisprudence similar to our own; and if this Court is so fortunate as to find itself in agreement with them, it will deem its own opinion to be strengthened and confirmed. But there are few subjects on which the decisions of other Courts require to be treated with greater caution than that of federal and provincial powers, for in the last analysis the decision must depend upon the words of the Constitution which the Court is interpreting; and since no two constitutions are in identical terms, it is extremely unsafe to assume that the decision of one of them can be applied without qualification to another. This may be so even where the words or expressions used are the same in both cases; for a word or a phrase may take a colour from its context and bear different senses accordingly.

8. In view of the above, in my Judgment, the United Provinces Foodgrains and Oil Seeds (Movement) Control Order which prohibited export of arhar outside the Province was not invalid and ultra vires on any of the grounds contended for by the learned Counsel for the applicants. The next point urged is with regard to the merits of the cases of the individual applicants. I have considered the findings recorded by the learded Magistrate as well as those recorded by the learned Sessions Judge. It appears that so far as Durga Prasad, the Station Master, is concerned, it may well be that he was not quite clear in his own mind with regard to the position created by the different Food Control Orders, particularly by the two Supplementary Movement Control Orders of 24th July and 26th August 1943. It is true that the United Provinces Food-grains and Oil Seeds (Movement) Supple, mentary Control Orders of July and August 1943 and lastly the Supplementary Order which came into force on 1st September 1943, related to the freedom of movement of certain foodgrains and oil seeds within the United Provinces but as the learned Judge has pointed out in the course of his judgment, the position created thereby was not clear even to the minds of the Foodgrains Control authorities themselves and that was the reason why they (the Foodgrains Control authorities) failed to inform the district authorities in time to prevent the movement of the wagons from Bareilly. In this, state of affairs which prevailed at Bareilly it may well be that Durga Prasad, the Station Master was at the time under a genuine, though mistaken, impression that the booking of arhar from Bhitaura station was permissible. In any case, from materials on the record and in the light of the findings recorded by the learned Sessions Judge such a possibility is not altogether excluded. He must, therefore, get the benefit of this fact. His conviction, however, must be maintained. The sentence passed upon him has been reduced by the learned Sessions Judge to the period of imprisonment already undergone plus a fine of Rs. 500. I have considered this matter and I feel that there is room for further reduction of the sentence passed upon Durga Prasad, I think that the ends of justice will be met by reducing the sentence of fine imposed upon, him to Rs. 50 only. In default of payment of fine he shall undergo one month's rigorous imprisonment.

9. The case of Harihar Prasad, the railway dalal, stands on a very different footing. The learned Sessions Judge dealing with his case has pointed out that the evidence against him is rather meagre. He has been convicted under Rule 81(4) read with Rule 121, Defence of India Rules, i.e., for the abetment of the offence. There is evidence of two witnesses Ram Ratan, P.W. 8 and Roshan, P.W. 12, to the effect that Harihar Prasad took delivery of the arhar at Bareilly and arranged for its cartage to Bhitaura station, but all this activity on the part of Harihar Prasad would not involve him in any offence if he as well as the principal offenders, viz. Durga Prasad, the Station Master, and the proprietors of the firm, viz., Roshan Lal, Ram Das and Puran Mal, were under a genuine misapprehension with regard to the legal position which resulted from the issue of the Supplementary Food-grains Movement Control Orders of July and August 1943. In dealing with the case of Durga Prasad, it has already been held that he was labouring under a misapprehension with regard to the actual position created by the several Orders mentioned above. Credit must, therefore, be given to Harihar Prasad for being under a similar misapprehension with regard to the legal effect of the Orders. The evidence of the two wit-nesses mentioned above does not, therefore, go very far in establishing the charge against this applicant. On a comprehensive review of all the circumstances of the case, particularly the findings of fact recorded by the learned Sessions Judge, it seems very doubtful if the part played by Harihar Prasad really amounted to an abetment of what was done by Durga Prasad, the Station Master. In this view of the matter, Harihar Prasad must be given the benefit of doubt and his conviction and sentence must be quashed.

10. Lastly, the case against Roshan Lal, Ram Das and Puran Mal may be considered on the merits. Admittedly these three applicants are the proprietors of the firm Roshan Lal Durga Prasad and, further, the evidence shows that they were all taking active part in the management of this firm, particularly in connection with the despatch of the arhar in question outside the Province. The learned Sessions Judge in appeal has repelled the contention advanced on their behalf that they knew nothing about the restrictions on export by referring to two matters: firstly, he says that the whole manner in which the export took place is full of suspicious factors and, secondly, the quantity of grain involved was too much for the firm to have acted without careful consideration of the rules in force. He has affirmed the convictions of all the three proprietors of the firm, but considering the circumstances of the case he has reduced the sentence of imprisonment in each case to four months' rigorous imprisonment and a fine of one hundred rupees. In view of the findings of fact re-corded in dealing with the cases of the Station Master and the railway dalal it has been observed that there was a good deal of uncertainty of legal position created by the issue of Supplementary Control Orders so much so that even the Food Grains Control Authorities were not clear in their own minds about the correct position. In view of this fact I find it difficult to endorse the finding of the learned Judge that these three applicants knew about the restrictions on export. Then again, the mere fact that a large quantity of grain was involved in the transaction would not necessarily show that the correct legal position was ascertained by these applicants before the despatch of the grain was arranged. In view of these circumstances, the case of these three applicants must also be judged on the footing that they were not really aware at the time of the prohibition on export outside the Province. They must, therefore, be given credit for having acted bona fide in contravention of the control order. It is in evidence that they made enquiries from the Station Master before taking the grain for export. In view of these circumstances, it is clear to my mind that this was not a case of a profiteer deliberately trying to export grain in defiance of the Control Order. That being the position, the conviction of the applicants must be maintained but the sentences passed upon them must be drastically reduced. The sentences passed on them, as they stand today, are one of four months' rigorous imprisonment and a fine of Rs. 100 each. This is in addition to the forfeiture of the arhar which was seized. We have been informed by the learned Counsel who appears for these applicants that Roshan Lal has been in jail for about five days, Ram Das for about ten days and Puran Mal also for about ten days. In the circumstances of the case I would reduce the sentence of imprisonment to the period already undergone and maintain the sentence of fine of Rs. 100 each and in default one month's rigorous imprisonment each. As regards the order of forfeiture of the grain, I think that, in the view of the case which I take, the order of forfeiture is unmerited and should be set aside.

11. The result, therefore, is that the application of Durga Prasad is allowed to this extent that the sentence of fine imposed upon him is reduced to RS. 50 only. In default of payment of fine he shall undergo one month's rigorous imprisonment. The application of Harihar Prasad is allowed. He is given the benefit of doubt and his conviction and sentence are set aside. He shall be released at once unless his detention be necessary in connection with some other matter. The application of Roshan Lal, Ram Das and Puran Mal is allowed to this extent only that the sentence of imprisonment passed upon them is reduced to the period already undergone but the sentence of fine is maintained with one month's rigorous imprisonment in default. The order forfeiting the arhar seized to His Majesty is set aside and it is directed that the amount of the sale proceeds of arhar in question shall be refunded.

Bennett, J.

12. I agree.

13. Learned Counsel for the applicants has prayed that this Court should grant a certificate for appeal to the Federal Court under Section 205, Government of India Act. His contention is that there is a substantial question of law as to the interpretation of Section 297, Constitution Act, involved in the case. We are satisfied that this is a fit case and direct that a certificate under Section 205, Constitution Act, be granted.


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