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Mewa Lal and anr Vs. Rex - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Judge
Reported in1949CriLJ91
AppellantMewa Lal and anr
RespondentRex
Excerpt:
- - the first preliminary objection was that, inasmuch as the defence of india act and the defence of india bales, under which the two aforesaid control orders were promulgated, bad expired by a lapse of time, the various accused persons could not be prosecuted for the aforesaid alleged offences. having failed to succeed before the learned sessions judge, the applicants have now applied in revision to this court. a person who carries on the business of selling gur in any premises certainly occupies it for the purpose of dealing in gur and section 3 clearly prohibits its occupation for the purpose of dealing in gur in contravention of the terms of a license granted under this order......the offence was alleged to have been constituted by a breach of some of the provisions of the control orders.2. at the outset of the trial in each one of these cases two preliminary objections were taken on behalf of the accused persons. one of the two preliminary objections is common to all the 19 cases. the other preliminary objection arose only in those cases where the alleged offence was in respect of non-compliance with the requirements mentioned in the licenses granted under the control orders. the first preliminary objection was that, inasmuch as the defence of india act and the defence of india bales, under which the two aforesaid control orders were promulgated, bad expired by a lapse of time, the various accused persons could not be prosecuted for the aforesaid alleged.....
Judgment:
ORDER

Seth, J.

1. These 19 applications in revision have arisen out of 19 different oases started against several applicants in these revisions, for alleged offences under the U. P. Gur Control Order, 1945, and the U. P. Oilseeds and Oilseeds1 Produot3 Control Order, 1945. In some of the oases the offence was alleged to have been constituted by a non-compliance with certain requirements mentioned in the licenses granted to the accused in those cases. In other cases the offence was alleged to have been constituted by a breach of some of the provisions of the Control Orders.

2. At the outset of the trial in each one of these cases two preliminary objections were taken on behalf of the accused persons. One of the two preliminary objections is common to all the 19 cases. The other preliminary objection arose only in those cases where the alleged offence was in respect of non-compliance with the requirements mentioned in the licenses granted under the Control Orders. The first preliminary objection was that, inasmuch as the Defence of India Act and the Defence of India Bales, under which the two aforesaid Control Orders were promulgated, bad expired by a lapse of time, the various accused persons could not be prosecuted for the aforesaid alleged offences. The second preliminary objection was that a breach of the conditions of the licenses hoe not been made an offence either under the 1 J. P. Gur Control Order, 1945, or under the 0. P. Oilseeds and Oilseeds' Products Control Order, 1945, and that therefore in respect of Such breaches no prosecution could be maintained.

3. be to these preliminary objections were overruled by the learned Magistrates before whom the prosecutions were proceeding. The applicants in these various revisions applied to the Sessions Judge of Allahabad to recommend to this Court that the proceedings started against the applicants be quashed, but he also declined to do so, being of the opinion that the contentions raised on behalf of the applicants were without any sub3tance. It may be pointed here that all these 19 cases were started at Allahabad, and therefore it was the same learned Sessions Judge to whom the various applicants went up in revision. Having failed to succeed before the learned Sessions Judge, the applicants have now applied in revision to this Court. The same two preliminary objections have been repeated in the memoranda of revisions and the relief prayed for in all these revision applications in substance is that the proceedings pending against the applicants be quashed and that an order for their discharge be passed. Inasmuch as the points arising in these revision applications are common, it is convenient to dispose them all by a single judgment.

4. In view of the recent pronouncement by the Federal Court in the case of J. K. Das etc, V. King.Emperor 52 o. w. N. (F. R.) 25: U.I.R. (B4) 1947 F. C. 38: 48 Cr, L, J. 886), holding that, by virtue of the provisions contained in ordinance XII [12] of 1946, the prosecution in respect Of offences committed before the expiry of the Defence of India Act and the Defence of India Rules were competent even after their expiry, the first preliminary objection is not now pressed. This Ordinance amended Sub-section U) of Section 1, Defence of India Act, 1939, by adding the following saving provisions:

But its expiry under the operation of this sub-section shall not affect:

(a) the previous operation of, or anything duly done or suffered under this Act or any rule made thereunder or any order made under any such rule or

(b) any right, privilege, obligation or liability acquitted, accrued or incurred under this Act. or any rule made thereunder or any order made under any of such rule, or

(c) any penalty, forfeiture or punishment incurred in respect of any contravention of any rule made under this Act or any order made under any such rule, or

(d) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if this Act. had not expired.

5. In view of the language of this Ordinance the learned Counsel appearing for the applicants acted very properly in not pressing this point any further. I, therefore, hold that the continuance of the prosecutions in the various cases giving rise to these revision applications is not barred on the ground that the prosecutions were started after the expiry of the Defence of India Act and the Defence of India Rules.

6. There seems to be no force in the second preliminary objection also. It has been argued on behalf of the applicants that no provision exists either in the U. P. Gur Control Order or in the U. P. Oilseeds and Oilseeds' Products Control Order which makes the breaches of the terms of the licenses penal. The penal provision in the U. P. Gar Control Order, 1945, is contained in Section 11 of that order. The relevant portion of that section may be reproduced as follows:

If any person contravenes any provision of this Order or of any order made under it or makes any false statement regarding any matter in respect of which ha is required under it to give information, he shall be punishable under sub-r. (4) of Section 81, Defence of India Rules with imprisonment for a term which may extend to three years or with fine or with both....

The argument is that a breach of the terms and conditions of a license is not contemplated by the aforesaid Section 11. Section 8, U. P. Gur Control Order is in the following words:

No person shall, in a controlled Gar market, occupy or set tip any premises for the purpose of dealing in Gur other than as a retailer except under and in accordance with the terms of a license granted under this Order.

A person who carries on the business of selling Gur in any premises certainly occupies it for the purpose of dealing in Gur and Section 3 clearly prohibits its occupation for the purpose of dealing in Gur in contravention of the terms of a license granted under this Order. Those, who carry on their dealings without maintaining registers in the manner contemplated by the terms and conditions of the licenses granted to them, are within the scope of the section. Such persons, therefore, become liable to punishment under Section 11 of the Order for contravening the provisions of Section 8, U. P. Gur Control Order. I am also of the opinion that the terms and conditions of a license are within the meaning and scope of the expression 'any order made under it.' It is true that the various directions issued to those persons to whom licenses are granted have been described as terms and conditions of the licenses, but it is obvious that in substance they are in the nature of orders issued to the licensees and any one who accepts a license becomes be und to carry out such orders. The provisions of the U. P. Oilseeds and Oilseeds' Products Control Order are similar to the provisions of the U, P. Gur Control Order. The section corresponding to Section 8, U. P. Gur Control Order is Section 8, U. P. Oilseeds and Oilseeds' Products Control Order and the section corresponding to Section 11, Gur Control Order is Section 18, Oilseeds and the Oilseeds' Products Control Order. For the reasons already given, a contravention of the terms of a license granted under the Oilseeds and Oilseeds' Products Control Order would be punishable under Section 13 of that Order.

7. An argument has been addressed to me based upon a comparison of the provisions of the U. P. Gur Control Order and the U. P. Oilseeds and Oilseeds' Products Control Order on the one hand and three other Control Orders on the other hand. These three Control Orders are the U. P. Flour Rice and Dal Mills Control Order, 1945; the U. P. Foodgrains Control Order, 1945 ; and the U. P. Controlled Cotton Cloth and Yarn Dealers' Licensing Order, 1945. It is pointed out that a penalty is provided in the terms and conditions of the licenses in the case of these three Control Orders and that no such penalty having been provided in the terms and conditions of the licenses in the case of the U, P. Gur Control Order and the U. P. Oilseeds and Oilseeds' Products Control Order, it should be inferred that the only penalty contemplated in the case of breach of these terms and conditions was a forfeiture of a license. Prima facie this argument is plausible, but a comparison of the other corresponding provisions of the Control Orders leads to the conclusion that there is no substance in it. To take, for example, the U. P. Foodgrains Control Order, 1946. The penal provisions are contained in Section 10 of that Order. The relevant portion of that action reads as follows;

It any person contravenes any of the provisions of this Order or makes any false statement regarding any matter in respect of which he is required under it to give information he shall be punishable under sub-r. (4) of Section 81, Defence of India Rules with imprisonment for a term which may extend to three years or with fine or with both....

On a comparison of this section with Section 11, U. P. Gur Control Order it is apparent that under Section 10, Foodgrains Control Order no provision has been made for the punishment of a contra, vention of 'an order made under this order.' It is plain from a comparison of the language of the relevant sections of the two Control Orders that whereas in the case of the U. P. Foodgrains Control Order a penal provision was inserted in the terms and conditions of the licenses, it was realised when the U, P. Gur Control Order came to be drafted that that was not a proper place where to introduce penal provisions. Therefore, while the penal provision was omitted from the terms and conditions of the licenses, suitable amendment was made in the penal section itself to include cases of the breach of provisions of the licenses. The language of the relevant sections of the other two Control Orders is also similar to the language of S 10, U. P. Foodgrains Control Order and differs from the language of Section 11, U. P. Gar Control Order and from the language of Section 13, U. P. Oilseeds and Oilseeds' Products Control Order. Thus, the argument of the learned Counsel upon this point, though extremely plausible, is without any substance. I hold that there is no substance in this preliminary objection also and I overrule it. Therefore, there is no force in either of the two grounds raised in these revision applications.

8. The applications in revision are rejected. A copy of this order shall be placed in all the other connected revisions.


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