1. The applicant, Harish Chandra Bagla, has been convicted under Rule 81 (4), Defence of India Rules, and sentenced to rigorous imprisonment for a period of three months, and to a fine of Rs. 500 or two months' rigorous imprisonment in default. The accused is the proprietor of a firm known as Durga Prasad Harish Chandra in Generalganj, Cawnpore. The charge against the accused was that on 7th March 1944 the accused sold 48 pieces of malmal cloth No. 6772 of Swadeshi Mills, Bombay, at the rate of Rs. 14 per piece when the control price of the same was only Rs. 13-4-6, fixed by the Textile Commissioner under the provisions of Clause 12 (4) of the Cotton Cloth and Yarn (Control) Order of 1943. It is not denied that the control price of this quality of cloth was Rs. 13-4-6 and it is further not denied that the price charged was Rs. 14 per piece. The defence of the applicant was that on 4th March 1944 the applicant had left for Bombay in connexion with a marriage and did not return to Cawnpore till 15th March 1944, that he had left his Munib, Badri Prasad, in charge of the shop during his absence, and that if, against his instructions and without his knowledge, his Munib sold the cloth at a rate higher than the control rate, the accused was not liable and should not be punished for contravention of the above rule. The next objection was that the accused could only be prosecuted if his prosecution was sanctioned by the Provincial. Government and it was not proved in the case that there was any such sanction. Lastly, it was submitted that in view of the facts of this case the sentence awarded was too severe and the fine imposed was excessive.
2. The only witness produced on behalf of the prosecution was Harish Chandra C. P. I. Harish Chandra gave evidence that the control price of this cloth was Rs. 13-4-6 and that 48 pieces were sold from the shop of the accused to Messrs. Mannoo Lal Kishen Gopal, Commission Agents, Cawnpore, at Rs. 14 per piece. He also stated that Ex. P-2 was his report and Ex. P-3 was the sanction from the Government. In cross-examination he admitted that he had not stamped the control price on these 48 pieces and that when he went to the shop to make enquiries he was told that the control price was not known and the goods were sold at a loss. The accused in the statement made by him before the learned Magistrate stated that he had gone to Bombay in connexion with the marriage of the daughter of Rai Saheb Rameshwar Das Bagla on 4th March 1944 and remained in Bombay till 13th March 1944 and that he had no knowledge or information that the goods were sold by his Munib above the control rate till the Inspector came to make enquiries, and then he asked, his Munib who told him that he did not know the control price and had therefore made a mistake. He further added that he tried to get a copy of the paper giving the control rates, but he could not get one till April 1944. Mr. K. C. Shukla, District Supply Officer, was then examined by the prosecution. He stated that the rates were published by the Publicity Commissioner of Bombay and he had given 30 copies of this publication to the Kapra Committee of Cawnpore and later he had got many more copies for distribution to the various dealers. The accused produced two witnesses. Rameshwar Das came to give evidence that the accused was in Bombay from 4th March to 13th March 1944 on the occasion of the wedding of his daughter. He is the uncle of the accused. The other witness produced was Badri Prasad Munib who stated that these pieces had been purchased prior to the control order at the rate of Rs. 16-12-0 per piece and he did not know the rates fixed by the Government. There were various rates fixed for various kinds of malmal manufactured by different mills and he was under the impression that he was entitled to charge Rs. 14 for this type of malmal. According to him he sold these goods at Rs. 14 at a loss, thinking in good faith that this was the rate at which he was entitled to sell. This is the entire evidence' on the record.
3. The fact that the accused was not in Cawnpore but was in Bombay has been accepted by the Magistrate and by the learned Sessions Judge. The fact that cloth was sold at a rate higher than the control rate could not be denied by the accused. There is no evidence that the accused had fixed the rate at Rs. 14 or had directed his Munib to sell the cloth at a rate higher than the control rate. Prom the fact that cloth was purchased at Rs. 16-12-0 and was sold at Rs. 14 it may be that the statement of Badri Prasad that he in good faith believed that Rs. 14 was the proper rate may be true. But the question of good faith can only be taken into consideration in awarding the sentence. Even if under a mistake or misapprehension cloth was sold at a rate above the control rate, the person so contravening the provisions of the Cloth Control Order was clearly guilty. The question that has arisen for consideration is whether on these facts the accused could be held to be guilty.
4. Dr. Katju on behalf of the accused has urged that it is one of the well-known principles of criminal jurisprudence that a person is liable only for his own criminal acts and not for the criminal acts done by others which were not instigated by him; and he has cited before me an unreported decision of Teja Singh J. of the Lahore High Court-Criminal Revision No. 1209 of 1944, Decided on 22nd July 1944-in which case it was held that the proprietor was not liable. In that case the owner of the firm was a joint Hindu family. One of the members of the joint Hindu family was present when a customer came and inquired about the price of a fan belt for a ply-mouth car. The servant quoted Rs. 35 in the presence of the proprietor as the price. The control rate was however only Rs. 6. The customer went away, but he came the next day and the servant sold the article for Rs. 35. At the time of the sale the proprietor was not present. It was held that the proprietor could not be held liable for the action of the servant as the sale must be deemed to be by the servant himself. Relying on this authority Dr. Katju has argued that his client is entitled to an acquittal.
5. On behalf of the prosecution, in view of this ruling, the point is, more or less, conceded. As a general proposition of law, it cannot be doubted that the master is not liable for the criminal acts of his servants not done at his instigation. The general rule no doubt is that there is no criminal liability of the principal for any act or omission of his agent unless the principal himself takes part in, authorises, or connives at, such act or omission. A man cannot be guilty by his agent of an illegal act and be held responsible for that act, unless he has given the agent authority, directly or indirectly, to do that illegal act. No one who is an agent for a legal purpose can make the principal responsible for an illegal act, unless the principal has in some way, directly or indirectly, authorised it. The reason for the rule is obvious. It is a general principle of criminal law that there must be some blameworthy condition of mind or mens rea - there may be negligence, malice, guilty knowledge or the like. The other well-known principle is that there is no vicarious liability in criminal law; the condition of mind of the servant is not to be imputed to the master. In a civil action the master is liable for damages for injury caused to another by the negligence of the servant while acting within the scope of his authority or in the course of his employment. But the master is not criminally responsible for his servant's negligence and still less for an offence depending on the servant's malice.
6. These general principles apply to all offences though it is in the power of the Legislature, if it so pleases, to enact that a man may be convicted and punished, although there was no blameworthy condition of mind. But this exception would have to be made out convincingly from the language of the statute; as it cannot lightly be presumed that, the Legislature intended that A should be punished for the fault of B. Besides these statutory offences where the statute, expressly or by necessary implication, has made the master criminally responsible for the acts or omission of the servant or agent, common law, in England, recognised only one exception, that is, of a public nuisance. The reason for this exception is rather instructive. For public nuisances, no civil action could be brought in England and the only remedy was by an indictment and the master could always escape liability by setting a servant upon work that, may result in a nuisance. The question whether the statute has by necessary implication made the master liable depends upon various considerations. Primarily it depends upon the language of the statute, the words used, then its scope, its object, the nature of the duty laid down and whether it intends to impose a public duty binding on the master apart from any question of knowledge or frame of his mind. In many such cases the provision of the statute would be rendered nugatory if it be held that the prohibition or the duty imposed was not absolute. Under Rule 81, Sub-rule (2) Defence of India Rules the Central Government made an order known as the Cotton Cloth and Yarn (Control) Order, 1943. Clause 12 of this Order reads as follows:
No manufacturer or dealer shall sell or offer to sell any cloth or yarn at a price higher, than the maximum price specified in this behalf under Clause 10.
Under Rule 81(4), Defence of India Rules
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.
The word 'dealer' in Clause 12 of the Order has been defined by a notification published in the U.P. Gazette, Part I, dated 17th July 1943, No. M-5533-C. s., which is as follows:
A dealer means a person carrying on the business of selling cloth or yarn or both, whether wholesale or retail, and whether or not in conjunction with any other business.
It will be noticed that it is only the 'manufacturer' or the 'dealer' who has been made liable. The 'dealer' must be the person 'carrying on the business of selling cloth.' The person punishable is the 'dealer'. His munib or servant who could not be considered to be the 'dealer' was not punishable at all. To me it appears that the language of the order is significant and by implication the 'manufacturer' and the 'dealer' are made liable. The question is whether the accused in this case sold or offered to sell cloth at a price higher than the maximum price specified in the order. There can be no doubt that the accused was the seller. It may be that he did not sell himself but the sale was effected through his servant, but the accused had put the servant in charge of the shop and had authorised him to make sales on his behalf and while acting within the scope of his authority the servant contravened the provisions of the Defence of India Rules. The knowledge of the master is not at all relevant. The liability is absolute. It is not a case where the servant had turned dishonest and had tried to profit himself by charging a sum over and above the control price, in which case it might be argued that the servant was not acting within the scope of his authority. I do not want to express any definite opinion as that point has not arisen before me, but I have no doubt that in a case like the present, where the 'dealer' puts his servant in charge of a shop to sell goods to the public and the shop assistant, while acting for and on behalf of the dealer, sells goods at a price higher than the control price, the dealer is guilty of having contravened the provisions of the Defence of India Rules. In Coppen v. Moore (1898) 2 Q.B. 306 at page 311 Lord Russell held:
The appellant's contention was that the charge here preferred was a criminal charge, and that the general principle of law applied, 'nemo reus est nisi metis sit rea.' There is no doubt that this is the general rule, but it is subject to exceptions, and the question here is whether the present case falls within the general rule or within the exceptions.... But by far the greater number of exceptions engrafted upon the general rule are cases in which it has been decided that by various statutes criminal responsibility has been put upon masters for the acts of their servants.... The decisions in these and in other like cases were based upon the construction of the statute in question. The Court in fact came to the conclusion that, having regard to the language, scope and object of those Acts, the Legislature intended to fix criminal responsibility upon the master for acts done by his servant in the course of his employment, although such acts were not authorised by the master, and might even have been expressly prohibited by him.
7. In Houghton v. Mundy (1911) 103 L.T. 60, Mundy was a grocer. While his assistant was out of the shop, he had made up for his own use a half-pound packet consisting of a mixture of butter and margarine. This packet was inadvertently left upon the counter while -Mundy went to attend to a customer in another part of the shop. But it was not placed there for the purpose of sale. Mundy's assistant then came in, and immediately afterwards a man came in and asked for half a pound of salt butter and was served by the assistant with the same half pound of mixed butter and margarine. The assistant seeing the half-pound packet lying on the counter ready-made thought that it was there for the purpose of sale, but in selling it he was acting without the authority and contrary to the express instructions of Mundy that he was to sell butter always from the bulk and not in ready-made packages. The question arose whether Mundy was liable under Section 6, Sale of Food and Drugs Act, 1875. The Sale of Food and Drugs Act 1875 (38 and 89 Vict., c. 63), Section 6 provides as follows:
No person shall sell to the prejudice of the purchaser any article of food or any drug which is not of the nature, substance, and quality of the article demanded by such purchaser, under a penalty not exceeding 20 pounds.
8. It was argued on behalf of Mundy that he was not liable as the sale had been made by his assistant inadvertently and against his instructions. Lord Alverstone C.J., held:
Having regard to the usefulness of the Sale of Food and Drugs Act, I think it is most important that we should not throw any doubt upon the decision to the effect that want of guilty knowledge is no defence to a prosecution of this kind, and that if a servant acting within the scope of his authority commits an infringement of the Act the master is responsible.
His Lordship went on to hold that in cases of this kind; however, only a nominal penalty need be imposed. In Armitaga, Ltd. v. Nicholson (1913) 108 L.T. 993, Armitaga Limited were the owners and the occupiers of a dye house which had a furnace and chimney appertaining thereto and were convicted under Section 53, Bradford Corporation Act, 1910, for the negligent stoking of their stokers. Ridley J. relied on the language of the section which was as follows:
If any person uses or suffers to be used any such furnace which shall not be constructed upon the principle of consuming and so as to consume or burn its own smoke, or if any person using or permitting to be used, any furnace so constructed shall, in the event of smoke arising therefrom not being effectually consumed or burned, fail to show that such furnace has not been negligently used, he shall if he is the owner or occupier of the premises or a foreman or other person employed by such owner or occupier, be liable to a penalty.
9. On that language he' held that it was not possible to exclude the owner from the liability. Avory J. agreeing with that decision went on to hold that whenever a special Act has to be construed it is always a question upon the true construction of the statute whether the master is intended to be made criminally responsible for acts done by his servants in contravention of the Act, where such acts are done within the scope or in the course of their employment. If it is clearly the intention of the Legislature to make the master criminally liable for such acts, unless he is able to rebut the prima facie presumption of guilt by one or other of the methods provided by the Act, he cannot be freed from the liability imposed upon him by the statute, even though he had personally nothing whatever to do with the matter. In Mullins v. Collins (1874) 9 Q. B. 292 4 a licensed person was held liable for the act of his servant in knowingly supplying liquor to a constable on duty; but this decision proceeded on the ground of its being a serious offence against public order. Coppen v. Moore (1898) 2 Q.B. 3061 is a case under the Merchandise Marks Act, 1887. In that case the master was held criminally liable for acts done by his servants in contravention of the section when acting within the general scope of their employment, although contrary to their master's orders. It was held that the master would be liable unless he could show that he had acted in good faith and had done all that it was reasonably possible to do to prevent the commission of such offences by his servants. Sub-section (1) of Section 2 of that Act dealt with false trade descriptions and had enacted that subject to the provisions of the Act an offence shall have been committed by such forging or application unless the party charged proved that he acted without intent to defraud. Sub-section (2) enacted that every person who sold any goods to which any false trade description was applied should be held guilty of an offence against the Act unless he proved (a) that having taken all reasonable precautions he had no reason to suspect the genuineness of the trade description; and (b) that on demand duly made he gave all information in his power with respect to the persons from whom he obtained such goods; or (c) that otherwise he had acted innocently. By Section 3 it was enacted that trade description shall mean any description, statement, or other indication, direct or indirect, as to the place or country in which any goods were made or produced. Against the instructions of the master a shop assistant sold long-cut American ham, as Scotch ham, and the question arose whether the master could be held guilty, and the conviction of the appellant was affirmed. In Brown v. Foot (1892) 66 L.T. 649 a milk salesman was convicted under Section 6, Sale of Food and Drugs Act, 1875, for his servant having sold milk adulterated with water. It was held that the conviction was right whether the master did or did not connive at the offence, although the entire absence of connivance on his part might, in the discretion of the convicting Magistrate, be a ground for a mitigation of the penalty. Hawkins J. in the course of his judgment said:
I think myself that the master for all purposes must be deemed to be the seller of the milk; that is to say, it is impossible to say that he is not a seller of the milk. It may be said that the person who actually deals with the milk, and sells it, and delivers it for the master, may also within the provisions of this Act of Parliament be the seller of the milk; but at the same time, even if he is so, as I think he is, I think that the master himself is also the seller of the milk. There is no doubt that, civilly, he would be the person alone who would be to blame. For instance, the purchaser of the milk, who is said to be prejudiced by the adulteration, if he had to complain and sue for the injury which he sustained by not having delivered to him that which he had contracted to have, namely, pure milk, would, as a matter of course, sue the master, and not the servant; and there can be no shadow of doubt, as between the purchaser and the master, that the master would be the person responsible to the purchaser. I do not think that concludes the case, but it would have been a very important factor as to the master or the person who was to be found guilty of an offence of this sort, if it was an essential requisite to his conviction that he was cognisant of the adulteration. I think, however, that it is not necessary at all that the man who sells the milk, that is to say, the principal or seller, is necessarily to be taken to be cognisant of the adulteration, the law making it, I think, an offence if adulterated milk is sold in point of fact, unless indeed, the person who sells it is able to protect himself from liability to a penalty by reason of the provisions to be found in Section 25.
Hawkins J. laid stress on the fact that Section 6 does not say,
No person shall knowingly sell, etc....connivance was immaterial, and the mere actual sale of the milk was enough to justify the conviction.
10. Wills J. distinguished the case in Newman v. Jones (1886) 17 Q.B.D. 132, a case of sale by a servant of excisable liquors on the ground that there the man, who effected the sale, was acting outside the orders of his master altogether in selling at all while here he was acting within the orders of his master in selling, therefore, what he did wrongly was within the scope of his employment and was a matter for which the master was liable, because it was his duty to see that, within the scope of the authority which he delegated to the servant, the servant, carried out the Act of Parliament just as much as he did himself. He based his conclusion on a matter of public policy. He further laid stress on the language of Sections 3 and 4 which made the breach of Section 6 after the first offence a misdemeanour punishable by imprisonment, and those sections were qualified with an express enactment that no person shall be liable to be convicted under those sections if he could show that he had no knowledge of the state of things which created the offence and that he could not by reasonable diligence have obtained that knowledge.
11. In Chisholm v. Daulton (1889) 22 Q.B.D. 736 the master was not held liable for the acts of the servant, but in the course of his judgment in this case Cave J. laid stress on the language of the Act which made it necessary that there should be a negligent frame of mind. Where no condition of mind was required he held mens rea was not essential to the commission of the offence and the owner would be absolutely liable for the acts of his servant, but in a case where the condition of mind of the accused was relevant the master could not be punished unless the essential ingredient in the offence was present. In Allen v. Whitehead (1930) l K.B. 211 Albert Whitehead was charged with an offence that on 26th.February 1929, he being the keeper of, premises, namely 16 Norton Folgate, in the County of London, where refreshments were sold or consumed, did knowingly offer prostitutes to meet together and remain therein contrary to Section 44, Metropolitan Police Act, 1839. It was proved that Whitehead was the occupier and licensee of premises at 16 Norton Polgate, Stepney, which he used as a licensed refreshment house open day and night, and while he received the profits of the business he did not himself manage the refreshment house but employed a manager for the purpose. On a number of consecutive days a number of women known to the manager to be prostitutes resorted to the refreshment house and stayed there for several hours in the night time. The occupier had expressly instructed his manager that no prostitutes were to be allowed to congregate on the premises. Whitehead only visited the premises once or twice a week and had no personal knowledge of what had taken place. He was, however, convicted on the ground that he having delegated his duty, so far as the conduct of the house was concerned, to his manager, the knowledge of the manager must be imputed to the employer. Lord Hewart C.J., in dealing with this point observed as follows:
The principle seems to me to be that which was explained, for example, in Mousell Brothers v. London and North Western By (1917) 2 K.B. 837, where Atkin J. (as he then was) said : 'I think that the authorities cited by my Lord make it plain that while prima facie a principal is not to be made criminally responsible for the acts of his servants, yet the Legislature may prohibit an act or enforce a duty in such words as to make the prohibition or the duty absolute; in which case the principal is liable if the act is in fact done by his servants. To ascertain whether a particular Act of Parliament has that effect or not regard must be had to the object of the statute, the words used, the nature of the duty laid down, the person upon whom it is imposed, the person by whom it would in ordinary circumstances be performed, and the person upon whom the penalty is imposed'. Applying that canon to the present case, I think that this provision in this statute would be rendered nugatory if the contention raised on behalf of this respondent were held to prevail. That contention was this, that as the respondent did not himself manage the refreshment house and had no personal knowledge that prostitutes met together and remained therein, and had not been negligent in failing to notice these facts, and had not wilfully closed his eyes to them, he could not in law be held responsible,.... This seems to me to be a case where the proprietor, the keeper of the house, had delegated his duty to a manager, so far as the conduct of the house was concerned. He had transferred to the manager the exercise of discretion in the conduct of the business, and it seems to me that the only reasonable conclusion is, regard being had to the purpose of this Act, that the knowledge of the manager was the knowledge of the keeper of the house.
12. The point has also arisen in this country. In Queen-Empress v. Tyab Ali (1900) 24 Bom. 42310 the accused kept a shop under a licence granted to him for the sale of arms, ammunition and military stores. He did not himself sell the goods, but placed a man in charge of the shop for the purpose of selling the goods. This man sold certain military stores without previously ascertaining that the persons to whom he sold them were legally authorised to possess the same. When prosecuted under Section 22, Arms Act, (11 of 1878) which provides as follows -
Whoever knowingly purchases any arms, ammunition or military stores from any person not licensed or authorised under the proviso to Section 5 to sell the same; or delivers any arms, ammunition or military stores into the possession of any person without previously ascertaining that such person is legally authorised to possess the same, shall be punished with imprisonment for a term which may extend to six months or with fine which may extend to Rs. 500, or with both.
the accused pleaded that the goods were sold without his knowledge and consent and that he was not criminally liable for the act of his servant. Parsons J., held:
It is not a question of intention, or mens rea, or of knowledge; it is the delivery which the Act makes penal, and the delivery by the manager is clearly in this case a delivery by the licensee.
13. The learned Judge went on to hold that the rule
Whatever a servant does in the course of his employment with which he is entrusted and as a part of it is the master's act,
which is of general application so far as civil liability goes, 'is applicable to certain criminal proceedings also'. In Behari Lal v. Emperor ('1l) 34 All. 146 a case under the Ferries Act (17 of 1878), Section 22, the lessees of Singhi Rampore Ferry who were not present and who took no part in the extortion were prosecuted for the offence as their servants in contravention of the law extorted unauthorised and excessive tolls from certain passengers. Tudball J., held that
the servants in doing this act did something which was outside the scope of their employment. In this very offence there is decidedly a mens rea, a criminal intent. If it were an act done by the servants within the scope of their employment, then the conviction of the master would in the present case be a good one
and held that the conviction was bad. It must, however, be noted that in that case the servants extorted unauthorised and excessive tolls not for, and on behalf of, their masters but for their own benefit and appropriated the amount themselves. That case is therefore distinguishable. In Emperor v. Babu Lal ('11) 34 All. 319 a Division Bench of this Court held that where the servant of a licensed vendor of opium, in the course of his employment as such servant, sold opium to a person under the age of 14 years, the licensed vendor also was liable under Section 9, Opium Act, even though he might not have been aware of the sale. Their Lordships relied on 24 Bom. 42310 referred to above, and held:
The licensee holds his shop on certain conditions. One of those conditions has been broken by his servant; and the mere act of selling opium in contravention of the condition of his licence constitutes the offence. It is one of those cases in which the act of a servant is the act of the master. In our opinion the conviction of the master is legal.
But in Sheo Tiara v. Emperor ('23) 10 A.I.R. 1923 Lah. 603 Lah. 60313 Moti Sagar J. held in a case under the Punjab Canals and Drainage Act (8 of 1873) that there being no evidence that the accused had a hand in opening the outlet in question, they could not he convicted. He said:
In fact the learned District Magistrate himself observes in his judgment that it is difficult to obtain evidence in such cases and remarks further that if she agents of the petitioners broke the rule the principals are undoubtedly guilty. I do not think there is my warrant for such a proposition, and in the absence of any evidence to the contrary I must hold that the accused are not guilty of the offence of which they have been charged.
The language of the particular Act is not quoted and there is no further discussion of the point in the judgment. The matter was considered at some length by the Nagpur Judicial Commissioner's Court in Saiyyad Rahim v. Emperor ('15) 2 A.I.R. 1915 Nag. 2 After having discussed the general principle that no one is responsible for the criminal act done by another it is laid down by Stanyon A. J. C. that
in some oases criminal liability is imposed by statute upon the master as regards the acts or omissions of his servants, both in England and in India,
and various instances are given of the application of this exception. The principle deduced from the various cases cited is laid down in these words:
The principle governing all these cases is that by statute or by contractual undertaking there is some public duty legally binding upon the master, for the breach of which a criminal liability is imposed on him, whether such breach is committed by him personally or by persons whom he chooses to employ in the discharge of that obligation: subject to this that the acts of the servants fall within the scope of their authority.
14. I have liberally quoted from the various decisions in England and India as the point is of general importance and is likely to arise frequently and it is desirable that the law on the point should be authoritatively laid down and be well settled. From a discussion of the above cases it will be clear that in cases of offences created by statute, we have to examine the language of the statute, its scope and its object, to see whether the principal could be held liable. So far as the scope and object are concerned, it is obvious that the intention was to put an end to black marketing, and a duty was cast on the dealer not to sell cloth at a rate higher than the rate fixed. It was a public duty imposed by the Legislature. The legislation was passed in the general interest, for the protection of the public, and there can be no doubt about its usefulness. There can be no doubt further that in this case the servant was acting within the scope of his authority and in the course of his employment, and it was the duty of the master to see that, while acting within the scope of his authority, delegated to him, the servant carried out the provisions of the Act. If this interpretation was not accepted, the result would be that the dealer would not be punishable for the acts of his servant and the servant has not been made punishable for the contravention of the rules, and in cases of firms dealing in cloth which must of necessity act through an agent or a servant, neither the firm nor the servant could thus be held liable, though in England the point seems to be now well settled and it has been held that the knowledge and intention of its servants were to be imputed to the body corporate. See Director of Public Prosecutions v. Kent and Sussex Contractors (1944) 1 All E.R. 119. It has been suggested to me that it would be very easy for a servant, who wanted to put his master in trouble, to contravene the provisions of the Cloth Control Order so that his master may be punished. If such a case arose, it might be possible for the master to urge that the servant was not acting in the course of his employment and within the scope of his authority. It is difficult to lay down any general principle which may work hardship in individual cases, but in interpreting the statute we have to look at the general intention of the Legislature, and, to my mind, where the Legislature made only the dealer responsible for the contravention, it must of necessity have intended to imply that the person who was carrying on the business was the person who must be held responsible.
15. Dr. Katju has drawn my attention to the amendment to Section 4 of Ordinance 35 of 1943- the Hoarding and Profiteering Prevention Ordinance. By this amendment Sub-section (3) has been added to the said section whereby the dealer or producer has been made liable for contravention of the Ordinance if the contravention has been made by any person employed by the dealer or producer while acting on his behalf unless it was proved that they had exercised due diligence to prevent such contravention. It is argued that, in the absence of such an amendment to the Cotton Cloth and Yarn (Control) Order, the dealer should not be made liable for the act of the servant. By this amendment the Legislature may have intended to put the matter beyond all doubt and dispute so far as the Hoarding and Profiteering Prevention Ordinance was concerned, but the Cotton Cloth and Yarn (Control) Order under Rule 81, Sub-rule (2), Defence of India Rules has to be interpreted on its Own language and on its Own scope and object. The interpretation cannot be controlled by the suggestion that because the Legislature has made amendments in one Act it necessarily follows that in another enactment the master is not to be held liable for the act of his servant. The last point argued was that under cl 23, Cotton Cloth and Yarn (Control) Order, 1943.
no prosecution for the contravention of any of the provisions of this order shall be instituted without, the previous sanction of the Provincial Government.
16. It is argued by learned Counsel that there is no evidence on the record to show that there was any such sanction by the Provincial Government and the prosecution was, therefore, vitiated. The entire evidence on behalf of the prosecution to prove the sanction of the' Provincial Government consists of the statement of Harish Chandra C. P. I. who stated:
Exhibit P-1 is the statement of the head Munib of the shop. Exhibit P-2 is my report. Exhibit P-3 is the sanction from the Government
17. Exhibit P-8 is a carbon copy and I think it is necessary to quote the whole of it:
5046 (5)Copy of the sanction accorded by the Deputy Secretary to U.P. Government for prosecution. FromA.D. Pandit, Esqr., I.C.S.,Deputy Secretary to Government, Civil Supplies (B) Department, ToThe District Magistrate, Cawnpore.Dated Luoknow, 17th May 1944. Sir,I am directed to refer to your letter Nos. DSO/ Cloth dated 22nd April 1944, and DSO/Cloth 3011, dated 6th May 1944, and to convey the sanotion of the Provincial Government under Clause 23 of the Cotton Cloth & Yam (Control) Order 1943, to the prosecution of the person and firm noted in the margin for contravening the provisions of various clauses of the Order noted against them.
1. M/S Jwala Pd. Ram Narain for contravening the provisions of Clause 12 (4) of the Order for charging more than 12 per cent, above ex-mill rate from a hawker named Ghulam Rasul for long-cloth Nos. 7007 of Jubilee Mills and 318 of New Great Eastern Mills, Bombay.
2. Ghulam Rasul hawker for contravening the provision of Clause 12 (4) of the Order for paying more than 12 per cent, above ex-mill price to M/S Jwala Pd. Ram Narain for long cloth Nos. 7007 of Jubilee Mills and 318 of New Great Eastern Mills, Bombay.
3. M/S Ganpat Ram Sheo Narain and M/S Bhagwan Sahai Prabhu Dayal for contravening the provisions of Clause 12 (6) of the Order by refusing to sell cloth without reasonable excuse to consumers.
4. M/S Mannoo Lal Krishna Gopal and M/S Durga Pd. Harish Chandra for contravening the provisions of Clause 12 (4) of the Order by selling cloth to certain dealers more than 10 per cent, above the ex-mill price. I have the honour to be,Sir, Your most obedient servant, Sd. Illegible, For Deputy Secretary. True Copy. Sd. Illegible, File.31-5-44. Sd. Illegible.10-6.
The whole of this Ex. P-3, as already stated, is a carbon copy including the words 'Sd. Illegible for Deputy Secretary.' Somebody on 31st May 1944 has written in ink just below the carbon copy the words 'True Copy,' signed it, the signature being not legible, and then the words '81-5-44'. If sanction was given by the Provincial Government, the original sanction must be with the Provincial Government. If that had been produced, it would have been admissible in evidence, subject to such objections as the accused might have taken about its validity. If a copy of the sanction were filed in Court signed or certified by an officer giving the official character which he claimed, there might have been presumption as to the genuineness of the certified copy under Section 79, Evidence Act. The mere fact that on this carbon copy, which evidently is a copy, probably prepared in the office of the District Magistrate on 31st May 1944, of a copy of the sanction, somebody has written the words 'True copy' and put down his signature, it would not make this paper admissible, nor would it be sufficient to prove the sanction of the Provincial Government. If only one copy of the sanction was sent to the District Magistrate of Cawnpore and he could not file that copy in all the four cases for the prosecution of which the sanction had been accorded, the Courts could not overlook the provisions of the Evidence Act and receive la copy of a copy as admissible in evidence.
18. Though in the body of Ex. P-3 it is mentioned that the sanction was of the Provincial Government the heading of Ex. P-3 reads as if the sanction was accorded by the Deputy Secretary. But it makes it quite clear that the paper that the District Magistrate received was not the original sanction but the copy of the sanction. Somebody in the office of the District Magistrate seems to have made several carbon copies of that copy and sent it to the Inspectors concerned who treated the paper received as the sanction received and launched the prosecution on the basis thereof. The defence raised the point both in the trial Court as well as before the learned Sessions Judge and the prosecution had therefore sufficient opportunity to prove the sanction of the Provincial Government if it had cared to do so. Even if the copy received by the District Magistrate had been produced, I doubt very much whether it would have been admissible in evidence without further proof that it was a true copy as no presumption with respect to its genuineness could be raised as it was not certified by any officer but somebody had signed for Mr. A. D. Pandit, Deputy Secretary. Apart from this paper Ex. P-3, which is a copy of a copy about which there can be no presumption, there is no other evidence on the record to show that the Provincial Government granted any sanction. It is conceded by Dr. Katju that, if this letter had been the original copy and had been signed by Mr. A. D. Pandit, it could be used to prove the sanction, as the Provincial Government must necessarily and ordinarily communicate its orders through its accredited and gazetted officers, but no presumption could arise that the person whose signature was illegible had the capacity to sign the letter on behalf of the Provincial Government, nor could he certify the order on behalf of the Deputy Secretary whose own capacity was merely that of a de-legate. The point was raised before the learned Sessions Judge and the learned Judge held that, though it would have been better if the Deputy Secretary had himself signed the letter, there was a presumption under Section 114, Evidence Act, that official acts were correctly carried out and it seemed incredible that some clerk in the Deputy Secretary's office signed the letter, of which Ex. P-3 is a copy, without his authority. The question here is not of the authority of Mr. A. D. Pandit. He was not authorised to give the sanction. The sanction had to be of the Provincial Government, and Mr. A. D. Pandit could only act as the accredited agent of the Provincial Government. He had no power to delegate his authority, and there could be no presumption from this paper Ex. P-3 that there was an original order of sanction, nor could this paper be admissible in evidence for that purpose. It appears to me that the Legislature intended that these prosecutions should not be instituted without the sanction of the Provincial Government so that the manufacturers and the dealers may not be unnecessarily harassed. It is therefore necessary that the fact that the prosecution has been sanctioned by the Provincial Government must be proved according to law, as it goes to the root of the jurisdiction of the Court: see Raghubar Singh v. Emperor Section 114, Evidence Act, cannot be used for the purpose of raising a double, presumption in favour of the prosecution and making a paper admissible in evidence when it is not admissible under the provisions of the Evidence Act. In this view of the matter, the sanction being defective, the prosecution itself must fail. The result is that I allow this revision and set aside the conviction and sentence of the applicant. The applicant need not surrender to his bail bonds which are hereby cancelled.