1. A firm at Muttra had purchased certain bales of cloth from a firm in Bhopal. Booking of goods from Bhopal to Muttra had been stopped by the railway. The Bhopal firm therefore sent 46 bales of cloth to the accused Bhikka Mal, who is a commission agent at Agra, with instructions that the bales, when received, should be sent on to the firm at Muttra. These 46 bales were despatched from. Bhopal on 26th August 1943. They arrived in Agra on 5th September 1943, and Bhikka Mal took delivery on 8th September 1943. Another consignment of 18 bales of cloth was sent by the same firm from Bhopal on 8th September 1943, with instructions to Bhikka Mal, the commission agent, that the bales when received were to be sent on to Muttra. The delivery of these bales were taken by Bhikka Mal on 17th and 18th September 1943. Babu Lal, the other accused, had 'merely lent his godown to Bhikka Mal for keeping the bales and helped him in keeping the bales in the godown.' From the last part of the sentence, I understand that the bales being heavy Babu Lal helped Bhikka Mal in carrying the bales from the bullock cart to his godown. On 18th September 1943, the piece-goods inspector visited this godown and found these 64 bales lying unopened. A case under the Government of India Cotton Cloth and Yarn (Control) Order was thereupon started against the two accused on 18th February 1944. Clause 14 of the said Order, before its amendment on 24th November 1943, was as follows:
No cloth or yarn manufactured before 1st August 1943, shall unless otherwise authorised by the Textile Commissioner, remain in full bales or cases after 31st August 1943, and all such cloth and yarn shall be finally disposed of by retail sale not later than 31st October 1943.
2. The learned Sessions Judge has held that neither Bhikka Mai nor Baboo Lal was in a position to open these bales. Bhikka Mal was a mere agent who had to send on these bales to the purchaser at Muttra and Babu Lal merely lent his godown. He has, on these findings, held that a nominal sentence of fine would meet the ends of justice. Learned Counsel, appearing for the two accused, has argued that the conviction cannot be maintained, inasmuch as his clients were not guilty of contravention of Clause 14, as it stood before its amendment on 24th November 1943. His second contention is that there was no sanction obtained for the prosecution as required by Clause 23, Government of India Cotton Cloth and Yarn (Control) Order, 1943, and the Magistrate had therefore no jurisdiction to hear the case and convict the accused.
3. I have already quoted the language of Clause 14, before its amendment. It seems to me, that it is absurd to suggest that the intention was, that during the process of transit any one,. who was in charge of unopened bales of cotton cloth, was bound to open the bales and thenceforward to carry the cloth unpacked. The suggestion would lead to this absurdity that the railway and other carriers of goods would have to be held guilty under Clause 14, unless on the midnight of 31st August 1943, they unloosened all the bales and then carried the cloth unpacked. To my mind, the clause related only to dealers or those who were the owners of the bales and had the legal right and authority to open them. I cannot see how Babu Lal could be held guilty under this clause, even if the view taken by the learned Sessions Judge were accepted. According to his own finding Babu Lal had merely lent his godown to Bhikka Mal. Babu Lal could not, therefore, be said to be a person who was in charge of these bales and there could be no duty on him to unpack these bales on 1st September 1943. To my mind, there could be no case against Babu Lal even on the view of law taken by the learned Sessions Judge. So far as Bhikka Mal is concerned, I have already held that in my view the clause was not intended to apply to persons who were merely in charge of the goods during transit and who had no legal right to interfere with the packages.
4. This revision must be allowed yet on another ground. Under Clause 23 of the said Order 'no prosecution for the contravention of any of the provisions of this order shall be instituted without the previous sanction of the Provincial Government.' This clause was added to the order by an amendment dated 14th August 1943. In the complaint, filed on 18th February 1944, it was mentioned that the sanction of the Local Government had been obtained. At the trial however it transpired that there was no such sanction. The complainant thereupon approached the Local Government and by a letter Ex. P-5, dated 18th May 1944, a sanction was obtained for the prosecution of the accused for 'holding unopened bales of untex-marked cloth after 31st October.' It would appear from the sanction that the Local Government had in mind an entirely different provision and the sanction obtained was not for prosecution for having these unopened bales of cloth after 3lst August, but the sanction was for holding unopened bales of untex-marked cloth after 31st October. The learned Sessions Judge was of the opinion that the sanctioning authority committed a clerical mistake and the sanction would not be invalidated on that ground. These sanctions, as I have already said in my judgment in Criminal Revn. No. Harisb Chandra v. Emperor reported in (45)32 A.I.R.1945 All. 907 must be strictly proved as they go to the root of the jurisdiction of the Magistrate. To my mind, the sanction relied upon could not validate the trial inasmach as the sanction was not obtained before the case was instituted and, secondly, because the sanction was not for the prosecution of the particular offence with which the accused were charged. The learned Sessions Judge was of the opinion that on the analogy of certain decisions under Section 196A, Criminal P.C. it was a mere irregularity and if the sanction was received even after the institution of the case, it would not invalidate the proceedings. No such case was however cited before me. Clause 23 of the Order lays down that no prosecution shall be instituted without the previous sanction of the Provincial Government, and I have already held in the case of Harish Chandra1 that such sanction goes to the root of the jurisdiction of the Magistrate. The language of the clause being so emphatic and clear, I do not think, it is open to the Courts to say that it is a mere irregularity which does not vitiate the proceedings. I allow this revision and set aside the conviction and the sentence. If the fines have been realised, they shall be refunded to the accused.