1. This is an application in revision by two persons, Girdhari and Nathi, who were convicted by a learned Magistrate of an offence under Rule 81(4), Defence of India Rules, and who appealed to the learned Sessions Judge at Muttra from that conviction but with no success. Each one of them was awarded a fine of Rs. 200. They have now come up in revision to this Court. The charge against the applicants was that they had worked a cream separator in village Dhana Teja without having the premises registered and that in doing so they had contravened an order passed by the District Magistrate of Muttra on 22nd September 1943. I find a slip on the record which purports to be a true copy of the said order of the District Magistrate of Muttra. It runs as follows:
No person shall separate cream from milk by machine without getting the premises registered with the D.S.O.
2. On 19th October 1943, Abdul Samad Khan, a Sub-Inspector of Police, on receiving secret information proceeded to village Dhana Teja and there found the applicant Nathi Lal actually engaged in working the cream separating machine. The other applicant, Girdhari Lal, is alleged to be the joint owner of the machine, though he was not present at the time when the Sub-Inspector arrived on the scene. Both the applicants were prosecuted for having contravened the order of the District Magistrate of Muttra, dated 22nd September 1943, which has been cited above. When the applicant Girdhari Lal was examined as an accused person by the learned trying Magistrate and he was asked if he had been running a creamery in village Dhana Teja, he replied that the creamery did belong to him, but as a matter of fact the other applicant, Nathi Lal, who was his partner, was running the cream separating machine at the time when the Sub-Inspector arrived on the scene. He was then asked if he had got the premises registered in accordance with the order passed by the District Magistrate of Muttra, dated 22nd September 1943. In answer to that question he said that he had not, because he had no information of that order. The other applicant Nathi Lal admitted the fact that he was working the machine on 19th October 1943 without registration of the premises, but he also stated quite clearly at the same time that he had no information about any order requiring registration.
3. The learned trying Magistrate treated these pleas of the two applicants as pleas of guilty and convicted them on those pleas holding that he did not believe the applicants when they said that they had no knowledge of any order passed by the District Magistrate of Muttra on 22nd September 1943. When the applicants went up in appeal to the learned Sessions Judge of Muttra, it was contended on their behalf that the prosecution had not proved that the order passed by the District Magistrate of Muttra had been published as required by the Defence of India Rules, but this argument was brushed aside by the learned Sessions Judge on the ground that the two applicants had pleaded guilty in the lower Court. Their conviction was accordingly up-held and hence they have come up in revision to this Court.
4. The validity of their conviction is challenged by the applicants on the ground that under Rule 119, Defence of India Rules it was incumbent upon the learned District Magistrate, who passed the order dated 22nd September 1943, to publish notice of that order in such manner 'as may in the opinion of such authority, officer or person be best adapted for informing persons.' It is argued that in the absence of any evidence to show that the District Magistrate directed a notice of the order, dated 22nd September 1943, to be published and the carrying out of that direction, the applicants cannot be deemed to have been duly informed of the order as contemplated by Rule 119, Defence of India Rules, and hence they cannot be found guilty of having contravened the said order. In support of this contention reliance has been placed on a decision of the Nagpur Court in Shakoor Hasan v. Emperor ('44) 31 A.I.R. 1944 Nag. 40.
5. Upon a careful consideration of the pleas taken by the two applicants in the Court of the learned trying Magistrate, I find that the contention on behalf of the applicants is sound and must prevail. I have no hesitation in holding that both the learned trying Magistrate and the learned Sessions Judge were wrong in treating the pleas taken by the two applicants in their defence as pleas of guilty. It is true that the applicants did not plead in so many words that the order, dated 22nd September 1943, had not been published as required by the law, but that plea was in my judgment necessarily implied in the plea that they had no knowledge of any such order. The first question for consideration is whether any order passed by the District Magistrate under the Defence of India Rules becomes effective as soon as it is made or only after notice of that order has been published as required by Rule 119, Defence of India Rules. In my judgment there can be only one answer to that question and that is that no order passed by the District Magistrate under the Defence of India Rules can have any legal effect until notice of that order has been duly published as required by Rule 119, Defence of India Rules. Rule 119 runs as follows:
Save as otherwise expressly provided in these roles every authority, officer, or person who makes any order in writing in pursuance of any of these rules shall, in the case of an order of a general nature or affecting a class of persons, publish notice of such order in such manner as may, in the opinion of such authority, officer or person, be best adapted for informing persons whom the order concerns; in the case of an order affecting an individual, corporation or firm, serve or cause the order to be served in the manner provided of the service of a summons in Rule 2 of Order 29 or Rule 3 of Order 30 as the case may be in Schedule 1, Civil P.C. 1908 (5 of 1908), and in the case of an order affecting an individual person (not being a corporation or firm) serve or cause the order to be served on that person.
The rule then goes on to provide how the service of the order is to be made on an individual person and finally lays down:
And thereupon the persons, corporation, firm or person concerned shall be deemed to have been duly informed of the order.
Rule 119 incorporates a mandatory provision which must be strictly carried out before the prosecution can ask the Court to hold that the accused person was duly informed of the order which he is alleged to have contravened. In my judgment the provision contained in Rule 119 recognizes that the ordinary presumption, that every person must be presumed to know the law, cannot apply to orders which are being passed by District Magistrates all over the Province from day to day under the Defence of India Rules. Rule 119, therefore, lays down a legal fiction that an accused person shall be deemed to have been duly informed of an order if notice of that order has been published as prescribed by the authority passing the order. I think it is incumbent upon the prosecution in every case, in which a person is charged with having contravened a particular order passed under the Defence of India Rules, to establish that notice of such order was duly published as required by Rule 119, and it is only then that the prosecution can ask the Court to presume that the accused person was informed of the order. The onus, which, in my judgment, lies on the prosecution in every case, is rendered still more heavy in a case in which the accused person definitely pleads that he had no knowledge of the order which he is alleged to have contravened. In the present case I find that no real attempt was made by the prosecution to prove that the District Magistrate had directed notice of the order, dated 22nd September 1943, to be published in a particular manner and that the said direction had been carried out. The prosecution examined two witnesses and one of them stated vaguely that ten or fifteen days before the applicant Nathi was found working the cream separator two police constables had come to the village and had said something to the effect that creameries could not be worked without a license. This evidence is in my judgment of no use at all. What the prosecution had to prove was that a definite direction had been given by the District Magistrate of Muttra to publish notice of the order, dated 22nd September 1943 in a particular manner and that the said direction had been carried out. The evidence of Jwala, to which I have referred, cannot possibly prove that point. There being nothing on the record in this case to show that the District Magistrate of Muttra directed his order, dated 22nd September 1943, to be published in any particular manner and that the said direction had been carried out, it cannot be presumed that the applicants had any knowledge of the order as contemplated by Rule 119, Defence of India Rules. The plea which they raised in the Court of the trying Magistrate must, therefore, prevail and they cannot be found guilty of having contravened the order dated 22nd September 1943. The result, therefore, is that I allow this application and set aside the convictions and sentences of the applicants Girdhari and Nathi. The fines, if paid by them, shall be refunded.