H.N. Kapoor, J.
1. This revision has been filed by Gajram Singh and Ramgopal against the order and judgment dated 19-8-1976 of the First Addl. Sessions Judge of Rampur in Cr. Appeal No. 107 of 1974 confirming the order of the II Addl. Munsif-Magistrate, Rampur dated 4-8-1976 by which both the applicants were convicted under Rule 114 of the D.I.R. and each of them sentenced to four months' R.I. together with a fine of Rs, 500/- and in default of payment of fine each of them was vto undergo further R.I. for two months.
2. The prosecution case is that on 26-12-1975 S. O. Shahabad accompanied by another Sub-Inspector and the Marketing Inspectors A. K. Srivastava and H. C. Goel and some constables went on checking duty. They inspected the house of the applicants and found a rice huller established inside the house on a platform. It was in a proper working condition and some rice and husk was also found lying there. They had no licence for the same. Both the applicants were present there and they were arrested. S. I, S. W. Sid-diqi made investigation and after completing the investigation, a charge sheet was submitted. Both the applicants were duly tried for breach of Section 3 of the Uttar Pradesh Regulation of Rice Huller Order, 1975 and thus committed the offence punishable under Rule 114 of the D.I.R.
3. Both the applicants denied the prosecution allegations. The case of Gajram Singh was that he was not present at that time and -was at the school where he was a teacher. He examined three witnesses in support of this plea of alibi. The further defence of both the applicants was that it was an old huller which had been installed some 19 or 20 years back by their father and was not in a working condition. In their statement however, they made a general denial and did not take such defence plea. The trial court, however, believed the prosecution case and held that the huller was in a working condition and that both the applicants were present at the time of the checking and had thus contravened the, provisions of Section 8 of the Rice Milling Industry Regulation Act, 1958 and Section 3 of the U. P. Regulation of Rice Huller Order, 1975. It convicted and sentenced the applicants as stated above. That order was confirmed in appeal. Feeling aggrieved, the applicants have filed this revision.
4. learned counsel for the applicants has argued that the lower appellate court has erred in law in not considering the defence evidence on the plea of alibi of Gajram Singh. The lower appellate court has made a reference to that evidence but it has not discussed it. The trial court had considered this evidence and observed that the school was about 4 kilometres from the place of occurrence. It closed at 3.30 p.m. The checking was done at 4.10 p.m. It was, therefore, possible for Gajram Singh to have reached his house within half an hour. The prosecution evidence was, therefore, believed in this respect. I may, however, observe that it may be that Gajram Singh might have reached there as stated by the prosecution witnesses. But the fact remains that he was a teacher and as such might not have himself carried on the operations with the rice huller. According to the prosecution evidence, some rice and husk was lying there which showed that operations with the rice huller had been carried on. That must have been done by the other accused Ramgopal who was in the house throughout the day. The lower appellate court has not considered this aspect. It is true that it is not possible for this Court to make a reappraisal of the entire evidence but under the circumstances of this case, it is possible to consider the entire evidence, specially on the plea of alibi, when the same has not been considered by the lower appellate court. There is no reason to doubt the testimony of the defence witnesses that Gajram Singh had actually attended the school that day and had signed the register. Even on the basis of the finding recorded by the trial court that he might have reached there by 4-10 p.m. after covering a distance of 4 kilometres when the school closed at 3.30 p.m., it cannot be said that he himself was carrying on the operations with the rice huller. He is, therefore, entitled to be given the benefit of doubt.
5. We may now take up the case of Ramgopal. It has been fully established by the prosecution evidence that he was present at the time of the checking and he himself must have carried on the operations with the rice huller when the rice and husk was found lying nearabout. Even if it is held that the rice huller had been installed some 19 or 20 years ago, it was necessary to have obtained licence for working the same after the U. P. Regulation of Rice Huller Order was promulgated on 7th day of February, 1975. The relevant provisions of that order are as follows:
Permit or licence for rice huller: No person shall establish a rice huller or carry on or continue to carry on rice milling operations with a rice huller unless-
(a) he has obtained therefor a permit or licence, as the case may be, under the Rice Milling Industry (Regulation) Act, 1958, or any other law for the time being in force, and such permit or licence is valid and effective; and
(b) he has complied and continues to comply with the provisions of the Uttar Pradesh Rice and Paddy Order, 1974, as may be amended from time to time.
It is clear that it was not possible to carry.on the operations with the vice huller without a licence after February , 1975 and the breach of this Order was made an offence under Rule 114 of the D.I.R.
6. learned counsel for the applicants has taken a technical plea that the charge could not have been under Rule 114 of the D.I.R. as there was an amendment on July 1, 1975 and the rules were known as 'Defence and Internal Security of India Rules 1971.' No doubt, the words 'internal security' were added on July 1, 1975, but the fact remains that this was just an amendment in the old Defence of India Rules, 1971. It is significant that even the Regulation of Rice Huller Order, 1975 was passed in exercise of the powers under Rule 114 of the D.I.R. 1971. Under these circumstances the prosecution and conviction under D.I.R. cannot be considered to be illegal. Non-mention of the words 'internal security' will be only a mere irregularity which is curable.
7. The main point argued in this case is that the trial is illegal as cognizance was taken on the basis of police report and the procedure was followed as that of police case Under Sections 238 to 243 Cr.P.C. (New). According to him, the offence under Rule 114 of the D.I.R. is a non-cognizable offence and has got to be tried as a complaint case and the report submitted by the police officer is to be treated as a complaint in view of Explanation to Section 2(d) Cr.PC The basis for this argument is that under Rule 177 D.I.R. (or D.I.S.R.), contravention of Rule 114 D.I.R. is not included. This rule is as follows:
General powers to arrest without warrant.- Any police officer may arrest without warrant any person who is reasonably suspected of having committed, or of committing or of being about to commit, a contravention of Rules 14, 20, 28, 32, 66, 71, 74, 107, 110; 111, 119, 123, 125, 154, 163 164, or 165 or of any order or direction made or given under any of the said rules.
8. On the other hand, the learned Assistant Government Advocate has argued that under Rule 114 (xi) of the D.I.R. contravention of any provision of Rule 114 or any order made under this rule is punishable with imprisonment for a term which may extend to three years or with fine or with both. Under Part II of the First Schedule of the Cr.PC offences against other laws which are punishable with imprisonment for three years and upward are made cognizable offences. The Asstt. Govt. Advocate has, therefore, argued that the offences under Rule 114 are also cognizable and as such could have been tried as a police case. He has argued that Rule 177 is not exhaustive and care has been taken to include those offences only which were punishable for a period of six months, one year or at the most two years, except the offences under Rule 28. He has placed reliance on the case of In re, Labhai AIR 1946 Mad 7 : 47 Cri LJ 435 in support of this contention. It has been held in that case that R. 'IS which was similar to the present Rule 177 was not exhaustive and was generally meant for non-cognizable offences. I respectfully agree with the view taken in that case. It is significant that except for offences under Rule 28 which are punishable for five years, the offences under all other rules referred to under Rule 177 are punishable with imprisonment for six months, one year or at the most two years. All those offences would have been ordinarily non-cognizable but have been made cognizable by enacting Rule 177. This certainly could not have been the intention of the legislature to leave out more serious offences which were already punishable with imprisonment for three years or more. learned counsel for the applicants has relied on Sections 4 and 5 of the Cr.PC 1973 and Section 37 of the Defence of India Act, 1971. Section 37, no doubt, provides that 'the provisions of the Defence of India Act and the rules made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other enactment.' Section 2(2) Cr.PC is also to the same effect that 'all offences under any other law shall be investigated, enquired into, tried, and otherwise dealt with according to the same provisions.' But I have no doubt that Part II of the first Schedule is not inconsistent with the provisions of the Defence of India Act or the Rules. As already observed, all that can be said is that by means of Rule 177 some more offences have been made cognizable which would have been otherwise non-cognizable under this part.
9. learned counsel for the applicants has placed reliance on the case of Betal Singh v. State : AIR1965All78 . That was a case under the Defence of India Rules, 1962. The Division Bench was mainly concerned with the question of granting bail in a case for contravening the provisions of Rule 125 which was similar to the present Rule 114. The Bench considered the fact that the offence had not been notified under Rule 155 (similar to present Rule 184) of the D.I.R. The offence under Rule 125 was, therefore, to be treated as an. ordinary offence in which bail could have been granted without the bar of Rule 155. In that context the Bench, no doubt, observed that the offence was non-cognizable offence and consequently the applicants were entitled to bail. Once the bar of Rule 155 was not there, bail could have been easily granted even in an ordinary cognizable offence. These observations were therefore, made as obiter dicta. In that case the Court was not called upon to give a definite finding on the point whether the offence under Rule 125 was a cognizable or non-cognizable offence. It is also not clear whether the learned Judges had taken into consideration the last portion of Schedule II Cr.PC (now first Schedule).
10. In any view of the matter, in my opinion, no prejudice whatsoever has been caused by trying the case as a police case. The conviction of Ramgopal is, therefore, maintained.
11. learned counsel for the applicants also argued that the applicants were not heard Under Section 284(2) Cr.PC It was pointed out that Ramgopal had already been in jail for a total period of three months. In my opinion, no useful purpose would be served by sending him to jail again for a short period. His sentence of fine, however, can be maintained.
12. In the result the revision of Gaj-ram Singh is allowed. His conviction and sentence are set aside. He is on bail. He need not surrender to his bail bonds which are hereby discharged. Fine, if already paid, shall be refunded to him. The revision of Ramgopal is partly allowed to this extent that his conviction under Rule 114 (D.I.R.) is maintained but his sentence of imprisonment is, however, reduced to the sentence already undergone. In addition, he shall pay a fine of Rs. 500/- as already ordered. In default of payment of fine, he shall undergo further R.I. for two months. He is allowed two months' time to deposit the fine. He is on bail. His bail bonds shall automatically stand discharged after the fine has been deposited.