1. The applicants Panna Lal and Bishan Dayal have been convicted by the Additional District Magistrate of Guna for an offence under Section 7(1), Essential Supplies (Temporary Powers) Act, 1946 and sentenced to imprisonment till the rising of the Court and to pay a fine of Rs. 500 each. The learned Sessions judge of Guna maintained the conviction and sentence in an appeal preferred by the accused persons against their convictions and sentences.
2 The charge against the applicants was that on 30.1.51, they sold to one Ram Narayan a pair of dhoti for Rs. 16/- that is, in excess of the control price Rs. 13.2.9 and thus contravened the provisions of Clause 15, Madhya Bharat Cotton Textile (Control) Order, 1048, issued under the Essential Supplies (Temporary Powers) Act of 1946.
3 The main contention of Mr. Dey the Learned counsel appearing on behalf of the applicants is that in this case the fact that the control price of the dhoti alleged to have been sold by the applicant was Rs. 13-2-9, has not at all been proved by the prosecution. It is said that the notification of the Textile Commissioner under Clause 12, Cotton Textile Control Order by which the maximum price of Dhotis of the type alleged to have been sold by the applicant was fixed at Rs. 13-2-9 has not been proved. In my opinion, this contention is well-founded and must be accepted.
4. The Madhya Bharat Cotton Textile Control Order 1946 is an order issued under Section 3(1), Essential Supplies (Temporary Powers) Act, 1946. Clause 15 of the Textile Control Order provides in Sub-clause (1) that no manufacturer shall sell or offer to sell any cloth or yarn at a price higher than the maximum price specified in this behalf under Clause 13 which is as follows:
The Textile Commissioner may by notification in the Madhya Bharat Government Gazette specify:
(a) The maximum price ex-factory, wholesale and retail at which any class or specification of cloth or yarn or cloth or yarn of any particular origin may be sold.
5. Section 7(1), Essential Supplies (Temporary Powers) Act prescribes the penalty for contravention of orders made under Section 3(1) of the Act. It is thus clear that when a person is charged under Section 7 of the Act for having contravened Clause 15, Madhya Bharat Cotton Textile (Control) Order for selling cloth in excess of the maximum price notified by the Textile Commissioner, one of the essential ingredients of the crime that has to be proved is the maximum price notified by the Textile Commissioner. This fact has to be proved in accordance with the provisions of the Evidence Act. In the present case, the maximum price of the dhotis has not been admitted by the accused. Nor is it a fact in regard to the existence of which a presumption can be drawn under the Evidence Act. The notification issued by the Textile Commissioner specifying the maximum price was also not produced and proved. That being so, it cannot clearly be held that the maximum price of the dhoti said to have been sold by the applicant Ram Narayan was Rs. 13-2-9.
6. The learned Government Advocate frankly admits that the notification of the Textile Commissioner was not produced and proved in this case. But he contends relying on-Public Prosecutor v. Illur Thippayya AIR. 1049 Mad 459, that the notification issued by the Textile Commissioner being an 'order' is within the definition of 'Indian Law' given in Clause 27(a) of Section 3, General Clauses Act and that, therefore, under Section 57, Evidence Act the Court can take judicial notice of the notification. In my view this contention must be rejected. It has already been held by a Division Bench of this Court in-Criminal Apneal No. 37 of 1951. the State v. Bachu Lal where the accused was charged with the same offence as here, that judicial notice cannot be taken of a notification issued by the Textile Commissioner under Clause 13, Cotton Textile Order specifying the maximum price of the cloth. The decision in-AIR 1949 Mad 459 has no applicability to the present case. It appears from the report of the case that in the Madras case the question at issue was of the proof of, certain orders made by the Government under Rule 3(1), Essential Supplies Act and not of the proof of any notification issued by the competent authority under any of those orders. It was held in the Madras case that an order issued by the Government under Section 3(1), Essential' Supplies (Temporary Powers) Act 1046 was an 'Indian Law' as defined by the General Clauses Act in Section 3, Clause (27a). There can be no doubt that an order made under Section 3(1), Essential Supplies (Temporary Powers) Act 1946 falls within the definition of 'Indian Law' given in Section 3 Clause (27a), General Clauses Act. But here the question is not of the proof of the Madhya Bharat Textile Control Order but of the proof of a notification issued by the Textile Commissioner under Clause 15 of that Order. Such a notification is clearly an executive order and cannot be said to be included in the definition given in the General Clauses Act of the words 'Indian Law'. The word 'order' which occurs in Section 3 Clause (27a), General Clauses Act has to be construed in the context in which it is used. 'Law, ordinance, order, bye-law, rule or regulation passed or made at any time by any competent legislature, authority, or person, in India', mean legislative provisions. The difference between law, ordinance, order, bye-law, rule or regulation is based on the difference between the authorities passing or making them. In the strict sense of the word a law is made by the legislature; an Ordinance is issued by the President, the Governor or the Raj Pramukh as the case may be; an order is made by a competent authority; a bye-law is passed by a statutory authority competent in that behalf. Again, rules and regulations have been defined in Clauses (46) and (47) of Section 3, General Clauses Act. It is thus clear that the word 'order' is used in Section 3(27a), General Clauses Act in the sense of a Legislative Order and not an executive order. This view about the meaning of the word 'order' as used in Section 3 Clause (27a) is in accord with the view taken by the Bombay High Court in-'Shripad Amrit v. Harsiddhbhai Divatis AIR 1943 Bom 20.
7. It must, also be noted that under the last paragraph of the explanation to 53, 57 a Court may refuse to take judicial notice of any first unless and until the person who desires that judicial notice of the fact may be taken, produces any such book or document as the Court may consider necessary to enable it to do so. In the present case the notification, a move production of which would have been sufficient to prove it under Section 78, Evidence Act, was never produced before the trial Magistrate. In these circumstances I think the Courts below were not justified in taking it for granted that the maximum price of the dhotis alleged to have been sold by the applicants to Ram Narayan was Rs. 13-2-9.
8. For the above reasons I accept the revision petition and set aside the convictions' and sentences imposed on each of the applicants. The amount of fine, if already paid by the applicant, shall be refunded to them.