1. The respondent Fazal Hussain was convicted by Magistrate First Class, Khandwa, under Rule 125(9)(a) of the Defence of India Rules, 1962 (hereinafter called the Rules) for failing to exhibit, as required by Clause 4 of the Essential Articles (Price Control) Order, 1963 (which, for brevity, would hereinafter be called the Order), a list of essential articles held by him together with the price of each such article and was sentenced to undergo rigorous imprisonment for four months. However, in the appeal filed by Fazal Hussain, the Sessions Judge, East Nimar, acquitted him on the ground that the Order was not duly published as required by Rule 141 of the Rules. The State Government have now come up in appeal against the acquittal.
2. The prosecution case was that, at about 8 P. M. on 6th May 1963, when a police party visited the shop of Fazal Hussain, who carried on business in essential articles like soap, kerosene oil, vegetable products etc., it did not find prominently displayed in the shop, as required by Clause 4 of the Order, any special board giving a list of the essential articles in stock together with the price of each such article. At that time, Section I. Narbada Singh P. W. 3 seized from the shop, vide seizure memo Ex. P-1, a bill book Article A and another paper Article B
3. In answer to the charge, Fazal Hussain did not dispute that he vended essential articles and had them in stock on 6 May 1963 but pleaded that the police party had visited the shop when it was being closed, that a list of the articles was there inside the shop and that, in the absence of any proclamation of the Order and its provisions, he had no information about them.
4. Both the Courts below held, largely relying upon the evidence of H. Section Verma P. W. 1 and Section I. Narbada Singh P. W. 3, that Fazal Hussain did not display a list of the essential articles in stock in his shop together with the price of each such article as required by Clause 4 of the Order. This conclusion has not been challenged before us on behalf of Fazal Hussain and it is not, therefore, necessary to dwell on it
5. The main question for consideration in this appeal is whether the view thatthe Order was not duly published, as required by Rule 141, is correct That Rule, which corresponds to Rule 119 of the Defence of India Rules, 1939, reads:
'141(1) Save as otherwise expressly provided in these Rules, 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 for the service of a summons in Rule 2 of Order XXIX or Rule 3 of Order XXX, as the case may be, in the First Schedule to the Code of Civil Procedure, 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 -
(i) personally, by delivering or tendering to him the order, or
(ii) by post, or
(iii) where the person cannot be found, by leaving an authentic copy of the order with some adult male member of his family or by affixing such copy to some conspicuous part of the premises in which he is known to have last resided or carried on business or personally worked for gain and thereupon the persons, corporation, firm or person concerned shall be deemed to have been duly informed of the order.
(2) If in the course of any judicial proceedings a question arises whether a person was duly informed of an order made in pursuance of these Rules, compliance with Sub-rule (1), or where the order was notified, the notification of the order, shall be conclusive proof that he was so informed; but a failure to comply with Sub-rule (1)--(i) shall not preclude proof by other means that he had information of the order;
(ii) shall not affect the validity of the order.
(3) Any police officer, and any other person authorised by Government in this behalf may, for any purpose connected with the defence of India and Civil Defence, the public safety, the maintenance of public order, the efficient conduct of military operations, maintaining supplies and services essential to the life of the community or the administration of these rules affix any notice to or cause any notice to be displayed on, any premises, vehicle or vessel, and may for the purpose of exercising the power conferred by this Rule enter any premises: vehicle or vessel at any time.
(4) Any person authorised by Government in this behalf may, for any purpose mentioned in Sub-rule (3), by order direct the owner or other person in possession or control of any premises, vehicle or vessel todisplay any notice on or in the premises, vehicle or vessel in such manner as may be specified in the order.
(5) If any person without lawful authority removes, alters, defaces, obliterates or in any way tampers with any notice affixed or displayed in pursuance of these Rules, or contravenes any order under Sub-rule (4), he shall be punishable with imprisonment for a term which may extend to six months or with fine, or with both.'
6. The Order in this case was passed by the Central Government and was published in the Gazette of India dated 1 March 1963 and republished in the Madhya Pradesh Rajpatra on 3 January 1964. Once the making of an order under the Defence of India Rules has been proved, there is a presumption that it has been duly promulgated in accordance with the mode decided upon by the authority: Mahadeo Prasad v. King Emperor, ILR 24 Pat 781=(AIR 1946 Pat 1 FB), Debi Prasad v. Emperor, AIR 1947 All 191 (FB), Srinivas Mall v. Emperor, AIR 1947 PC 135 and State Government, Madhya Pradesh v. Parasmal, AIR 1952 Nag 10. The Sessions Judge relied upon two earlier decisions, Shakoor v. King Emperor. ILR (1944) Nag 150=(AIR 1944 Nag 40) decided by Niyogi J. and Babulal Rajjulal Jain v. King Emperor ILR (1945) Nag 762 = (AIR 1945 Nag 218) decided bv Bose J. to take the view that, in a case like this, it must be proved that the authority making the order has prescribed a mode of its publication and it was duly published in accordance with that mode. The first of these cases related to an order passed by a District Magistrate. In the second case, there are certain obiter observations supporting the view taken by the Sessions Judge though the notification published by the State Government in the official Gazette was held to be sufficient compliance with the mode prescribed for the purpose. That the observations were disapproved by a Division Bench in Parasmal's Case, AIR 1952 Nag 10, is clear from the following passage:
'There is an unreported decision of the Division Bench consisting of Pollock and Puranik JJ. according to which where an order is published in the gazette, it may be presumed that the publication of the order by the Government is sufficient publication and that it may be further presumed that publication was made in the gazette in compliance with all the provisions of Section 119 including the provision as to the determination of the most suitable form of publication. See Provincial Government v. Namdeo, Criminal Appeal No. 7 of 1946. D/- 2-4-1946 (Nag). The Division Bench expressed agreement with the decision of the Full Bench of the Patna High Court in Mahadeo Prasad v. Emperor, ILR 24 Pat 781=(AIR 1946 Pat 1) (FB). The decision of the Division Bench as well as that of the Patna High Court was concerned with an order of the Governmentof India published in the Gazette of India. The principle is applicable also to an order of the Provincial Government published in the Provincial Gazette is clear from the decision in Province of Bihar v. Bhim Bera, ILR 25 Pat 539=(AIR 1947 Pat 284). Since the decision in Criminal Appeal No. 7 of 1946, D/- 2-4-1946, the trend of authorities in other Courts is also in the same direction; see AIR 1947 All 191 (FB) and Public Prosecutor v. Badulla Sahib, AIR 1948 Mad 262. According to the decision of their Lordships of the Privy Council in AIR 1947 PC 135: 'Once the making of an order has been proved, there may well be a presumption that it has been duly promulgated,'The acquittal cannot then be supported on the ground of defective publication of the order.' (Para 11)
The Sessions Judge appears to have overlooked the fact that the Division Bench relied upon an earlier Division Bench case and a Full Bench case of the Patna High Court, which were concerned, as in this case, with an order of the Government of India published in the Gazette of India. In view of all these decisions and several others mentioned by the Sessions Judge in the opening part of paragraph 9 of his judgment, the conclusion reached by him cannot be sustained.
7. There is, in our opinion, another reason for taking the same view. As defined in Rule 2(3) of the Rules, the word 'notified' means notified in the official gazette. That being so. the Order in this case, which was published in the Gazette of India on lt March 1963, was a notified order. As provided by Rule 141 (2), notification of the Order must be regarded as 'conclusive proof' of the fact that Fazal Hussain was informed of the provisions of the Order. Thai means that the fact that a person like Fazal Hussain was so informed is made non-justiciable: Somawanti v. State of Punjab, AIR 1963 SC 151 at p. 159. In view of that position, there is no scope for the contention that, since Fazal Hussain did not have any information about the Order or its provisions, he had no mens rea.
8. We have carefully considered the question of punishment. Looking to the circumstances of the case and the time which has elapsed since the offence was committed, we think that a sentence of fine would meet the ends of justice.
9. In the result, we allow the appeal, set aside the acquittal of Fazal Hussain, convict him under Section 125(9)(a) of the Defence of India Rules. 1962, and sentence him to pay a fine of Rs. 200 or to suffer, in default of payment of fine rigorous imprisonment for four months.