1. This is an appeal under Section 417 . Criminal P. C. from a decision of the Sessions Judge Gwalior in an appeal acquitting the respondent Devaki Nandan who had been convicted by the Railway Magistrate Lashkar of an offence under Section 7, Essential Supplies (Temporary Powers) Act, 1943.
2. The charge against the respondent Devakinandan was that on 19-4-51, he travelled by a passenger train from Agra to Morena and carried with him 22 pairs of Dhoties without obtaining a permit in that behalf from the competent authority, and thus contravened Clause 3 of the Cotton Textile (Control Of Movement) Order 1948 made by the Central Government under Section 3, Essential Supplies (Temporary Powers) Act, 1946. The accused admitted having transported by rail from Agra to Morena 22 pairs of Dhoties on 19-4-51. He also admitted that he had no permit. But he pleaded that he was taking these Dhoties in connection with the marriage of his sister and that he was not aware that a permit was required for the transport of Dhoties. On these facts, the learned Magistrate found him guilty under Section 7 (1) of tile Act. The accused then preferred an appeal against the conviction and sentence to the Sessions Judge Gwalior. In appeal the learned Sessions Judge referred to the provisions of the Madhya Bharat Cotton Textile (Control of Movement) Order of 1948 and observed that under Section 3 of this Order the export of cloth from Madhya Bharat except under and in accordance with a general or special permit issued by the Textile Commissioner was prohibited and that there was no restriction on the import of the cloth into Madhya Bharat, and that as the act of the accused in bringing 22 pairs of Dhoties from Agra to Morena was an importation of the cloth, he had committed no offence.
3. After hearing Mr. Shiv Dayal learned Deputy Government Advocate for the State, I have formed the opinion that this appeal must be dismissed, The learned Sessions Judge was no doubt palpably wrong in determining the guilt or innocence of the accused with reference to the provisions of the Madhya Bharat Cotton Textile (Control of Movement) Order 1948 which was not in force on the date of the alleged occurrence and which had already been repealed in 1950 by the extension to the State of Madhya Bharat, of the Cotton Textile (Control of Movement) Order 1948 made by the Central Government under the Central Act, namely, the Essential Supplies (Temporary Powers) Act 1948 which Act was also extended to this State on 17-8-50, The learned Sessions Judge overlooked the fact that the charge framed by the Railway Magistrate against the accused distinctly mentioned that he -was being charged for the contravention of the order made by the Central Government under the Essential Supplies (Temporary Powers) Act, 1946.
4. The question for determination in this appeal is, whether the respondent has contravened Section 3, Cotton Textiles (Control of Movement) Order 1948. This section is as follows:
No person shall transport or cause to be transported by rail, road, air, sea or inland navigation from any place in India to any place therein any cloth, yarn or apparel except under and in accordance with (1) a general permit notified in the Gazette of India by the Textile Commissioner; or
2. a special transport permit issued by the Textile Commissioner.
5. A general permit in pursuance of this section was notified by the Textile Commissioner on 13-8-49. (Ministry of Industries and Supplies New Delhi) 15 (Tex, 149) dated 13-8-1949.
6. Clause 1 of this permit divided India into various zones mentioning the State of Uttar Pradesh and the State of Madhya Bharat as two separate zones. Clause 2 of the general permit provided that....
Any person may transport or cause to be transported by rail, road, air, sea, or inland navigation cloth or yarn as part of his personal luggage from any place in any zone to any other place in that or any other zone.
7. For the purposes of Cotton Textile (Control) of Movement) Order 1948 'cloth' has the same meaning as it has in the Cotton Textile (Central) Order 1948 and it is clear from the definition of cloth given in the latter Order that Dhoties are included as given in the definition of Cloth. It will thus be seen from the above provisions that the transport by rail of one pair of Dhoti or of 22 pairs of Dhoties as a part of one's personal luggage did not constitute an offence under the general permit which was produced before the Railway Magistrate. It is not disputed that the appellant carried the Dhoties in a hold-all bedding and in a hand bag. The learned Deputy Government Advocate, however, says that as the accused was not carrying the dhoties for his own personal use and as he could not be supposed to carry 22 pairs of Dhoties for his use, it cannot be held that he was carrying these pairs of Dhoties as part of his personal luggage. I am unable to accede to this contention. The word 'luggage' as used in Clause 2 of the general permit must be contra-distinguished from the word 'parcel' and so also the word 'personal' must be distinguished from the word 'business'. The expression 'personal luggage' would then include whatever a passenger takes with him for his personal use or convenience according to the habits of the particular class to which he belongs, either with reference to the immediate necessities or ultimate purpose of the journey. See - 'Macrow v. Great Werters Rly. Co. (1871) LR 6 Q. B. 612 (A).
It must be noted that Clause 2 of the General Permit does not provide that the cloth being transported must be for one's own personal use. It refers to the transport of the cloth as part of personal language. If, therefore, a person carries cloth, not for business but to make a gift of it to his relatives, along with other articles for his own personal use or convenience in a hand bag, portmanteau or a hold-all, it cannot be said that he is not carrying the cloth as part of his personal luggage. The fact that he does not propose to use the cloth himself is immaterial. In the present case there is nothing to indicate that the statement of the accused that he was taking the Dhoties in connection with his sister's marriage is not true and that in fact he was transporting them for business. In the absence, therefore, of any restriction in Clause 2 of the General Permit which was before the Magistrate as to the limit of cloth that can be carried as a part of one's personal luggage, the act of the accused in transporting 22 pairs of Dhoties from Agra to Morena does not constitute any offence.
8. But the learned Deputy Government Advocate after the close of the arguments and while the case was pending for judgment drew my attention to a notification No. 15 Tex. 1/49 (C. T.) dated 17-2-51 issued by the Textile Commissioner under Section 3 of the Cotton Textile (Control of Movement) Order 1948, by which Clause 2 of the General Permit issued on 13-8-49 was modified so as to permit a passenger to carry cloth or yarn as part of his personal luggage only up to the limit of 20 pounds in weight. Under this Notification, there can be no doubt that the transport of cloth or yarn as part of one's personal luggage from any place in any zone to any other place or any other zone constitutes a contravention of Section 3 of the Cotton Textile (Control of Movement) Order 1948, if the cloth or the yarn transported exceeds 20 pounds in weight. But I do not think that in the present case the state can take advantage of this notification to secure the conviction of the respondent, because the notification in question was never placed and proved before the Railway Magistrate with the result that though the constable who arrested the respondent deposed that the weight of Dhoties was 33 seers that is, 66 pounds, the learned Magistrate did not put to the accused any question in the examination under Section 342, Criminal P. C., as regards the weight of the Dhoties. No inference, therefore, can be drawn against the respondent from the statement of the Constable that the weight of the Dhoties was 66 pounds. In these circumstances, the respondent cannot be held guilty of the contravention of Section 3 of the Cotton Textile (Control of Movement) Order 1948 on the material on the record. Having regard to the fact that the omission on the part of the Railway Magistrate to question the accused as to the weight of the Dhoties he was carrying, was one solely on account of the default of the prosecution in failing to produce and prove before the Magistrate the Notification No. 15 of 17-2-51, I do not think this Court would be justified in ordering a retrial of the accused.
9. For the foregoing reasons, tills appeal must, in my opinion, be dismissed.
10. I agree.