1. The petitioner was convicted of an offence under Rule 81 (4), Defence ofIndia Rules for contravention of Clause 18 (a),Cotton Cloth and Yarn (Control) Order, 1943and sentenced to rigorous imprisonment for sixmonths and fine of Rs. 1,000 in default to undergo rigorous imprisonment for four months moreby a Deputy Magistrate, 1st class, Berhampur.The learned Magistrate further convicted thepetitioner under Rule 81 (4), Defence of IndiaRules for contravention of the Government ofOrissa Notification No. 11693 S.T. dated 23rdDecember 1943. But on appeal the learned Sessions Judge while maintaining the convictionand sentence for contravention of the CottonCloth and Yarn (Control) Order set aside theconviction for contravention of the GovernmentNotification mentioned above.
2. The facts as found by both the Courts are as follows: On 13th May 1946 at about 5 P. M. the petitioner was found proceeding in a motor car from Berhampur towards Ichhapur. The oar stopped at a Railway Level Crossing on the Trunk Road near Haldiapadara village and there some police constables searched the oar and found 113 pieces of new handloom cloth in it. The petitioner is a dealer in cloth in village Narsanapeta in Madras Presidency and the cloth was purchased by him at a cheap rate at Berhampur. The petitioner had no permit for the transport of cloth from Orissa to Madras Presidency nor did he have any special permit from the Textile Commissioner to be in possession of as many pieces of cloth. He was prosecuted for contravening the Notification No. 11693 S.T. dated 23.12.43 of the Government of Orissa prohibiting the transport of cloth from any place in the Province to any place outside the Province except in accordance with the permit issued by a competent authority and also for contravening Clause 18 (2) of the Cotton Cloth and Yarn (Control) Order, 1943. The learned Sessions Judge acquitted him of the former contravention observing that from the facts as proved by the prosecution witnesses it may not be reasonable to hold that the petitioner was actually attempting to transport the pieces of cloth to Madras Presidency. But he maintained his conviction for contravention of Sub-clause (2) of Clause 18 of Cotton Cloth and Yarn (Control) Order, 1945 because he considered that the quantity of cloth in his possession was far in excess of his normal requirements.
3. The explanation which the petitioner put forward before the trying Court to account for his possession of such a large quantity of cloth was that he wag preceding to village Panchama (in Orissa province) for the purpose of distributing the pieces freely to poor persons there because he had made a vow (Manaik) before the deity there. He also examined a witness ( D. W. 1 ) in support of this plea. But both the Courts rejected this explanation as quite unconvincing. It is not open to the petitioner to challenge this findings of fact before us in this revision petition.
4. Before discussing the point raised by Mr. Mohapatra on behalf of the petitioner, I may point out one or two minor irregularities committed by the trying Magistrate in the charge which he framed against the petitioner. In that charge he has referred to the Cotton Cloth and Yarn (Control) Order, 1943, whereas the appropriate Order is the Cotton Cloth and Yarn (Control) Order, 1945, which was made on 21st July 1946 after repealing the 1943 Order. But the two Orders are almost identical and the petitioner has not been prejudiced in any way by quoting the wrong year in the charge. Similarly the learned Magistrate did not state in the charge that the quantity of cloth recovered from the petitioner was in excess of his normal requirements' as required by Clause 18 (2) of the said Order. He used the expression, 'normal consumption' which is not found in Clause 18 (2) of the Order. This error has also not materially prejudiced the petitioner because he did lead evidence to show that he was a dealer in cloth and that on the particular occasion he was taking the cloth for a specific purpose, namely, for distributing to the poor in Pancham village.
5. Mr. Mohapatra's main contention is that the prosecution totally failed to show what quantity of cloth was within the 'normal requirements' of the petitioner and that consequently it cannot be reasonably held that 113 pieces of handloom cloth were in excess of the petitioner's normal requirements.
6. Clause 18 (2), Cotton Cloth and Yarn (Control) Order, 1946, runs as follows :
'No dealer or other person not being a manufacturer shall Have with the permission of the Textile Commissioner at any time hold stocks of cloth or yarn in excess of his normal requirements.'
The expression 'normal requirements' has nowhere been defined in the Order. But an indication as to what it means may be obtained from a scrutiny of the explanation to Clause 18 (2) which explains what quantity shall be deemed to be the normal requirements of a person engaged in manufacturing ropes, tapes etc. from cloth. Again in Clause 13 (1) (c), (d) & (f) of the said Order the expression, 'personal requirements,' is used while referring to a person other than a manufacturer or a dealer. The expression 'dealer' has been defined in Clause 3 (b) as a person engaged in carrying on the business of selling cloth whether wholesaler or retailer. Clause 18 (2) applies to a dealer or any other person other than a manufacturer. This seems to indicate that the expression 'normal requirements' would include the business requirements of a dealer or the personal requirements of a person other than a dealer such as a private individual. Moreover the use of the word 'normal' restricts his requirement to something that is regular or usual as opposed to his requirement for an unusual occasion. The. Court is required to judge from the facts of each case whether the quantity of cloth found is In excess of the normal requirements.
7. A decision of this question is doubtless difficult because as pointed out in Peare Lal v. Emperor, A.I.R. (31) 1944 ALL. 168 : (45 Cr. L. J. 738) various factors have to be taken into consideration in deciding what the personal or business requirements of a person are. In the present case, however, it cannot by any stretc of imagination be said that 113 pieces of handloom cloth were within the normal personal requirements of the petitioner, whatever may be the size of his family and his social status. The petitioner seems to have realised this difficulty and has therefore put forward the plea that he wanted to distribute those pieces of cloth to the poor at Panchama in fulfilment of his religious vow. This plea has, however, been disbelieved by both the Courts. Apart from this concurrent adverse finding, even if this plea is accepted, such a requirement cannot be the normal or usual requirement of the petitioner. It will be an abnormal requirement for an unusual occasion and as such outside the scope of the exemption contained in Clause 18 (2) of the Order.
8. Mr. Mohapatra thereupon argued that the said 113 pieces of cloth may be within the normal business requirements of the petitioner as a dealer in view of the finding to the effect that he is a dealer in handloom at Narsanapeta village in Madras Presidency. But the normal business requirements of a dealer must be judged with special reference to the place of his business and the place where the stock of cloth is found. If the said 113 pieces of cloth had been found, say, at Narsanapeta or in any other place where the petitioner usually stores his stock of cloth such an argument may have some weight. But how can it be said that 113 pieces of cloth found inside a motor-car on a road near the Railway Level Grossing at Haldiapadar village where the petitioner has obviously no interest can be within his normal business requirements? That place is inside the Province of Orissa where admittedly he is not a dealer. He has no permit either for possession of so many pieces of cloth or permit to sell such cloth in the Province of Orissa as required by the Orissa Cotton Cloth and Yarn (Control) Order, 1943. It was urged on his behalf that though the petitioner may not be dealer within the meaning of the Orissa Cotton Cloth and Yarn (Control) : Order, 1943, he is a dealer within the meaning of the Cotton and Yarn (Control) Order, 1946 (which is a Central Order) and that the fact that he had contravened the Orissa Order is wholly irrelevant in considering his normal business requirements, I am, however, unable to accept such a broad proposition. One of the several factors to be taken into consideration in deciding about the normal requirements of a dealer is the place where the stock is found. If at that place such a person is not a 'dealer' in accordance with the Provincial Law in force there this factor should also be taken into consideration along with the other factors in deciding whether it can be reasonably held that the seized stock was within his normal business requirements. The factors against the petitioner are, firstly, the seizure of cloth from inside a motor car on a road leading from Orissa to Madras Presidency; secondly, the absence of any permit from the competent authority either for possession or for transport of the cloth; thirdly, the unbelievable explanation which the petitioner himself put forward to account for his possession of so many pieces of cloth; and fourthly the complete absence of any connecting link between the place of seizure of the cloth on the one hand and the place where the petitioner carries on his business on the other. Taking all these into consideration I would hold that in this particular ease the said 113 pieces of cloth were not within the normal business or personal requirements of petitioner and that be has therefore contravened Clause 18(2), Cotton Cloth and Yarn (Control) Order, 1945.
9. It is unnecessary in this petition to consider whether the learned lower appellate Court was justified in acquitting the petitioner of the charge of transporting 113 pieces of cloth in contravention of the Government of Orissa Notification No. 11698 S.T. dated 23-19-1943. But we do not wish it to be understood that we accept as correct the reasons given by the learned lower appellate Court for acquitting the petitioner of that charge.
10. The sentence is not excessive and the revision petition is accordingly dismissed.
11. I agree.