Alfred Henry Lionel Leach, C.J.
1. The respondent was charged in the Court of the Joint Magistrate of Narsapur with an offence punishable under Rule 81(4) of the Defence of India Rules. His father has a shop at Narsapur in which he sells matches retail. On the 22nd April, 1943, a peon of the Tashildar at Narsapur went to this shop to buy some matches. The respondent was in charge of the shop and told the would-be customer that he had no matches in stock. This was untrue. In fact, there were large stocks of matches on the premises and additional large stocks in a godown belonging to the proprietor. On the 9th January, 1943, the Collector of West Godavari notified an order, Clause 1 of which stated that no person selling matches should withhold them from sale to any person on demand and on offer of the price fixed by the Government of India in that behalf so long as he possessed saleable stock. This notification purported to be made in the exercise of the powers conferred by Clause (b) of Sub-rule (2) of Rule 81 of the Defence of India Rules read with Government Order No. 243 Public (War) dated the 21st January, 1942. As the respondent had refused to sell any matches to the peon notwithstanding that there were large stocks available in the shop, he was charged under the Collector's order. The Magistrate held that the charge had been substantiated. He fined the respondent Rs. 100 and directed that in default of payment he should undergo rigorous imprisonment for one month. The respondent appealed to the Sessions Judge, who set aside the conviction. In doing so, the Sessions Judge relied on a decision of the Bombay High Court. The Provincial Government has filed the present appeal, which is the appeal against the acquittal, on the ground that the Sessions Judge has misread the judgment of the Bombay High Court.
2. It is abundantly clear that the Sessions Judge failed to appreciate what was said by the Bombay High Court. The case is Emperor v. Mahadev Mahalu (1911) 22 M.L.J. 364 : I.L.R 36 Mad. 486 and the facts there were these. A retail grocer had in his shop four pounds of sugar for sale. The police sent a person to buy one pound of sugar from him. The grocer refused to let him have more than one anna's worth of sugar on the ground that he wished to reserve the remaining quantity of sugar in his possession for retail sale to his regular customers. The Court held that on these facts the offence of withholding from sale had not been committed. It was quite reasonable for a retailer to refuse to sell a large part of his stock to one customer. In the course of his judgment in that case Beaumont, C.J., observed that in order to bring home the offence, the police would have to go much further than they had gone and show that the accused was over a period withholding his sugar from sale. The Sessions Judge has regarded this statement as meaning that before there can be a 'withholding' from sale the ' withholding ' must extend over a period. That is not the effect of the judgment when read as a whole. The learned Chief Justice said in an earlier passage that one must construe the word ' withholding ' in relation to the facts of each particular case, and with respect we agree. In the present case there was a flat refusal to sell even one box of matches to the customer notwithstanding that there were large stocks in the shop. The Bombay decision has no bearing on the case now before us.
3. If the position rested there, we should feel bound to allow the appeals but it has been pointed out to us that the notification of the Collector is defective and that the charge framed against the respondent was also defective. Clause (b) of Sub-rule 2 of Rule 81 of the Defence of India Rules does not relate to withholding from sale. The clause has reference to the controlling of prices. Therefore the Collector was not empowered by Clause (b) to provide that a person selling matches commits an offence when he withholds matches from sale notwithstanding that he possesses saleable stock. If he had invoked Clause (a) the notification would have been in order, but Clause (a) was not invoked. This is no doubt the result of an oversight, but it is an oversight which affects the validity of the notification. The charge against the respondent also made reference to Clause (b). This naturally followed from the mistaken notification. There was no offence under Clause (b) but undet Clause (a) and he was not charged under Clause (a). In the face of these technical defects we do not think we should be justified in allowing the appeal which will consequently be dismissed.