1. The petitioners were convicted by the Joint Magistrate of Tellicherry of an offence punishable under Section 81(4) of the Defence of India Rules read with Clause 3(1) of the Foodgrains Control Order and sentenced to undergo four months rigorous imprisonment and to pay a fine of Rs. 500. On appeal, the Sessions Judge of North Malabar confirmed the conviction, but reduced the sentences to the period of imprisonment already undergone and fines of Rs. 25 and Rs. 50 respectively.
2. The change against the petitioners was that they had purchased 86 bags of paddy without a licence and so had contravened Clause 3(1) of the Foodgrains Control Order. The Joint Magistrate was of opinion that they had made the purchase for purposes of trade, but the learned Sessions Judge considered their case from the point of view that the purchase was for their own use or for their own use and that of other villagers. He confirmed the convfctions, because, in his opinion, a purchase of grain in wholesale quantities without a licence contravened Clause 3(1) of the Foodgrains Control Order and so constituted an offence punishable under Section 81(4) of the Defence of India Rules. Clause 3(1) of the Food-grains Control Order states:
No person shall engage in any undertaking, which involves the purchase, sale, or storage for sale, in wholesale quantities of any foodgrain except under and in accordance with a licence issued in that behalf by the Provincial Government.
3. The words 'engage in any undertaking' have caused some difficulty. In Public Prosecutor v. Bavuddin Sahib (Criminal Appeal No. 934 of 1943) (1944) 1 M.L.J.16 an appeal against an acquittal by the Provincial Government, Horwill, J., held that storage for sale was not per se an undertaking and, that for the mischief of Clause 3(1) of the Order to be attracted, it must be proved that the storage was for the purpose of fulfilling a contract. In Uduman Taraganar v. Emperor (1944) 2 M.L.J. 13, Kuppuswami Ayyar, J., expressed dissent from this view. He pointed out that an undertaking might be a unilateral act; and that if a person stored foodgrains in wholesale quantities for sale 'in future under contracts to be entered into in the future' he will be guilty of the offence punishable under Rule 3. In Public Prosecutor, Madras v. Venkayya (Criminal Appeal No. 935 of 1943) (1944) 2 M.L.J. 33, the learned Chief Justice and Shahabuddin, J., had occasion to consider these two decisions and expressed agreement with the decision of Kuppuswami Ayyar, J. It is argued now that Uduman Taraganar v. Emperor (1944) 2 M.L.J. 33 does not cover the present case because in that case the person concerned was a trader and to store fogdgrains in wholesale quantities for sale under contracts to be entered into in the future is to enagage in an undertaking within the ordinary meaning of those words; whereas to say that the mere purchase of foodgrains in wholesale quantities is to engage in an undertaking deprives those words of any significance. There is some force in this contention; but, nonetheless, the conclusion seems to me inescapable that the purchase of foodgrains in wholesale quantities without a licence and nothing more does contravene Clause 3(1) of the Foodgrains Control Order. In order to attract the mischief of the section there does not have to be any combination of purchase, sale, or storage for sale. There are three separate prohibitions against undertakings which involve (1) the purchase of foodgrains in wholesale quantities without a licence, (2) the sale of foodgrains in wholesale quantities without a licence and (3) the storage for sale of foodgrains in wholesale quantities without a licence. And, as it has been held that no antecedent contract or arrangement is necessary in order that a purchase, sale or storage for sale may be an undertaking within the meaning of Clause (3) it is difficult to see how any effect is to be given to the prohibition against the purchase of foodgrains in wholesale quantities unless a mere purchase is regarded as an engagement in an undertaking which involves the purchase. It may perhaps seem that this construction reduces the words ' engage in any undertaking which involves ' to mere surplusage, and that if the construction is right, the clause would better have read ' No person shall buy, sell, or store for sale, etc.
4. On the other hand the Provincial Government may well have intended to include in the prohibition transactions more complicated than straight forward purchases and sales. But, however, that may be, it is not an abuse of language to say that a person who makes a purchase engages in an undertaking which involves that purchase; and this construction does give unequivocal effect to the separate prohibition of the purchase in wholesale quantities of foodgrains without a licence.
5. In my judgment, therefore, for the reasons given the convictions are correct. There is no justification for interfering with the sentences which, as reduced by the Sessions Judge, are lenient. The petition is dismissed.