Kuppuswami Ayyar, J.
1. This petition has been filed by the son and heir of the late Govinda Prabhu, a paper merchant at Calicut, to revise the order of the learned Sessions Judge of South Malabar in C.A. No. 27 of 1942 confirming the conviction of his father under sub-rule 2 of Rule 81 of the Defence of India Rules and the sentence of a fine of Rs. 750 imposed on him for it by the Sub-Divisional Magistrate of Calicut in G.G. No. 98 of 1942. The case against the accused was that on 8th July, 1942, he sold a ream of 8 lbs. white foolscap M.F. writing paper for Rs. 7 when under an order issued by the Provincial Government of Madras under Rule 81(2) of the Defence of India Rules the control price of such paper had been fixed at Rs. 4-8-0 per ream.
2. The only contention raised in this Court is that such a sale though in contra-, vention of the order mentioned above was not constituted an offence on the date of sale and hence the conviction was illegal. For the petitioner it is stated that the only penal provision under which the act in question could be constituted an offence was Defence of India Rule 81(4) and that as it stood on the date of occurrence it only made contravention of the provisions of that rule penal and not of any order passed under it, that it was only on 18th July, 1942, that sub-rule was amended to include contravention of orders passed under that rule and that that amendment had no retrospective effect. It is not disputed by the learned Public Prosecutor that if Rule 81(4) applied this contention of the earned Counsel for the petitioner has to be upheld (vide In re Chockalingam Chetti and Ors. : AIR1943Mad255 .
3. But the case for the prosecution is that as stated in the charge framed in the case the offence in question was one constituted by Order 6 of the Orders issued by His Excellency the Governor of Madras under Rule 81(2) of the Defence of India Rules (Ex. B). The petitioner's answer to this is that para. 6 of that Order cannot be taken to constitute by it such contravention an offence but that it only drew the attention of the public to the penal provision in Rule 81(4) of the Defence of India Rules inasmuch as the power to make penal provision for such contravention under the Defence of India Act and the Defence of India Rules was vested only in the Central Government and was not and could not be delegated to the Provincial Governments. This aspect of the case had to be dealt with by my learned brother, Byers, J., in In re Abdul Salam Sahib and Ors. : AIR1943Mad281 . There a conviction for sale of sugar in excess of the control price on a date prior to the date of the amendment of Rule 81(4) of the Defence of India Rules was sought to be supported on the ground that it was an offence by the concluding paragraph of the notification of the Collector of Madras on whom the Provincial Government had conferred the powers which it itself possessed under Section 2(5) of the Defence of India Act. That concluding paragraph was similar to para. 6 of the Order in question in this case, viz., Ex. B and ran thus:
Any person failing to comply with these orders is liable to be punished with imprisonment for a term which may extend to three years or with fine or both.
4. It was pointed out that the power to frame rules for the punishment of offenders against the Defence of India Rules and its orders vested exclusively in the Central Government by reason of Section 2(3) of the Defence of India Act and that neither the Provincial Government nor its Officers had any power to frame their own penal provisions, and I with great respect agree with that observation of my learned brother. Under Section 2(1) of the Defence of India Act the Central Government may make such rules as appear to it to be necessary or expedient for maintaining supplies and services essential to the community. Under Section 2(2) of the Act the rules may provide for or may empower any authority to make orders providing for the control of trade for the purpose of maintaining the supplies essential to the community. It is true that a power to control trade for maintaining supplies may include not only the power to fix prices but also the power to punish those who sell at higher prices as maintenance of supplies cannot be controlled without such power. But then Section 2(3) of the Act provided that the rule made under subsection 1 may further provide that any contravention of any of the provisions of the rules or any orders issued under its provision should be punished with imprisonment for a term which may extend to seven years or with fine or both. Thus we find that it is only under the rules made under Sub-section (1) of Section 2 of the Defence of India Act that the contravention may be made penal. Rules under Sub-section (1) can be framed only by the Central Government. That this is so is also clear from the framing of Rule 81(4) of the Defence of India Rules framed under the Defence of India Act by the Central Government, Rule 81 deals with general control of industry, etc. In sub-rule 1 certain expressions are defined and sub-rule 2 enumerates the various subjects with reference to which the Central Govern ment or Provincial Government could provide by rules. Sub-section 4 as it stood originally made the contravention of any of the provisions of the rule punishable with imprisonment which may extend to three years or with fine or both The provisions of the rules only empowered the authorities to take action and there could be no contravention of the provisions of the rules. lt is only the order made under this rule that could be contravened. This sub-rule was hence understood as referring to contravention of orders issued under the rules and in the prosecutions ordered before 18th July, 1942, for contravention of orders issued under the rules the provision of law quoted in the charge was Defence of India Rule 81(4)(vide the cases reported in In re Ghockalingam Chetti and Ors. : AIR1943Mad255 . Further both in the concluding paragraph of the notification by the Collector of Madras fixing the price of sugar referred to above and in para. 6 of the notification relied on in the case, Ex. B, the words used are 'Any person failing to comply with these orders is liable to be punished with, etc. The use of the words ' is liable to be punished ' instead of the used words ' shall be punished ' is significant.
5. The learned Sessions Judge got over this difficulty by referring to Section 2, Sub-section (3), sub-clause (iv)(b) of the Defence of India Act and held that the words ' as respects any matter ' were wide enough to cover a provision for punishment for the contravention of any provisions of the rules or any order issued under such rules. The context clearly indicates that that clause was intended to give the Provincial Government jurisdiction to make laws and rules even in respect of subjects which under the provisions of the Government of India Act, were not within the purview of the Provincial Legislatures, and cannot be understood in the manner stated by the learned Sessions Judge.
6. Since in this case the offending act of sale was prior to the amendment of Rule 81(4) of the Defence of India Rules and as the Provincial Government had no power to make penal provisions and as para. 6 of the Notification Ex. B must be taken to refer to Defence of India Rule 81(4), it has to be found that no offence was committed by the accused though he had contravened the order. The petition is accordingly allowed and the conviction and sentence are set aside. The fine, if it had been paid, will be refunded.