1. The facts necessary for the determination of the question in issue in these two Criminal Miscellaneous Petitions are these. On the 30th of June, 1942, under his delegated powers the Collector of Madura issued an order under Rule 81 (2) (b) of the Defence of India Rules controlling the price at which sugar might be sold in various parts of the district. On the 5th of July, 1942, the Cooperative Stores at Palani, of which the petitioners are office-bearers, were found selling sugar at twelve annas per viss, the regulated price under the Collector's order being eight and a half annas. They were accordingly prosecuted for contravening Rule 81 (2), an offence punishable under Rule 81 (4) of the Defence of India Rules.
2. The only ground urged in support of these petitions to quash the proceedings is that a contravention of the order framed under Rule 81 (2) is not made punishable by Rule 81 (4) as it then stood prior to its amendment on 18th July, 1942.
3. The relevant portion of Rule 81 (2) (b) runs as follows, omitting the intervening sub-rules and clauses:
The Central Government, sol far as appears to it to be necessary or expedient for securing the defence of British India or the efficient prosecution of the War, or for maintaining supplies and services essential to the life of the community, may by order provide for controlling the prices at which articles or things of any description whatsoever may be sold.
It is common ground that the order issued by the Collector of Madura was a perfectly valid order under the powers delegated under the Act. Rule 81 (4) prior to its amendment was in these words:
If any person contravenes any of the provisions of this rule he shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.
In its amended form it now reads thus:
If any person contravenes any orders made under this rule he shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.
The contention of Mr. K.S. Jayarama Aiyar, the learned advocate for the petitioners, is that prior to its amendment the penal clause contemplated only the contravention of the provision to make an order, and that it was only in its amended form that the sub-rule rendered penal the contravention of an order framed under the provisions of Rule 81 (2) (b). No discussion is necessary to make it clear that in its original form Rule 81 (4) provided no punishment for an infringement of an order framed under Rule 81 (2) (b). The learned Public Prosecutor has argued that although there is this defect in the sub-rule, the intention in framing it was to make penal the infringement of these orders and therefore, the rule should be construed in a liberal sense, otherwise Rule 81 (4) becomes meaningless. This argument is no doubt plausible but it offends against all recognised principles in the construction of penal statutes. Mr. Jayarama Aiyar has referred to only two cases, the later of which is London County Council v. Aylestbury Dairy Company (1898) 1 Q.B. 106. In that case the Court had been invited to read into a particular section words which were not there but which should be deemed to be there on account of the intention of its makers and Wright, J., disposed of this argument with this remark,
But the mere fact that it may have been, better to extend the section to those cases, or that one can apparently gather that such an intention was probable, is not enough to justify us in putting a construction upon the section which would necessitate reading into it the words which the appellants' counsel has invited us to read in. It is clear to my mind that we should, as the Court of Queen's Bench said in Underhill v. Langridge (1859) 29 L.J. 65, be taking upon ourselves the office of the Legislature.
Later in the judgment he made the following observation:
I have certainly always understood the rule to be that where there is an enactment which may entail penal consequences, you ought not to do violence to its language in order to bring people within it, but ought rather to take care that no one is brought within it who is not brought within it in express language. I am of opinion that the learned Magistrate was right, and that if there be mischief consequent upon the ruling which we are bound to give, that mischief is something which must be removed by application to Parliament.
The earlier case is that of Proctor v. Manwaring (1819) 3 B. and Ald. 145 : 106 E.R. 616, where in dealing with a similar argument Abbott, C.J., used these words:
This being a penal clause in this Act of Parliament, must not be extended by construction, and though there may be cases suggested, falling within the mischief intended to be prevented by the Legislature, yet, if they had not used proper words, so as to include them within the prohibition, it is not competent for the Court to extend the Act of Parliament to them by construction.
It is abundantly clear that in its unamended form Rule 81 (4), contained no provision for punishing the contravention of orders framed under Rule 81 (2) (b) and that the rule cannot be construed in the liberal sense contended for by the learned Public Prosecutor.
4. There is a further argument which has been advanced by him that apart from Rule 81 (4), Rule 5 in its amended form applies to this case. The relevant portions of this rule are as follows:
If any person to whom any provision of these rules relates, or to whom any order made in pursuance of these rules is addressed or relates...fails...without lawful authority or excuse himself...to comply or to secure compliance, with such provision or order, he shall be deemed to have contravened such provision or order.
Mr. Jayarama Aiyar concedes that under this rule the act of the petitioners in selling sugar was in contravention of the District Magistrate's order but even so, there is no provision in the Act or the rules for its punishment. Rule 81 (4) was amended a few days after the alleged offence and the amendment was published in the Gazette of India only on 18th of July, 1942, so that at the time the rule was contravened there was no provision providing for its punishment. Under these circumstances the proceedings pending before the Special First Class Magistrate of Dindigul in C.C. No. 23 of 1942 are ordered to be quashed.