1. This petition to quash the proceedings in C.C. No. 2124 of 1942 on the file of the Chief Presidency Magistrate, Madras, arises in the following circumstances. In respect of a sale of sugar on 15th July, 1942, at a price in excess of that fixed by the Collector of Madras under Rule 81(2)(b) of the Defence of India Rules the salesman of a local shop belonging to the petitioners was convicted under Rule 81 (4) of the Defence of India Rules and sentenced to pay a fine of Rs. 50. At the time of this offence Rule 81 (4) in its unamended form provided no punishment for the contravention of an order made under the rules but only made punishable a contravention of the provisions of Rule 81. This conviction was therefore illegal, although the fact that Rule 81 (4) in its unamended form did not cover the case was not raised at the time. No appeal or revision petition was preferred and the conviction therefore stands. Subsequently the petitioners have been charged under Rule 122 of the Defence of India Rules as the partners of the firm. Although the learned Crown Prosecutor concedes that the sale of the sugar by the clerk on 15th July, 1942, was not punishable under Rule 81 (4) as it then stood, the amendment having been made only three days later, he contends that by the notification issued by the Collector of Madras on 6th June, 1942, under the powers conferred upon him by the Provincial Government under Rule 81 (2) (b) read with Section 2 (5) of the Defence of India Act, the sale was punishable.
2. The power to fix prices and control supplies is contained in Rule 81 (2) of the Defence of India Rules read with Section 2 of the Defence of India Act, and under Section 2 (4) of the Act the Central Government can delegate its powers under the rules to the Provincial Government. The Provincial Government may, in its turn, under Section 2 (5) of the Act confer upon their officers the powers which the Government itself possesses under this rule. It is in exercise of this power that the Collector of Madras fixed the maximum retail selling price of sugar on 6th June. The concluding paragraph of the Collector's notification is in these words:
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 with both.
The power to make rules for the control and punishment of persons contravening any of the rules framed under Section 2 of the Defence of India Act is contained in Section 2 (3) of the Act and Mr. K. S. Jayarama Ayyar, the petitioner's learned advocate, rightly points out that although the rule-making powers under subsection 1 of Section 2 of the Act have been delegated by Sub-section (4) to the Provincial Government, the power to make rules under sub-section 3 has not been conferred and therefore remains exclusively in the hands of the Central Government. The penal provisions are contained in Rule 81 (4) framed by the Central Government, but the learned Crown Prosecutor contends that the power under Rule 81 (2) (b) to control the prices at which things may be sold must include the power to punish infringements of the rules thus framed. Penal provisions, it need hardly be mentioned, must be specifically conferred where they do not already exist and they cannot be deemed to exist merely by inference or analogy. The power to frame rules for the punishment of offenders vests exclusively in the Central Government under Section 2 (3) of the Act and it follows that neither the Provincial Government nor its officers have any power to frame their own penal provisions. It seems improbable that the Collector of Madras in including the penal provisions in his notification intended to arrogate to himself powers of punishment. Obviously his intention was to remind the public in a brief manner of the penal provisions already existing in the rules. It follows that the sale of the sugar by the clerk at a price exceeding that fixed by the Collector was, on 15th July, 1942, not punishable under Rule 81 (4) and, therefore, there was no contravention in respect of which the partners can be punished under Rule 122 of the Defence of India Rules.
3. This is at first sight a matter in which this Court need not interfere at this stage because there is no apparent reason why these aspects of the matter should not be raised before the learned Presidency Magistrate in defence. In answer to this Mr. Jayarama Ayyar points out that the partners live in various distant parts of the Presidency and therefore it would be inflicting upon them some hardship to compel them to go to Madras at considerable expense in order to defend a prosecution which is manifestly not maintainable.
4. For these reasons, the proceedings now pending before the Presidency Magistrate in C. C. No. 2124 of 1942 are ordered to be quashed.