1. The petitioner was convicted for an offence under Section 7(1) of Act XXIV of 1946 read with Clause 4(1) of the Madras Cloth (Dealers) Control Order 1948 and sentenced to a fine of Rs. 200.
2. The petitioner has been issued a retail licence but in the licence issued a clause was added prohibiting him from selling B. and G. Mill cloth. The conviction now is for violating this condition and selling 3/4 yard to P.W. 3 and 2 yards to P.W. 4. This sale is said to have been effected between 3rd March, 1949, and 10th March, 1949 ; but on application already made, the petitioner got permission to sell B. and G. Mill cloth also, by order, dated 15th March, 1949. However the authorities still chose to prosecute the petitioner though such cares do not need to be brought to Court as they are purely of a technical nature. But the petitioner having been convicted, the point is raised whether such a clause as prohibiting him to sell B. and C. Mill cloth can be introduced in the licence. The licence is in form II appended to the Madras Cloth (Dealers) Control Order of 1948.
3. A perusal of the form will clearly show that such a clause cannot find a place in the licence. If it is to be mentioned it can only be in column 6. But column 6 has two clauses, both of which cannot apply to this restriction. It is significant to note that in the form provided in the Madras Cloth (Dealers) Control Order of 1948, Clause (a) of Column 6, specifically refers to the kind of cloth to which the business is confined. The absence of such a clause in the form provided for in the Order of 1948 clearly shows that this cannot be a condition of licence issued under the Order of 1948. But in the Order of 1948, under Clause 14, a direction may be given not to sell or deliver any cloth of a specified description except to such person or persons. Whether a total prohibition of sale of B. and C. Mill cloth will fall within such a direction is doubtful in view of the decisions in Municipal Corporation of the City of Toronto v. Virgo (1896) A.C. 88 and Attorney-General of Ontario v. Attorney-General of Dominion and Anr. (1896) A.C. 348. The American cases reported at page 69 of volume 23 of the Encyclopedia of Law and Procedure lend support to the view that a power to 'regulate', 'licence', or 'tax' the sale of intoxicating liquors does not confer authority to adopt an Ordinance totally prohibiting such a sale. However, the prosecution in this case is not for violating the provisions of Clause 14 but only for violating the condition of licence. I have held that the licence cannot contain such a condition. The prosecution for violating such a condition cannot therefore stand. The conviction and sentence are set aside and the petitioner is acquitted. The fine, if paid, will be refunded.