1. The two petitioners have been convicted under Rule 81 (4), Defence of India Rules, for having contravened the provisions of para. 18 (1) and (2), Cotton Cloth and Yam Control Order, 1945 and each of them was sentenced to pay a fine of Rs. 80 in default to suffer rigorous imprisonment for two months. From this order of conviction and sentence an appeal was taken to the Sessions Judge who dismissed the appeal. Thereafter they obtained the present Rule.
2. The facts are very simple. The case for the prosecution is that these two persons were walking along the embankment of the Hooghly river when they were challenged by the local people. It was at about 9 O'clock at night. Each of the petitioners had a bag and in the bag of the petitioner Khan Mahammad were found 9 pieces of mill-made dhoties and 3 yards of mill-made shirting and in the bag of the petitioner Sk. Amanat were found 6 mill-made saris and 4 pieces of mill-made dhoties. The Preventive Officer lodged a first information charging the petitioners with having contravened the provisions of Para. 4, Bengal Cotton Cloth and Yarn Control Order, 1945. The petitioners were tried for that offence. After some time that case was withdrawn as it was found that para. 4 had no application to the facts of the case because it dealt with the purchase, sale or storage of cloth without a licence or in contravention of the terms of a licence.
3. About two months after the two petitioners were again sent up for trial on the same facts this time for having contravened the provisions of para. 18 (2), Cotton Cloth and Yarn Control Order 1945. That paragraph is in the following terms :
'No dealer or other person not being a manufacturer shall, save with the permission of the Textile Commissioner, at any time hold stocks of cloth or yarn in excess of his normal requirements.'
It has been held by the Court below that the petitioners were holding cloth in excess of their normal requirements without permission of the Textile Commissioner and on this basis they were convicted.
4. On behalf of the petitioners, the first contention raised is that it cannot be said that the petitioners were in possession of cloth in excess of their normal requirements unless some kind of standard is fixed by the Order or the Rules thereunder. I entirely agree with this view. I have expressed the same opinion in the case of Prag Das Lakhutia and Ors. v. Emperor : AIR1948Cal78 . The term 'normal requirements' without further specification is a vague term. What may appear normal to some may seem abnormal to another. Both the petitioners have families. We do not know how much wearing apparel the family possessed. It may be that all the wearing apparel had been exhausted and that these were the only wearing apparel which would be available to them. That being so, I cannot see how the Court can hold that they were in possession of cloth in excess of their normal requirements. On this ground the order of conviction and sentences is liable to be set aside.
5. There are some other grounds which would in my opinion render the conviction illegal. A prosecution for a contravention of any provision of the Cotton Cloth and Yam Control Order 1945, requires the sanction of the Provincial Government. In the present case, no sanction was granted for the prosecution of the petitioners for having contravenes any of the provisions of the aforesaid Cotton Cloth and Yarn Control Order, 1945. Sanction was obtained for contravening the provisions of the Cotton Cloth and Yarn Control Order, 1943. Now, that Order was not in force at the time that this offence was committed and the sanction for prosecution for the contravention of the provisions of that Order cannot be held to be a sanction for the prosecution for the disobedience of the Order of 1945. The learned Courts below say that the terms of the paragraph under which the prosecution is held under the Order of 1945 and the terms of the corresponding paragraph of the Order of 1943 are identical and therefore they consider that the sanction obtained for a prosecution under the Order of 1943 can be taken to be a sanction for the prosecution for the contravention of the provisions of the Order of 1945. This argument is obviously fallacious. The sanction must be given with respect to the contravention for which the petitioners were being tried. They were being tried for a contravention of the provisions of 1945 Order and unless the sanction was, such prosecution could not be a valid one. The sanction for prosecution for a contravention of the provisions of the Cotton Cloth and Yarn Control Order 1943, is not sanction for the present prosecution. It must therefore be held that there was no valid sanction for this prosecution and that being so, the entire proceedings are without jurisdiction.
6. Next, the learned Advocate for the petitioners pointed out that all that has been proved in this case is that an entry on a piece of paper to this effect 'Prosecution sanctioned'; signed (illegible) District Magistrate. The report submitted to the District Magistrate for the obtaining of the sanction has not been proved; nor has any one been examined to prove what the sanction related to. On the face of the order 'Procution sanctioned' there is nothing to show for what offence the prosecution was sanctioned and there is no evidence given to show what the sanction was about. In such a case the sanction is also of no value. In this connection I would refer to the decision of the Privy Council in the case of Gokulchand Dwarkadas Morarka v. The King .
7. For all these reasons I hold that the orders of conviction and sentences must be set aside. The fines, if paid, must be refunded. The accused, if in custody, must be released forthwith. The rule is made absolute.
8. In this connection I would repeat what I have said in a previous case regarding a similar matter. The practice seems to prevail in the Courts below of dealing with all irregularities and illegalities in prosecution of cases in connection with blackmarketing or contravention of Orders regarding cloth control with great laxity. There can be no doubt that blackmarketing and similar anti-social activities should be punished. But the fundamental principle of criminal law that the prosecution must prove its case 'strictis simi juris' must be observed. The conviction in this haphazard manner helps nobody and indeed may lead to sympathy for persons engaged in blackmarketing and similar illegal transactions.