1. This is an appeal by the Superintendent and Remembrancer of Legal Affairs, Bengal, on behalf of the Provincial Government against an order of acquittal passed by a Magistrate of the first class, Khulna, Under Section 81(d), Defence of India Rules in respect of an alleged contravention of Clause 14 (2), Cotton Cloth and Yarn Control Order, 1943. The accused are alleged to have had in possession 19 1/2 pairs of cloths which under the terms of Clause 14(2) should have been sold prior to the date on which they were seized namely 29-5-1945. The defence was that Under Clause 15A of the Order inserted in it on 22-1-1944 'notwithstanding anything contained in Clause 14 (2), cloth or yarn not disposed of within the period specified in those clauses could be kept and sold by a dealer subject to the conditions notified in this behalf by the Textile Commissioner. No conditions had been notified and therefore there was no offence in having the cloths in stock.
2. The learned trial Magistrate relying on a decision of the Nagpur Court reported in the case in Provincial Government, C.P and Berar v. Shamsherali 32 A.I.R. 1945 Nag. 249 acquitted the accused. The learned Magistrate suggested that the accused might have taken immediate steps after the expiry of the time-limit to enquire of the authorities what they should do with the cloths, but that their failure to do so did not amount to any contravention of the Order.
3. It is clear that Clause 14(2) and the amended Clause 15A are clumsily drafted. In our opinion, the latter clause must be held to override the earlier clause, as in fact it explicitly states by the phrase 'notwithstanding anything contained in Clause 14 (2).' Its effect is that until the Textile Commissioner chooses to make conditions Clause 15A really overrides Clause 14(2), and cloth or yarn can I be kept or sold by the dealer. As soon as the Commissioner makes his condition, the condition must be complied with and then Clause 15A will have been complied with. We entirely agree therefore with the view expressed by the Nagpur Court and indeed we should have thought that it was so evident that no other view was possible that no appeal would have been made against the Magistrate's order in this case. The reasons given by the learned Judge in the Nagpur case are slightly different from the reasons as given above and in our respectful opinion are equally valid. Assuming that Clause 14(2) and Clause 15A can stand together, then the fact that possession of the cloths in question is certainly valid under Clause 15A until conditions are made, provides a lawful excuse for a failure to comply with the provisions of Clause 14(2) in view of the definition in Rule 5, Defence of India Rules. The result is that this appeal is dismissed. The accused respondents are directed to be discharged from their bail.
4. I agree.