1. (Govt. Appeal 16.) This is an appeal by the Superintendent and Remembrancer of Legal Affairs, Bengal, on behalf of the Provincial Government and is against an order of acquittal of two accused in respect of contraventions of the Defence of India Rules. The trial Court found some of the contraventions proved but acquitted the accused relying on the case in Chakradhar Sahu v. Emperor 32 A.I.R. 1945 Pat. 294 holding that the orders contravened had not been proved to have been published and circulated in accordance with the requirements of Rule 119, Defence of India Rules. It is obvious that this appeal has been filed mainly to have this particular error corrected and see that it does not lead to further acquittals in other cases. The case itself is otherwise not of special importance. This point has been settled by two decisions of this Court namely, Ashutosh Chatterjee v. Emperor ('46) 50 C.W.N. 459 and Purna Chandra v. Emperor ('46) 50 C.W.N. 614 and during the present appeal it is not contested.
2. The facts are that on a search of the house occupied by the accused Poshan Malakar 25 items of unstamped cloth of Indian manufacture were found together with 7 items of what is called time barred cloth and 90 items of new cloth all kept in two trunks, one suit case and two bundles. The other accused, Makhan Chandra Roy claimed the house as his and produced the keys. The accused Makhan Chandra Boy was charged in one charge for a breach of the Order in Clause 13(1)(c) of the Cotton Cloth and Yarn Control Order, 1943, in respect of 25 items of unstamped cloth, of Clause 14(2) in respect of 7 items of stamped cloth and of Clause 18(2) in respect of all cloths. The accused Poshan Malakar was charged under the same Clauses and for a breach of the same Rule 81(d) of The Defence of India Rules read with Rule 121. The trial Court found that there had been no breach of Clause 18(2) of the Order on the ground that the total cloth held by the accused Makhan Chandra Boy a dealer was not in excess of his normal requirements and we agree with that view. The learned Judge lumped together his consideration of the contravention of Clause 13(1)(c) and Clause 18(2) of The Order and held that the possession of the cloths by the accused amounted to a breach of those clauses. With reference to Clause13(1)(c) we considered the question as to whether the cloths were in excess of the present requirement of The accused and found against The accused Makhan Chandra Roy.
3. We have examined the Cotton Cloth and Yarn Control Order and also orders passed on 23rd November 1943 and 31st December 1943. Under Clause 10 of that Order. We find that there was considerable confusion in the minds of the prosecution and consequently of the learned Magistrate as to the law applicable to the facts of the present case. It is indeed not easy to ascertain what exactly is the law applicable in view of the multitude of orders issued and their complications.
4. We will first deal with the alleged contravention of the Order Under Clause 14(2). We have already in a recent case, Govt. Appeal No. 15 of Supdt. and Remembrancer of Legal Affairs, Bengal v. Fateh Chand Reported in : AIR1948Cal39 pointed out how the provisions of Clause 15A of the Cotton Cloth and Yarn Control Order practically nullify the provisions of Clause 14(2) unless it is shown that there are orders specifying the conditions referred to in Clause 15A. We are given to understand that there wore in existence at the time of the search some orders specifying the conditions referred to in Clause 15A, but we do not think that at this stage we should allow them now to be proved. The result is that the appeal so far as concerns the seven items of time barred cloth the possession of which was alleged to constitute a broach of Clause 14 (2) must fail.
5. It remains to consider the alleged contravention of the Order in Clause 13(1)(c). We find that the provisions of this clause are not applicable to the present case. We may quote the relevant provisions of Clause 13(1).
Where The markings to be made and the time and manner of making them in respect of any class or specification of cloth or yarn have been specified Under Clause 10 or 10B'.(c) 'No person other than the manufacturer thereof shall, have in his possession or under his control any such cloth or yarn which is not so marked unless it be for bona fide personal requirements.
The important words here are the reference to a class of cloth specified under Clause 10 in respect of which the time and manner of marking has been ordered and the words 'any such cloth.' To ascertain the cloth possession of which is a contravention of Clause 13(1)(c) it is necessary to refer to any orders passed under Clause 10 or Clause IOB as the case may be. Orders of 23-11-1943 and 31-12-1943 give particulars of the cloth referred to. It is clear that in the case of any particular piece of unmarked cloth found with a dealer it would be almost always impossible to show that it was a piece belonging to the class referred to in those Orders.
6. The Cotton Cloth and Yarn Control Order deals with this problem by the provisions in Clauses 14(1) and 14(3)(iii). By these provisions a particular piece of cloth found with a dealer if it is unmarked is to be presumed unless the contrary is proved to have been manufactured in India before 1-8-1943 (14(3)(iii)) and possession of cloth or yarn manufactured in India before 1-8-1943 by a dealer after 31-12-1944 is forbidden by the provisions of Clause 14(1)(A).
7. Hence the Order applicable in the present case with regard to the pieces of unstamped cloth is really contained in Clause 14(1). The accused is clearly a dealer. He was in possession of 25 pieces of unstamped cloth and under the presumption, there being no proof, to the contrary. It must be held that the cloth in question was manufactured before 1-8-1943 and possession of this is forbidden.
8. It is to be noted that Under Clause 14 the question whether the cloth is held by the dealer for his bona fide personal requirements does not even arise. The result is that we find that the accused Makhan Chandra Roy is guilty of a contravention of the Order in Clause 14(1), Cotton Cloth and Yarn Control Order, 1943, and is punishable Under Rule 81(4), Defence of India Rules.
9. As regards the accused Poshan Malakar the learned Magistrate held that there was no clear evidence on the point as to whether he knew of the contents of the trunks, suit case and the bundles or was in any way responsible for the possession. We think he is entitled to the benefit of the doubt and his acquittal. The appeal as regards this accused is dismissed.
10. The result is that we allow the appeal against the order of acquittal of the accused Makhan Chandra Roy and convict him under Rule 81(4), Defence of India Rules for a breach of Clause 14(1), Cotton Cloth and Yarn Control Order. In the special circumstances of this case we do not think any severe sentence is called for. We sentence the accused Makhan Chandra Roy to pay a fine of Rs. 50, in default to suffer one month's rigorous imprisonment. Thirty two items of cloth have already been seized under the orders of the Magistrate. No order is necessary about them.
11. Government Appeal No 17. The facts in this case are very similar to those considered in Government Appeal No. 16 of 1946. This is also an appeal by the Superintendent and Remembrancer of Legal Affairs, Bengal, in respect of an order of acquittal by the same learned Magistrate passed for the same reasons as in the previous case.
12. In this case on search there were found in the shop of the accused one piece of time barred cloth and three pieces of unstamped cloth. The defence plea was that the cloth was for the personal use of the accused. The facts as to the finding of the cloth are clearly established by the evidence. The learned Magistrate rejected the plea that even the three pieces of cloth found in the accused's shop were for the personal use of himself and his family. As we have pointed out in the previous case (Government 'Appeal No. 16 of 1946) the clause applicable in this type of cases is not 13(1)(e) but Clause 14(1), Cotton Cloth and Yarn Control Order and under that no question of defence that the cloths were held for the bona fide personal use of the dealer can arise. The facts clearly establish therefore a contravention of this order and the accused is therefore liable for punishment Under Rule 81(4), Defence of India Rules.
13. We think that in the present case a purely nominal punishment will however meet the ends of justice. We convict the accused Under Rule 81(4), Defence of India Rules for a breach of Clause (14)(1), Cotton Cloth and Yarn Control Order, 1943, and sentence him to pay a fine of Rs. 10 (Rupees ten only), in default to suffer fifteen days' rigorous imprisonment.
14. I agree.