1. This revision arises from the following facts. On 19th March 1947, Hazra Choudhury & Co. booked five cases of stationery goods at Juggannath Ghat for despatch by river to Dibrugarh Ghat in Assam. The goods were seized and found to consist of 155-dozen exercise books and 13 dozen registers. It was also found that they were despatched without a permit in contravention of Clause 2 of Notification No. 4476 com. dated 5th December 1944, published in the Calcutta Gazette on 9th December 1944. The petitioner, the proprietor of Hazra Choudhury & Co., was arrested and sent up for trial. On being charged under Section 7, Essential Supplies Act, 1946, the accused pleaded not guilty, his defence being that the despatch of the exercise books was not barred by law.
2. The defence did not produce any evidence and, as the learned trying Magistrate observes, 'the facts were not at all challenged by the defence.' The trial Court found that the accused had booked for despatch to Assam without any permit 155 dozen exercise books and 13 dozen registers. Samples of the exercise books and registers were exhibited and examined by the trial Court. The Court found that some of the paper of the exercise books bore water-marks of the Titaghur Paper Mills and of the Bengal Paper Mills and concluded, as all the exercise books were similar in make, that they were manufactured from paper made in, India. The Court found no water-mark on the paper from which the registers had been made and held that they were not within the prohibition. The Court accordingly convicted the accused under Section 7, . Essential Supplies Act, in respect of the exercise books, sentenced him to pay a fine of Rs. 100, in default, rigorous imprisonment for one month, and ordered the exercise books to be forfeited to His Majesty but the registers to be released.
3. A copy of the Notification is with the papers. The material part runs as follows:
Paragraph 2: ' No person shall move or carry or cause to be moved or carried by rail, road, river or otherwise any paper,... or article manufactured wholly or mainly from paper, from any place in Bengal to any place outside Bengal except under and in accordance with the conditions of a permit issued in this behalf in writing by the Special Officer, Paper Control, under the Government of Bengal.
4. On the case being taken up yesterday, Mr. Joygopal Ghosh for the petitioner drew our attention to the Notification in the Calcutta Gazette of 9th December 1944, which did not contain the words 'or article manufactured wholly or mainly from paper.' He submitted that the accused had been convicted in respect of articles not covered by the Notification. On further search being made, however, it appears that the Notification was amended by a further Notification No. 3 com.-2nd January 1945, published in the Calcutta Gazette of 18th January 1945, the effect of which so far as is now material was to insert the words 'article manufactured wholly or mainly from paper' in the Notification dated 5th December 1944. The 'copy of the Notification which is with the papers and was placed before the trial Court contains the words 'or article manufactured wholly or mainly from paper' and properly so, because the effect of the later Notification is to incorporate the amendment in the earlier Notification and the earlier Notification is thereafter to be read as if it included the words inserted in the later Notification, with effect from the date of the later Notification. There is indeed a technical irregularity inasmuch as the copy placed before the Court should have included a reference to the later Notification, but this technical irregularity does not affect the merits. It merely makes it more inconvenient for the connected reference to be verified.
5. On further hearing the petition after the later Notification had been placed before us, Mr. Roy placed two arguments before us. First, he placed a price list of the Central Stationery Office for the years 1947 and 1948 and sought to draw our attention to a list of classes of papers etc., ordinarily required for office use. This submission is, however, in my opinion completely irrelevant. In the first place, the price list of the Central Stationery Office is not part of the law of the land and in the second place, a classification of papers ordinarily required for official use has nothing to do with the question whether the exercise books in the present case are or are not articles manufactured wholly or mainly from paper.
6. Learned counsel's remaining argument was that the Court should not have convicted, or at any rate should not have forfeited the whole of the articles on an examination of samples. This submission also is in my opinion without merits. The facts, as the trial Court held, wore not at all challenged for the defence. If the sample had not been a fair sample or if the exercise books not covered by the sample had had any differences from those covered by the sample these were matters which could and should have been brought put by the defence. The Crown had proved its ease when it placed the samples before the Court and if there was anything to the advantage of the accused in the remainder of the consignment it was for the defence to place it before the Court.
7. The exercise boobs are self-evidently articles manufactured mainly from paper. All that is not paper in an exercise book is either a small quantity of sewing thread or wire staples, and an amount of printing ink for ruling the lines, assuming that the exercise books were ruled exercise books. The bulk and value of these in comparison with the bulk and value of the paper in an exercise book is infinitesimal.
8. On the above view the conviction is in order. The sentence does not err on the side of severity and the order of forfeiture was rightly made. The rule is therefore discharged. The order staying realisation of the fine is dissolved. Unless the fine has been paid already, the petitioner will pay the fine or serve the sentence of imprisonment in default.
9. I agree.