1. This rule was issued upon the District Magistrate of Dinajpur to sbow cause why conviction and sentence under Section 13 (2), Hoarding and Profiteering Prevention Ordinance (Ordinance 35 [XXXV] of 1943) should not be set aside. The case for the prosecution was that the present petitioner Madholal Agarwalla was the proprietor of a shop known as the Adarsha Bastralaya at Maldapatti in Dinajpur town. On 14-12-1944 two persons Asita Ranjan Banerjee and Kedareswar Chakravarty went to the shop at about 9 30 A.M. to purchase warm coating. Asita Raujan asked the salesman Surja for warm coating, Surja produced a piece of blazer cloth and quoted Rs. 16-8-0 per yard as the price. Asita Ranjan asked for two yards and two giras of the cloth and a piece measuring two yards and two giras was cut and handed over to Asita Ranjan. A cash memo was drawn up in which the total price of Rs. 86-2-6 including sale tax was shown. But 2 annaa 6 pies was deducted and Rs. 36 was paid. A police officer was present in the shop at the time. The police officer seized the cash memo and the roll of cloth from which the piece had been supplied to Asita Runjan and then looked round to see whether a price list of blazer cloth was exhibited in the shop. He saw no price list exhibited and he submitted a report alleging that an offence had been committed. Investigation ensued. Sanction was obtained from the District Magistrate, and the present petitioner and two salesmen were placed on their trial on three charges; that they bad contravened the provisions of the Hoarding and Profiteering Prevention Ordinance, firstly, by selling a piece of cloth at above the controlled price; secondly, by failing to give a cash memo in the prescribed form; and thirdly, by failing to exhibit a price list as required by an order passed under the Ordinance.
2. They were tried jointly by a Magistrate of the First Class at Dinajpur. The two salesmen were acquitted of all three charges. The proprietor, Madholal Agarwalla, was acquitted of the charge of using a cash memo other than in the prescribed form, but he was convicted on the other two counts, namely, that he sold cloth at a price exceeding the controlled price and that he failed to exhibit a price list as required by authority under the Hoarding and Profiteering Prevention Ordinance He was sentenced to pay a fine of Rs. 200 and in default to undergo rigorous imprisonment for two months only. He appealed against that conviction but his appeal was dismissed.
3. The defence of the proprietor was as follows: When Asita Ranjan and Kedareswar asked for blazer cloth, the cloth was supplied; they were told that the controlled price was not known; they were asked to pay provisionally at the rate of Rs. 16-8-0 per yard and were assured that when the controlled price was ascertained, if it was found that the controlled price was less than Rs 16-8-0 per yard the excess amount realised would be refunded to them.
4. Neither of the Courts below have applied their minds to the question whether this defence was true or not They seem to have assumed that it was in fact no defence. It is true that Asita Ranjan in his cross-examination stated:
It is not a fact that Surja said that the price was not fixed, that the stuff was supplied to Mr. Mandal and others at Rs. 16-8-0 per yard and that the actual price would be charged when the price was fixed.
5. On the other hand, his companion, Kedareswar Chakravarty, deposed in his cross-examination as follows:
It is not a fact that the salesman said that the price was not fixed ft 11 and that the excess price would be returned if the price fixed was less. The salesman said that the excess price would be returned if the same cloth was available at any other shop at less price. The salesman said that they did not know the retail price. The salesman said that excess price would be returned. The salesman told Asita Babu to come with the cash memo if similar cloth was available elsewhere at less price.
6. The cash memo was signed by Asita RanJan. In view of this evidence the evidence of D.W. 1, Shyamadas Chatterjee, is significant. Shyamadas Chatterjee is the Sub-Divisional Munsif of Dinajpur, a witness whose evidence in the circumstances can be accepted without hesitation. This witness deposed as follows:
In September of list year I purchased some cloths including a piece of blue coloured blazer cloth from the shop of Madholal Agarwala. The shop deferred submission of bill. This employee of the shop (Narayan Chandra Chakravarty pointed) said to me that delay in submission of bill was due to the fact that the controlled price of the blazer oloth was not still known to them. The bill was submitted 4 or 5 months after on repeated takids through my orderly.
In cross-examination this witness stated:
The bill for all the cloths was not submitted. The bill was submitted in February or March last. Price charged in the bill for the blazer cloth was probably Rs. 11 and odd.
In view of this evidence and the evidence of Kedareswar Chakravarty it seems to me clear that no price was actually fixed for the cloth. The salesman informed the purchaser that the correct price was not known. He required him to pay Rs. 16-8-0 per yard, but undertook to refund the excess when the proper price was known. In these circumstances, it seems to m& impossible to hold that there was in fact a sale at the price of Rs. 16-8 0 per yard. There was no sale strictly speaking. The price of the cloth to be sold had not been determined and in this particular case has not yet been determined. In these circumstances the conviction for selling at a price in excess of the controlled price cannot be sustained.
7. With regard to the second charge, namely, that the petitioner failed to exhibit a price list in a prominent place in the shop as required by an authority authorised to make such an order under the Hoarding and Profiteering Prevention Ordinance of 1943, it is true that the evidence on record shows that no price list exhibiting the price of woollen goods was exhibited in the shop. The order which is said to have been contravened runs as follows:
Bombay-the 8th April 1946.
1/2 (29)/44--CG (CS).--In exercise of the powers conferred upon me by Section 11 of the Hoarding and Profiteering Prevention Ordinance (Ordinance XXXV of 1943), I call upon all dealers in woollen goods wholesalers and retailers, to exhibit a price list in a prominent place in the shop showing clearly the retail selling price as fixed by the Central Government under Notification No. 1/2 (29)/44-CG (CS) dated 5-4-1944 subject to the following conditions:
(1) Prices shall be written legibly in English or in the local language of the district, and
(2) the price list shall be shown to any purchaser who makes enquiry about the correct selling price.
8. This order was passed in April 1944. In December 1944 there was the transaction with which we are now dealing. On that date there was no price list exhibiting the prices of woollen goods as required by this order. If the shop-keeper had for sale woollen goods of the class and quality referred to in the order at the time, then his failure to exhibit a price list would amount to a contravention of this order and would be punishable. The question remains whether this shop-keeper had in fact any woollen, goods of the classes referred to in the order. There is no evidence before us of the shop-keeper dealing in any other woollen goods than the roll of blazer cloth, a piece of which was sold to Asita Ranjan Banerji. Under the order which I have quoted above, the price list is only to show the retail selling prices when fixed by the Central; Government. It need not show the retail selling prices of articles other than those whose prices are fixed by the Central Government in accordance with the Notification referred to in the order above. The evidence on record shows that another Notification dated 5-5-1944 prescribed the maximum selling price for blazer cloth of 54 inches in width, of woollen composition and of a prescribed weight. There is nothing to show that the selling price of blazer cloth of that width but of a different weight had been fixed by the Central Government. The evidence in the present case shows that the blazer cloth in question was 54 inches wide. There is literally no evidence to show that it was blazer cloth of the weight referred to in the order. The defence evidence on record shows that blazer cloth is of many qualities and presumably of many weights. In the circumstances it must be held that the prosecution has failed to prove that the present petitioner had for sale any blazer cloth of the quality and kind referred to in the order I have mentioned above. In the absence of this evidence, it is impossible to say that the order requiring the petitioner to exhibit a price list had been contravened. In my opinion even with regard to the technical offence of failing to exhibit a price list, the prosecution failed to prove the necessary ingredients of the offence. In this view the conviction and sentence must be set aside. The rule is made absolute. The petitioner is acquitted. The fine if paid is to be refunded.