1. These are three applications for revision under Section 439 of the Criminal P. C.
There is a common point to be decided in all these three cases and accordingly I shall, deal with the point in one of them (criminal revision case No. 657 of 1951) which will be sufficient to dispose of all the three cases.
2. In this case, (Criminal Revision Case No. 657 of 1951) Ram Chandra Chakravarty the accused, is a Group 'D' licensee under the 'West Bengal Cotton Cloth and Yarn Control Order of 1948'. He has his place, of business at Patrasayer. On August 7, 1950 a Sub-Inspector of the District enforcement branch visited the shop of the accused and according to him the accused was guilty of three things: firstly, that he had failed to keep his 'accounts in the prescribed forms, as required under clause 15 of the 'West Bengal Cotton Cloth and Yarn Control Order'; secondly, that he did not issue true cash memos in the prescribed forms; and thirdly, which is the most important point for our consideration that he did not display his price list in a conspicuous part of his shop as required by clause 18(1.) of the said Order.
3. At the trial, the first two points were not substantiated, but the accused was found guilty of a violation of the provisions of clause 18(1) of the West Bengal Cotton Cloth and Yarn Control Order, 1948, as he did not display any price list in a conspicuous. part of his shop, and was sentenced by the trying Magistrate to be detained till the rising of the Court and to pay a fine of Rs. 50/- or in the alternative, to suffer rigorous imprisonment for two weeks. Against this order of the trying Magistrate there was an appeal to the Sessions Judge of Bankura, who upheld the. conviction and dismissed the appeal.
4. The short point taken against the order of conviction is that it was not necessary to display the list at all, so that by omitting to do so, the accused had committed no offence. The accused did say that there was a list hung, although not in a conspicuous place. But if it was not necessary to hang it at all, we need not consider the question further than saying that no offence was committed and there could be no conviction. Clause 18(1) of the West Bengal Cotton Cloth and Yarn Control Order of 1948 is in the following terms:
'A dealer other than a hawker shall display in a conspicuous position at his place of business a list in the most commonly understood language of the locality showing the maximum legal price in respect of all such kinds of cloth in his shop or store as have prices stamped thereon and shall not withhold from sale any such cloth to any person on demand and offer of the maximum legal price.'
5. It will be observed that a list has got to be displayed in respect of all such kinds of cloth in the shop or store as have prices stamped thereon. It is, therefore, incumbent on the prosecution to show beyond all reasonable doubt that there was in the shop, or must have been, cloth of that description. We have considered the evidence, but find that there is no evidence adduced on behalf of the prosecution which establishes beyond reasonable doubt that there was or should have been, cloth of that description in the shop. Therefore, it must follow that there was no legal liability on the accused to display such a list. That this is a correct reading of clause 18(1) of the said Order, has been decided by a Division Bench of this Court in 'RAM SARAN GUPTA v. THE STATE', Criminal Revn. No. 329 of 1951, the judgment being dated July 2, 1951. It was pointed out by the learned Judge that in the absence of evidence that there was in the shop at the relevant time, any kind of cloth with the price stamped thereon, the accused could not be said to have contravened clause 18 (1) of the said Order, by not hanging a list. The learned Judges said as follows:
'We cannot assume that the accused being a dealer in cloth must have had in his shop cloths with prices stamped thereon. For all that is known as he may have had in his shop at that time only handloom products which have not their prices stamped thereon. The failure to maintain a list in these circumstances did not amount to a contravention of R. 18.'
6. In this particular case, there is no evidence that there was any cloth in the shop with the prices, stamped thereon at the time when the Inspector inspected the shop. For all we know, there may have been goods other than cloth, or foreign goods, or goods upon which it could have been argued that a stamp was necessary. Before an offence of this nature can be proved, the prosecution has to prove to the hilt that the provisions of the relevant clause have been violated.'
7. As I have said, if there is no legal liability to hand a list it cannot be said that an offence has been committed by not hanging it. In our opinion, the conviction is clearly wrong and cannot be upheld.
8. Accordingly, we set aside the conviction and the fine, which if paid, must be refunded.
9. In the other two cases also, the facts are similar, there being no evidence that at the material time the accused had in their shop, cloths with prices stamped thereon. Accordingly the same order will be made therein.
10. All the three Rules are accordingly made absolute.
11. I agree.