Arun Kumar vs State of Himachal Pradesh etc.

D.B. Lal, J.—Arun Kumar has filed this writ petition under Articles 226 and 227 of the Constitution wherein he has asked for the quashing of the judgment dated September 10, 1975 of the Special Tribunal constituted u/s 8 of the Defence and Internal Security of India Act, 1971, (hereinafter to be referred to as the Act of 1971) convicting him for an offence under Rule 114 of the Defence and Internal Security of India Rules, 1971 (hereinafter to be referred to as the Rules of 1971) and sentencing him to undergo rigorous imprisonment for three months and to pay a fine of Rs. 5,000/-, in default of payments of fine to undergo further rigorous imprisonment for three months. The case of the Petitioner is that he carried on the business of General Merchants at Matiana under the name and style of Messrs Vidya Parkash Arun Kumar. On July 12, 1975, the Petitioner''s premises were searched and it was alleged that the Petitioner had marked exercise books each at Rs. 2.10 P. although in the display list of prices Rs. 1.85 was exhibited as the price of each exercise book. The District Magistrate, Simla, had issued a notification under Clause 3(1) {d) of the Himachal Pradesh Hoarding and Profiteering Prevention Order, 1974, wherein he had fixed the maximum marginal profit for each exercise book of not more than 3% and by that calculation the price for each exercise book was Rs. 1.87 nP. In this manner it was alleged that the Petitioner was over charging price of each exercise book to the extent of Rs. 0.23 nP. The Petitioner, however, contended that it was not alleged in the report that he offered for. sale any exercise book to any particular person on any particular date and as such the report was incomplete within the meaning of Rule 183 of the Rules of 1971- According to Petitioner, cognizance could not be taken by the Special Tribunal under Rule 183 and the very prosecution was without jurisdiction. However, the Petitioner was put under arrest and his case was set down before the Special Tribunal for trial. On September 9, 1975, the Petitioner was produced before the Special Tribunal. The police documents were served upon the Petitioner who had also engaged a counsel. The learned Tribunal on hearing the Public Prosecutor as well as the counsel of the accused was of the opinion that a prima facie case for contravention of Clause 4 (c) of the Himachal Pradesh Hoarding and Profiteering Prevention Order, 1974, punishable under Rule 114 of the Rules of 1971 was made out. Accordingly a charge was framed against the Petitioner. The charge was read over and explained to him but the Petitioner was under some confusion to plead guilty. According to him there was no time left to go through the police papers and the learned Tribunal hurried with the trial and upon admission of guilt by the Petitioner straightaway recorded the finding of conviction and sentence. The Petitioner in fact pleaded guilty without understanding the import of the charge. It was pleaded that the notification dated March 8, 1974, of the District Magistrate was not brought to the notice of the Petitioner and as such he could not be convicted for contravention of that notification. The Central Government did not give prior concurrence to the ascertainment of margin of profit as required under the Rules of 1971. In fact the State Government had delegated its power to the District Magistrate which was in excess and the order itself is ultra vires on that account. The Petitioner also contended that the Special Tribunal could not be constituted under law to try offences for contravention of an order made u/s 3 of the Act of 1971. As such the Tribunal had neither jurisdiction nor its decision could be considered valid in the eye of law. In fact the Himachal Pradesh Hoarding and Profiteering Prevention Order, 1974, was not published, according to Petitioner, as required under Rule 164 of the Rules of 1971. That was an additional defect as to vires of that order. On these grounds the Petitioner sought for the .quashing of the judgment of the learned Special Tribunal and for setting aside its order of conviction and a sentence.

The Respondents are the State of Himachal Pradesh; the Special Tribunal, the District Magistrate and the Members of the Special Tribunal. The learned Advocate-General contented to argue out against the petition orally and did not file any return.

The Petitioner has invoked Article 227 and in the first instance we have to make it clear that the jurisdiction of the High Court in a matter of this nature under Article 227 is very limited. u/s 12 of the Act of 1971, no appeal or revision lay against the decision of the Special Tribunal. It is, therefore, abundantly clear that the High Court will not assume revisional or appellate jurisdiction while exercising its powers under Article 227. If no revision or appeal lay, unless special circumstances were made out, jurisdiction under Article 227 will not be invoked, because that would be denying the provision prohibiting revision or appeal. That apart, the Petitioner was convicted on a plea of guilty and u/s 375 of the Code of Criminal Procedure, 1973, no appeal lay against the plea of guilty except on the legality or propriety of the sentence. That is an additional factor which circumscribes the jurisdiction of the High Court under Article 227. The entire facet of argument that the charge framed by the Special Tribunal was defective or that any irregularity was committed in taking cognizance, will also lose its significance, inasmuch as, all these defects are curable in any ordinary trial under the Code of Criminal Procedure. This is no doubt subject to a plea of prejudice or substantial injustice which may have resulted. If jurisdictional limitations adumbrated above are there, it would hardly be a case for interference under Article 227 unless jurisdictional error of a grave nature is pointed out or complete failure of justice is inferred, by showing a wrong application of law or procedure as applicable to the facts of the case. Therefore, the Petitioner has obviously to substantiate his case with all these limitations and no interference under Article 227 will be permissible unless a miscarriage of justice is pointed out.

We will then come straight to the plea regarding Rule 183 inasmuch as it is stated that the very jurisdiction of the Tribunal was in error because a complete report was not submitted before it. In that connection the averment is that in the report (Annexure P.A.) neither the date when the sale took place nor the person to whom the sale was made, were specified. In our opinion these were only matters of detail and it could not be stated that the "facts constituting such contravention" were not specified in the report in writing submitted to the Tribunal. In the report (Annexure P.A.) it was nevertheless mentioned that the search was conducted by the Sub-Divisional Magistrate who was accompanied by an Inspector of Civil Supplies, that Rs. 2.10 P. was found written as price on each exercise book, that the displayed price was Rs. 1.87 nP. that the Petitioner was selling the exercise book and over charging to the extent of Rs. 0.23 nP. and as such committed an offence under Rule 114 for which investigation was conducted. In our opinion all these details were sufficient to indicate contravention of the Himachal Pradesh Hoarding and Profiteering Prevention Order, 1974, as well as of the notification issued by the District Magistrate on January 22, 1975. The person to whom the exercise book was sold was left to be proved or disproved by evidence. If the name of that person was not disclosed but at the same time it was written that the exercise book was sold and the price was over charged, that was enough to disclose contravention of the order. As such cognizance could be taken by the Special Tribunal under Rule 183 and no exception can be taken to that. As regards the dates when the exercise book was sold, the search was made on July 12, 1975, and it was specified that the sale was effected and the Petitioner was over charging the price. There was again a sufficient detail in the charge framed. The dates were mentioned and the period was written down as between 20-3-1975 and 12-7-1975. In fact while pleading guilty the Petitioner admitted that he did sell exercise books each at the rate of Rs. 2.10 p. upto the middle of June, 1975. The Himachal Pradesh Hoarding and Profiteering Prevention Order, 1974, as well as the notification of the District Magistrate of January 22, 1975, were very much there prohibiting the sale of exercise book with a margin of profit exceeding 3%. As such the Petitioner prima facie committed the contravention of that order.

The learned Counsel relied on a few authorities which need now be referred, in order to exhibit his plea, that unless details were given in the report cognizance could not be taken by the Tribunal. But these authorities are not germane to the issue because the ratio indicates that the facts narrated therein were entirely different and do not apply to the facts of the present case. In Purushottam Devji v. Emperor AIR 1944 Bom 247 a charge sheet was submitted which was considered a report and in that charge sheet the particular charge was omitted and in that contingency it was held that cognizance could not be taken by the Court or Tribunal. Dr. N.G. Chatterji and Another Vs. Emperor, the report did not mention the facts which constituted the contravention of the Rule and that is why it was held that no cognizance could be taken. In Chetandas Tekchand and Ors. v. Emperor AIR 1946 Sind 37 similarly material facts necessary to prove the offence were found missing and that was considered fatal for taking cognizance. Such is not the position in the present case. In Rachpal Singh and Ors. v. Rex AIR 1949 Oudh 66 cognizance was taken upon a charge sheet which did not contain statement of facts. It merely contained a bald statement that the offence was committed and that was not considered enough. So this case is also not material for us. What the Court has to see is, that the contents of the report are sufficient to set the machinery of law in motion so that the Tribunal is in a position to apply its mind for summoning the accused or for framing a charge against him. In our opinion the contents of Annexure P.A. were sufficient to enable the Tribunal to apply its mind and a prima facie case was proved to set the machinery of law in motion. As such Rule 183 was not disregarded and a proper cognizance was taken by the learned Tribunal.

It is then contended that the Tribunal could not try an offence for contravention of an order made u/s 3 of the Act of 1971. The argument is founded on the language used in Section 8 of the Act of 1971 inasmuch as it has been laid down therein that the special Tribunal has to try any offence under any rule made u/s 3 and from this it is inferred that order made under any rule made u/s 3 is necessarily excluded. In this connection assistance is sought from a Full Bench decision of this Court Ishwar Singh v. State Cr. M.P. (M) No. 67 of 1975. Upon a plain reading of Section 8 the Special Tribunal has jurisdiction to try any offence under any rule made u/s 3. Rule 114 is made u/s 3 and the Himachal Pradesh Hoarding and Profiteering Prevention Order, 1974, along with its notification of January 22, 1975, are made under Rule 114. Any offence pertaining to that order is decidedly an offence referable to Rule 114 made u/s 3. It, therefore, necessarily follows that the Special Tribunal could try such an offence as it was nonetheless but an offence under Rule 114 made u/s 3. The Full Bench decision referred to above dealt with Rule 184 which is a special provision regarding bail and in that context held that the ordinary law as to bail could only be negatived to a prosecution which relates to the contravention of a rule or order specified as such in the notification made in this behalf under Clause (b) of Rule 184. Since the rule or the order had to be specified separately, contravention of order not so specified will not be subject to Clause (b) of Rule 184, for the purpose of bail which may be applied for under the Code of Criminal Procedure. The present case stands entirely on a different footing. Here we are concerned with Section 8 and as we have pointed out the plain language of that section confers jurisdiction upon the Special Tribunal to try any offence under any rule made u/s 3. It is difficult to say that the Special Tribunal is doing anything else in the present case than trying an offence committed under a rule made u/s 3. The other interpretation that no Special Tribunal can be constituted for trying an offence punishable under any order made under any rule made u/s 3 will lead to startling results. It will rather lead to render Section 8 nugatory and the jurisdiction of the Special Tribunal could not have been considered to have been curtailed so as to exclude its jurisdiction for an offence committed for contravention of order. Therefore, the interpretation which is more harmonious to the provision and does not lead to any conflict has to be adopted. The Special Tribunal during the proclamation of emergency has to try any offence under any rule made u/s 3 and that will decidedly include the contravention of an order made under any rule made u/s 3. It is so deducible from the language and the interpretation has to follow the grammatical language used in the statute. We are, therefore, of the opinion that the Special Tribunal had the jurisdiction to entertain the prosecution for contravention of an order made under any rule made u/s 3.

It is then pointed out that the Himachal Pradesh Hoarding and Profiteering Prevention Order, 1974, or the notification of January 22, 1975, were not published in accordance with the Rule 164 of the Rules of 1971. This argument is again devoid of any merit. It is abundantly clear that neither the Himachal Pradesh Hoarding and Profiteering Prevention Order, 1974, nor the notification of January 22, 1975, prescribed any particular mode of publication. Moreover the said order and the said notification were of general nature affecting a class of persons, The order and the notification were published in the Rajpatra and that is a conclusive proof of the fact that every body concerned was duly informed and under Sub-rule (2) of Rule 164 no such objection can be raised in a judicial proceeding and the notification or publication of the order shall be conclusive proof of due information being conveyed to the persons concerned. Therefore, Rule 164 will not stand in the way and the order or the notification cannot be held to be ultra vires because of that reason. In a similar situation it was held in State of U.P. Vs. Laxmi Narain, that in cases where no specific mode is prescribed for publication of a notice, it may be left to the discretion of the authority concerned that it may adopt any method which may reasonably bring to the notice of the public the promulgation of the relevant order. In the instant case the Himachal Pradesh Hoarding and Profiteering Prevention Order as well as the notification were published in the Rajpatra and that was the mode of publication considered appropriate by the authorities. As such no exception can be taken by the Petitioner that he was not in the know of the Himachal Pradesh Hoarding and Profiteering Prevention Order or of the notification of 1975.

A lukewarm argument was advanced that the notification of January 22, 1975, was not published with prior consultation of the Central Government. The plea appears to be neither here nor there as nothing could be pointed out so that it could be inferred that prior consultation was not obtained from the Central Government. The presumption is that every official act has been done after due compliance of legal provisions governing that Act. It has not been proved by the Petitioner that prior consent of the Central Government was not obtained while fixing the margin of profit as shown in the notification of January 22, 1975.

It is also feebly contended that the District Magistrate was a delegate of the State Government and he exceeded his authority. The argument remained totally unsubstantiated because it was not shown in what manner delegation made was excessive. The presumption is that every prior condition must have been satisfied and all due enquiries must have been made before the margin of profit was declared.

The learned Counsel almost devoted his entire attention to the so called defects in the charge and in the procedure adopted by the Special Tribunal. It was stated that the police papers could not be consulted by the Special Tribunal for framing the charge and that the plea of guilty was not properly recorded and that the trial took place in a "slip shod manner". The Special Tribunal had to follow the procedure laid down in Section 9 of the Act of 1971. They were not bound to adjourn the trial to any specific date. When the Petitioner appeared he was handed over all the documents required to be given to him u/s 207 of the Code of Criminal Procedure, 1973. While framing the charge the Special Tribunal had to consider the police report as well as all such documents. This is so clear from Section 240 of the Code of Criminal Procedure. After following that procedure the charge was framed. As we have mentioned above, specific dates were given in the charge during which period the exercise books were sold at a price in excess of that which was prescribed. The accused pleaded guilty and admitted that (a) he sold exercise books at the enhanced price upto the middle of June, 1975 and that (b) Rs. 1.85 P. was the permissible rate at which an exercise book could be sold. That was a clear plea of guilty. As such prima facie no defect can be pointed out in the procedure. An argument was advanced that the proposition "which" used in answer to question No. 2 (Annexure P.B.) related to both the prices-Rs. 2.10 P. and Rs. 1.85 P. But this is clearly incorrect grammatically. The said proposition "which" referred to only one price i.e., Rs. 1.85 P. which was the permissible rate at which the exercise book could be sold. The accused never meant to say that even the price of Rs. 2.10 P. was a permissible price under the Himachal Pradesh Hoarding and Profiteering Prevention Order, 1974, or the notification of 1975. The Petitioner was represented by a counsel and he was given a proper hearing. As such all these objections appear to be besides the point. As we have remarked above we are not sitting in appeal or revision against the order of the Tribunal and we have merely to see if any gross injustice has resulted due to any jurisdictional error. We are constrained to say that no such gross injustice can be inferred. A correct procedure was adopted and the plea of guilty was properly recorded. Under Article 227 absolutely no ground is made out for interference.

The up-shot of all that we have stated above is that the petition is devoid of any merit. No exception can be taken to the decision arrived at by the Special Tribunal. The petition is, therefore, dismissed without making any order as to cost.