Ganesh Potedar vs Emperor

Das, J.—The petitioner has been convicted under Rule 81(4), Defence of India Rules, and he has been sentenced to rigorous imprisonment for four months plus a fine of Rs. 100 or in default rigorous imprisonment for four months more. The case against the petitioner was that on 9th April 1944, he had sold a tin of kerosene oil to a man called Baldeo Mandal for Rs. 14. It was alleged that the controlled price for a tin of kerosene oil on that date was Rs. 5-3-9 excluding cartage.

Therefore, the allegation against the petitioner was that he had sold a tin of kerosene oil at a price in excess of the controlled rate, and as such, had contravened the provisions of Rule 81, Defence of India Rules. The point urged before me on behalf of the petitioner is that the prosecution has failed to prove what the controlled rate of a tin of kerosene oil was on the relevant date, and that the prosecution had failed to give any evidence of the due compliance of the provisions of Rule 119, Defence of India Rules.

In my opinion, both these contentions raised on behalf of the petitioner are well founded and should be accepted. In Jagarnath Sah v. Emperor AIR 1945 Pat. 307, to which I was a party, it has been laid down that it is essential for a prosecution under Rule 81(4), Defence of India Rules, to prove that the competent authority had determined the manner in which a notice of the order was to be published and that the order had been so published before the alleged offence had been committed by the accused.

In the particular case under our consideration, there is no evidence to show that the authority competent under Rule 81, Defence of India Rules, had fixed the price of kerosene oil. The only witness who was examined on the point was P.W. 6 a clerk in the Price Control Department of the district of Bhagalpur. This witness stated that the price of kerosene oil was Rs. 5-3-9 excluding cartage. The witness did not say who had fixed the price, and under what authority. Certain printed notices (Ex. 2 series) were admitted in evidence, which purport to show the price of certain commodities on certain dates including kerosene oil. Learned Counsel for the petitioner has-very rightly pointed out that these notices (Ex. 2 series) are not the original orders of the competent authority, nor are they certified copies thereof. He has contended that these notices (Ex. 2 series) are not admissible in evidence. It is well settled that the orders of the competent authority fixing the price of kerosene oil are public documents; they can be proved by the production of the original orders or by certified copies thereof: vide AIR 1944 54 (Privy Council) and Ram Prasad v. Emperor AIR 1945 Pat. 10 Learned Counsel appearing for the Crown referred me to the judgment of the trial Court, in which an observation has been made to the effect that the notifications fixing the price of kerosene oil were produced in the case. It is not clear to me from the aforesaid statement in the judgment whether the original notifications were-produced in the trial Court. If the original notifications were produced in the trial Court, there is no justification as to why they were not admitted in evidence and as: to why certified copies of the original orders were not kept in the record. Exhibit 2 series as they stand are certain printed notices, and they are not admissible in evidence. If Ex. 2 series are excluded from the record, then there is really no evidence to show, that a competent authority had fixed the price of kerosene oil on the relevant date.

Then again, it was for the prosecution to prove that the order fixing the price of kerosene oil had been duly published as required by Rule 119, Defence of India Rules. No evidence has been given on behalf of the prosecution to show that the order of the competent authority was duly promulgated. The evidence of P.W. 6 to which I have already referred does not advance the case of the prosecution any further. P.W. 6 does not say anything about the promulgation of the order under Rule 119, Defence of India Rules. Learned Counsel appearing for the Crown referred me to the specimen copy of a licence (Ex. 3) para. 6 of which requires that the licensee shall prominently display a correct list of the maximum price of the commodity.

It appears from the evidence that the son of the present petitioner is a licensee. The specimen copy (Ex. 3), however, does not show what were the terms of the particular licence which the petitioner''s son had taken. Assuming that the petitioner''s son had taken a licence in the form of Ex. 3, it does not relieve the prosecution of the duty of proving what the controlled rate of kerosene oil was on the relevant date and that the order fixing the rate of kerosene oil had been duly promulgated as required by Rule 119, Defence of India Rules. Learned Counsel for the Crown also referred me to the case in Prahlad Rai v. Emperor AIR 1946 Pat. 122. That case, however, can be easily distinguished from the present case. In that case, a cash memo was issued to the purchaser showing the prices charged to be those fixed by the Sub-Divisional Officer, although in fact the prices charged were more.

On the basis of that cash memo, it was held that the accused person had knowledge of the prices fixed by the Sub-Divisional Officer. In the present case there is nothing in the record to show what was the price fixed by the competent authority under Rule 81, Defence of India Rules, or that the order fixing the price had been duly promulgated so as to fix the petitioner with knowledge of the price. It is clear, therefore, that the conviction of the petitioner cannot stand.

The result, therefore, is that the application is allowed, and the conviction and sentence passed against the petitioner are set aside. The fine, if paid, should be refunded to the petitioner who will be discharged from bail. It has been more than once pointed out that convictions for a breach of the rules intended for the protection of the community have to be set aside on grounds which can be easily avoided if the parties concerned exercise due care and attention in the strict observance of the requirements of the law. This is another case in which this unfortunate result could have been avoided if in the Court below steps had been taken to see that all the relevant evidence was brought into the record.