In Re: Shah Vajanji Kasturchand

Chandra Reddi, J.—The petitioner in this criminal revision was convicted u/s 7 (1), Madras Essential Supplies (Temporary Powers) Act,

XXIV [24] of 1946 for having been in possession of mill cloth in excess of normal requirements, in violation of the provisions of Section 18 (2),

Cotton Cloth and Yarn (Control) Order, 1943 and sentenced to pay a fine of Rs. 200, and the cloth seized was also directed to be confiscated to

the Government.

The Inspecting Assistant Textile Commissioner, Nellore, charge-sheeted the petitioner before the Additional First Class Magistrate, Cuddappah

for having been in possession of 24 pieces of new cloth measuring over 250 yards very much in excess of his normal requirements. The family of

the petitioner consisted of 5 members. According to the Inspecting Commissioner, this quantity was exclusive of an appreciable quantity of cloth

released by the Joint Provincial Textile Commissioner in petitioner''s favour.

The explanation of the petitioner was that this cloth was required for a marriage in his house which was coming off a few months later. The trial

Magistrate convicted the petitioner for an offence u/s 7 (1) Madras Essential Supplies (Temporary Powers) Act read with Section 18 (2), Cotton

Cloth and Yarn (Control) Order and sentenced him to pay a fine of Rs. 200, which was confirmed in appeal by the Sessions Judge of Cuddappah

in Criminal Appeal No. 8 of 1948. This criminal revision is preferred against that judgment confirming the conviction and sentence of the petitioner.

It is not necessary for me to consider; the question whether this cloth was in excess of the normal requirements of the petitioner''s family, having

regard to the contentions raised and the view I take of the validity of the sanction accorded by the District Magistrate for prosecuting the petitioner.

The sanction given by the District Magistrate is in the following words :

In exercise of the powers conferred on him by Provincial Government in their order M. S. 36 Development Department dated 4th January 1947,

published at page 26 of Part II of the Fort St. George Gazette dated 14th January 1947, the Collector of Cuddappah hereby accords previous

section under Clause 23 of the Cotton Cloth and Yarn Control Order, 1945, for the prosecution of Sri Shah Vajanji Kasturchand, Cuddappah,

for being in possession of mill cloth in excess of the normal requirements in contravention of Clause 18 (2) of the said Order punishable u/s 12 (1)

of the Madras Essential Articles Control and Requisitioning (Temporary Powers) Act, 1946.

It is seen that this Order does not refer to the facts constituting the offence, but only sets out the provisions of law which have been contravened

by the petitioner.

It is urged before me by the learned counsel for the petitioner, that this is not a valid sanction, as it does not contain the facts which constitute the

offence. In support of his contention he relied upon a decision of the Judicial Committee in AIR 1948 82 (Privy Council) . Their Lordships in that

have laid down that a sanction granted without any reference to the facts that constitute an offence is not in compliance with the provisions of

Clause 23, Cotton Cloth and Yarn (Control) Order and is therefore not valid, and that the facts constituting the charge should be shown on the

face of the sanction, failing which it must be proved by the prosecution by extraneous evidence that the facts were placed before the sanctioning

authority.

The petitioner also cited to me an unreported decision of Somasundaram J. in Cr. R. C. No. 834 of 1948. In exactly similar circumstances the

learned Judge held that the sanction was not valid, as the facts constituting the offence were not set out in the order sanctioning the prosecution;

and as there was no extraneous evidence let in to prove that the facts constituting the offence were placed before the sanctioning authority.

The learned Judge there relied on the decision of the Judicial Committee referred to above in coming to the conclusion that the sanction was not

a valid one and therefore the prosecution was not maintainable. I express my respectful agreement with the view expressed by the learned Judge in

that case. I must therefore hold that the conviction of the petitioner is not attainable by reason of the fact that the sanction for prosecuting him was

not validly granted u/s 28, Cotton Cloth and Yarn (Control) Order.

In these circumstances I set aside the conviction and sentence passed on the petitioner. I also direct that the goods confiscated be returned to

the petitioner. The fine, if paid, will be refunded to the petitioner.