Jagmohan Lal and Others vs Emperor

Agarwala, J.—Petitioner Jagmohan Lal has been sentenced to pay a fine of Rs. 1000, and in default to undergo rigorous imprisonment for six months on conviction of an offence under R. 81(4) Defence of India Rules. Petitioner Bishwanath Prasad has been sentenced to pay a fine of Rs. 500 or in default to undergo rigorous imprisonment for six months for a similar offence. The other two petitioners have been sentenced to pay a fine of Rs. 300 or to undergo rigorous imprisonment for six months on the same charge. On 14-10-1944, a test purchase was made at the shop of Ganga Company of which Jagmohan Lal is the manager. The purchase consisted of three lengths of coating for which the purchaser was charged Rs. 94-4-0 a cash memo being given to him for Rs. 88-13-0. The receipt was written by the petitioner Madho Prasad, a munib of the shop. The petitioner Bishwanath was the salesman. This fact having been reported to the Sub-divisional Officer of Chapra, sanction for the prosecution of the accused was obtained from the Provincial Government. The sanction stated that the prosecution of the petitioners was sanctioned under cl. (23), Cotton Cloth and Yarn (Control) Order, 1943, on a charge under R. 12, cl. (4) of that Order. Clause 4 of R. 12 of the Order is as follows:

No manufacturer or dealer shall, without sufficient cause, refuse to sell cloth or yarn to any person.

Two charges were framed against the accused, one under cl. (4) of R. 12, Control Order, 1943, and the other under cl. (8), Bihar Cloth and Yarn Dealers Licensing and Control Order, 1944. The latter is as follows:

No licensee shall sell or offer to sell any cloth or yarn at a price in excess of the maximum price fixed for it . . . .

It was pointed out in 24 Pat. 257 : Kapildeo Pandey Vs. Emperor, that a prosecution for selling cloth or yarn at a rate above the controlled price requires sanction of the Provincial Government or of an officer of the Provincial Government duly authorised in that behalf under R. 3 of the Order of 1943 and the necessity of such a sanction could not be avoided by framing a charge under R. 8 of the Order of 1944 as that rule does not create a punishable offence at all. This view was re-agitated in 24 Pat. 487 : Manohar Lall Vs. Emperor, . The present petitioners were also convicted of an offence under cl. (8) of the Order of 1944, but no separate sentence was passed on them. In view of the decisions cited above, this conviction must be set aside.

With regard to the convictions in respect of an offence under R. 12(4) of the Order of 1943, it is not the prosecution case that the petitioners refused to sell cloth or yarn and no evidence in that behalf was led. The case of the prosecution is that they sold cloth at a rate in excess of the controlled price fixed by the Textile Commissioner in exercise of the powers conferred upon him by R. 10 of the Order, which is an offence under cl. (1) of R. 12 of the Order. As there was no evidence on the record that the price fixed by the Textile Commissioner for cloth of the kind which is the subject-matter of the present case had been fixed, the hearing of this application was adjourned in order to enable the Crown to satisfy the Court that the Textile Commissioner had in fact fixed the price less than that charged by the petitioners. It now transpires that although a maximum price was fixed for the cloth in question, this price had not been notified in the Gazette of India as required by R. 10 of the Order. As the Order requires] such publication, it cannot be considered an offence to sell above the price fixed by the Commissioner until he has notified the price which he has fixed by means of a notification in the Gazette of India. Furthermore, the prosecution of the petitioners for an offence under cl. (1) of R. 12 has not been sanctioned, as the sanction which was obtained in this case was the sanction for an offence under cl. (4) of R. 12. The conviction and sentences of the petitioners are, therefore, set aside. The fines, if paid, will be refunded.