Manohar Lall vs Emperor

Sinha, J.—This is an application in revision against the concurrent orders of the Courts below convicting the petitioner under Rule 81(4), Defence of India Rules, read with Cls. 3 and 8, Bihar Cotton Cloth and Yarn Dealers (Licensing and Control) Order, 1944, (which hereinafter will be referred to as "the Provincial Order"), and sentencing him to rigorous imprisonment for six months and a fine of Rs. 500, and in default of payment of the fine, to further rigorous imprisonment for three months, The facts of this case lie within a very narrow compass, and may be stated as follows : On 20th May 1944, Babu Jamuna Prasad Sinha, a Cloth Inspector, came to know from one Ganesh Ram Barai that the petitioner, Manohar Lall, who is a dealer in cotton cloth at Daltonganj, had charged him Rs. 5-8-0 as the price of a sari, though the maximum retail price printed on it was Rs. 5-0-6 only. The Inspector, in order to make sure of the position, deputed another person, named Ganesh Prasad, to make a test purchase, and gave him Rs. 6 for the purpose, after satisfying himself that he had no other money on him. Ganesh Prasad went to the petitioner''s shop and came back with a sari and eight annas, and reported that the shop-keeper insisted upon Rs. 5-8-0 as the price for the same. The Inspector after taking down their statements, went to the petitioner''s shop. The petitioner denied having sold a sari for BS. 5-8-0, and asserted that he had charged only Rs. 5-0-6 but at the same time, according to the Inspector''s report, he was prepared to return seven annas and six pies. On being questioned as to why he had not given any of the two purchasers a cash memo, as required, the shop-keeper represented to him that the customers went away in a hurry without waiting for the issue of cash memos. The Inspector thereupon called upon the petitioner to produce his counterfoil book. The book was pro-duced by the petitioner, but it did not contain any entries corresponding to the sales in question. The Inspector then initialled the counterfoil book, and eventually filed a complaint for the petitioner''s prosecution for having charged a price higher than the maximum price fixed by Government and for omitting to issue cash memos as required by the terms of his licence. His report (EX 5) was the basis for the prosecution, and cognizance was taken by the Sub-Divisional Magistrate who tried the petitioner, and convicted and sentenced him as indicated above. On appeal, the learned Judicial Commissioner of Chota Nagpur affirmed the orders passed by the trial Court, and dismissed the appeal. Hence this application in revision.

On behalf of the petitioner, apart from criticising the findings of fact arrived at by the Courts below, the only question of law that has been raised before us, is that, as the prosecution was launched without the sanction of the Provincial Government previously obtained, the orders of the Courts below are wholly invalid. In this connection reliance was placed upon the ruling of the Division Bench of this Court, of which my brother Meredith was a member, in Kapildeo Pandey v. Emperor A. I. R. 1945 Pat. 375. In that case it was laid down that Clause 8 of the Provincial Order, did not create an offence, and that the Provincial Order had to be read along with, and as supplemental to, the Central Order, that is to say, the Cotton Cloth and Yarn (Control) Order, 1943, passed by the Central Government. If that case has been correctly decided, then there is no eseape from the conclusion that the petitioner''s con-viction and sentence under Clause 8, must be set aside as illegal, in view of the admitted position that no sanction of the Provincial Government to the prosecution of the petitioner for the offence under Clause 8, with which he has been charged had been previously i obtained. On the other hand, it has been contended on behalf of the Crown that their Lordships did not take the correct) view of the legal position in deciding that case and acquitting the accused person for want of the sanction of the Provincial Government. We are bound by that decision unless we take the view that that is not a correct decision, and in that event the case will have to be referred for the decision of a Full Bench. Hence, in this case the principal question that falls to be decided by us is whether the previous decision of this Court, referred to above, making the sanction of the Provincial Government a condition precedent to the institution of a prosecution under the Provincial Order also, has correctly laid down the law.

By Section 2 (1), Defence of India Act (35 of 1939), the Central Government has been authorised to make such rules as appear to it to be necessary for, amongst other things, "maintaining supplies and services essential to the life of the community." By Sub-section (2) of Section 2, the rules to be made by the Central Government may provide for, and empower any authority to make Orders providing for, certain matters enumerated in detail in that section, including the control of agriculture, trade or industry for the purpose of regulating or increasing the supply of, and the obtaining of information with regard to, articles or things of any description whatsoever which can be used in connexion with the conduct of war or for maintaining supplies and services essential to the life of the community, etc., etc. In pursuance of the rule-making power aforsaid, the Central Government has framed rules entitled "The Defence of India Rules," including Rule 81(2) which provides that the Central Government or the Provincial Government, for the purposes aforesaid, may by order provide for regulating or prohibiting the production, distribution, disposal or consumption, etc., of articles or things of any description whatsoever. The Central Government, under the authority vested in it by Rule 81(2), Defence of India Rules, promulgated the Order, known as "the Cotton Cloth and Yarn (Control) Order, 1943," which was amended several times. As amended in November 1943, Clause 10 of the Order empowered the Textile Commissioner, amongst other things, to specify "the maximum prices, ex-factory, wholesale and retail, at wniob any class or specification of cloth or yarn may be sold." Clause 12 (1) reads as follows:

No manufacturer or dealer shall sell or offer to sell any o''oth or yarn at a price higher than the maximum price specified in this behalf under Clause 10.

"Dealer" has been defined as

a person carrying on the business of selling cloth or yarn or bottle whether wholesale or retail, and whether or not in conjunction with any other business.

The Textile Commissioner means:

the Textile Commissioner appointed by the Central Government and includes such Additional Textile Commissioners as" may be appointed by the Central Government.

The powers and duties of the Textile Com, missioner have also been laid down in detail in that Order. By an amendment of the Order in August 1943, Clause 23 was added which runs as follows:

No proseoution for the contravention of any of the provisions of this Order shall be instituted without the previous sanction of the Provincial Government.

It will thus be noticed that this provision as regards previous sanction of the Provincial Government was introduced subsequently, apparently as a safeguard in favour of the subject. In exercise of the powers conferred by Rule 81(2), Defence of India Rules, the Governor of Bihar promulgated the Provincial Order on 14th January 1944. By this Order, provision was made particularly for the licensing of dealers in cloth. By Clause 3, it is pro-vided that no person shall carry on business as a dealer except under and in accordance with the terms and conditions of a licence in Form B, which was set out in the schedule attached to the Order itself. By Clause 8 it is provided that no licensee shall sell or offer to sell any cloth or yarn at a price in excess of the maximum price fixed for it. The other provisions of the Order are mainly concerned with laying down the rules for issuing or cancelling licence. One of the conditions laid down for observance by dealers in cloth is contained in para. 3 of Part 1 which requires all licensees (except holders of hawker''s licence) to issue to every customer a correct receipt--cash or credit memo, or invoice, as the case may be, setting forth certain particulars. The definition of "dealer" as contained in the Provincial Order is similar to that contained in the Central Order except that the former includes a hawker also, with the result that the Provincial Order makes reference to three kinds of dealers, namely, "(a) wholesale dealer, (b) retail dealer, and (c) hawker," each one of them being separately defined.

It will be noticed that the Provincial Order does not contain any provision, or set up any machinery, for the fixation of maximum prices. Hence the reference to maximum price in Clause 8 of the Provincial Order must have reference to the Central Order containing these provisions, as already indicated. The Provincial Order does not make any reference to the sanction of the Government to prosecutions under the Order being necessary : it is wholly silent on that question.

It has been contended on behalf of the Crown by the learned Standing Counsel that the Provincial Order is a self-contained one, and, as it does not require any sanction of the Provincial Government or any other authority for launching prosecutions in respect of the infringement of this Order, it should be held that the prosecution in the present case did not require any such sanction as is contended for on behalf of the petitioner. But can it be said that the Provincial Order is a self-contained one ? On the face of it, it is not, as already indicated. It does not make any provision for the machinery which should prescribe the maximum price of a particular kind of cloth. It is manifest, therefore, that the Provincial Order has got tq be read as supplemental to the Central Order which sets up the machinery for fixing the maximum prices. The Provincial Order concerns itself chiefly with setting up the machinery for licensing dealers in cloth. It is true that the Provincial Order lays down detailed rules for controlling and licensing dealers, including wholesale dealers, retail dealers and hawkers. It may be said that the Provincial Order advisedly omitted any reference to sanction of the Provincial Government or any other authority for launching prosecutions in res-pect of the violations of the Order. Now, the question is, if the Provincial Order has to be read as supplemental to the Central Order, is there any provision in the Provincial Order nullifying the effect of Clause 23 of the Central Order making it necessary that previous sane-tion of the Provincial Government must be obtained before launching a prosecution for the contravention of any of the provisions of the Order? Manifestly, there is no such provision.

The case may be looked at from another point of view. Under the provisions of Section 2, Defence of India Act, read with Rule 81(2) made by the Central Government under the Act, both the Central and the Provincial Governments have been empowered to make Orders, the Provincial Government being merely a delegate of the Central Government. As such delegate, the Provincial Government has promulgated the Order of 1944. The Central Government having already made provisions in the Central Order for the control of dealers in cloth and yarn, may it not be said that the delegate was authorised to make Orders consistent with the provisions already made by the Central Government itself ? In my opinion, the two Orders, that is to say, the Central and the Provincial Orders, have, if possible, got to be so read as to make them consistent. The Provincial Government could not have made provisions running counter to the main provisions of the Order promulgated by the Central Government. Hence, it may be inferred that the Provincial Government did not intend to make any provisions in the Provincial Order nullifying the effect of any of the provisions contained in the Central Order. If the Provincial Order intended to do so, to that extent the Order of the Provincial Government must be held to be invalid. Hence, viewed in either way, the conclusion is irresistible that the provision for obtaining the previous sanction of the Provincial Government is applicable to prosecutions under the Provincial Order also.

On behalf of the Crown, the learned Standing Counsel made reference to three decisions of this Court, each by a Single Judge in sup-port of his contention that no sanction was necessary for the petitioner''s prosecution. The first is a judgment of my brother Meredith in Rekhachand v. Emperor criminal Misc. No. 322 of 1944, delivered on 24th October 1944. Though there is the observation of my learned brother that no sanction of the Provincial Government is required for a prosecution under the Provincial Order of 1944, there is no discussion of the point, as there was no appearance for the petitioner in that case. Similarly, in the judgment delivered by me on 14th November 1944 in Jahuri Mull v. Emperor Criminal Revn. No. 1222 of 1944, the matter was not discussed, inasmuch as the learned Counsel appearing on behalf of the petitioners conceded in that case that such a sanction was not a condition precedent. Hence neither of those two decisions can be said to have discussed and decided the point in controversy in the present case, though there are observations in favour of the view we are now asked by the learned Standing Counsel to take. The judgment of my brother Shearer in Bishwanath Ram v. Emperor Cri. Revns. Nos. 96 and 98 of 1945, delivered on 19th March 1945, has been relied upon in the sense that, though the learned Judge (sic) lowed the application of the convicted persons and set aside their convictions and sentences following the Division Bench ruling of this Court in 1945 P.W. N. 1431 referred to above, being bound by that decision, he expressed a doubt as regards the correctness of that decision. In his judgment his Lordship considered the effect of Section 102 (2), Government of India Act, as to whether there was a repugnancy between the Provincial Order and the Central Order. He was inclined to the view that there was no repugnancy. But Section 102 (2), Government of India Act, in terms can bave no application to the present case, inasmuch as there is no question of any provision of a Provincial law being repugnant to any provision of a Central law, as conceded by the learned Standing Counsel. Both the Provincial and the Central Orders are parts of the same statute, namely, the Government of India Act. If, however, Section 102 (2) were applicable, the effect would be to make the Pro-vincial Order void to the extent of the repugnancy, if any. In dealing with the judgment of the Division Bench, in Cri. Revn. Nos. 96 and 98 of 19454 my brother Shearer made the following observations:

Agarwala J. in taking the view of the matter which he did relied on the presumption that the Legislature must be deemed to be consistent. This presumption, however, arises only when the two enaotments have been passed by the same Legislature and only when the words of the subsequent enactment can, without.,doing extreme violence to their ordinary grammatical meaning, be taken to be consistent with the words in the earlier enactment. If they were n6t capable of being so construed, the subsequent enactment impliedly repeals the prior enactment. In the present case, however, we are dealing with enactments one of which is made by one Legislature and the other by another Legislature and the presumption that an author must be deemed to be consistent with himself does not arise.

With all due deference to the views expressed by his Lordship, I have ventured to point out that it is not correct to say that the Central Order and the Provincial Order are enactments by two different Legislatures: certainly they have been made by two different authorities, but are parts of the same statute. Hence the presumption has got to be made that parts of the same statute are consistent with one another. Reference has also been made to Clause 2 of the Central Order to the effect that the provisions of that Order shall be in addition to, and not in derogation of, any other law for the time being in force. This clause, in my opinion, does not refer to parts of the same statute but statutes other than the Defence of India Act under which these Orders have been made.

We are naturally led to the discussion of the further question whether there is any repugnancy between the Central and the Provincial Orders. It was a little difficult to appreciate the stand taken by the learned Standing Counsel on this question. If I understood him aright, he would make it out that there is no repugnancy between the two from one point of view; but in the very next breath he would say that there was a repugnancy from another point of view, but that the later enactment, namely, the Provincial Order in that view ought to prevail. In my judgment the view taken by the Division Bench in the case referred to above to the effect that Clause 8 of the Provincial Order only emphasises the legal position that the mere fact that a dealer has been licensed to deal in cloth or yarn did not exonerate him from the penalties laid down in the Central Order for selling cloth or yarn at a price is excess of the maximum price fixed by it is the correct view of the law. It was not a penal clause by itself but connected the penalty laid down in the Central Order with the license granted under the Provincial Order. In that way, and only in that way, we can read the provisions of the two Orders consistently with one another. Furthermore, there is no specific provision in the Provincial Order saying that, notwithstanding any provisions made in the Central Order, particularly in ol. 28 aforesaid, any prosecution under the Provincial Order would not require any sanction either of the Provincial Government or of any other prescribed authority.

It may be noted that all dealing in cloth or yarn in the Province has got to be done under a licence, whatever the description of the dealer. Clause 3, Provincial Order, contains a definite prohibition against carrying on business as a dealer in cloth or yarn except under, and in accordance with, the terms and conditions of the licence provided for by the Order. Hence, a dealer, who is licensed, has got to comply with the terms and conditions of the licence. Any other person, doing business of this kind, will be liable to punishment for contravention of the Provincial Order. But, whether he is a licensed dealer or not, in the matter of prices of cloth or yarn he comes under the purview both of the Central and of the Provincial Orders. Hence, the ground covered by the Provincial Order in that matter is also covered by the Central Order, though the latter may be a little more comprehensive in the sense that it applies not only to dealers of different kinds, as contemplated in the Provincial Order, but also ta manufacturers. Hence, in my opinion, it cannot be said that the Provincial Order applies to some persons, dealing in cloth or yarn, to whom the Central Order does not apply. That being the position, the Central Government advisedly introduced Clause 23 aforesaid in order to safeguard the interests of the subject. The Provincial Order, as already indicated, does not expressly, or by necessary implication, do away with those safeguards. Hence, viewed as a matter of principle also, it may be said that the safeguard introduced by the Central Government in the interests of the subject should not be too readily held to have been done away with.

All these considerations apply to the conviction under Clause 8, Provincial Order. But do they also apply to the conviction and sentence under Clause 3, Provincial Order, namely, for the violation of the condition laid down in para. 3 of Part I, Provincial Order, for not granting cash memos, to the customers? For this omission the petitioner has been held guilty by both the Courts below. This part of the prosecution is not covered by the Central Order, nor by the Division Bench ruling of I this Court relied upon by the petitioner. It must, therefore, be held that the petitioner has been rightly and validly convicted under Clause 3, Provincial Order. As this is a minor offence as compared to the offence under Clause 8 of the Order, in my opinion, the justice of the case will be met by imposing a sentence of rigorous imprisonment for one month and a fine of Rs. 200, and, in default of payment of the fine, further rigorous imprisonment for one month.

In the result, I would allow the application in respect of the conviction and sentence under Clause 8, Provincial Order, setting them aside, but confirm the conviction under Clause 3 of the Order, and impose the sentence indicated above.

Meredith, J.

I agree.