Mansur Ali and Another vs Emperor

Sinha, J.—These two applications in revision arise out of the judgment of the learned Sessions Judge of Cuttack confirming the orders of the Magistrate, First Class of the same place convicting the petitioner in each case under Rule 81(4)/121 of the Defence of India Rules, and sentencing him to pay a fine of Rs. 100, and, in default, to undergo rigorous imprisonment for one month. In each case there was a further order of confiscation of the property seized.

The facts of this case lie within a narrow compass, and are not in dispute Petitioner, Mansur Ali in the one case and Sheikh Ahdulla in the other despatched several parcels from the Cuttaok Post Office, the destination in each case being Howrah. The parcels were seized, and were found to contain a large number of sayas (women''s underskirts). The petitioners were prosecuted on the charge of having contravened the Provincial Government''s Notification No. order 11698-ST., dated 23-12-1943, which runs as follows:

In exercise of the powers conferred by Sub-rule (2) of Rule 81 of the Defence of India Rules, the Governor of Orissa is pleased to order that no cotton cloth as denned in the Schedule annexed to this notification shall be transported by rail, road, water or air or in any other manner .from any place in Orissa to any place outside the Province except under and in accordance with the terms of a permit granted by the Controller of Supply and Transport, Orissa or any Officer authorised by him in this behalf.

SCHEDULE

''Cotton cloth'' means and includes cloth manufactured either wholly or partly from cotton, but does not include cloth manufactured wholly from wool, silk, artificial silk or jute.

The accused in each case did not deny the fact of having despatched the parcels from the Cuttack Post Office, but contended that no offence had been committed, as they had not transported'' "cloth" but ready-made garments which were not within the mischief of the notification aforesaid.

Both the Courts below have taken the view that the accused in each case is guilty of an attempt to contravene the provisions of the notification, and, in that view of the matter, convicted and sentenced the petitioners as stated above.

Mr. Patnaik, who appeared on behalf of the petitioner in both the cases, has contended, and, in my opinion, rightly, that, the word "cloth" not having been defined in the notification must be understood in its ordinary dictionary meaning of excluding ready-made garments. The" schedule to the notification contains definition of "cotton cloth"; it has not attempted any definition of "cloth". The learned Advocate-General contended that, as the garments in question are all made of cotton cloth, they are within the mischief of the notification, But, in my opinion, simply because the garments are made of cotton cloth, it does not follow as a necessary legal corollary that they are "cloth", The Oxford Dictionary, vol. 2, has given an elaborate meaning in its different senses of the word "cloth", which may support either point of view. It gives the following significant meaning of the word "cloth" as used in modern English:

As a singular cloth is not now used in the sense of ''a garment'', and has received a new plural cloths for its extant sense, cloths remains a collective plural, without a singular; to express the latter, a phrase, such as article of clothing,'' or another word, such as ''garment'' is used.

It will, therefore, appear that, though in the 19th century or earlier the usage of this word may have included the sense of a garment also order in the 20th century the term "cloth" is not used in the sense of a garment but in the sense of the material used for making garments. Hence, in my opinion, the contention raised on behalf of the petitioners that ready-made garments are not within the meaning of the notification of the Provincial Government, referred to above, is well founded. Mr. Patnaik also pointed out that the Central Government used the word "cloth" in the sense contended for by him, appears from the following definition of "cloth" in the Cotton Cloth and Yarn (Transmission by Post) Prohibition Order, 1944:

''cloth'' means any kind of cloth manufactured either wholly or partly from cotton, but does not include cloth. made up into garments.

He, therefore, contended that, in the absence of a'' special definition of "cloth" in the Provincial Order said to have been contravened by the petitioners, the definition given by the Central Order, as quoted above, should be deemed to apply to the present case, or, at any rate, the public should not be held liable for any penalty for construing the word "cloth" in that sense The learned Advocate-General, in answer to this contention, submitted that the meaning of "cloth" as contained in the Central Order referred to above is for the purposes of that particular Order, and-not for all purposes. But it may be, said for the petitioners, as has been contended by Mr. Patnaik, that, where there are two parallel Orders, one by the Provincial Government and the other by the Central Government, relating to the same subject-matter, in the absence of any definition of "cloth" in the Provincial Order, the definition of the word in the Central Order, may be utilised for purposes of both the Orders and the word understood in the same sense, unless a contrary intention is apparent from the words used in the Provincial Order. The Central Government promulgated the Cotton Cloth and Yarn (Transmission by Post) Prohibition Order, 1946, in which it is provided that:

"cloth" means any kind of cloth, manufactured either wholly or partly from cotton and includes garments or other articles of personal or domestic use (other, than used or old garments) made wholly or principally from cloth.

This Central Order was republished in the Orissa Gazette, dated 15-11.4946. The alleged offences in this case are said to have been committed on 22nd and 23rd March 1946. The Provincial Government also promulgated an. Order relating to ready made garments, which was published in the Orissa Gazette on 11-6-1946 making it clear that the penalty attached even to transmission of ready-made garments. Mr Patnaik for the petitioners contended that these later orders would show that the orders said to have been infringed in the present case were not intended to punish the transmission of ready-made garments. On the other hand, the learned Advocate-General contended that the later Orders of the Provincial Government only made the meaning more clear and unequivocal by providing that ready-made garments were also within the mischief of the penalty. In my opinion, the words used in the Orders of the Provincial Government, dated 23-12-1943, are not so explicit as necessarily to include ready-made garments as coming within the meaning of the prohibition. If there is any doubt about the interpretation of the words creating the offence, the benefit of the doubt must go to the accused.

In view of these considerations, it must be held that the petitioners have not committed any offence punishable under Rule 81 (4) read with Rule 121 of the Defence of India Rules. The orders passed be the Courts below, therefore, must be set aside and the petitioners acquitted. It follows that the orders of confiscation also must be Set aside The Rules are accordingly made absolute.

Shearer J.

I agree