Public Prosecutor vs Kamakshi Ammal and Others

Ratnavel Pandian, J.—The State represented by the learned Public Prosecutor has preferred the above six appeals challenging the order of

acquittal passed in S.T.C. Nos. 544, 545, 546, 741, 773 and 774 of 1979 on the file of the Judicial First Class Magistrate, Tiruchirappalli,

acquitting all the accused in the above cases of the charge for contravention of sub-Cl.2 of Cl.20 of Cotton Textile (Control) Order, 1948 as per

Textile Commissioner''s notification No. C.E.R./10/1977 dated 15th April, 1977, punishable under S. 7(1)(a)(ii) of the Essential Commodities

Act, 1955 as amended in 1974.

Now, I shall give the brief facts of these cases, which are similar, leading to the prosecution. The Textile Inspector (P.W. 1) inspected the

respective power loom factories of the accused in each of these cases on various dates noted in the respective complaints and found that the

accused had produced dhoties with borders exceeding 6.35 mm. in width containing coloured yarn in the dhoti border. P.W. 1 seized the material

objects marked in each of the cases and recorded statements from the concerned accused persons. Show cause notices were issued for

contravention of the notification of the Textile Commissioner. As the explanations given by the accused were not satisfactory and convincing, the

complaints were preferred against the accused in each of the cases. All the accused denied the offence.

All these cases have ended in acquittal for the following common reasons: (1) As the prosecution has been launched after one year from the date

of the inspection, the prosecution is time-barred. (2) The notification has not been filed before the Court. (3) On the side of the prosecution, no

judicial pronouncement of the High Court of Tamil Nadu has been brought to the notice of the trial Court to the effect that the Court can take

judicial notice of the existence of the notification.

I shall now examine the above reasonings of the learned Magistrate in the light of provisions of the Code of Criminal Procedure and the

decisions of the Supreme Court and the various High Courts.

So far as the first reasoning of the learned Magistrate is concerned, I may straightway dismiss it saying that as the penal provision for

contravention of Cl.20 of the Cotton Textile (Control) Order, 1948 (hereinafter referred to as the Order) falls within the ambit of S. 7(1)(a)(ii) of

the Essential Commodities Act, 1955, as amended in 1974 (hereinafter referred to as the Act), which prescribes the punishment of imprisonment

upto a maximum period of seven years and also imposition of fine, this prosecution cannot be said to have been barred under the provisions of S.

468 of the Crl.P.C.

Now, coming to the other two above reasons, given in the order of acquittal they can be answered by deciding the following important

questions, viz.

(1) What does the expression ''notification'' mean?

(2) Whether a notification issued under a particular statute, ordinance or order would fall within the meaning of the expression ""existing law"" or ""the

law in force""?

(3) Whether the Court can take judicial notice of such a notification ?

Now, I shall answer the first question. The term ""notification"" is not defined in the General Clauses Act, 1897 (Central Act 10 of 1897), but has

been defined under the various State Acts which I shall presently refer to. S. 2(19A) of the Tamil Nadu General Clauses Act, 1891 as well as S.

2(m), of the Crl.P.C., of 1973 defines the term ''notification'' as meaning ""a notification published in the official gazette"". In the Andhra Pradesh

General Clauses Act, the term is defined as meaning ""a notification published in the official gazette by a lawful order"". The definitions given in the

General Clauses Acts of Assam, Bihar, Madhya Pradesh and other States are similar to the one given by the Tamil Nadu Act. In the Punjab Act,

the term is defined as meaning ""a notification published under proper authority in the official gazette"". From the above definitions it is clear that the

meaning of the term ''notification'' is the issue of an order and the publication of the same for the information of the public (See Abdul Jalil and

others v. State 1961 I Crl L.J. 562. While dealing with the question whether a notification has the force of law, the Supreme Court, in State of

Bombay v. F.N. Balsara AIR 1951 S.C. 318, has observed that an order made by the Government in exercise of the powers conferred by a

section in an Act owes its efficacy to the section and therefore, in the eye of the law, the notification has the force of law as if made by the

Legislature itself.

It need not be over-emphasized that any notification issued by the State Government or the Central Government should be in substantial

compliance of Art. 166 or Art. 77 of the Constitution of India, as the case may be. For example, a notification signed by the Secretary by the

order of the Governor was held to be in substantial compliance with Cl.(1) of Art. 166, in The State of Bombay Vs. Purushottam Jog Naik, . See

also R. Manickam and Others Vs. The Union Territory of Pondicherry and Another, Therefore, it is clear that a notification issued by the

Government should be in pursuance of the power conferred upon it by the statute concerned.

The next important requisite conditions for a valid notification is the publication in the official gazette. In Kishori Lal Badra v. State of Punjab

AIR 1978 P&H 402 it has been ruled that a ''notification'' means ''a notification published under proper authority in the official gazette"" so that,

unless publication was made, a notification could not be deemed to have taken effect. See In Re: P.A. Raju Chettiar and Others, . The Supreme

Court in Mahendra Lal Jaini Vs. The State of Uttar Pradesh and Others, while considering the validity of a notification issued under the provisions

of the Uttar Pradesh Forest Act, has held that ""a notification u/s 4 of the Forest Act is required to be published in the gazette and unless it is so

published, it is of no effect. The notification of March 23, 1955, was published in the gazette and was therefore a proper notification"". See also (1)

Prannath Samantarai Vs. Bhagirathi Sahoo, (2)Abdul Jalil v. State and (i) P.C. Gupta v. State AIR 1973 P&H.

On a reading of the above decisions, it would be clear that any notification issued under any statute, in order to be valid and proper, should

have been made in pursuance of the power conferred upon the authority by the particular statute and also should have been published in the official

gazette, and the said notification takes effect only from the date of its publication.

Now, I shall deal with the next two questions by referring to the decisions rendered by the Supreme Court and various High Courts touching

on them.

In AIR 1931 273 (Lahore) the Lahore High Court, following its earlier decision in Bawa Sarup Singh v. Emperor AIR 925. Lah. 299. = 26

Cri. L.J. 1078, held that when a copy of Gazette notification is produced even for the first time before the High Court in revision, the High Court

can presume its genuineness under S. 81 of the Evidence Act and can hold the production of it as sufficient even if it had been tendered in

evidence.

Subba Rao, J. (as he then was in Public Prosecutor v. Thippayya 1949 M.W.N. Crl.31 has observed as follows:

Under S. 57(1) of the Evidence Act, the Court should take judicial notice of all Indian Laws. ''Law Indian'' is defined by the General Clauses Act

under S. 3(27-a). It includes any law, ordinance, order, by law, rule or regulation passed or made at any time by any competent Legislature,

authority or person in British India.

In The State Vs. Nilam Das and Another, the Judicial Commissioner of the Himachal Pradesh Judicial Commissioner''s Court, while

constructing Ss. 57 and 81 of the Evidence Act has held:

Neither the Orders nor the notifications in question need proof as the Court will take Judicial notice of the former under S. 57, Evidence Act, and it

will presume the genuineness of the latter under S. 81 of that Act as the same were published in the Gazettee of India.

A Full Bench of the Madhya Bharat High Court in State v. Gopal Singh A.I.R 1956 M.B.138 , has while examining the question whether a

notification is within the definition of law, held as under:

''But there can be no doubt that if a notification is part of any Act, Ordinance, or Order, it would be within the definition of law or ''existing law''.

xx xx xx

...judicial notice can be taken of a notification issued by the Government or any competent authority in the exercise of delegated power of

legislation; that judicial notice cannot be taken of a notification issued by any authority in the exercise of its executive functions; that under the last

paragraph of S. 57, Evidence Act, a Court has a discretion to refuse to take judicial notice of a notification made in the exercise of delegated

power of legislation, unless the notification is produced.

In State Vs. Gokulchand, a Division Bench of the Gwalior Bench of the Madhya Pradesh High Court, following the decision of the Supreme

Court in The Edward Mills Co. Ltd., Beawar and Others Vs. The State of Ajmer and Another, , in which a question arose for determination

whether a notification issued under S. 94(3) of the Government of India Act, 1935 could be said to be a law in force within the meaning of Art.

372(1) of the Constitution, has held thus :

In the present case notification in question is issued by the State Government in exercise of its powers delegated to it under Essential Supplies

(Temporary Powers) Act. This was an order and could be included within the term ''Indian Law'' as used in S. 3(29) of the General Clauses Act in

accordance with the view of their Lordships. It also is an existing law as well as ''Law in force''. If this is so there is no reason why the Court

cannot take judicial notice of this law in force in the territory of India in accordance with S. 57(l) of the Indian Evidence Act.

Ultimately it concluded that ""the order relied upon need not have been proved and mere production of copy of the material Gazette notification of

the same was enough. (See also Secretary M.M. Committee v. Bapputty 1962 2 Cri.L.J. 549.

In Chattanatha Karayalar v. E.O. Puthalam Punch 1971 L.W. Crl. 122 .), K.N. Mudaliyar, J., after referring to some of the rulings of the

various High Courts, which I have referred to above, has held that in view of S. 57 of the Evidence Act, the Court can take judicial notice of the

existence of a notification.

A single Judge of the Mysore High Court in Abdul Rahiman Vs. The State of Mysore, agreeing with the view expressed in Public Prosecutor

v. Thippyya AIR 1949 Mad. 459 and State v. Gopal Singh AIR 1956 MB 138, had that under S. 57 of the Evidence Act, a court can take

judicial notice of a notification issued by the Government or any competent authority in the exercise of delegated power of legislation.

A Full Bench of the Madhya Pradesh High Court in Babulal Vs. The State of Rajasthan, went into the question whether the impugned

notification therein issued under S. 7(1) of the Telegraph Wires (Unlawful Possession) Act, 1950), has the force of law, of which judicial notice

can be taken; and the Full Bench, after having referred to Ss. 57 and 78 of the Evidence Act and after deeply going into the definition of the term

law"" concluded as follows:

As a result of the above discussion, it is clear that under our legal order and jurisprudence based on the Constitution, ""law"" is not limited to

legislative enactments. All forms of delegated legislation and conditional legislation amount to law. All orders and notifications made and issued

under statutory powers and which are legislative in nature amount to law. A statutory order or notification will be legislative in nature if in substance

it adds to, supplements, modifies or amends a statute or exempts certain matters from its operation.

XX XX XX XX

In our opinion, therefore, the notification amounts to law.

In that case, before the Full Bench, the learned Government Advocate produced a book published under the authority of the Central Government

containing the notification and the relevant Gazette in which the notification was printed. The learned Judges after going through the book and the

Gazette produced before them held:

We, therefore, find no difficulty in holding that judicial notice must be taken of the notification under S. 57(I) of the Evidence Act.

In State of Bombay, v. F.N. Balsara AIR 1951 S.C. 318 the Supreme Court has ruled thus:

An order made by the Provincial Government in exercise of the power conferred by this S. 139 of the Bombay Prohibition Act, 1949 owes its

legal efficacy to this section and therefore in the eye of the law the notification has the force of law as if made by the legislature itself.

X X X

...these notifications being made in exercise of the power given by the Act itself, have undoubtedly the force of law and must be read along with the

Act.

Before the Supreme Court in Kailash Nath and Another Vs. State of U.P. and Others, the validity of a notification issued by the Uttar Pradesh

Government Under the provisions of the U.P. Sales Tax Act came into question. The Supreme Court on examination of this question held as

follows:

This notification having been made in accordance with the power conferred by the statute has statutory force and validity...

In The State of Bihar Vs. Hiralal Kejriwal and Another, it was contended that the Cotton Textile (Control of Movement) Order of 1948 made

under the Essential Supplies (Temporary Powers) Act of 1946 and saved by S. 16 of the Essential Commodities Ordinance of 1955 fell with the

repeal of that Ordinance and hence the order was not continued under the Essential Commodities Act of 1955. The Supreme Court repelled that

contention and held that the Order of 1948 made under the Act of 1946 was validly continued by virtue of the saving provisions by S. 16 of the

Ordinance of 1955 read with S. 16(2) of the Essential Commodities Act of 1955 and hence the prosecution under S. 7 of the Essential

Commodities Act read with the Order of 1948 was validly launched against the accused therein. (See Shree Meenakshi Mills Ltd. Vs. Union of

India (UOI), ) wherein the Supreme Court has held that the Cotton Textiles Control Order of 1948 continued under the Essential Commodities

Act of 1955. See also The Lotus Industrials, Kallai, Malabar by sole Proprietor Mr. Velayudha Menon and Others Vs. The State of Madras and

Others,

I think it will be appropriate here to add that although the Constitution of India does not contain any generic definition of Jaw, it defines ""law

for purposes of Art. 13 to include ""any ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the

force of law"" as defined under Art. 13(3)(a). In this connection reference can be had to the decision of the Division Bench of the Bombay High

Court in Bhikusa Yamasa Kshatriya and Another Vs. Sangamner Akola Taluka Bidi Kamgar Union and Others, wherein the following observation

has been made:

It is to be noted that Art. 13, Cl.3, does not confer upon the order, rule, regulation, notification, etc., the character identical with the character of

the Act of the Legislature: All that it states is that the order, notification, etc, shall have the same force and shall be treated on the same footing as

the Act of the Legislature.

Having observed thus, the Bench has held that a notification issued under S. 10(2) of the Minimum Wages Act would have the same force as if it

were the law of the land.

Art. 366(10) of the Constitution also defines ""existing law"" to mean any law, Ordinance, order, bye-law, rule or regulation passed or made

before the commencement of this Constitution by any legislature, authority or person having power to make such a law, Ordinance, order, bye-

law, rule or regulation. Another definition which is relevant here is the definition of the expression ""Indian law"" in General Clauses Act of 1897. S.

3(29) of this General Clauses Act defines ""Indian law"" to mean�

any Act, Ordinance, Regulation, rule, order, bye-law or other instrument which before the commencement of the Constitution had the force of law

in any province of India or part thereof, or thereafter has the force of law in any Part A State or Part C State or pan thereof, but does not include

any Act of Parliament of the United Kingdom or any Order in Council, rule or other instrument made under such Act.

S. 20 of the General Clauses Act reads:

Where, by any Central Act or regulation, a power to issue any notification, order, scheme, rule, form or bye-law is conferred, then expressions

used in the notification, order, scheme, rule, form or bye-law, if it is made after the commencement of this Act, shall, unless there is anything

repugnant in the subject or context, have the same respective meanings as in the Act or Regulation conferring the power.

These definitions go to confirm that under our legal order ""law"" does not include only Legislative enactments but it also includes rules, orders,

notifications, etc., made or issued by the Government or any subordinate authority in the exercise of delegated legislative power.

S. 78 of the Evidence Act enacts that ""Acts, orders or notifications of the Central Government in any of its departments, or of the Crown

Representative or of any State Government or any department of any State Government"" may be proved by the records of the departments,

certified by the heads of those departments respectively, or by any document purporting to be printed by order of any such Government, or, as the

case may be, of the Crown Representative. S. 81 deals with the presumptions to be raised as regards the genuineness of Gazettes, newspapers,

private Acts of Parliament and other documents.

Though a court should take judicial notice of the fact mentioned in S. 57, it could only take such notice if unimpeachable books or documents

are put before it or otherwise accessible for its references. Under the last paragraph of the section the Court is given the discretion to refuse to take

judicial notice of any fact unless such person calling upon the Court to take judicial notice of such fact produces any such book or document as it

be necessary to enable it to do so.

Now, I shall see whether in the present case P.W.1 has satisfied the Court about the existence of the notification enabling it to take judicial

notice of the notification concerned. All the above case were tried before he court below simultaneously. It is seen from the records concerned in

S.T.C. No. 545 of 1979 (C.A. No. 898 of 1980), that a photostat copy of the Gazette of India, dated 11th June, 1977 has been produced,

though not marked, in which Gazette at page 2725 the notification No. CER/10/77 issued under CI 20 of the Cotton Textile Control Order, 1948

is found published. As regards the original notification, P.W.1 has given evidence in S.T.C. No. 773 of 1979 (C.A. No 901 of 1980) and S.T.C.

No. 774 of 1979 (C.A. No. 902 of 1980) that the notification had been filed before the Court of the Judicial First Class Magistrate No. I of

Tiruchirapalli in some other case which was then pending before it. Had the learned Magistrate wanted to verify the original, notification he would

have called for that notification from the file of the other case or insisted the complainant to cause production of the original notification in the

manner known to law for its satisfaction of the existence of such a notification. In the cases on hand there cannot be any legitimate complaint that

the prosecution had not at all let in evidence regarding the existence of the notification. In fact, the Court below has not given any finding doubting

the existence of any notification. What the lower Court has stated is that as no judicial pronouncement of this Court had been produced before it,

ruling that the Court can take judicial notice of the notification, it cannot take judicial notice of the notification concerned in these cases. Therefore,

for all the discussions made above, I hold that notification issued in exercise of the statutory powers conferred by the law amounts to law and

judicial notice can be taken of it.

In the result, the orders of acquittal passed in all the cases are set aside and all the matters are remanded to the Court below for a fresh enquiry

and disposal of the cases. It is open to the prosecution to produce a copy of the Gazette publication in addition to the photostat copy produced in

one of these cases which is found in the unfiled documents sent to this Court in a manner known to law so as to satisfy the Court below about the

genuineness of the notification. Similarly, it is also open to the accused persons to raise all the contentions in support of their defence before the

Court below which after hearing the respective parties shall dispose of these cases in accordance with law.