State vs Gendalal and Others

Mehta, J.—These criminal appeals are filed by the Government Advocate on behalf of the Government against the order of acquittal passed by the District Magistrate on 9th September in various criminal cases e.g. Criminal Case No. 1844 of 1947, Criminal Case No. 1845 of 1947, criminal Case No. 1846 of 1947 and criminal case No. 10233 of 1947.

I will first of all take up Criminal Appeals Nos. 19 and 24, They arise from, the facts of criminal case No. 1846 and 10233 of 1947. Both these cases were jointly tried by the District Magistrate, vide order in proceedings dated 3rd February 1948. Both these cases were decided on 9th September 1948. In criminal Case No. 1810 of 1947, information having been received that the firm styled as Messrs. Prakashcbandra Rameshchandra was in possession of time-barred; cloth in contravention of Section 14, Clause U), Indore Cotton Cloth and Yarn Control Order 1945, & search was made on premises occupied by the firm by Mr. Adsule, Textile Inspector under the orders of Textile Commissioner. Time barred cloth as per schedule attached was seized from the firm of Prakashchadra Rameshchandra Criminal case No. 1846 of 1947. was filed by the Deputy Textile Commissioner against Gendalal, Gulabchand and Dhannalal. Then criminal Case No. 10,233 of 1947 was launched on a complaint by the Deputy Textile Commissioner on 18th November 1947 regarding the seizure of time-barred cloth and all the parters of the firm of Prakashchandra Rameshchandra were prosecuted e.g. (1) Gambhirmal, (2) Mrs. Manakbai, (3) Mrs. Sunderbai, (4) Mr. Himatbumar, (5) Bimal-chand, (6) Prakashchandra, (7) Kailaschandra, (8) Rameshchandra and (9) Dhannalal.

Sanction for the prosecution was given by the Textile Commissioner, Mr. Narayan Swami. Criminal cases Nos. 1846 of 1947 and 10233 of 1947 were jointly tried, vide order in proceedings dated 3-2-1948, passed by the District Magistrate, Mr. Munshi. The District Magistrate convicted only the accused Gambhirmal for contravening the provisions of Clause. 14, Indore Cotton Cloth and Yarn Control Order read with Section 8, Indore Essential Supplies Order and sentenced him to pay a fine of Rs. 2000 or in default rigorous imprisonment for 4 months. The remaining accused were acquitted. Criminal Appeals Nos. 19 and 24 have been preferred by the Government against the order of acquittal. Appeal No. 19 of 1949 was filed originally, on 8th March 1949 against the order of acquittal in favour of Gendalal, Gulabchand and Dhannalal. Subsequently on 16th March a communication was received from the Law Department directing appeal only against Gendalal and Gulabchand and the appeal against the acquittal of Dhannalal was withdrawn Subsequently on 21st March another communication was received; from the Government sanctioning appeal against the acquittal of Gendalal Gulab chand and Dhannalal. Hence Criminal Appeal No. 24 of 1949 is filled. Criminal Appeal No. 24 of 1919 which is subsequently filed against acquittal of Dhannalal on 21st March 1949 is obviously time-barred and we have passed order that Criminal Appeal No. 24 of 1949 shall be struck off the register of appeals and it shall be treated as an application in Criminal Appeal No. 19 of 1949. The District Magistrate came to the conclusion that in consequence of the search made at the shop of Prakashchandra Rameahchandra time-barred cloth as shown in Panchanama p/4 was seized. It is admitted that the following items of time-barred cloth were seized viz. Items Nos. 10, 11, 12, 13, 14 15, ''20, 21, 22, 24, 20, ''28, 30, 31 and 114. The lower Court without deciding the question as to who were the partners of the firm of Prakashchandra Rameshchandra acquitted Gendalal & Guladchandra on the ground that assuming that oven if they are partners they are not liable as they had no blameworthy mind and held that as mens rea was not proved against them they were not guilty for the contravention of Clause 14(1), Cotton Cloth and Yarn Control Order and acquitted them. As the license of the above firm was issued in the name of Gambhirmal and the latter admitted that time-barred cloth was recovered and seized from the shop, he was convicted and fined Rs. 2000. The excuse of Gambhirmal that time-barred cloth was kept aside for the bona fide purpose of marriage in the family was found by the lower Court not lawful.

Before I take up the various points of contentions raised in this appeal, it would be necessary to discuss the various notifications issued by the Textile Commissioner, Indore under the provisions of Indore Cotton Cloth and Yam Control Order of''1.045 and various clauses of the Cotton Cloth and Yarn Control Order.

The Indore Cotton Cloth Yarn Control Order of 1945 was passed in super session of the Indore Cotton Cloth Yarn Control Order of 1943 in exercise of the powers conferred by Sub-rule (2) of Rule 81, Defence of India Rules as applied to the Holkar State. u/s 81(2), Central and Provisional Government were authorised to make orders for regulating and maintaining the supplies production and controlling the rates of commodities essential to the life of community. For this purpose the Indore Cotton Cloth and Yarn Control Order was passed and the Textile Commissioner and he Deputy Textile Commissioner were appointed.

According to Section 10 of the above order the Textile commissioner may by Notification in Holkar Government Gazette specify the maximum quantity of cloth which may be stecked by any dealer and the maximum period for which he may hold such stocks (b). The maximum prices ex factory wholesale and retail at which any class or specification of cloth or yarn may be sold; (c) the markings to be made by the manufacturer and dealers on any class or specification of cloth and yarn, manufactured or sold by them and the time and manner of making these markings Under Clause 12(i) no manufacturer or dealer shall sell or offer to sell any cloth or yarn at a price higher than the maximum price specified in this behalf under Clause 10.

Clause 14 provided that no manufacturer or dealer shall buy or sell or have in his possession any cloth or yarn after expiration of 12 months from the last day of the month marked on the cloth or yarn, in accordance with the direction of the Textile Commissioner under Clause 10 and no person shall buy or sell or have in his possession any such cloth or yarn in unopened bales after the expiration of G months from the said date. Clause 15-A provided that notwithstanding anything contained in Clauses 14(1), 14(2) cloth or yarn not disposed of within the period specified, in these clauses may be kept and Bold by a dealer subject to the conditions notified in this behalf by the Textile Commissioner, prescribing the special markings to be made on such cloth or yarn, the agency by which the markings shall be made and the fee payable for such marking.

Accordingly Notification No. 56 T.C. dated 23rd December 1944 was published in Holkar State Gazette dated 25th December 1944 at P. 804 stating that on or after 1st January 1945 it will be an offence for any dealer or hawker to be in possession on or after let January 1945 of any cloth or yarn T.C.B. marked before 1st July 1944; (b) any cloth or yarn not marked with T.C.B. being seasonal cloth ex. empted from such stamping; (c) any cloth or yarn tex-marked i.e. marked by a manufacturer from August 1943. Clause 2 of the aforesaid notification states that cloth or yarn tex-marked on or after January 1944, must be disposed off within 12 months from the date of tex-marking. Clause (4). All dealers who have in their possession cloth or yarn which is time barred under this notification on 1st January 1945 shall submit to this office a statement in the usual form of quarterly stock return of all such time barred cloth so as to reach this office by 5th January 1945 latest Failure to submit the aforesaid return in time shall also be an offence under the Defence of India Rules.

Notification No. 84 dated 7th April 1945, is as follow a in suppression of this Office Notification No. 20 T.C. dated 4th March 1944 in connation with the fixation of prices and in pursuance of the power vested in me under Clause 10(b), Indore Cotton Cloth and Yarn Control Order, 1945, I order that the maximum prices ex-factory, whole-sale and retail for all classes and specifications of cotton cloth and yarn, as fixed by the Textile Commissioner Bombay, and published in the Government of India Gazette extraordinary from time to time, shall be applicable in this state also. This shall apply to cloth made outside India also.

Notification No. 2270 T.C. dated 25th May 1945 states : In continuation of this office Notification No. 66 dated 23rd December 1944 in connation with the time limit for disposal of cloth and opening of bales, it is hereby published for the information of all the cloth and yarn dealers of Holkar State, that they should give stock returns of such cloth and yarn which becomes time barred at the close of every month in the prescribed form available in the office and before the fifth of the next month. It may be noted that the time limit for final disposal of T.C. 13. marked cloth is six months and not twelve months. Notification No. 565/T.C. dated 2nd October 1945, was published in Holkar State Gazette dated 8th October 1945 p 40 part II by which the time barred cloth with dealers was to be released under the seal and in the manner indicated in the notification.

It may be noted further that u/s 5, Indore Essential Supplies Order, Section 5, Indore Cotton Cloth and Yarn Control Order was continued in force and the offence was made punishable u/s 8 of the above order.

It was not disputed as observed before that the time-barred cloth was seized from the shop of Prakashchandra Rameshchandra. Mr. Rege learned pleader on behalf of the Respondents Gendalal and Gulabchand contended (1) that the prosecution had failed to prove that Gendalal and Gulabohand were partners of the firm of Prakashchandra; (1) (b) that there was no proof of mans rea in case of Gendalal and Gulabchand; (2) There was no proper and valid sanction and the trial was vitiated; (3) The prosecution should have put on record the various, notifications on which they rely.

As regards Point No. 1 it was urged by Mr. Rege that Gambhirmal Gendalal and Gulabchand are not partners of the firm of Rameshchandra Prakaschandra but they are members of joint Hindu family firm. The three brothers, their wives and minor children are included as partners of the above firm. He relied on Section 5 Indore Partnership Act, where it is stated that the relationship of partnership arises from contract and not from status; and in particular, the members of a Hindu undivided family carrying on a family business as such are not partners in such business. However it appears that in this case u/s 68, Indore Partnership Act, an application for registration of the firm of Prakashchandra Rameshchandra was made vide Ex. p-2 and ten partners including Respondents Gendalal and Gulabchand signed and verified the statement filed u/s 58 of the Act. Exhibit P-2 is produced by P.W. 1, Londhe, clerk in the office of Registrar Joint Stock Companies. The prosecution case is that the declaration of partnership P-2 A to A and 1 is in handwriting of Gulabchand and is signed by him and also by Gendalal Both Gulabchand and Gendalal have denied their signature on Ex. P-2.

The prosecution has examined P.W. 8 Narendra. Kumar Tivari who deposes that he was working under Gulabchand in the sale shop of Hukamohand Mill. He was contract clerk from 1939 to 1947. Gulabchand was the head salesman of Hukumohand Cloth Shop. He deposes that he knows the handwriting and signature of Gulabchand. He deposes that many chits bearing the signature and in handwriting of Gulabchand used to pass through his hands. After seeing Ex. p-2 declaration he deposes that the signature A to A is of Gulabchand and Gulabchand has signed for others. Verification on Ex. P-2 is also Signed by Gulabchand. I am satisfied from the evidence of Tivari that he knew the handwriting of Gulabohand Soni and he had ample opportunities and occasions to see the signature and handwriting of Gulabchanfl Soni. He has identified the signature of Gulabchand Soni on Ex. P. 2. u/s 59, Indore Partnership Act, when the Registrar is satisfied that the provisions of Section 53 have been duly complied with, he shall record an entry/of the statement in a register called, the Register of Firms and shall file the statement. u/s 68 of the Act any statement, intimation or notice recorded or noted in the Register of Firms shall, as against any person by whom or on whose behalf such statement, intimation or notice was signed, be conclusive proof of any fact therein stated. A certified copy of an entry relating to a firm in the Register of Firms may be produced in proof of the fact of the registration of such firm and of the contents of any statement noted or recorded therein. I, therefore, hold from the above evidence, it is proved that Gulabchand and Gendalal are partners of the firm of Prakashchandra Rameshchandra.

It was further contended that the license for the firm of Prakashohandra Rameshchandra was issued in the name of Gambhirmal Lakhmichand and therefore Gendalal and Gulabchand are not liable. In my opinion this argument is not tenable. Partnership as such has no existence apart from the individuals constituting the firm and every person who failed without lawful excuse to secure compliance with the provisions of Cotton Cloth and Yarn Control Order, shall be deemed to have contravened the provisions of the order.

It was further argued by Mr. Rege that there is no evidence that Gendalal and Gulabchand had a blameworthy mind. It is urged that Gendalal and Gulabchand did not know that time-barred cloth was kept in the shop of Prakaehchandra Rameshchandra and as the necessary event of mens rea was lacking, they cannot be held guilty for contravention of Clause 14(1), Indore Cotton Cloth and Yarn Control Order. As a general rule a master is not criminally liable for the acts of his servants but there are certain well recognised exceptions to this rude. One of the exceptions is when the statute prohibits an act or enforces a duty in such words as to make the prohibition or the enforcement of the duty absolute; here the master would be held vicariously liable although he had not a guilty mind. In construing the provisions of Indore Cotton Cloth Yarn Control Order to sea whether it makes any person other than the one who himself contravenes any of its provisions liable regard must be had to its object, scope and nature.

The question whether the statute, has by any necessary implications made the master liable, depends on various considerations. So far as the scope and object of Indore Cotton Cloth and Yarn Control Order are concerned, it is obvious that the intention was to put an end to the black marketing and a duty was cast on the dealer not to soil cloth at a rate higher than the price fixed. It appears to me clear that the language of the Indore Cotton Cloth and Yarn Control Order is significant and by implication the manufacturer and dealer are made liable. In my opinion the provisions of Clause 14, Indore Cotton Cloth and Yarn Control Order are mandatory. The dealers of the firm of Prakashchandra Rameshchandra are Gaimbhirmal Gulabchand Gendalal and they have contravened the provisions of Clause 14, of the above order as they were in possession of time barred cloth. The accused could have availed themselves of the enabling provisions of Clause 15A which states that notwithstanding anything contained in Clauses 14(1) and 14(2) cloth or yarn not disposed of within the period specified in these clauses may be kept and sold by a dealer subject to the condition notified in this behalf by Notifn. NO. 56 T.C. dated 23rd December 1944, published in Holkar State Gazette dated 25th December 1944, published at P. 204 and various other notifications above referred to by which the time barred cloth with the dealers was to be released under, the seal of Indore Textile Commissioner''s office in the manner indicated in the above notifications. They should have submitted in the usual form of quantity of stock of all such time-barred cloth. Failure to submit the returns in time is an offence. Time-barred cloth may be kept and sold by a dealer subject to the conditions notified in this behalf by the Textile Commissioner Indore, prescribing the special markings to be made on such cloth or yarn and the agency by which the markings shall be made and the foes payable for such marking. the dealers failed to get the special marking and to avail themselves of enabling provisions of Clause 15A because presumably they wanted to sell cloth in black market It was urged that Gendalal and Gulabchand who are partners of the firm of Prakashchandra Rameshchandra did not know that the time-barred cloth was kept or stored in the shop and as they had no guilty knowledge, they are not liable. In my opinion in the present case the element of mens rea is ruled out by necessary implications of the statutory provisions and all the three dealers viz. Gambhirmal, Gendalal and Gulabchand are liable for contravention of Clause 14, Indore Cotton Cloth and Yarn Control Order. I am fortified in the view I take by decisions reported in Kanhiya Lal Vs. Emperor, In re Swaranath Bhatia AIR 1948 Mad. 427 : 49 Cr.L.J. 570 , Narsing Das Modi Vs. Emperor, Emperor v. Jayanti Lal AIR 1947 Sind 130 : 48 Cr. L.J. 419 Harish Chandra Bagla Vs. Emperor, , Laljee Vs. Emperor, and Emperor Vs. Mahomed Bashir,

Mr. Rege, learned pleader for the Respondent, relied on the authority of Privy-Council decision reported in Srinivas Mall v. Emperor AIR 1947 P.C. 135 : 26 Pat. 460. In this case the High Court of Patna took the view that even if the Appellant 1 had not been proved to have known of the unlawful act of Appellant 2, he would still be liable on the ground that where there is an absolute prohibition and no question of mens rea arises, the master is criminally liable for the act of his servant. Their Lordships of the Privy Council expressed dissent from this view. They observed that they see no ground for saying that offences against those of Defence of India Rules here in question are within the limited and exceptional class of offences which can be held to be committed without a guilty mind. Offences which are within that class are usually of a comparatively minor character and it would be a surprising result of this delegated legislation if a person who was morally innocent of blame could be held vicariously liable for a servant''s crime and so punishable with imprisonment for a term which may extend to three years. They expressed their agreement with the view expressed by Lord Chief Justice of England when he said:

It is in my opinion of the utmost importance for the protection of the liberty of the subject that the Court should always bear in mind that, unless the statute either clearly or by necessary implications, rules out mens rea as a constituent part of a crime, a Defendant should not be found guilty of an offence against the criminal law unless he has got a guilty mind.

In this Privy Council case the principal was the salt agent and his servant sold salt in excess of the fixed price. Their Lordships confirmed the convictions and sentences on both the Appellants because the principal connived at and abetted the act of his servant in selling salt above the fixed price.

But even after the above decision of Privy Council in Srmivas Mall v. Emperor AIR 1017 i.e. 135 : (20 Pat. 400, a Division Bench of Patna High Court in Narsing Das Modi Vs. Emperor, held that where cloth is sold at a price in excess of the controlled price in contravention of Section 12, Cotton Cloth Yarn Control Order, and the cloth is handed over to the customer and the money for it is received not by the dealer (cloth merchant) but by his salesman in the absence of the merchant from the shop, in law and in fact, the sale is actually made by the merchant himself and he is criminally liable. They hold that contravention of Cloth and Yarn Control Order pertain to that limited class of cases where a particular intent or state of mind is not of the essence of the offence and the Act or defaults of a servant or an agent may make the master or principal criminally liable, although he was not aware of such acts or defaults and even where they were against his orders. In short they came to the conclusion that by necessary implication, the doctrine of mens rea was ruled out. In Narsingh Das Modi v. Emperor AIR 1918 Pat. 110 : 49 Cr. L.J. 63 , the Division Bench distinguished the ruling in Ramnarain Kedia and Another Vs. Emperor, They expressed the opinion that in Ram Narain v. Emperor AIR 1910 Pat. 30 : 47 Cr. L.J. 563 , the maxim Respondent superior which applies to this case had clearly no application in Ramnarain Kedia and Another Vs. Emperor, . In Ram Narain v. Emperor AIR (33) 1946 Pat. 30 : 47 Cr. L.J. 563, the relationship of principal and agent did not subsist as between the partner who was in charge of the shop and the other partner who was a sleeping partner.

In In re Swaranath Bhatia AIR 1948 Mad. 427 : 49 Cr. L.J. 707, the facts were that there was a partnership firm of Vishwanath Prem Prakash of which the Appellant the Swaranath Bhatia was a partner. He was convicted for contravention of Madras Cotton Cloth and Apparel (Export) Control Order, 1946 and thereby committed an offence punishable under Rule 81(4) read with Rule 121, Defence of India Rules, and sentence to a fine of Rs. 300. The partnership of Vishwanath Prem Prakash had been given by the Textile Commissioner Madras, permit to export 10,000 yards of cloth from madras to Amritsar. On 27th June 1946 acting on this permit six bales of cotton textiles containing 18, 872 yards of cloth were booked for despatch at the Salt Cotaurs goods shed by an agent and carting contractor engaged by one Ram Dutt an employee of the firm of Vishwanath Prem Prakash and which bales of cloth had been handed over to carting contractor by Ram Dutt for despatch. Those six bales were seized by the control officer, on receding the information and the accused Appellant was challenged as stated above. The defence of the Appellant was that those bales wore booked by mistake by Ram Dutt employee of the firm and that the Appellant was not in Madras at the time of despatch and knew nothing about the consignment.

In this case it was argued that Rule 122, Defence of India Rules would not apply to offence committed by body corporate and the partnership in question will not come within the meaning of the expression other body corporate in Rule 122 Repelling these contentions their Lordships of the Madras High Court held that according to Section 3(39), General Clauses Act, a person includes partnership and in Rule 5, Defence of India Rules, a partnership fails to secure compliance with the orders made under the Defence of India Rules such partnership should be deemed to have contravened the provisions o! those Rules. But the partnership as such has no existence apart from the individuals constituting the firm. Therefore, every partner who fails without lawful excuse to secure compliance with such order shall be deemed to have contravened the provisions of the order. The Madras Cotton Cloth and Apparel (Exports) Control Order, 1916 was one promulgated under the Defence of India Rules and if there had been a contravention of the terms of a license granted under the order, by the export of more than 10,000 yards cloth permitted by the license,, every partner of the firm which has exported these goods shall be deemed to have contravened the provisions of the order. The burden, according to Rule 123A, of proving the circumstances exculpating him exist is on such partner. It is not the duty of the prosecution to prove that the accused contravened the provisions of the order without lawful excuse and had knowledge of the contravention.

In this case the Madras High Court distinguished the decision of the Privy Council reported in Srimvas Mall v. Emperor AIR 1947 P.C. 135 : (26 Pat. 60). Madras High Court held that the Privy Council decision in Shrinivas Mall v. Emperor A.I.R 1947 P.C. 135 : 26 Pat. 469, cannot be applied No location of partnership arose before the Judicial committee. Here the export in excess was done knowingly and with duo perception that the act (sic) prohibited by the rules.

In Kanhiya Lal v. Emperer AIR 1948 ALL 270 : 49 Cr. L.J. 333, the charge against the accused persons, who wore all dealers n cloth, was that after 23rd December 1944 they were found in possession of cloth manufactured before 1st August 1943 and thereby they contravened the provisions of Clause 14, Government of India Cotton Cloth and Yarn Control Order, Rule 81(a) and wove accordingly punishable u/s 91 Defense of India Rules. It win held it the prohibition in Clause 14 is absolute and is object only to the condition that if the Textile commissioner has issued a notification under Clause 15(A) about the special markings, etc., the dealer may retain the cloth for a further period of six months from the date of the marking in accordance with the notification. In case there is so such notification by the Textile Commissioner the dealer has no right to retain it or to offer it for sale after 31st December 1944. In this case also the decision of the Privy Council in Srinivis Mall v. Emperor AIR 1947 P.C. 135 : 20 Pat. 460, was referred to and distinguished on the ground that in the present case the element of mem rea, was ruled out by necessary implications of the statutory provisions. The mere possession of time barred cloth (i.e. cloth manufactured before August 1943) after 31st December 1944 has been made an offence by Clause 14 of, the order. There is no question of vicarious liability in Allahabad case referred to above.

It was contended in this case that Gambhirmal in whose name the license was issued for the firm of Prakashchandra Rameshahandra is alone liable for the contravention of Indore Cotton Cloth and Yarn Control Order and that the other partners viz, Gendalal and Gulabchand who did not take part in the management of the shop are not liable. This argument is fallacious. In my view there is no doubt whatsoever that when a member of the firm possesses, such as Gambhirmal did, time-barred cloth in the premises of the firm, all the members of the firm become liable for any breach of the statutory orders relating to the possession of cloth which is time barred. It is no good-defence for one partner to deny his connection with the management of business every partner of the firm must retain such a control and he must exercise proper supervision or he must accept the consequences for his negligence. When, therefore, one of the partners of a firm is found in possession of time-barred cloth in the premises of the firm in contravention of Clause 14(A), Indore Gotten Cloth and Yarn Control Order all partners are liable to be convicted for the breach vide Emperor v. Jayanti Lal AIR 1947 sind 130 : 48 Cr. L.J. 419. My attention has bean drawn to some of the decisions which have followed the decision of the Privy Council in Srinivas Mall v. Emperor AIR 1947 p. c. 135 : 20 Pat. 400. In Isak Soloman v. Emperor AIR 1948 Bom. 304 : 49 Cr. L.J. 551 , it was a case under Motor Spirit Rationing Order, 1941. In this case accused 1 was the owner and holder of the license of petrol pump. The accused 2 was the cashier and accused 3 supplied petrol to it bogus customer without coupons as required by law. In this case the owner and holder of the petrol pump was not present when the servant supplied petrol to the bogus customer the owner of the pump who was accused 1 and servant accused 3 were convicted by Presidency Magistrate. Accused 1 who is the owner of Petrol pump and licensee appealed and ho was acquitted by a Division Bench of the Bombay High Court Chagla C.J. held that it was not in every case of an absolute prohibition that no question of metis rea arises. It is only a limited and exceptional class of offences which can be held to be committed without guilty knowledge. Unless the statute either clearly or by necessary implication rules out mens res as a constituent part of a crime, a Defendant shall not be found guilty of an offence against the criminal law unless he has got a guilty mind. He held that mens res was an essential ingredient and if the master is not present at the time nor has ho any guilty knowledge of the supply of petrol by the servant to the bogus customer the master is not vicariously liable for the act of the servant. However, this decision of the Bombay High Court will not be helpful when we consider that the case before us is one of partnership. Every partner of the firm must retain proper control and supervision and his negligence would go to indicate a guilty mind and he must accept the consequences. Where one partner contravenes the statutory provisions of law the other partner must be held liable. Besides I am of opinion that Clause 14, Indore Cotton Cloth and Yarn Control Order, by necessary implications rules out mens rea as a constituent part of the crime Ramnarain Kedia and Another Vs. Emperor, was considered in a later decision by the same High Court in Dwarka Prasad Marwari (accused) Vs. Emperor, and Ram Narain v. Emperor AIR 1946 Pat. 80 : 47 Cr. L.J. 568, was distinguished and not followed.

The decision in Ram Asrey and Another Vs. Rex, is not at all concerned with the question of vicarious liability of the master for the criminal act of the servant. All that is decided in the above ruling is that a person who pleads ignorance of the existence of an order prohibiting export of grain outside the district without a permit and against whom there is no proof that he knew of It I cannot be convicted for contravention of that order. In this case under Sections 3 and 8, Essential Supplies (Temporary Powers) Ordinance the Regional Food Commissioner had prohibited export of grain outside the District without a permit. The accused pleaded ignorance of the order. The mode of publication of the order was not strictly complied with and there was no proof that the accused knew of the order. Circumstances were such that the knowledge cannot be attributed to the accused in-eventually. It was held under the circumstances that the accused cannot be convicted u/s 8. Here the question of vicarious liability does not arise. Hero the main question was that the order of the Regional Food Commissioner was not duly promulgated and the accused did not know of it and that was enough to absolve him from liability of contravention of an order of which the accused had no knowledge. This case is not at all applicable to the facts of the case before us. After a careful consideration of all the authorities cited above, I am clearly of opinion that having regard to the scope and object of Indore Cotton Cloth and Yarn Control Order, 1945 and the absolute prohibition contained in Clauses 12 and 14 of the above order, the doctrine of mens rea is ruled out by necessary implications. The contravention of Cotton Cloth and Yarn Control Order pertained to that limited class of cases where a particular intent or state of mind is not of the essence of the offence and the acts or defaults of a sonant or an agent may make the master or principal liable, although he was not aware of such acts or defaults.

Mr. Rege, learned pleader for the Respondents argued that the sanction P/13, given by the Textile Commissioner, Indore in Criminal case-No. 1846 of 1947 on 8th February 1947 is not a valid and proper sanction and, therefore, the-trial is defective and is vitiated for want of a valid sanction. The Textile Commissioner, Holkar State was authorised u/s 23, Indore Cotton Cloth Control Order to grant sanction for the prosecution for contravention of cloth Cotton; and Yarn Control Order and he did give permission EX. P/13.

Subsequently on 18th November 1947, when the Criminal case No. 1816 of 1947 was pending in the Court of Mr. Munshi, sanction P/13A was produced and proved. The sanction P/13A was in respect of facts constituting: the offence charged. The sanction was for prosecution of Gambhirmal, Gendalal, Gulabchand and others for contravention of Section 14(1), Indore Cotton Cloth and Yarn Control Order of 1945. The facts constituting the offence charged are shown on the face of the sanction. No doubt the previous sanction dated 8th February 1947 was slightly defective; but the sanction P/13A of-8th November 1947 is quite valid and proper. Mr. Narayan Swami, Textile Commissioner, was examined as a witness in Criminal cases No. 184& of 1947 and 10233 of 1947. He deposes that when he granted sanction for the prosecution the report of the Chief Inspector and panchanama were before him He had applied his mind to the facts of the case before granting sanction the decision in AIR 1948 82 (Privy Council) is not applicable to the facts of this case because here the facts are referred to on the fact of sanction P-18A and it is also proved by the-evidence of Mr. Narayan Swami that when he granted sanction P/13 that all facts were placed t before him. I, therefore, hold that the sanction granted by the Textile Commissioner is valid.

The next point urged by Mr. Rege was that the prosecution had not put on record the-various notifications of the Textile Commissioner on which reliance placed for contravention of Cotton Cloth and Yarn Control Order. He contended that the various notifications issued by the Textile Commissioner of Bombay should have been published in the Holkar State Gazette because subjects of Holkar State are not expected to read the notifications, published in the Bombay Government Gazette. It was the duty of the prosecution to put on record the various notifications. In this case the various notifications, issued by the Textile Commissioner have been published in Holkar State Gazette. Notification No. 56 T.C. dated 23rd December 1944 is published in Holkar State Gazette dated 25th December 1944 at P. 204, Part 11. Notification No. 5851 T.C. dated 2nd October 1945 was published in Holkar State Gazette of 8th October 1945 at P. 40, part II. Notification No. 84 dated 7th April 1946, was published in Holkar State Gazette dated 9th April 1945 at P. 498 part II. Notification No. 2270 T.C. dated 25th May 1945 was published in Holkar State Gazette part II at P. 60 on 4th June 1915. The Textile Commissioner rightly thought that publication of various notifications regarding time-barred cloth specifying the maximum prices ex factory, wholesale, retail at which any specification of cloth should be sold, was a proper mode of publication. The Court can take judicial notice of thorn. In this case the price the, date of issue, etc., is tex-marked in accordance with the notification issued by Textile Commissioner Bomby. The accused raised no contact in about the specifications and marking with regard to the clothe seized. Therefore there into substance n this connection of Mr. Rege.

As regards the munim Dhannalal there is nothing to show that he aided or abetted the possession of time barred cloth. He is not guilty of contravention of Clause 14, Indore Cotton Cloth and Yarn Control Order. The servant is |not liable under Clause 14 of the above order. The acquittal of Dhannalal is maintained. The order of acquittal passed in favour of Gendalal s/o Lakhnrehand and Gulabohand s/o Lakhmiohand is set aside. Both are guilty for contravening the provisions of Clause 14, Indore Cotton Cloth and Yarn Control Order, 1945. u/s 8, Indore Essential Supply Order of 1946, the accused Gendalal and Gulabchand are sentenced to pay fine of Rs. 1000 each or in default to suffer rigorous imprisonment for three months.

Now I will take up Criminal Appeal No. 21 of 1949 arising out of the facts of Criminal case No. 1845 of 1947. In this case information was received by the Textile Commissioner Indore that the firm styled as Messrs. Soni Brothers was in possession of cloth in contravention of Section 14(1), Indore Cotton Cloth and Yarn Control Order 1945 and a search was made of the premises occupied by the firm Soni Brothers Time-barred cloth as per schedule attached was seized from the said shop. From panchanama p/5 it appears that Articles A-1 to A-9 bearing tex-mark September 1945. B-1 to B-5 July 1945, C April 1945,D September 1945, E May 1945, F-1, F-2 and F-3 January 1915 and G A January 1945. Time-barred cloth was recovered in presence of Jhavar chand Munim of the firm of Soni Brothers. Gambhirmal in whose name the license was issued for the firm of Soni Brothers admitted that time-barred cloth was seized in search of the premises of Soni Brothers. But the cloth was not meant for sale. It was kept for the marriage of the daughter.

In this case Gambhirmal was convicted for contravention of Clause 14(1), Indore Cotton Cloth and Yarn Control Order and sentenced u/s 8, Indore Essential Supply Order of 1946 and sentenced to pay a fine of Rs. 2000 or in default to suffer simple imprisonment for 4 months. Gendalal, Gulabchand and Jhaverehand were acquitted. Gambhirmal did not prefer appeal. The Government has filed this Criminal appeal No. 21 of 1949 against the acquittal of Gendalal, Gulabchand and Javarchand. In this appeal the important question for decision is, who are the owners of Messrs. Soni Brothers because it is not a registered firm.

There is absolutely no documentary evidence to prove an to who are the partners of the firm styled as Mossrs. Soni Brothers. The circumstantial evidence is vague and from the mere fact that Gambhirmal, Gendalal and Gulabchand are brothers and from the fact that Gambirmal holds license for the firm of Prakashchandra Rameshchandra & Soni Brothers, no inference can be drawn that Gulabchand and Gendalal are also partners of Soni Brothers. Even P.W. 3 Mathuralal does not say that Gulabchand and Gendalal are partners of the firm of Soni Brothers.

I, therefore, hold that the prosecution has failed to prove that Gendalal and Gulabchand are partners of the firm of Messrs. Soni Brothers. The result is that the order of acquittal passed, by the lower Court is confirmed and the appeal is dismissed.

Criminal Appeal No. 20 of 1919 arises out of the facts of criminal Case No. 1844 of 1947. Gambhirmal, Gendalal and Gulabehand were acquitted and accused Javarchand who is munim of the Form of Soni Brothers was convicted under Clause 12(1), Indore Cotton Cloth and Yarn Control Order and sentenced to 3 months rigorous imprisonment and to pay a fine of Rs. 100 or in default to undergo further period of rigorous imprisonment for one month. Javarchand preferred Criminal Appeal No. 313 of 1948 in Court of Sessions Judge, Indore. The Sessions Judge acquitted Javarchand and therefore criminal Appeal No. 56 of 1949 is preferred by Government against the order of acquittal passed in favour of Jhavarchand by Sessions Judge, Indore in Criminal Appeal No. 313 of 1948.

The facts of Criminal case No. 1844 of 1917 run as follows. Information was received in the Textile Department to the effect that the firm Soni Brothers were selling cloth at Black. Market rates and had in their possession large quantities of time barred cloth. Mr. Adsule, Textile Inspector sent Nathu as a bogus purchaser with a marked ten rupee currency note to the shop of Soni Brothers with instructional to purchase a Sari, Accused Jhavarchand who was present in the shop of Soni Brothers as munim sold to Nathu a cotton sari bearing the retail price tax-marked for Rs. 4-8-0 for a sum of Rs. 8 Jhavarchand took the marked currency note of Rs. 10 and returned Rs. 2 to bogus purchaser Nathu. After the sale was complete a signal was given to Messrs. Adsule, Ghanekar and A.H. Khan who were watching close by and they raided the shop of Soni Brothers. The marked currency note was recovered from Javarchand, Nathu stated that he purchased sari for Rs. 8 and out of currency note of Rs. 10 Rs. 2 were returned to him. Gambhirmal, Gendalal, Gulabchand and Jhavarchand were prosecuted for contravention of Clause 10(1) of Indore Cotton Cloth and Yarn Control Order for charging excess price, the sari tex marked at Rs. 4-8-0 was sold for Rs. 8 The accused Gambhirmal, Gendalal and Gulabchand were acquitted and accused Jhavarchand was con-dieted and sentenced as noted above. The trial Court held that the sale by Jhavarchand of the saree at excess rate was proved, convicted and sentenced him. The other accused Gambhirmal, Gendalal and Gulabchand were acquitted. In criminal Appeal No. 313 of 1948 the Sessions Judge, Indore acquitted also Jhavarchand, holding that the sale by Jhavarchand at excess price was not proved.

It would be necessary in the first instance to determine whether as a matter of fact the accused Jhavarchand sold the mulmal saree to P.W. Nathu at the rata in excess of tex-marked rate and thus contravened the provisions of Clause 12(1), Indore Cotton Cloth & Yarn Control Order.

The District Magistrate, City Indore has held from the evidence on record that Jhavarchand sold the saree of which the price was tex-marked Rs. 4-8-0 for Rs. 8 He took a marked currency note of Rs. 10 and returned only Rs. 2 to Nathu. The learned Sessions Judge held that no reliance can bo placed on the evidence of bogus purchaser that Jhavarchand returned Rs. 2 and before he could go and bring change for Rs. 10 rupee note, ho was pounced upon by the officers of Textile Department. There was no complete sale and acquitted Jhavarchand.

Having regard to the evidence on record I am incliued to hold that sale was effected by Jhavarchand at excessive price of Rs. 8 although the tex mark rate was Rs. 4-8-0. After P.W. Nathu had purchased the saree from Jhavarchand and the latter took the marked currency note of Rs. 10 and returned only Rs. 2 to Nathu. Nathu had come down the steps of the shop and was putting on his shoes with the packet of sari under his elbow, Mustafa gave the signal by scratching his head and Adsule and others came to the shop. Not a single question was put to Adsule, Nathu and Mustafa whether Jhavarchand told them that he wanted to go out and get small change for ten rupee currency note. It is significant to note that the statement of Jhavarchand was taken by Adsule 2 days after the incident and in this extra-judicial confession, Jhavarchand admitted having sold the saree at excessive rate to Nathu. The accused Jhavarchand did not protest when the Sari was seized and also the currency note, that the sale was not completed and that he was returning the balance of the amount to Nathu, It was only for the first time when his statement was taken in Court that the accused trotted out for the first time that the sale was not complete and before he could give the balance of change, Adsule and others pounced upon him. The statements of Adsule, Mustafa and the circumstances of the case clearly go to prove that Jhavarchand had sold the saree at a rate more than that tex marked on the saree. He charged Rs. 8 for a sari tex-marked price Rs. 4-8-0. The factum of sale is proved.

The next question is as regards the criminal liability of Gambhirmal Gendalal and Gulabchand. There is absolutely no documentary evidence to show that Gendalal and Gulabchand are partners of Messrs. Soni Brothers, The oral evidence is also vague and unsatisfactory. Hence Gendalal and Gulabchand are not liable and deserve to be acquitted.

As regards Gambhirmal, he is license dealer of the firm of Soni Brothers. Under Clause 12 of the Indore Cotton and Yarn Control Odor the manufacturer or the dealer is made liable. In Hans Chandra v. Emperor A.I.R 1915 ALL. 90 : 46 Cr. L.J. 472. Malik C.J. has written a very exhaustive and carefully considered judgment after a review of all the authorities and he holds that where a dealer pats his servant in charge of a shop to sell goods to the public and the servant while acting for and on behalf of the dealer within the scope of his authority to make sales on the dealer''s behalf sails goods at a price higher than the control price, the dealer is guilty of having contravened the provisions of the order. The knowledge of the master is not at all relevant. The liability is absolute. I need not repeat all the case law that I have discussed in Criminal Appeal No. 19 of 1949. In law and in fact the sale is made by the dealer himself and he is criminally liable: see Narsing Das Modi Vs. Emperor, therefore, hold that accused Gambhirmal has contravened Clause 12, Indore Cotton cloth and Yarn Control Order and is liable and punishable u/s 8, Indore Essential Supplies Order.

I need not repeat what I have stated before that the sanction, given by Narayan Swami, Textile Commissioner, Indore, is valid and proper. I have already discussed this point at length in criminal Appeal No. 19 of 1949. The various notifications under Cotton Cloth and Yarn Control Order were duly published in the Holkar State Gazette and the Court can take judicial notice of them. This aspect of the case as also discussed by me in Criminal Appeal No. 19 of 1940.

In my opinion both the accused Jhavar-chand and Gambhirmal are guilty. Gumbhirmal has contravened the provisions of Clause 12-A, Jndere Cotton Cloth and Yarn Control Order. The acquittal of Jhavarchand is set aside and he is convicted Under Clause 12(1) road with Section 10,Indore Essential Supplies Order and is sentenced to a fine of Rs. 500 or in detunes to one month''s rigorous imprisonment, Gambhirmal is sentenced to pay fine of Rs. 1,000 or in default to undergo three months rigorous imprisonment.

Kaul, C.J.

This was a bunch of five Appeals Nos. 19, 21, 20, 56 and 21 of 1949. Of these Appeal No. 24 of 1949 has already been disposed of. As regards the remaining four I have had the advantage of seeing the judgment of Mehta J. and agree with the order proposed to be passed by him in each of them. The relevant facts pertaining to each appeal have been sot out at length in his judgment by Mehta J. and I need not repeat them. I will content myself only with adding something of my own as regards the question of mens rea which, it was strongly urged by the learned Counsel for the Respondent was a complete answer in so far as the alleged criminal liability of Gendalal and Gulabchand was concerned, and on one or two other points. As already stated by Mehta J. originally two cases were started--case No. 1846 of 1947 and case No. 10233 of 1947. In the first only Gulabchand, Gendalal and Dhannalal were proceeded against and in the other case the persons charged were Gambhirmal, Manakbai, Sunderbai, Hemant Kumar, Vimalchand and Dhannalal. Both these cases were started as a result of the search of cloth shop where according to the prosecution business was carried on by all the accused other than Dhannalal as partners under the firm name Prakashchander Rameshchander. Time barred cloth was recovered in the search and hence the two cases.

Possibly the names of the other members of the firm were not known at the time the first case was started but later when the names of other partners were ascertained the other case was instituted. As particulars relating to the person known as Dhannalal were not correctly given in the sanction for instituting the first case a second sanction was obtained and Dhannalal''s name with full correct particulars was included in that sanction. So Dhannalal''s name appeared in the list of the accused in both oases.

As the two cases arose out of the same search they were hoard together under the orders of the Magistrate of all the accused the Magistrate convicted only Gambhirmal and acquitted the rest. The Government Advocate originally filed Appeal No. 19 against three persons Gendalal, Gulabchand and Dhannalal, but Dhannalal''s name was struck off the memorandum of grounds of appeal by the Government Advocate before it was placed before a Judge. So this remained an appeal against Gendalal and Gulabchand only. Subsequently after the expiry of the period of limitation for filing an appeal against the Magistrate''s order the Government Advocate filed another Appeal (NO. 24 of 1949) against Dhannalal. That appeal has already been disposed of by us and so we have to deal in Appeal No. 19 of 1949 with two persons Gendalal and Gulabchand only.

It is contended on their behalf among other grounds that the absence of any mens rea in the case of these two persons fully justified the Magistrate''s order of acquittal so far as they were concerned. Reference was made to a number of decisions including the decision of their Lordships of the Judicial Committee in Srinivas Mall v. Emperor AIR 1947 P.C. 135 : 26 Pat. 460 , and to my own decision in Ram Asrey and Another Vs. Rex, In both these cases it was clearly recognised that the law may either expressly or by necessary implication rule out mens rea as a constituent element of the crime. A perusal of Para 11, "Indore Essential Supplies Order, 1946" clearly shows that the principle of vicarious responsibility in offences arising out of the breach of the provisions of that order is clearly recogaised It runs thus:

Offences of corporations--If the person contravening an order made or deemed to be made u/s 3 is a company or other body corporate, every director, manager, secretary or other officer or agent thereof shall, unless ho proves that tee contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention, be deemed to be guilty of such contravention.

Under Para 5 of this order all the existing orders wore to continue in force. Thus the Cotton Cloth and Yarn Control Order remained in force and was to be deemed to be an order made under Para 3, Indore Essential Supplies Order.

Rule 11 in terms applies to corporations but that would not atltcet the inference to be drawn therefrom as regards the intention of the law concerning the elements of crime. It casts the burden of proving absence of know-ledge upon the accused and thus clearly indicates that a guilty mind is not an element which the prosecution should prove in order to secure a conviction. Here mens rea as an essential constituent of the crime is clearly excluded.

My decision in Ram Asrey v. Hex AIR ALL. 150; (51) Cr. L.J. 472, has no application to the present appeal. In that case there was no proper promulgation of the order and hence it did not become effective and the failure to observe its terms was no offence. If a penal statute or order is required to be promulgated in a particular manner and this is not done, a charge for non-observance thereof is fully met if it is pleaded that the accused had no know-ledge of the order and the plea is accepted.

The contention that the various notifications for the breach of which the accused in these appeals were charged should have been placed on the record and as this was not done the accused wore entitled to acquittal has no merit. All those notifications were published in Holkar Government Gazette and the Courts were bound to take judicial notice of them. The case of Ramkishore Prasad Vs. Emperor, has no application. That was a case where the accused was tried for having sold a whole tin of kerosene oil at the price higher than that prescribed by the Sub-Divisional Officer. That was not an order published in Bihar Government Gazette. Nor was there proof on the record that it was promulgated in the prescribed manner. The other cases cited are also distinguishable for the same reason.

It was contended by the learned Counsel for those Respondents that the Indore State authorities published in the Holkar Government Gazette only the fact that such and such orders of the Government of India and the notifications made thereunder had been adopted by the State and would be in force in Holkar territory. As these orders and the notifications made thereunder were not published in Holkar Government Gazette, failure to comply with them was no offence. No authority has been cited in support of this contention and I am clear that it is without substance A State may choose its own method for promulgating the laws and orders which it wants to be observed by its citizens. If it was published in Holkar Government Gazette that such and such legislative enactment, notification or order published by say the Bombay Government was to be observed by Indore State people as law it la not open to any subject of the State charged with disobedience of the provisions of that enactment, notification or order, even though it was not fully reproduced in Holkar Government Gazette to say that he was not bound by it.

I have nothing to add to what has been said by Mehta J. on the question whether Gulabchand and Gendalal are proved to be partners in the firm Prakashchander Rameskshander.

In Appeal No. 21, I have nothing to add to what has been said by Mehta J except that Javarchand being a servant cannot be held liable for possession of time-barred cloth by Soni Brothers. It was not alleged that he was a partner in the firm. He was rightly acquitted.

Appeals Nos. 20 and 56 arise out of Criminal Case No. 1844 of 1947. On information received by the Textile Department that Soni Brothers were selling cloth-at black market rates a bogus purchaser Nathu was sent with a marked 10 rupee note with instructions to purchase a sari. Nathu went and asked for a sari from Jawarchand who was working as a sales-man at the time. Though the price marked on the sari was Rs. 4-8-0 only Jawarchand charged him Rs. 8 and paid him back Rs. 2 only. Mustafa, another person who had also been taken into confidence immediately gave a signal and thereupon Adsule, Excise Inspector Khan Sahib and Ghanekar reached the spot and Jawarchand was questioned. It was alleged that he admitted having sold the sari for Rs. 8 and took out a marked note from his cash box and delivered it to Mr. Adsule Accordingly Gambhirmal. Gulabchand and Gendalal who were alleged to be the proprietors of the firm Soni Brothers as also Jawarchand who works as sales-man and sold the sari at excessive price were sent up for trial. The learned Magistrate acquitted Gambhirmal, Gulabchand and Gendalal but convicted Jawarchand. His defence was that he sold the sari for Rs 4-8-0 only; that he returned Rs. 2 to Nathu and as he had not with him Rs. 3-8-0 he was just going to get it from another shop but before he could do so he was pounced upon and the 10 rupee marked note was taken from him. This plea was not accepted by the learned Magistrate and the accused was sentenced to three months'' rigorous imprisonment and a fine of Rs. 100. He went in appeal before the Sessions Judge, Indore. The learned Judge disagreeing with the trial Court accepted Jawarchand''s plea and acquitted him. Appeal No. 56 of 1949 was filed against the Sessions Judge''s order of acquittal of Jawarchand and Appeal No. 20 of 1949 against acquittal of Gambhirmal, Gendalal and Gulabchand by the Magistrate. I will add a few words to what has been said by Mehta J. with regard to this matter.

Nathu the bogus purchaser who purchased the sari from Jawarchand turned hostile at one stage of the case. In his examination-in-chief he stated that Javarchand did not settle the price. He took over the 10 rupee note and returned him a not'') of the denomination of Rs. 2. He further said:

I put the 2 rupee note in my poeket and came down from the shop with the sari under my arm. Meanwhile the Inspector came up. He asked me what I had purchased and I told him that I had purchased a sari. The Inspector took over the dhoti from me and asked me for what price did I purchase it? I told him that 1 was paid hack Rs. 2 out of Rs 10. The Inspector took over that note (2 rupee note) form Javarchand was sitting on the shop The Inspector asked him there is the 10 rupee note. Javarchand took out the 10 rupee note from his cash box and gave it to him, Javarehand did not say anything when a panchanam was prepared.

On 26th June 1943 when he was cross-examined a week later he made the following statement:

Soni Brothers'' shop was open when we reached there. Excise Inspector Khan had called me. Babulal is a licenced liquor vendor. I was working with him in those days. Khan Saheb asked me that I should mention Babulal''s name and purahase a Janani Dhoti. I went to Javarchand and mentioned Babulal''s name and asked for a dhoti from Javarchand. Javarchand lived in Babulal''s house on rent. Javarchand put the 10 rupee note in his pocket. He returned Rs. 2 to me and said I am paying the balance. Khan Saheb, Adsule, and a third person came up while this talk was going on. Khan Saheb told me to purchase the Janani Dhoti for whatever sum it could be had. When I asked I was told by Javarohand that the dhoti was not for sale but there was some cloth kept aside for use on marriage occasion,

When this statement was made by Nathu the Public Prosecutor asked for permission to cross examine him. This permission was refused by the Magistrate. I have not the slightest doubt in my mind that the witness had been won over. In examination in chief he did not make the slightest reference to the fact which is stated clearly in crass-examination that Javarchand had after giving him Rs. 2 added that he was going to pay him more money. His answer "when I asked I was told by Javarchand that the dhoti was no for sale but there was some cloth kept aside for use on marriage occasion" is also significant. This has reference to Javarchand''s plea that,, the sari in question did not appertain to the stock that was in the shop for sale but that it formed part of some cloth which had been kept separate for marriage decision, It would clearly be seen that unless the defence taken by Javarchand was an afterthought he would, on being questioned by Adsule about the sale of the sari, have bold him that he had sold the sari for Rs. 4-8-0 and already paid Its. 2 to Nathu and was going to get the remaining Rs. 8-8-0 from another shop. But there is no evidence to show that he did so.

It is true that when permission to cross examine Nathu was asked by the Public Prosecutor it was refused by the Magistrate. But later on maturer consideration when writing the judgment he took the view that Nathu had sided with the defence. The learned Sessions Judge has commented upon this in his judgment. I am unable to hold that this can be a ground for disagreeing with the view taken by the learned Magistrate. The refusal by the Magistrate to allow a witness to be cross examined as hostile does not necessarily imply that he considers him to be a truthful witness. The learned Sessions Judge has further referred to Hormasdyar Ardeshir v. Emperor AIR 1948 Bom. 250 : 49 Cr. L.J. 302, and Emperor Vs. Harilal Gordhan, which stress the necessity of subjecting the evidence of "bogus punters sent by the police" to very strict security before it is accepted. He observes that even if Nathu had wholly supported the prosecution case still it would have been unsafe to rely on his evidence. This may be true. But it hardly affects the position in the present case according to the view taken by the Magistrate who saw him in the witness-box and recorded his evidence Nathu was won over. This was a view taken by him of this witness in his judgment and I am of opinion that he was in the circumstances of the case fully justified in doing so.

The learned Sessions Judge has further commented on the evidence of P.W. 1 Mustafa. According to him this man cannot be an eyewitness because he was sent to another shop to make a bogus purchase. He stated that in as much as the shop to which he was sent was closed he came to the shop where Nathu was. To me there does not appear anything in this statement which would render the statement unworthy of credit. This man has stated that as soon as he saw Nathu attempting to put on his shoes after having purchased the Sari he gave the signal. The learned Judge makes this also subject of comment because according to the pre-arranged plan Nathu was to give signal. There can be no doubt that Nathu and Mustafa both were party to the trap which was laid and it is of little significance whether one of them gave the signal or the other. The learned Judge is perfectly right when he states the principle of law that out of two interpretations of the same fact which equally fit in with the guilt or innocence of the accused the Court should accept the one which is consistent with the innocence of the accused. He suggests that it was possible that Mustafa gave signal a bit too soon and Jawarchand was immediately pounced upon before be could give back the remaining Rs. 3-8-0 to Nathu. the question for consideration before us is not two interpretations of same set of facts but whether the prosecution has satisfactorily established by the evidence on record that the sale transaction was complete before Jawarchand was asked to give back the ten rupee marked note and that he had sold the Sari to Nathu for Rs. 8 The learned trying Magistrate who had seen the witness took the view that the transaction was complete and that the sari bad been sold to Nathu for Rs. 8 and not Rs. 4-8-0, as suggested by Jhavarchand in his defence. The learned Sessions Judge in allowing the appeal commented also upon the evidence of Adsule who had at one stage stated that Javarchand took the ten rupee note out of his pocket and later "said that the ten rupee note was taken out of the cash-box. The learned Magistrate attributes this contradiction to "defective memory." Whichever of the two statements be correct, the question whether the sale transaction was complete and the sari was sold for Rs. 8 or for Rs. 4-8-0 only would be determined on the evidence considered in the light of the surrounding circumstances. According to the evidence, after the sari wash anded over to Nathu by Jhavarchand, Nathu got down from the shop and was putting on his shoes when Mustafa gave the signal and Adsule, Ghanekar and Khansaheb arrived. This was a case in which the question to be determined turned upon the belief or disbelief of a number of witnesses and there was nothing to show that the advantage which the trying Magistrate had in such a matter over a Judge who read the evidence in cold print or manuscript should not be given duo weight. Agreeing with the Magistrate I am of opinion that he came to a correct conclusion on the evidence and that there was no sufficient ground for the learned Sessions Judge to take a different view of the facts. I am not oblivious of the fact that we are exactly in the same position as the Sessions Judge and if the Magistrate who had seen the witness had taken a different view, I would not have disagreed with him in appeal. But the question before mo is whether the learned Sessions Judge was justified in doing so and having weighed the whole evidence carefully, I am of opinion that ho was not justified. I am further of opinion that on the evidence on record the learned Magistrate came to a correct conclusion.

Another point to which a reference is made by the learned Sessions Judge is the failure of the prosecution to place on record the various Notifications for the breach of which Jhavarchand was convicted by the Magistrate. He has referred to two cases Dwarkaprasad Marwari v. Emperor AIR 1918 Pat. 290 : 49 Cr. L.J. 375 , and Puranmal Vs. Emperor, In one of these cases there was a breach of some order passed by the Sub-Divisional Officer and in the other non-observance of Certain orders given by the Textile Commissioner. There is nothing to show that either of these were published in the Bihar Government Gazette whereof judicial notice could be taken, by the Courts. In the case before us all the relevant notifications were published in the Gazette and the Courts are bound to take judicial notice thereof. In these circumstances it was unnecessary to bring them on record.

Yet another point raised before the learned Sessions Judge was that the prosecution had failed to prove on what authority the price Rs. 4-8 0 was tex-marked on the sari. In view of the notification to which reference has been made it is clear that these marks are printed by the various mills that manufacture cloth and under the relevant notification the cloth cannot be sold at a price higher than that marked upon it. I am satisfied that there is no substance in this contention.

The result, therefore, is that the appeal No. 20 of 1949 is allowed.

I agree with the order proposed to be passed by Mehta J. with regard to this appeal.

As regards appeal No. 20 which has been filed against the acquittal of Gambhirmal, Gulabchand and Gendalal there is no satisfactory evidence to show that Gendaluland Gulabchand were partners in the firm Soni Brothers. They must, therefore, be held to have been rightly acquitted. Gambhirmal is admittedly the licensed dealer of the said firm. He denied all knowledge of the sale to Nathu. The question is whether on these facts be can be held guilty because his servant Javarchand sold a sari for more than the price marked thereon.

Gambhirmal is the licensed dealer carrying on business under the name Soni Brothers. A sari was sold by his salesman for which more than the price marked thereon was charged. Clearly this was a sale by Soni Brothers irrespective of the fact whether it was actually effected by Gambhirmal or by Javarchand. In view of the special provision contained in Para. 11 of Indore Essential Supplies Order to which reference has been made earlier in this judgment the intention of the law is clear. It casts upon the accused the burden of proving that he had no guilty knowledge or that the criminal act was done in spite of his having taken all reasonable care to guard against it. Beyond a mere statement by Gambhirmal that he had no knowledge of the sale there is no evidence to prove this. There is no evidence to show what directions he had given to his salesman in the matter of prices to be charged for the goods sold Nor any evidence to show what steps he tuck to guard against higher prices than these marked on different pieces of cloth being charged.

I have no doubt that Para. 11 of Indore Essential Supplies Order, 1946 was enacted to cover all such cases and to ensure that no manager director, secretary or other officeholder of a corporation could take shelter behind a plea as is raised by Gambhirmal in the present case. It is true that Soni Brothers is not a corporation and Para. II does not in tonus apply to individuals or partnership firms but the intention of the law as well as the scope and object of the order are clear. If the office holders in a corporation cannot escape liability except on proving that they had no knowledge or that the contra volition took place in spite of the fact that they had done all in their power to guard against it much more would tins be so in the case of a dealer who employs another person to work as a sales man at his shop. To take any other view would defeat the whole object and purpose of the Indore Essential Supplies Order which has expressed its object and intention in no uncertain terms by incorporating Para II therein. Neither principal office-holder of corporations nor individuals escape liability for the acts of their employees unless they prove (not merely allege) that they had knowledge of the contravention of the order by their employees and that the act complained of was done in spite of their or his having exercised due diligence to guard against it.

Were it otherwise dealers would always escape liability and indulge in what is called black marketing through their salesman with impunity. I should not he taken to lay down any general rule as regards the liability of a mister for the criminal acts of his servant Whatever. I have said must be taken to be with reference to the provisions of Indore Essential Supplies Order 1916 and the facts of the present case.

The result is that appeal No. 20 is allowed in so far that Gambhirmal is convicted for having contravened the provisions of Clause 12(1), Indore Cotton Yarn and Cloth Control Order, read with Indore Essential Supplies Order for sale of a sari to Nathu at a price higher than that marked thereon. He is sentenced to pay a fine of Rs. 1000 or to undergo rigorous imprisonment for three months.

By the Court

Appeal No. 24, as it would appear from our order dated 29th March 1950, was withdrawn and at the request of the learned Government Advocate the memorandum of grounds of appeal in that case was to be treated as an application in Appeal No. 19. It was prayed by the Government Advocate that the appeal, filed by him (appeal No. 19) be treated not only as an appeal against Gendalal and Gulabchand but against Dhannalal also. Appeal No. 24 which has now been converted into an application in the present appeal was filed after the expiry of period of limitation for filing an appeal against Dhannalal. We sea no good reason why Appeal No. 19 should after the expiry of the period of limitation be treated as an appeal against a person against whom it was not filed, or to be more accurate, whose name was removed from the array of Respondents by the Government Advocate before the memorandum of grounds of appeal was placed before any Judge of this Court. The application is rejected.

Appeal No. 19--The appeal is allowed. The order of acquittal passed in favour of Gendalal and Gulabchand is set aside. Each of thorn is held guilty of having contravened the provisions of Clause 14 of Indore Cotton Cloth and Yarn Control Order and they are sentenced each to pay a fine of Rs. 1000 Or in default to undergo rigorous imprisonment for three months.

Appeal No. 21--The appeal is dismissed.

Appeal No. 20.--The appeal is allowed'' in so far that the acquittal of Gambhirmal is set aside and he is held guilty of having contravened Section 12(1) of Indore Cotton Cloth and Yarn Control Order read with the Indore Essential Supplies Order and sentenced to pay a tine of Rs. 1000 or in default to undergo rigorous imprisonment for three months. This appeal is dismissed against Gulabchand and Gendalal.

Appeal No. 56--The appeal is allowed, the order of the lower Court is set aside and Javarchand is convicted of an offence u/s 12(1) of Indore Cotton Cloth and Yarn Control Order 1945 read with Section 10 of Indore Essential Supplies Order. He is sentenced to pay a fine of Rs. 500 or in default to undergo rigorous imprisonment for one month.

The persons concerned in these appeals against whom sentence of fine is passed are allowed ten days time to pay the same.