The Public Prosecutor vs Badulla Sahib and Others

Govinda Menon, J.—The Public Prosecutor, Madras, appeals against the acquittal of the respondent (accused) by the learned Sessions

Judge of Chittoor of an offence under Clause 3-A of the Madras Silk Control Order (1943) read with Rule 81(4) of the Defence of India Rules.

The facts are not in dispute. On 20th April, 1945, between 3-30 a.m. and 4-30 a.m., at Kothakotta, when the house of the respondent was

searched by the Inspector of Police, Madanapalle, he was found in possession of raw silk in bags weighing 734 lbs. and two palams without a

licence for such possession as required by the Madras Silk Control Order, 1943. He was prosecuted before the Additional First Class Magistrate

of Madanapalle and was convicted for contravening the provisions of Clause 3-A of the Madras Silk Control Order, 1943, and sentenced to

imprisonment till the rising of the Court and to pay a fine of Rs. 1,000 and in default to rigorous imprisonment for 9 months. The quantity of silk

was ordered to be confiscated to the Government.

On appeal before the learned Sessions Judge of Chittoor the main point urged was a pure question of law. viz., that the Madras Silk Control

Order, 1943,was not properly published as required under Rule 219 of the Defence of India Rules and therefore the respondent not being aware

of the order did not have a licence. The learned Judge accepted the contention and acquitted the respondent. It is against that order of acquittal

that the Provincial Government now appeals.

The sole question for consideration is whether the provisions of Rule 219 of the Defence of India Rules have been properly complied with. The

Madras Silk Control Order, 1943, was published in a Gazette Extraordinary on the 3rd October, 1943, and the preamble to the publication reads

as follows:

In exercise of the powers conferred by Sub-rule 2 of Rule 81 of the Defence of India Rules, His Excellency the Governor of Madras is pleased to

make the following order.

Clause 1(ii)(a) lays down that it shall come into force in the Kollegal taluk of the Coimbatore District and Hosur Taluk, Salem District, on the 15th

October 1943. Clause 1(ii)(b) lays down that it shall come into force in any other part of the Province of Ma,dras on such date as the Government

may by notification appoint. Accordingly, by an order dated 25th January, 1945, and published in the Fort St. George Gazette, Part I, page 95

dated 6th February, 1945, it was declared that the 15th day of February, 1945, is the date on which the provisions of the Madras Silk Control

Order, 1943. shall come into force in the Districts of North Arcot.... Chittoor....It cannot for a moment be doubted that the notification extending

the Madras Silk Control Order to the District of Chittoor is in accordance with Clause 1(ii)(b). But the main argument of Mr. Rajagopaiachari for

the respondent is that the Control Order itself was not duly published as the publication of that order does not state that in the opinion of the

authority making the order the best form adapted for informing the persons whom the order concerns is the publication in the Provincial Gazette.

Reliance is placed for this contention on a decision of Chandrasekhara Aiyar, J. reported in the The Public Prosecutor Vs. Narayana Reddy and

Others, . In that case the question was whether certain provisions of the Food Grains Control Order were violated. The said order was published

in the District Gazette and the learned Judge was of opinion that before the prosecution can rely upon the prohibitory order it should prove that

there was publication of the order in accordance with what the authority, officer or person issuing it considered was best adapted for conveying the

information to the persons whom the order concerns ; and since there was no declaration by the Collector that in his opinion the notification in the

District Gazette was the best method adapted for conveying the information to the person concerned it was held that there was no proper

publication. This decision was distinguished by Kuppuswami Iyer, J., in In Re: Nimmagadda Ramaseshayya, wherein the learned Judge held that

where the person who is said to have directed the notification is also the person who had signed the notification, the manner of publication can be

presumed to be the manner which, in his opinion, was best adapted for informing the person to whom it may concern. The learned Judge also

relied upon the presumption u/s 114 of the Evidence Act and held that the publication was proper. There is another decision of Chandrasekhara

Aiyar, J., passed in Criminal Revision Case No. 342 of 1945, wherein he affirmed his earlier decision.

In this connection reference has to be made to Rule 2, Sub-rule (3) of the Defence of India Rules where ""notified"" and ""notification"" have been

defined respectively as ""notified"" and ""notification"" in the official Gazette. In our opinion, when the Provincial Government publishes an order made

under the Defence of India Rules in the official Gazette, it must be presumed that it was a valid publication as contemplated by law and the

authority making the publication must be deemed to have considered that that was the best form adapted for making the same known to the

persons concerned. That the official Gazette is the proper channel through which official orders are made known cannot be questioned. In The

Public Prosecutor Vs. Narayana Reddy and Others, the publication was not in the Provincial Gazette and therefore it is distinguishable from the

present case. The self-same question came up for consideration before a Full Bench of the Patna High Court in Mahadeo Prasad v. King-Emperor

I.L.R.(1945) Pat. 781 and it was held that where an order of a general nature made by the Central or Provincial Government under the Defence of

India Rules has been notified in an official gazette where all statutory rules and orders are normally and usually published and it appears that the

order has been so published because its publication is essential under Rule 219, it may be presumed that the publication was made not merely in

partial compliance with Rule 219 but in compliance with all its provisions including the provision as to the determination of the most suitable form of

publication. In the judgment of Fazl Ali, C.J. at page 790, a distinction is made between the orders made by the authority of the Central or the

Provincial Government and by a subordinate officer or authority with regard to such publication. In the case of the order made by the Central or

Provincial Government, the Gazette of India or the Provincial gazette is the proper channel of publication ; whereas when orders are made by

subordinate officers the question will have to be considered as to whether the publication was made by the authority in compliance with the

provisions of Rule 219 including the provision as to his determining the most suitable form of publication. If the Court is convinced that the

subordinate officer has not considered the most suitable form of publication, it will have to be held that the order has not been properly published.

The other learned Judges agreed with the decision of the learned Chief Justice and therefore we have the opinion of five Judges of the Patna High

Court on this matter. To the same effect is another decision of the same Court-Province of Bihar v. Bhim I.L.R.(1946) Pat. 539. A Full Bench

decision of the Allahabad High Court reported in Debi Prasad v. Emperor AIR 1947 All. 191 is also to the same effect and there it is pointed out

that Rule 219 provides something in the nature of an exception to the general rule ignorantia legis non excusat and therefore when once the order is

published, the persons whom it concerns shall be deemed to have been informed of the order. It is further pointed out that Rule 219 is procedural.

As against these decisions the two decisions of the Bombay High Court reported in Emperor Vs. Leslie Gwilt, and Emperor Vs. Mhatarji Bhau

Patil, are relied upon. In the former, the order was not a general one but applies to a class of persons on a particular day and therefore it may be

said that the authority should have exercised his mind and stated as to what the best form of publication was. No doubt the decision in Emperor

Vs. Raghunath Krishna Ghanekar, relates to a general order, but we are of opinion that the correct view is that taken by the Allahabad and Patna

High Courts. Mr. Rajagopalachari further relied upon a decision of the Nagpur High Court in Shakoor Hasan v. King Emperor ILR 1944 Nag.

150 where the impugned publication related to an order of a District Magistrate and it was not published in any official Provincial gazette at all. The

decision in Baboolal Rajoolal v. Emperor ILR (1945) Nag. 714 : AIR 1945 Nag. 218 also proceeds on the same reasoning, but we prefer to

follow the judgment of the learned Chief Justice of the Patna High Court in which four of his colleagues have concurred and the Full Bench of the

Allahabad High Court in preference to the Nagpur and Bombay Courts.

The publication of the Madras Silk Control Order, 1943 in the Fort St. George Gazette on the 3rd October, 1943, was done under the

authority of the Governor in whom the administration of the Province vested under the Government of India Act, 1935. We are of opinion that it is

not necessary that the publication of the order should be preceded by a memorandum to the effect that in the opinion of the Governor the requisite

method best adapted for informing the persons concerned is a publication in the Gazette. It can. be assumed that unless the Provincial Government

is satisfied that a publication in the Official Gazette is the proper mode by which the order can be made known to the public, that course would not

have been taken. None of the cases cited on behalf of the respondent go to the extreme length of stating that a proper publication in the official

gazette of the Province is by itself not sufficient. Even though the Official Gazettes Act XXXI of 1863 has been repealed by the orders in council

made under the Government of India Act, 1935, still the Central Government and the Provinces have laid down that the Gazette of India and the

respective official Gazettes of the Provinces are their official channels of publication. Agreeing with the view taken by the Full Bench of the Patna

High Court that the rule does not say that the authority should declare or state in writing that in its opinion the manner of publication decided upon

in a particular case was best adapted for informing the persons concerned of the provisions of the order, we are of opinion that the order of

acquittal of the respondent by the lower appellate Court is wrong. The appeal is therefore allowed and the order of acquittal set aside. The

respondent is convicted of an offence under Clause 3-A of the Madras Silk Control Order, 1943, read with Rule 81(4) of the Defence of India

Rules. The sentence awarded by the trial Court is restored. We do not consider it is necessary to restore the order of confiscation of the silk. The

respondent is entitled to the bags of silk seized from him or their value if they have been sold.

Criminal Appeal Nos. 99 and 100 of 1947.-Following the judgment just now delivered in C.A. No. 98 of 1947, these appeals are allowed. The

orders of acquittal of the respondents by the lower appellate Court are set aside and the respondents are convicted of an offence punishable under

Clause 3-A of the Madras Silk Control Order, 1943, read with Rule 81(4) of the Defence of India Rules. The sentence awarded by the trial Court

on each respondent is restored. The orders of confiscation of the goods passed by the trial Court are set aside and each respondent is entitled to

the bags of silk seized from him or their value if they have been sold.