Happell, J. -
(1.) THE petitioners have been convicted of a breach of condition No. 6 of the license issued to the first petitioner, who will hereinafter be called the first accused, in Form A set forth in the second schedule to the Food Grains Control Order of 1942, an offence punishable under Rule 81(4) of the Defence of India Rules. The sentences passed on them were modified by the learned Sessions Judge of South Malabar on appeal and the first accused has been sentenced to pay a fine of Rs. 200 and the second accused to undergo rigorous imprisonment for two months and to pay in addition a fine of Rs. 200.
(2.) CONDITION No. 6 of the license of the purchase, sale or storage for sale in wholesale quantities of food grains issued to the first accused reads as follows:
A licensee shall, except when specially exempte by the Provincial Government in this behalf, issue to every customer a correct receipt or invoice as the case may be giving his own name, address and license number, name, address and license number (if any) of the customer, the date of the transaction, quantity sold, price per maund and the total amount charged, and shall keep a duplicate of the same to be available for inspection on demand by any authorised officer of Government.
The facts as found by the Joint Magistrate of Mallapuram were these : The second accused is the son of the first and manages a mill of which the first accused is the owner. On the 13th of October, 1943, the Sub -Collector of Palghat and the Deputy Tahsildar of Alattur, P.W. 1 laid a, trap for the accused. P.W. 2 was sent into the mill and asked for a bag of boiled rice. For this, he was charged Rs. 27 and 1 when he asked for a receipt, the second accused refused to give it to him. P.W. 2 then went out and informed P.W. 1 and the Sub -Collector of what had happened. He returned with P.W. 1 and the Sub -Collector and a statement was taken from the second accused in which he admitted that he had refused to grant a receipt, At the trial, the second accused explained that he had really sold to P.W. 2, two lots of boiled rice, one lot costing Rs. 15 for P.W. 2 himself and another costing Rs. 12 for his cartman. He also said that he had told P.W. 2 that he would give him a receipt when he returned with the cartman. This explanation was rejected, no doubt rightly, in view of the statement made by the second accused and in view of the evidence of P.W. 2. The findings of fact were indeed not seriously challenged even in the appeal to the Sessions Judge and there is no ground for coming to any different conclusion in regard to them in revision.
The price of a bag of rice at the time when the sale was made to P.W. 2 had been fixed by the Taluk Advisory Committee at Rs. 25 a bag as the wholesale rate, the retail rate being 3 edangalies per rupee, which was equivalent to Rs. 27 per Bag. The retail price, however, could be charged only for quantities of less than a bag. It is clear, therefore, on the facts found that the second accused did not give a ' receipt because he did not want it to be discovered that he was selling a bag of rice, for more than the wholesale rate fixed, and his explanation that, in fact, he had sold the rice in two separate quantities costing Rs. 15 and Rs. 12 each was no doubt given, as the learned Joint Magistrate observes, in order that it might appear that he was entitled to charge the retail rate.
(3.) THE main argument pressed on me by Mr. Jayarama Aiyar as it was the main argument addressed to the learned Sessions Judge in appeal, is that the license issued to the first accused applies only to wholesale sales, i.e., sales in any one transaction of food grain in quantities exceeding 20 maunds so that condition No. 6 of the license has no application to sales as in the case of the sale to P.W. 2 of quantities of less than 20 maunds; or in other words, the argument is that condition No. 6 can only be contravened by a refusal to give a receipt in respect of a sale of more than 20 maunds. Before considering this argument, however it will be convenient to deal briefly with the other contentions advanced by Mr. Jayarama Aiyar on behalf of the accused. He argues that the first accused has, in any case, committed no offence because he was not present when the sale was made to P.W. 2 and was not responsible for it. The answer to this argument is, as stated by the lower Court, that the first accused as the licensee had clearly by reason of the second accused's refusal to give a receipt to P.W. 2 "failed to secure compliance " with condition No. 6 of the license within the meaning of Rule 5 of the Defence of India Rules. Then it was argued with regard to the liability of the second accused, that as a member of the family there was nothing to prevent him from selling some of the rice retail to customers, even if his father, the first accused, had a license to store and to sell wholesale. The learned Joint Magistrate, has given a number of cogent reasons for rejecting this contention in paragraph 3 of his judgment; but, apart from any other reason that might be given, it is clearly a quite untenable contention since the rice that was sold was part of the rice stored in wholesale quantities under the license; and it is manifest that no one, either the licensee or any one else, could sell this rice except in accordance with the terms of the license. Again, it w,as contended on behalf of the second accused that under condition No. 6 of the license it is only the licensee who is directed to give a receipt and that accordingly it is only the licensee who is punishable for a breach of the conditions under Rule 81(4). There is no substance in this contention in view of the terms of Rule 121 of the Defence of India Rules, and in the circumstances of this case it is not necessary to consider whether the necessary intention was present to complete the offence of an abetment of a contravention of the order since the second accused himself admits that he knew that a receipt should have been granted,;