EMPEROR Vs. SAMANSAB SULTANSAB HUKERI
HIGH COURT OF BOMBAY
SAMANSAB SULTANSAB HUKERI
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(1.)These are two applications made on behalf of the Government of Bombay for enhancement of the sentences passed on the two opponents by the Resident Magistrate, First Class, Hukeri, on their conviction under Rule fil (4) of the Defence of India Rules, 1939, for contravening the provisions of the Belgaum District Magistrate s Order No. W. A. R. 64, dated March 9, 1944. The learned Magistrate imposed a fine of Rs. 10 and Rs. 5 on the two opponents respectively. The opponent in application No. 448 of 1945 was found removing five bags containing 144 seers of rice worth Rs. 48 from Belgaum to Tlukari without the District Magistrate s permit. The opponent in application No. 449 of 1945 was found removing 56 seers of rice from Belgaum to Badkundri without the requisite permit of the District Magistrate. Both of them admitted that they were doing so, but pleaded that they were taking them for their own consumption. When the charge was framed and read out to them, both of them pleaded guilty to the charge. The learned Magistrate did not go merely on their pleas but decided the eases on their merits. He stated in his order that the District Magistrate s order was explicit and was widely published and that the opponents had been actually caught while carrying rice without permits from the District Magistrate.
(2.)Notices having been issued to the opponents to show cause why the sentences passed on them should not; be enhanced, they are entitled under Section 439(f) of the Criminal Procedure Code to show cause against their convictions, and the learned advocates on their behalf have challenged the validity of their convictions on the ground that their pleas of guilty merely amounted to the admission of the fact of the removal of rice without the District Magistrate s permits and that in fact they had no knowledge of the District Magistrate s order which had not been duly published as required by Rule 119 of the Defence of India Rules, 1939. It is true that there is no direct evidence to prove the publication of the order as required by Rule 119(1), nor is there any evidence to show that the opponents were aware of the order when they were found removing rice from one place to another. It is also equally true that they did not state in their statements that they were not aware of the order. The order was specified in the charge and when the charge was read out and explained to them they pleaded guilty to it without even suggesting that they were unaware of the order. It is, however, urged on their behalf that it was incumbent on the prosecution to produce the order and also to prove that the order was known to the opponents. It is also urged that the order had to be published as required by Rule 119(i) of the Defence of India Rules before it could take effect. In the absence of any evidence regarding the publication of the order it may be taken for the purposes of these cases that the order was not published as required by Rule 119. But that does not mean that the order itself was invalid. Our attention was drawn to several decided cases regarding the interpretation and the effect of Rule 119(1). There are two eases which support the contention urged on behalf of the opponents. In Shakoor Hasan v. Emperor  A.I.R. Nag. 40 Niyogi J. (sitting singly) held that any order passed by the District Magistrate under Rule 81(2) of the Defence of India Rules could not bind the person concerned unless it was published in accordance with Rule 119(1). In Public Prosecntor v. Narayana Reddy [194S] A.I.R. Mad. 192 Chandraskhara Aiyar J. (sitting singly) observed:
The prosecution has to show before relying on the order prohibiting transport of grain that there was publication of the order in accordance with what the authority, officer or person issuing it considered was best adapted for conveying information to the persons whom the order concerns.
(3.)With respect, we think that these decisions have gone far beyond what is provided for in Rule 119(1) of the Defence of India Rules. That rule runs as follows:-
Save as otherwise expressly provided in these Rules, every authority, officer or person who of makes any order in writing in pursuance of any of these Rules shall, in the case of an order of a general nature or affecting a class of persons, publish notice of such order in such manner as may in the opinion of such authority, officer or person, be best adapted for informing persons whom the order concerns... .and thereupon the persons, corporation, firm or person concerned shall be deemed to have been duly informed of the order.
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