KUMANCHAND Vs. EMPEROR

JUDGEMENT

(1.) The two petitioners have been sentenced to three months rigorous imprisonment each and to pay a fine of Rs. 300 each under Rule 81(4), Defence of India Rules, for contravening the provisions of two Notifications issued by the Provincial Government in exercise of powers conferred by Rule 81(2)(a). The petitioners are traders residing in Nepal. On 18 September 1944, at about 2 A.M. 6 bullock carts containing four bundles of cotton cloth and two bags of pulse were in course of transport into Nepal without permit. The cloth and pulse belonged to the petitioners, but were seized by the police on duty on the Nepal frontier. The Magistrate who tried the petitioners was under the impression that the accused had pleaded guilty. This, however, was not so. When the charges had been framed and the accused Called upon to plead to them, they pleaded not guilty. The prosecution then led evidence in support of the charges, and, after the close of the prosecution case, the petitioners were questioned by the Magistrate under Section 842, Criminal P.C.

(2.) The question put to the petitioner Chuni Lall was: "On 18 September 1944, were you exporting to Nepal cloth in bullock carts without a permit?" His answer was: "Yes, I plead guilty. I was unaware of the restrictions." The question put to the petitioner Kumanchand was. "On 18 September 1944, were you exporting to Nepal one bundle of cotton cloth and two bags of pulse in bullock carts without a permit?" His answer was: "Yes, I plead guilty. I was unaware of the restrictions." The answers which the petitioners gave to the specific questions put to them must be regarded merely as an admission of the fact, namely, that they were exporting cloth without a permit and not as an admission that such export amounted to an offence, for they had already pleaded not guilty to the charges framed against them. According to the prosecution it was, at the relevant time, an offence for any person to export foodstuff from any district in Bihar to any place outside the Province of Bihar, or to export cloth from district in Bihar to any part of Nepal without the written permission of the District Magistrate. The prosecution relies on the Provincial Government's Notification No. 11277, dated 16 August 1943, and No. 14718, dated 5 November 1943. respectively, the former prohibiting the export of foodstuff from any district in Bihar to any place outside the Province of Bihar, and the latter prohibiting the export of cloth from any district in Bihar to any part of Nepal without the written permission of the District Magistrate. These Notifications were issued under Rule 81(2)(a), Defence of India Rules, which empower the Central or Provincial Government to make orders for regulating or prohibiting the production, treatment, keeping, storage, movement, transport, distribution, disposal, acquisition, use or consumption of articles or things of any description whatsoever. It is noticeable that Clause (a) does dot specifically mention export, although, possibly, export could be regulated or prevented by any order prohibiting the movement or transport of goods. Prior to the issue of the two Notifications in question the Central Government issued Notification No. 5-D. C. (19)/43, dated 1 May 1943, adding the following proviso to Sub-rule (2) of Rule 81: Provided that no order made, whether before or after lat May 1943, in exercise of the powers conferred by Clause (a) of this Sub-rule on a Provincial Government shall have effect so as to prohibit or restrict the export from any place in the Province to any place outside India of any articles or things.

(3.) The addition of this proviso to Sub-rule (2) clarified the position with regard to the export of goods to places outside India by making it clear that the Provincial Government had no power to prohibit the export of goods from any place in the Province to any place outside India. It did not, however, purport to limit the power to prohibit export from the Province to any other part of India, and there was a curious anomaly in the proviso. It referred only to orders made before or after 1st May 1943, and not to any order that might have been made on 1 May 1943. This was rectified by Notification No. 5-D. C. (28)/43, dated 18 May 1943, which substituted a new proviso for the proviso which had been added to the rules on 1st May. This new proviso of 18 May 1943, was as follows: Provided that (i) No order made, whether before, on or after 18 May 1943, in exercise of the powers conferred by Clause (a) of this Sub-rule on a Provincial Government shall have effect so as to prohibit or restrict the export from any place in the Province to any place outside India of articles or things; (ii) No order made before, on, or after 18 May 1943, in exercise of the powers conferred by Clause (a) of this Sub-rule on the Provincial Government of Assam, Bengal, Bihar or Orissa shall have effect so as to prohibit or restrict the movement, transport, distribution, disposal or acquisition of any foodgrains or their products; (iii) The powers conferred by Clause (b) of this Sub-rule on the Provincial Government of Assam, Bengal, Bihar or Orissa shall not be exercisable in relation to any foodgrains or their products and all orders made, whether before, on or after 18 May 1943, in exercise of those powers shall case to have effect in so far as they relate to any food-grains or their products.