EMPEROR Vs. PURSHOTTAM HARJIVAN SHAH

JUDGEMENT

(1.) This is an application in revision by accused Nos. 1 and 2 against their convictions and sentences under Section 13(1) read with Section 6 of the Hoarding and Profiteering Prevention Ordinance. The case for the prosecution was that accused: No. 1; was the proprietor, and accused No. 2 was a salesman of P. H. Shah, Silk Merchants, in Bombay, and that on September 1, 1944, accused No. 2 on behalf of accused No. 1 sold nine yards of artificial silk dress fabric at a price of Rs. 11 per yard when the landed cost, as certified by the Assistant Controller General was Rs. 4-8-0: per yard. The defence of accused No. 1 was that he had purchased the articles at Rs. 9-8-0 per yard from K. Manilal and Company and hence the profit earned by him was less than twenty per cent. It was also urged that the landed cost certificate was not duly proved because Mr. Kedarnath the Assistant Controller General who had given the certificate had not been examined to prove that the articles in respect of which he gave the certificate were the very articles which were the subject matter of this offence.

(2.) The sanction required under Section 14 was granted by Mr. S. N. Mehta, the Deputy Controller General of Civil Supplies in Bombay. It does not seem to have been contended in the lower Court that the sanction was invalid; but it was urged in this Court that it was illegal on the ground that the officer who granted the sanction, Mr. S. N. Mehta, the Deputy Controller General, was not lawfully empowered to grant it, as the notification of the Government of India under which he purported to grant the sanction was ultra vires, inasmuch as it was not issued according to the provisions of Section 14 of the Ordinance.

(3.) As the point about sanction goes to the root of the whole case, we propose to examine that point first. The sanction exhibit II in this case is signed by Mr. S. N. Mehta, Deputy Controller General of Civil Supplies, and it purports to be issued under Section 14 of the Hoarding and Profiteering Prevention Ordinance read with Government of India Notification No. F. 22(7) C. S. (C)/43 dated February 19, 1944. This notification empowers the Controller General of Civil Supplies to grant sanction in respect of any offence committed under the Ordinance in any province in British India and among other officers, the Deputy Controller General of Civil Supplies (Western Region), Bombay, is empowered to grant sanction in respect of any such offence committed in the Provinces of Bombay, Madras, etc. Under Section 14 no prosecution for any offence punishable under the Ordinance shall be instituted except with the previous sanction of the Central or the Provincial Government, or of an officer not below the rank of a District Magistrate empowered by the Central or the Provincial Government to grant such sanction. It is clear therefore that the sanction can be granted by three authorities, firstly the Central Government, secondly the Provincial Government and thirdly by any officer not below the rank of a district Magistrate empowered by the Centra or the Provincial Government. In this case the sanction cannot be deemed to have been given either by the Central Government or the Provincial Government because it purports to have been granted under the terms of the notification by which, certain classes of officers are specially empowered under the last part of the section. The question therefore is whether the Deputy Controller General-whoever may be the person holding that post-is an officer not below the rank of a District Magistrate. The notification itself is silent on the question as to whether these particular officers are holding such a rank. So also the definition of "Controller General" in Section 2(c) of the Ordinance is silent as to such rank. It merely says that " Controller General" means the Controller General of Civil Supplies appointed by the Central Government and includes the Deputy Controller General or Assistant Controller General of Civil Supplies so appointed.