Wanchoo, C.J. - (1.) THIS is an appeal by the State against the order of the Sessions Judge of Bikaner acquitting Maghraj and Bhanwarlal of an offence under sec.6 of the Rajasthan Essential Supplies(Temporary Powers) Ordinance (No. XIII) of 1949 read with rule 3 of the Cotton Cloth and Yarn Dealers Licensing Order of 1943 passed by the former State of Bikaner.
(2.) THE case for the prosecution was that Bhanwarlal was the proprietor of a shop known as "Agarwal Brothers" which carried on the business of selling country made cotton cloth in Bikaner State. Maghraj was said to be the Munib of Bhanwarlal working at this shop. No license, as required by rule 3 of the licensing order already referred to, was taken for carrying on the business of selling such cloth, and therefore the two accused were prosecuted. THEy were convicted by a Magistrate, and sentenced to a fine. On appeal the learned Sessions Judge has acquitted them. He has held that the Licensing Order in question expired on the 16th Sept 1945, as Rule 81 of the Defence of India Rules, under which it was issued, itself ceased to be in force on that day. He further held that the Magistrate erred in trying the case as a summons case, and that it should have been tried as a warrant case. Lastly, he was of the view that on the facts the prosecution had failed to prove its case. The present appeal has been filed by the State, and it is contended on its behalf that the Sessions Judge erred in holding that the Licensing Order of 1943 came to an end on the 16th Sep., 1945, and that the case could not be tried as a summons case. It has further been urged that the facts as proved by the prosecution clearly make out the case against the accused. We shall first deal with the contention that the Magistrate was justified in trying the case as a summons case Reliance in this connection is placed on sec. 12, sub-sec. (2) of the Rajasthan Essential Supplies (Temporary Powers) Ordinance (No. XIII) of 1949. That sub-section reads as follows: - "In the trial of all offences under this Ordinance, the procedure prescribed for the trial of summons cases by any law for the time being in force in the whole or any part of Rajasthan shall be adopted, subject, in the case of of fences tried summarily, to the procedure specified in sub-sec(1)." This Ordinance however was repealed by the Essential Supplies (Temporary Powers) Act No. XXIV of 1946 which came into force in Rajasthan on 17.8.50. The case was decided by the Magistrate on 3.3.51. By that date, sub-sec. 2 of sec. 12 of the Rajasthan Ordinance which empowered the Magistrate to try the case as a summons case was not there. The offence was punishable with 3 year's imprisonment, and should have been tried as a warrant case under the Code of Criminal Procedure, as there is no provision corresponding to sec. 12 (2) of the Rajasthan Ordinance in sec. 12 of Act XXIV of 1946. The conclusion of the trial therefore as a summons case was not justified under the repealing law and trial should have begun anew as a warrant case. Normally we would have to send the case back for retrial. But in view of what we are deciding on the other point of law raised in this case, that is not necessary. We now turn to the main question in this appeal, namely whether the licensing order of 1943, for the breach of which the accused were prosecuted under sec. 6 of the Rajasthan Essential Supplies (Temporary Powers) Ordinance (No. XIII) of 1949 was in force on the day on which the breach was committed namely the 4th April, 1950. In order to determine this we have to go back to Sep. 1939, when the Defence of India Ordinance and Rules were passed by the Government of India on the 3rd Sep. 1939. This was followed by the Defence of India Act and Rules which came into force from the 29th Sep. 1939. Immediately after the promulgation of the Defence of India Ordinance and Rules, the Maharaja of Bikaner issued a Notification No. 17, dated 5th Sep. 1939 published in the Extraordinary Bikaner Rajpatra of the same date, the relevant provision of which is as follows: - "His Highness the Maharajah has been pleased to command that the Defence of India Ordinance, 1939, and the Rules made thereunder, published in the Government of India Gazette, Extraordinary, dated the 3rd Sep. 1939 shall, subject to the modifications specified in Schedules A and B hereto annexed, be deemed, as a special case, which shall not form a precedent, to be applicable in the State of Bikaner till such time as His Highness the Maharajah otherwise orders." Certain changes were made in the schedules annexed to this notification, and certain sections of the Defence of India Ordinance were either omitted or amended by schedule A. For example sub-sec. (2) of sec. 1 was ordered to be omitted; but it is remarkable that sub-sec. (4) of sec.1, which fixed the duration of the Defence of India Ordinance, was not omitted. On the 28th of Nov. 1939, another Notification No. 25 was issued by the former Bikaner State, which was published in the Bikaner Rajpatra Extraordinary of that date. This modified the earlier Notification No. 17 of the 5th Sep. 1939 and substituted the words "Defence of India Act. 1939." which had by then been passed by the Government of India, in place of the words " Defence of India Ordinance, 1939" appearing in the earlier notification. It was ordered that all references to the Ordinance were to be construed as references to the Act. It was further provided that the Rules mentioned in Notification No. 17 shall be deemed to refer to the Rules enacted or kept, in force by the Defence of India Act, 1939 and shall include any modifications thereof or any additions thereto affected from time to time. This provision as to the rules was made because sec. 21 of the Defence of India Act provided that the rules made under the Defence of India Ordinance, 1939, shall be deemed to have been made under the Defence of India Act. Certain changes were made in Schedules A and B Notification No. 17; but sec. 1, sub-sec. (4) of the Defence of India Act was allowed to stand. That reads as follows: - "It shall be in force during the continuance of the present war and for a period of six months thereafter." On the 1st of April, 1946, the Governor General of India declared that the war had come to an end, and therefore the Defence of India Act and the Rules made thereunder came to an end in what was British India on the 3Gth Sep. 1946. It appears to have been felt however that control of certain essential commodities was still essential, and therefore the British Parliament passed an Act known as India (Central Government and Legislature) Act, 1946 (9 and 10 Geo. 6, c. 39). This Act gave power to the Indian Legislature to enact laws regarding trade and commerce, notwithstanding the provisions of the Government of India Act 1935, with respect to certain essential commodities including cotton textiles. By virtue of this provision the Government of India enacted the Essential Supplies (Temporary Powers) Ordinance (No. XVIII) of 1946, which was to come into force from the 1st October, 1946. It provided among other things for control on cotton taxtiles, and sec. 5 of that ordinance laid down that the orders made by whatever authority under the various rules of the Defence of India Rules, which were in force immediately before the commencement of the Ordinance, would continue in force so far as consistent with the ordinance, and be deemed to be orders made under sec. 3 of the Ordinance. This Ordinance was replaced soon after by the Essential Supplies (Temporary Powers) Act (No. XXIV) of 1946, and sec. 17 of the Act provided that any order made or deemed to be made under the Ordinance which was being repealed, and in force immediately before the commencement of the Act, shall continue in force and be deemed to be an order made under the Act. Thus in what was British India steps were taken to continue the control orders so far as certain essential commodities were concerned. The situation in Bikaner, however, was different. It is not denied that no law corresponding to the Essential Supplies Ordinance or the Essential Supplies Act was passed by the Bikaner State in September, 1946. All that we find is that on the 16th September, 1948, a Notification No. 4 was made by the former Bikaner State, which is published in the Bikaner Rajpatra of the 18th September, 1948. This notification reads as follows: - "His Highness the Maharaja is pleased to command that the Essential Supplies (Temporary Powers) Act, 1946, issued by the Government of India, as Act No. XXIV of 1946, together with the Rules, amendments and Notifications made thereunder shall apply mutatis mutandis in the Bikaner State with immediate effect." It is remarkable that this notification applied the Act and the Rules etc. made under the Act, and did not apply any rules or notifications deemed to have been made by the Essential Supplies Act of 1946. We may in this connection refer to Notification No. 25 of 28th November, 1939, which shows that where the intention was to apply not only the rules made under an Act, but deemed to have been made under the Act, the words used were - "Rules enacted or kept in force by the Act." Notification No. 4 of 16th September, 1948, therefore, only applied such rules as were made under the Essential Supplies Act. 1946, and did not apply the rules which were deemed to be made under that Act. The reason for this may be that the various Provinces in former British India had orders and notifications of their own, and it would have created confusion if all those rules and notifications, which were kept alive in the respective provinces by the Essential Supplies Act of 1946, were applied to the State of Bikaner. The question, therefore, that arises for consideration, is whether the Defence of India Act Rules, as applied to the State of Bikaner, came to an end on the 30th September, 1946, or not. It is urged on behalf of the State that the words of Notification No. 17 of the 5th September, 1939, as amended by Notification No. 25 of the 28th November, 1939, say that the Defence of India Act and Rules "shall be deemed to be applicable in the State of Bikaner till such time as His Highness the Maharaja otherwise orders," and as His Highness the Maharaja never ordered otherwise the Act and the Rules must have continued in force after 30th September, 1946, and must be still held to be in force except where there has been an implied repeal by some law passed by the present State of Rajasthan. This argument, how ever, overlooks the provision of sec. 1(4) of the Defence of India Act, which was retained by the former Bikaner State in the Act as applied to that State. That provision as already set out, fixes the duration of the Defence of India Act and the Rules made thereunder, and that duration was up to the end of the war and six months thereafter. As it was not in the power of the Ruler of the Bikaner State to make war and peace, we must abide by the notification by the Government of India declaring when the war came to an end. This date was the 1st April, 1946, and therefore for purposes of the Defence of India Act as applied to the former State of Bikaner, the war must be deemed to have come to an end on the 1st April, 1946, and the Defence of India Act and the Rules made thereunder could, therefore, only continue for a period of six months after the war had come to an end, i.e. up to the 30th September, 1946. It is urged that there is contradiction between the provision contained in sec. 1(4) of the Act, which was preserved by the Ruler of Bikaner when he applied the Act to the former State of Bikaner and the words of Notification No. 17. Apparently, there seems to be a contradiction; but we feel that it is easy to reconcile the words in Notification No.17 and sec. 1(4) of the Defence of India Act which was kept intact by this notification. The intention of the Ruler of the former Bikaner State, when he applied the Defence of India Act along with sec. 1(4) to the State, was the same as that of the Government of India, namely that the Defence of India Act and Rules thereunder should remain in force till the continuation of the war, and for a period of six months thereafter. But, as a matter of abundant caution, the Ruler provided that the Defence of India Act and Rules, which he was applying to his State, would remain in force till such time as he otherwise directed. In this way, he reserved to himself the power to terminate the rules earlier, if he so desired. He had already expressed by adopting sec. 1(4) of the Act that the Act would come to an end six months after the war was over; but by the words used in Notification No. 17 he reserved to himself the power to bring the Act to an end earlier even though it remained in force in British India for the whole of the period mentioned in sec. 1(4). Read in this way, we do not see any contradiction between the words in Notification No. 17 and the provision in sec. 1(4) of the Act. It could hardly be the intention of the Ruler of Bikaner, when he provided for termination of the Act, to mean, by use of the words which we have in Notification No 17, that in spite of that termination the Act was to continue. The reasonable interpretation, therefore, of the words in Notification No. 17 can only be that the Ruler intended to reserve to himself the power to bring the Act and the Rules framed thereunder to an end even earlier than what was contemplated by sec. 1(4). It must, therefore, be held that the Defence of India Act and the Rules, as applied to the former State of Bikaner, came to an end on the 30th September, 1946. As admittedly no steps were taken to keep any part of the Act or the Rules alive later as was done in British India, the Act and the Rules and orders passed thereunder must be held to have come to an end on the 30th September, 1946. The Sessions Judge was, therefore, in a sense right when he said that the Licensing Order in question had come to an end; but how he came to the conclusion that it came to an end on the 16th of Saptember, 1945, is not clear, because he has said nothing in his judgment to justify that conclusion. We now come to the question whether the Licensing Order of 1943 can be said to be in force on the 4th of April, 1950. We have already come to the conclusion that it came to an end on the 30th September, 1946 along with the coming to an end of the Defence of India Act and Rules as applied to the former State of Bikaner. We have to see whether it can be held to have been revived by any later law passed by the Ruler of the former State of Bikaner, or by the State of Rajasthan. As we have already pointed out, the only notification, which we have been referred to, is No. 4 of the 16th September, 1948. That however applies the Essential Supplies (Temporary Powers) Act, 1946, to the former State of Bikaner with the Rules, amendments and Notifications made thereunder. The Bikaner Licensing Order of 1943 was not issued under the Essential Supplies (Temporary Powers) Act, 1946, and therefore this notification cannot be held to have revived what had come to an end on the 30th September, 1946. Then we come to the Rajasthan Essential Supplies (Temporary Powers) Ordinance (No. XIII) of 1949. Sec. 20(1) of that Ordinance is as follows: - "The United State of Rajasthan Essential Commodities Ordinance,1948 (No XIV of 1948), the Jaipur Essential Supplies (Temporary Powers) Act (Amendment) Ordinance, 1949 (No. of 1949) and all other laws with respect to the matters covered by this Ordinance, for the time being in force in any part of Rajasthan, are hereby repealed." Sub-sec. (2) further provided that any order made or deemed to be made under the Acts, Ordinances and laws mentioned in sub-sec. (1) and in force immediately before, the commencement of this Ordinance shall continue in force and be deemed to be an order made under this Ordinance. The Rajasthan Ordinance, therefore, only continued those orders which had been passed under the laws repealed by it, and which were in force on the date of the repeal. We have held that the Defence of India Act and Rules and orders thereunder came to an end in the former State of Bikaner on the 30th September. 1946, and the only law in force in Bikaner on the 9th of July, 1949, when the Rajasthan Ordinance was passed, was the Essential Supplies (Temporary Powers) Act, 1946, which was applied by Notification No. 4 of the 16th September, 1948. It is, however, not in dispute that no licensing order like the Cotton Cloth and Yarn Dealer's Licensing Order, 1943, was made under the Essential Supplies Act of 1946, either in British India, or by the former Bikaner State. The order, which had been passed by the former Bikaner State in 1943, had, as we have already pointed out, come to an end on the 30th September, 1946 when the Defence of India Rules came to an end. Under these circumstances, sub-sec. (2) of sec. 20 of the Rajasthan Ordinance cannot save or revive the licensing order under which the accused in this case were convicted by the Magistrate. The conclusion, therefore, at which we arrive, is that the Cotton Cloth and Yarn Dealers Licensing Order, 1943, made by the former Bikaner State, had come to an end on the 30th September, 1946, and that nothing happened later to revive this order, and therefore there was no such order in force on the 4th April, 1950, for the breach of which the accused could have been convicted.
(3.) IN this view of the matter, we are of opinion that the acquittal of the accused by the Sessions Judge is correct. It is, therefore, not necessary for us to go into the question of fact, namely whether on the facts proved by the prosecution an offence can be said to be made out for the breach of the Licensing Order. We, therefore, dismiss this appeal.;