MEHTA, J. - (1.) ON October 26, 1967, Satyanarain, Enforcement Inspector, Jodhpur, made a complaint against Jahoor Khan, Proprietor of the firm Ratan Khan Jahoor Khan, Sardar Market, Jodhpur, under Sc. 3/7, Essential Commodities Act, 1955. The allegations in the complaint were that Jahoor Khan despatched 94 bags of Moth-Mogar outside Rajasthan as per R. Ps. Nos. 525012 dated 22-8 67, 528023 dated 24-8-67, 525014 dated 24-8-67, 526016 dated 268-67 and 535017 dated 28-8-1967. The accused wrongly represented to the railway authorities that the bags contained Mung-Mogar and not Moth-Mogar. Since the accused committed a breach of the provisions of clause 4 of the Rajasthan Cattle Fodder (Sale of Stocks and Prohibition of Export) Order, 1965, (hereinafter called the Order) he was liable to be punished under Ss. 3/7, Essential Commodities Act, 1955. ON receipt of the complaint, City Magistrate, Jodhpur, ordered the registration of the case and issued a bailable warrant on October 26, 1967, for the presence of the accused. An objection was taken on behalf of the accused that as the exported Moth-Mogar was not a prohibited commodity by the said Order, the complaint should be dismissed. The City Magistrate heard arguments on behalf of both the parties and then by his order, dated March 20, 1968, discharged the accused, holding that Moth-Mogar was not covered by the Schedule, appended to the Order. A revision-application was taken by the State in the court of the Sessions Judge, Jodhpur. The revisional Court held that Moth-Mogar was included in the Moth, mentioned in the Schedule, appended to the Order. ON this finding the revision-application was accepted and the order of discharge passed by the City Magistrate was set aside and the case was remanded to the City Magis--trate, Jodhpur, (for further inquiry. Aggrieved against this order, the petitioner) Jahoor Khan filed this revision application in this Court.
(2.) CONTENTION of learned counsel for the petitioner is that the interpretation made of the word Moth, occurring in the Schedule, appended to the Order, is erroneous. Had the Legislature intended to include Moth Mogar in the Schedule, it would have explicitly specified it. Since that has not been done, the accused is not liable for the violation of clause 4 of the Order. Learned counsel for the State Government has tacitly supported the submission made on behalf of the counsel for the petitioner. The Schedule, appended to the Order, runs as follows: - "hay, Bhusa, Gowar, Karab, or Karbi or Kadbi, Grass, Moth, Moth Chara, Gram Chhilks, Gram Dal Chhilka or Pholra, Rice Husk. " A perusal of the above Schedule shows that the genesis or species, the export of which was intended to be prohibited by the legislature has been precisely mentioned therein. The legislature purported to prohibit the export of Moth Chara and the same finds place in the Schedule, although it is the specie of Moth. Same is the case in respect of the species of gram, namely, gram Chilka and gram Dal Chilka Pholra. Moth-Mogar is prepared after removing the husk from the Moth. Obviously it is a costlier commodity and is not ordinarily meant to be used as cattle-fodder. That seems to be the reason why Moth-Mogar has been excluded from the Schedule. When the legislature expresses its intention by a written statute, that intention, in any instance, must primarily be ascertained from the language used in the statute itself, and not from conjectures aluinde. In other words, before the court can resort to any other source for assistance, it must seek to find the legislative intention from the words, phrases and sentences which make up the statute. If the meaning of the language of the statute is plain, then according to the rules of interpretation, there is really no need for construction, as the legislative intention is revealed by the apparent meaning, that is, the meaning clearly expressed by the language of the statute : vide para 164, Construction of Statutes by Crawford 1940, Edn. In this case, if the statute is given a literal interpretation, the word Moth would mean exactly what it means. Had there been some doubt in the expression of the word, an endeavour would have been made to determine the legislative intention from elements beyond the language of the statute. In the Schedule only the word Moth is given and not Moth-Mogar or Moth-Dai. There is hardly any scope to ascertain with the help of outside elements the legislative intent, which is revealed by the use of the plain word Moth. This principle has been elucidated by their Lordships of the Supreme Court in Hira Devi vs. District Board, Shahjahanpur (1 ). It was observed in that case that it was ture that the court should try and harmonise the various provisions of an Act passed by the legislature. But it is certainly not the function of the court to stretch the words used by the legislature to fill in gaps or omissions in the provisions of an Act. It will also be helpful to make a reference to the observations made by their Lordships of the Supreme Court in another case reported as Shrinivas Pannalal vs. State of M. P. (2 ). There the accused Shrinivas Pannalal was charged with having exported 1405 bags of uncleaned Tur Dal without permit, on December 26, 1946, from Yeotmal to Kalyan. Since ha had no permit to export uncleaned Tur Dal, he was challaned in the court concerned. The Magistrate convicted the accused of the offence under sec. 7, Essential Supplies (Temporary Powers) Act, 1946, read with cl. 2 (i) (a), Central Provinces & Berar Foodgrains Export Restriction Order, 1943, and sentenced him to various terms of imprisonment and fine. The accused took an appeal to the High Court at Nagpur. The High Court quashed the conviction of the appellant in regard to certain offences, but confirmed his conviction in respect of offence under sec. 7 of the Essential Supplies (Temporary Powers) Act, 1946 and maintained the sentence of imprisonment and fine on that count. The appellant obtained from the Supreme Court special leave to appeal. Their Lordships of the Supreme Court held that under sec, 15 of the Essential Supplies (Temporary Powers) Act, 1946, where any person is prosecuted for contravening any order made under sec. 3, which prohibits from doing any act without a permit, the burden of proving that he has such a permit shall be on him. The accused produced the permit authorising him to export 'chuni bharda' and showed that the commodity which he was exporting fell within the description of 'chuni bharda'. Thereafter the burden shifted on the prosecution to prove that the commodity which was being exported was not 'chuni bharda', but was uncleaned Tur Dal. It was not for the accused to establish that the commodity which he was exporting was not uncleaned Tur Dal. It was further observed in that judgment that it was impossible in that state of the evidence to come to the conclusion that even though the commodity could fall within the description of 'chuni Bharda', for the export of which the accused had the necessary permit, the commodity which was being actually exported was not 'chuni Bharda' but uncleaned Tur Dal. With these observations benefit of doubt was given to the accused. This authority affords guidance on the point that the burden lay upon the prosecution to show that the word Moth included the word Moth Mogar. When a word is capable of being construed either in its popular sense or as a word of art, it is for those to assert that it is used in technical and not in a popular sense to establish the fact: see para 588, Halsbury's Laws of England, 3rd Edn. Vol. 36, p. 393. Since the prosecution is unable to discharge this burden, the accused cannot be proceeded with under cl. 4 of the Order. It may also be mentioned here that whenever the legislature or the authorities concerned intended to exclude bye-products in regard to commodities mentioned in the Schedule, the same was clarified in a number of orders or notifications. The Rajasthan Cattle Fodder (Sale of Stocks & Prohibition Export) Order, 1966, came into force on June 18, 1966. It remained in force upto August 31, 1966. Thereafter the order was again put into operation by Notification No. F5[8]bc/ Cattle/food/65, dated April 24, 1967, whereby the order in question remained in force from May 1, 1967, to July 31, 1967. This period was further extended by another Notification No. F. 5 (8) RC/cattle/food/66/ess. Com/fodder/rajasthan dated July 29, 1967, upto October 31, 1967. In this case the occurrence is alleged to have taken place in August, 1967, when the export of the Moth was prohibited. On September 9, 1966 a question arose whether gram included garam-dal as well. This ambiguity was removed by issuing the Rajasthan Gram (Sale of Stocks) Order, 1966. Cl 2 (b) of the Order reads "gram" includes "gramdal". Similarly, by another Notification No. F. 5 (8)RC/cattle/food, dated October 31, 1966, it was clarified by issuing an order amending the Rajasthan Cattle Fodder (Sale of Stocks & Prohibition of Export) Order, 1966 that in the Schedule, appended to the order the items "gram Chhilka and Gram Dal Chhilka or Pholra, shall be omitted. " This Notification shows that whenever any bye-product was intended to be not prohibited from export, the same was excluded from the Schedule, appended to the Order. Likewise in another Notification No. F. l7-A (286)Food/sup. /65, dated December 10, 1965, export of gram and barley was prohibited and it was made clear that gram and barley would include either whole or split or in any other form. On August 12, 1966 another Notification No. F. 17 (17)11/food/sup. /66, was issued by the Government, whereby it was ordered that no person shall export or cause to be exported Jowar, Bajra or maize either whole, split or in any other form outside the State of Rajasthan. Keeping in view the above Notifications and Orders, it is plain that whenever it was intended that the whole grain would include the split, the same was definitely or precisely clarified. In the present case it has not been specified that Moth shall include its split or Moth-Mogar, Learned Sessions Judge simply casually referred in his order, dated September 6, 1958, that the legislature mentioned Moth in the Schedule as cattle-fodder which prima facie includes Moth-Mogar also. Moth Mogar is a refined and costlier bye product of Moth and is not normally used by cattle. The Sessions Judge has not assigned any reason why Moth included Moth-Mogar. In this view of the matter, the order made by learned Sessions Judge, Jodhpur, obviously appears to me to be erroneous and deserves to be quashed. Accordingly set aside the impugned order of the Sessions Judge, Jodhpur, dated September 6, 1958, and restore the order of discharge, passed by learned City Magistrate, Jodhpur, on March 20, 1968. .;