ORDER 1. These are two Rules obtained by one D. Kominatos who in two separate trials has been convicted for offences in connection with the possession of certain drugs. Case No. 135 relates to his conviction under R. 81 (4), Defence of India Rules, for a contravention of Cl. 3 of the Essential Drugs Census Order, 1941, on three counts, the offences consisting in failure to submit return of such drugs as on 20th October, 20th November and 20th December 1943, respectively. He has been convicted on each count and sentenced to three months' rigorous imprisonment on each count, the sentences to run concurrently and under Cl. 10 of the Order the stock of drugs in his possession as found on search on 8th January 1944 has been forfeited to Government. In case No. 136 the accused has been convicted for a contravention of Cl. 12 of the Drugs Control Order, 1943, for having in his possession on 8th January 1944, a quantity of drugs in excess of the amount reasonably required to be held for the purpose of his business, and has been sentenced under R. 81 (4), Defence of India Rules, to six months' rigorous imprisonment and further under Cl. 17 of the same Order the drugs seized have been forfeited. He has also been convicted under S. 13 (1), Hoarding and Profiteering Prevention Ordinance, 1943, for a contravention of the provisions of S. 5 (a) and S. 8 of that Ordinance, but no separate sentence has been passed on this conviction. 2. The facts in the two cases are scarcely disputed and the defence taken in each case is on the same lines. The accused called his partner Andrew Mentxapolous to support his case that he originally arranged to enter into partnership with this witness for dealing in some wholesale drugs. This was in 1942. Later the arrangement was not completed and Mentxapolous made over the stock, which he had purchased with the accused's money and been keeping, to the accused and thereafter the accused was trying to dispose of it. As regards the charge under the Essential Drugs Census Order his defence is that he did not know that the law required that any return should be submitted. As regards the charge under the Essential Drugs Census Order his defence is that he did not know that the law required that any return should be submitted. Mentxapolous said that he had submitted returns including these articles whilst he was in the business but thereafter admittedly when the stock was with the accused no further returns were submitted. Substantially the accused's own statement amounts to a plea of guilty under this charge with some claim for consideration on the basis of alleged, ignorance of the law. The suggestion appears to be that this was not his normal line of business and this in some way is to explain and mitigate his offence. The argument has its weakness having regard to the time when this business, unusual for the accused, was entered on by him. As the learned Chief Presidency Magistrate has pointed out, it is common knowledge that at the time when this was done there was, owing to war conditions, considerable shortage of these drugs and it was possibly erroneously thought, but certainly it was common opinion that it was a time when profiteers were flourishing. We do not think it necessary to say more on this particular case. The conviction must clearly be upheld. As regards the convictions under the Drags Control Order, 1943, and the Hoarding and Profiteering Prevention Ordinance, 1943, the facts are that acting on information a search was made of the accused's premises on 8th January and a very large quantity of drugs was seized. The accused had no licence for sale and had made no application to any authority in respect of his stocks. The argument of Mr. Noad on his behalf was substantially that the accused had not really been able to discover exactly what new provisions of the law applicable to his case were and that he certainly had no intention of breaking any of the laws made applicable to Drugs and Profiteering and in the last resort Mr. Noad urges that at any rate the accused was entitled to some time after the new laws came into force to take action and that at the worst the offence, if any, is not of a very serious character. 3. Noad urges that at any rate the accused was entitled to some time after the new laws came into force to take action and that at the worst the offence, if any, is not of a very serious character. 3. To appreciate the argument it is necessary to refer to the chronology of the various provisions in question, bearing in mind that the accused on his own showing was not regularly in business of a wholesaler or retailer in drugs, but had through his arrangements with Mentxapolous come into possession of an unusually large stock of a few items of drugs at the end of 1942 and beginning of 1943. The Hoarding and Profiteering Prevention Ordinance, 1943, wag promulgated on 16th October 1943. Under S. 5 (a) thereof, it was provided that no dealer should have in his possession at any one time a quantity of any article exceeding one-quarter of the total quantity of that article held by him in the course of the year 1939, or as the case may be, exceeding the quantity which the Controller General or other officer empowered in this behalf by the Central or the Provincial Government might intimate to him as the maximum quantity of that article which he may have in his possession at any one time. Under S. 8 of the Ordinance provision was made for any person having in his possession a quantity in excess of that permitted under the Ordinance to report the fact to the Controller General or other officer and for him to take such action as to storage, distribution or the disposal of the excess as the Controller or other officer might direct. Later by S. 9A provision was made for the Controller General to direct any producer or dealer to sell to specified person any specified article as might be specified by him. 4. This then was the position until 11th November 1943 when the Drugs Control Order, 1943, was promulgated making special provision for drugs, many of the provisions made being very similar in effect to those in the Hoarding and Profiteering Prevention Ordinance. One main difference was that under the Order the scheme was to provide for sale and purchase by producers, wholesalers and retailers only under the licence. One main difference was that under the Order the scheme was to provide for sale and purchase by producers, wholesalers and retailers only under the licence. Clause 12 of the Order made provisions similar to those in S. 5 (a) of the Ordinance although the scale so to speak laid down was different. Under the Order it was provided that no wholesaler or retailer shall have in his possession or under his control at any time any drugs in excess of the quantity reasonably required to be held by him for the purposes of his business. Under Cl. 6 (2) it was laid down: No wholesalers' or retailers' license in Form A shall be granted to any person who in the opinion of the licensing authority has not been carrying on business as wholesaler, or, as the case may be, a retailer, continuously throughout the years 1941, 1942 and 1943. Under a proviso, for special reasons, the Provincial Government could direct the issue of wholesalers' or retailers' licence to any person not entitled under the previous provisions. Under Cl. 7 of the Order provision was made that the conditions if any subject to which it was issued might be specified in the licence. 5. The accused was equally in difficulties under this Order for his case is that he had not been in trade continuously for 1941, 1942 and 1943 and, therefore, he could have little or no expectation of getting a licence except under the special proviso and he clearly had under Cl. 12 far more of these drugs than reasonably required for the purpose of his business. We think that reasonable requirements here must have reference to the provision that licences are only to be given to people who had been previously continuously in the trade and the reasonable requirements would necessarily have reference to the amount of trade which had previously been done by such person. The Order like the Ordinance was definitely directed against outsiders who would try to invade the drug or other markets for the purpose of profiteering, hence the basic provisions in both these enactments basing the scale of stock on what had been held previously by persons regularly in the trade. 6. Mr. The Order like the Ordinance was definitely directed against outsiders who would try to invade the drug or other markets for the purpose of profiteering, hence the basic provisions in both these enactments basing the scale of stock on what had been held previously by persons regularly in the trade. 6. Mr. Noad laid stress on the rather abnormal character of the accused's possession of the drugs in the hope that he might show that the accused was not really liable under either of these provisions and if so, the scale of his offence was not great. At first Mr. Noad sought to argue that so abnormal was the state of affairs that the accused was not even engaged in the business of selling drugs. He did not press the argument when it was pointed out that the only effect of establishing this proposition would be to put the case in the residuary class of ordinary persons obviously covered by this provision and entitled only to such medicines as an ordinary person might keep in a medicine chest. The argument, however, brings out what is otherwise fairly clear, that the possession of the accused was an abnormal one, that he was not a man ordinarily engaged in the drug business and was of the class at which these new provisions were aimed, interlopers in the trade with no established business or reputation to keep up, and, therefore, persons who it might prima facie at any rate be thought were likely to wish to profiteer. Our view is that the accused was well aware of his position and well aware that these laws were being made to deal with the situation, and in particular that persons in his position were amongst the class very much affected by these new provisions. We do not accept any arguments advanced on the basis that he was ignorant of the new laws. As regards the Ordinance itself it certainly had plenty of publicity. As regards the Drugs Control Order the accused himself had Ex. A-l made an exhibit, this being a copy of the applications in forms C and D for licences in forms A and B respectively, for sale and purchase of drugs, and this shows fairly clearly that he must have at least obtained a copy of the order from which the copy of the form had been made. A-l made an exhibit, this being a copy of the applications in forms C and D for licences in forms A and B respectively, for sale and purchase of drugs, and this shows fairly clearly that he must have at least obtained a copy of the order from which the copy of the form had been made. We will give our reasons later why we do not accept the view of the learned Chief Presidency Magistrate that the Ordinance is applicable on the charge in respect of possession on 8th January 1944, after the Drugs Control Order had come into force. Here we may state that had the charge been for possession after 16th October 1943, and prior to the date when the Order came into force, 11th November 1943, and if it had been shown that in that period the accused had been in possession of drugs in excess of the limit laid down in S. 5 (a) of the Ordinance then clearly he would have been liable for a contravention of the Ordinance unless he had taken action under S. 8 of the Ordinance to report to the Controller General to obtain orders. Mr. Noad stresses that some time was necessary for anybody affected by the Ordinance to obtain a copy thereof, and then to ascertain his position under it and then to take action. These circumstances would no doubt have to be taken into consideration in estimating the gravity of the offence committed, but strictly speaking under the law as promulgated any person in the position of the accused who had not taken action promptly after 16th October 1943, to regularise his possession would be liable under the Ordinance. This was the position then of the accused when the Drugs Control Order came into force. 7. The Order as originally promulgated provided that Cls. 4 to 8 and Cl. 10, should not have effect until 15th January 1944. In other words, the provisions requiring sellers to have licences were not to come into force until that date. The difficulty of this position was seen by 25th December 1943, when an amendment was made so that Cl. The Order as originally promulgated provided that Cls. 4 to 8 and Cl. 10, should not have effect until 15th January 1944. In other words, the provisions requiring sellers to have licences were not to come into force until that date. The difficulty of this position was seen by 25th December 1943, when an amendment was made so that Cl. 6, providing for applications for licences, was to come into force as from 1st January and the provisions requiring manufacturers, importers, wholesalers and retailers to obtain a licence before sale and so forth were not to come into force until 15th February, thus giving some time for persons affected to obtain licences. Clause 12, however, was in force from 11th November 1943. As we have already mentioned, bearing in mind what was the position of the accused under the Ordinance, it is clear that he was a person who had in his possession drugs far in excess of the quantity reasonably required to be held by him for the purpose of his business. It has already been noted that the scale laid down in the Drugs Control Order under Cl. 12, differs from the more specific scale laid down in S. 5 (a) of the Ordinance. The provision in Cl. 12, appears to be more elastic. This seems to be consistent with the scheme of the Order which was to license druggists and was one of much closer control over all those affected by it. No one in possession of drugs could sell them without licence and the licensing authority could impose such conditions as it thought fit and could therefore take action with regard to any abnormal stock by making special conditions in the licence as to how these were to be disposed of. The matter was still further simplified when Cl. 8-A of the Order was brought into force on 15th February, by which similar provision was made to that in S. 9-A, Hoarding and Profiteering Prevention Ordinance, already referred to above by which the appropriate authority could give special directions as to the disposal of drugs by a person who had not taken out a licence. 8-A of the Order was brought into force on 15th February, by which similar provision was made to that in S. 9-A, Hoarding and Profiteering Prevention Ordinance, already referred to above by which the appropriate authority could give special directions as to the disposal of drugs by a person who had not taken out a licence. The most favourable view it seems to us that can be taken for the accused is that although he was from the date of the promulgation of the Order, 11th November 1943, holding an excess beyond the limit allowed him under Cl. 12 of the Order and had prior to that under the Ordinance been holding stocks in the excess of limit laid down under that Ordinance he might still be considering his position as regards the taking out of a licence, being well aware that the moment he disclosed his possession, it was practically certain that he would not obtain a licence in view of the provision of Cl. 6 (2). Had the search in this case taken place after 15th February, the operative date when all the druggists were to be in possession of licence, had he by that time been still putting off taking action to regularise his possession, then it could have been said beyond any doubt that he was intending deliberately to avoid the provisions of the law which had been made to deal with the prospective profiteers. As the case stands, it seems to us that he is clearly liable for contravention of Cl. 12, but there is something to be said for him in the sense that he was procrastinating in view of the fact that he was in a very difficult position, a law having been framed to deal with the case of such people as he, a law which must have been we think rather unpleasant news to him. 8. We, therefore, uphold the conviction of the accused under R. 81 (4), Defence of India Rules, for contravention of Cl. 12 of the Drugs Control Order on 8th January when the seizure in the case was made. 8. We, therefore, uphold the conviction of the accused under R. 81 (4), Defence of India Rules, for contravention of Cl. 12 of the Drugs Control Order on 8th January when the seizure in the case was made. The learned Chief Presidency Magistrate has convicted the accused both under the Ordinance and under the Drugs Control Order holding that both cover his case and that the Ordinance was applicable to the case of the accused and that he had held in excess of the amount allowed under S. 5 (a) thereof. In our opinion this is not strictly a correct view. We do not wish to say anything in any way limiting the general effect of the Ordinance in a case covered by the Drugs Control Order, but as regards the particular facts of this case we see great difficulty in saying that both the provisions apply. Briefly the Ordinance lays down a limit of the amount a dealer may possess of articles of practically every description other than food grains. No doubt under S. 17 of the Ordinance the provisions are to be in addition to and not in derogation of any other law for the time being in force regulating the keeping, storage, distribution, disposal or price of article. Assuming that this includes the law regulating the amount of articles permitted to anyone to possess, it seems impossible to say that if another provision specially applicable to some particular article, such as the Drugs Control Order, lays down a different limit, both provisions can be said to apply at the same time. Where there is possession of an article in excess of the limit provided in either enactment there is no difficulty, but where there is a case of possession of a quantity in excess, for example, of that held under the Ordinance and less, say than that allowed under the Order, if both apply then possession under the Ordinance will be punishable whereas under the Drugs Control Order it will be permissible. We think it is simpler and more correct to hold that in respect of articles that are the subject of such special provision as to limit, the Ordinance will not apply at all. 9. There only remains the question of sentence. We think it is simpler and more correct to hold that in respect of articles that are the subject of such special provision as to limit, the Ordinance will not apply at all. 9. There only remains the question of sentence. In our opinion the sentences imposed are rather severe having regard to what we have said above as to the circumstances of this case and the fact that the search was made on 8th January and not after 15th February. As regards the conviction under the Essential Drugs Census Order we take a more serious view of the offence under that Order, but we think that this difference is to be shown in the matter of the order of forfeiture. The result is that the conviction under the Essential Drugs Census Order is upheld. We reduce the sentence to a fine of two thousand rupees in default to suffer rigorous imprisonment for three months and maintain the order of forfeiture. In the other case we set aside the conviction under the Hoarding and Profiteering Prevention Ordinance while maintaining the conviction under the Drugs Control Order, 1943, read with R. 81 (4), Defence of India Rules, and reduce the sentence also to a fine of two thousand rupees in default to suffer rigorous imprisonment for three months and set aside the order of forfeiture in that case. We note that in the trial Court the order of forfeiture, so far as it affects the Essential Drugs was repeated in the order of forfeiture under the Drugs Control Order: The effect of our order is that only the items covered by the Essential Drugs Census Order and the conviction thereunder are affected and the order of forfeiture with regard to the remaining drugs is set aside. 10. Some argument was adduced before the Court on the question whether this Court had power to interfere with an order of forfeiture, passed by a trial Court. In our opinion the provisions in the Defence of India Rules and the orders considered by us in this case which provide for forfeiture are provisions for forfeiture to be made as a punishment. In our opinion the provisions in the Defence of India Rules and the orders considered by us in this case which provide for forfeiture are provisions for forfeiture to be made as a punishment. The Penal Code provides in S. 53 Fifthly, "Forfeiture of property" as one of the punishments to which offenders are liable under this Code and we may note incidentally that under S. 127, Penal Code, for example, forfeiture of property is provided for as a punishment. Under S. 2 (3) (iii), Defence of India Act, 1939, provision is made for forfeiture of any property in respect of which such contravention, attempt or abetment as is referred to in the proceeding Cl. (ii) has been committed. Clause 10, Essential Drugs Census Order, provides: If any person contravenes any provision of this Order, then without prejudice to any other punishment to which he may be liable, the Court trying such contravention may direct that any stocks of essential drugs in respect of which it is satisfied that such provision has been contravened, shall be forfeited to His Majesty. We undertook the word "other" as showing that in this case forfeiture is clearly provided for as an additional punishment. In Cl. 17, Drugs Control Order, the wording is slightly different: Any Court trying a contravention of the provisions of this Order may direct that any drugs in respect of which the Court is satisfied that the Order has been contravened, shall be forfeited to His Majesty. The wording here follows that of R. 81 (4), Defence of India Rules, which runs thus: If any person contravenes (any order made under this rule), he shall be punishable with imprisonment for a term which may extend to three years (or with fine or with both), (and if the Order so provides any Court trying such contravention may direct that any property in respect of which the Court is satisfied that the order has been contravened shall be forfeited to His Majesty). Obviously both these provisions mean that the order for forfeiture is to be passed by the Court trying the offence after conviction. Mr. Obviously both these provisions mean that the order for forfeiture is to be passed by the Court trying the offence after conviction. Mr. Ahmed conceded that where a trial Court has convicted for a contravention of an Order made under the Defence of India Rules and has passed an order of forfeiture then if this Court sets aside the conviction the order of forfeiture must fall with the conviction, but he contended that where the conviction is upheld this Court had no power to interfere with the order of forfeiture. We are confident that the framers of the Rules never intended that this should be so and in our opinion they have not made provision to this effect. We agree that the provisions of S. 520, Criminal P. C., do not assist in this matter because they refer only to orders passed under the Code itself. No order is necessary on the two applications for admission in criminal Appeals Nos. 42 and 43 of 1945.