Raj Bahadur v. Emperor — 1946 DIGILAW 163 (ALL)

JUDGMENT Braund, J. - These are three criminal revisions referred to us as a Bench as they were considered to raise a point of considerable importance arising out of the Defence of India Rules and the Orders made thereunder. We pro pose in this judgment to deal primarily with Revn. No. 1331 of 1945, since the other cases will be governed by the view we take in this revision. 2. The facts are very short and have been set out at some length in the judgments both of the Magistrate and the Sessions Judge of Agra who have dealt with the case in the Courts below. It appears that at about one in the early morning of 20-1-1945 two motor trucks were stopped by the police at the Bayara Canal bridge on the Agra-Bharatpur Road. This bridge is a trifle over a mile from the Bharatpur boundary and is about nineteen miles from Agra and some three miles from the village or small town of Achenera, where there is a police station. The police of Achenera had received previous information that there would be an attempt to "run" sugar and potatoes on that night from the Agra district into the Bharatpur State, both such commodities being prohibited for transport and ex-port. The facts are no longer in dispute in this revision and it is sufficient to say that in due course at about one in the morning the first of the two lorries arrived at the point near the Bayara Canal bridge at which the police party was waiting. The police had placed an obstacle of stones on the road and the lorry was accordingly brought to a standstill. Four people were found on it. The first was the present applicant, Raj Bahadur, who was actually the driver of the lorry. The second was Hari Ram, who is the other of the applicants in this revision, who was the owner of the fifty bags of sugar which the lorry was found to contain. The other two occupants, who have been acquitted and with whom we are no longer concerned, were the assistant driver or spare man and another person called Narain Singh who was a passenger and may possibly have been a part owner of the truck. We are now actually only concerned with Raj Bahadur, the driver, and Hari Ram, the owner of the sugar. 3. We are now actually only concerned with Raj Bahadur, the driver, and Hari Ram, the owner of the sugar. 3. Those are the facts and they may now be taken to be established. These two men were in due course charged in respect of two separate offences. The first offence was an alleged offence under cl. 8 (l), Sugar and Sugar Products Control Order, 1943. The second of the two offences with which they were each charged was under cl. 6 of the District Magistrate of Agra's order known as The Agra Khandsari Sugar Export Control Order 1944. 4. The Sugar and Sugar Products Control Order, 1943 is a Government of India Order made in pursuance of R. 81 (2) (a), Defence of India Rules, which itself was made in pursuance of S. 2 (1), Defence of India Act, 1939. This order (which we shall hereinafter refer to in short as the "Sugar Control Order") was published in the Gazette of India of 3-7-1943 over the signature of Major-General E. Wood, who was then the Secretary of the Government of India in its Department of Food. By cl. 8 (l), Sugar Control Order it was provided: No sugar shall, after such date as the controller may notify in this behalf, be offered for transport by railway or in any manner whatsoever by land or river by a consignor or accepted by a railway servant or by any person whatsoever for transport except under a permit issued by the controller in such form and subject to such conditions and in respect of such areas as he may from time to time prescribe . . . . 5. The words in italics above are, of course, our own. They have been emphasised in order to show that what this clause aims at is to prevent merely the offering and accepting for transport of sugar, as distinct from the physical movement of sugar, which, as we shall see in a moment, has been left to be dealt with by the Magistrate's Order referred to above. Clause 8, Sugar Control Order itself, therefore, only deals with what may be described as the offer and the acceptance of sugar for transport, and not with the transport of sugar itself. That is one of the two control orders that the applicants in this case have been said to have contravened. 6. Clause 8, Sugar Control Order itself, therefore, only deals with what may be described as the offer and the acceptance of sugar for transport, and not with the transport of sugar itself. That is one of the two control orders that the applicants in this case have been said to have contravened. 6. The other of the two control provisions relating to sugar alleged to have been infringed by the applicants was the Agra Khandsari Sugar Export Control Order 1944, made by the District Magistrate of Agra on 15-4-1944 also under R. 81 (2) (a), Defence of India Rules. That order (which we shall hereinafter refer to as the "Magistrate's order") provided that no person should "take or cause to be taken by road Khandsari sugar to a prohibited area"-Bharatpur may he taken for this purpose to have been a prohibited area-"without a permit from the District Supply Officer or the Additional District Supply Officer, Agra. . . .Clause 5 of the Magistrate's order went on to provide that the order itself was to be published in any one or more of the following ways, that is to say, by publication in the Agra District War Bulletin; or by announcement by beat of drum; or by a copy thereof being affixed on the Notice boards of various specified officials of the Agra district. That was the other of the two regulations which the present applicants were said, to have broken and in respect of which they were charged under R. 81 (4), Defence of India Rules. It is obvious that the Magistrate's order deals with something quite different from the Sugar Control Order. The latter as we have already pointed out, deals merely with the offer and acceptance for transport, while it will be seen that the former deals actually with the physical movement of the sugar itself. It is important to observe this distinction, as it seems to us to have been completely lost sight of by those who have dealt with the cases. 7. The two applicants were in due course tried and convicted on both charges by the Magistrate of the First Class, Agra on 11-7-1945. The applicant Raj Bahadur was sentenced to undergo four months' rigorous imprisonment, while the applicant Hari Ram was sentenced to undergo sis months' rigorous imprisonment on each count such sentences to run concurrently. 7. The two applicants were in due course tried and convicted on both charges by the Magistrate of the First Class, Agra on 11-7-1945. The applicant Raj Bahadur was sentenced to undergo four months' rigorous imprisonment, while the applicant Hari Ram was sentenced to undergo sis months' rigorous imprisonment on each count such sentences to run concurrently. The stocks of sugar seized from the lorry were also confiscated. They appealed to the Sessions Judge of Agra and he duly dismissed their appeals. On the matter being brought on revision to this Court, a learned Single Judge has referred the matter to a Bench solely on the question whether the publication of the various controls was sufficient. 8. It is only in respect of the conviction of the two applicants in respect of the offence under the Sugar Control Order, read with R. 121, Defence of India Rules, that this revision has been pressed before us. As to the applicant Raj Bahadur, we feel it right to say, although this point was not taken by the learned advocate who appeared for him before us, that in any case it does not seem to us, apart from any question as to the publication of the Sugar Control Order, that his conviction can stand. This applicant was merely the driver of the lorry. He was not its owner and there is no evidence that he had any further concern with the lorry and what it carried than to drive it. He was not, as far as we know, entitled to say what it should carry or to accept or refuse goods for carriage. He was in short a mere driver of the lorry. We have already been at some pains to point out that what clause 8 of the Sugar Control Order prohibits is, not to transport sugar, but the "offering" of it for transport by one party on the one hand and the "accepting" of it for transport by the other party on the other hand. It has nothing to do with the physical transport of sugar in the sense of its actual movement from one place to another. Nor is the clause confined to the offer and acceptance of sugar for transport to a place outside the Province or district in question. It is a general prohibition against making of or accepting an agreement to transport sugar anywhere. Nor is the clause confined to the offer and acceptance of sugar for transport to a place outside the Province or district in question. It is a general prohibition against making of or accepting an agreement to transport sugar anywhere. It seems to us obvious on the slightest consideration that a mere mechanic whose duty it is to drive a vehicle to whatever place he is told to drive it and to carry whatever he is told to carry is not a person who is in a position to infringe clause 8 of the Sugar Control Order unless it is affirmatively shown that he was also in a position to accept goods for transport. Raj Bahadur in this case had, as far as we know, no such authority. The lorry was owned by others. There is no evidence that he was in any way concerned with the arrangement to carry sugar. He merely drove the lorry. As far as we can see, he neither offered nor accepted sugar for transport. The case against the second applicant, Hari Ram, may, of course, well be different, since he was the owner of the sugar in question and can be properly said to have been in a position to offer it for transport. If, as we think, Raj Bahadur was not himself in a position to infringe clause 8 of the Sugar Control Order, it follows that he was not in a position to abet the infringement of it by Hari Ram. There is not an iota of evidence that he was even cognizant of the arrangement between Hari Ram and the owners of the lorry to carry it to Bharatpur. 9. For these reasons alone we think that the applicant, Raj Bahadur will have to be acquitted of the offence under R. 81 (4), Defence of India Rules in respect of any infringement of clause 8 of the Sugar Control Order. We feel it necessary, however, to go further and to consider, if only in the case of the applicant Hari Ram, the further contention which has been raised before us that no such publication of the Sugar Control Order has been proved as will satisfy R. 119, Defence of India Rules. 10. The argument advanced is, it is true, said to be supported by a number of decisions of Single Judges of this Court. 10. The argument advanced is, it is true, said to be supported by a number of decisions of Single Judges of this Court. It is, we under, stand, to the effect that the fact of publication in the Gazette does not by itself satisfy R. 119, Defence of India Rules, since mere publication by itself is no proof of the fact that the authority, officer or person making the publication had ever formed the opinion that the particular form of publication was in the circumstances the best adapted for informing the persons whom the order concerns. It is suggested that the act of publication in the Gazette is by itself an equivocal act and may as well be the result of some secretariat routine as the result of any consideration what the best means of informing the persons concerned may be. This view of the matter has been favoured by certain Judges of this Court. In Girdhari and Another Vs. Emperor, AIR 1945 All 291 Mulla J. took the view that it could not he presumed in that case that the persons before him had any knowledge of an order under the Defence of India Rules, since there was nothing on the record to show that the District Magistrate had himself considered how the order was to be published. In a later case Krishan Chandra Vs. Emperor, AIR 1945 All 280 the same learned Judge went a little further and said that the most important ingredient in Rule 119, was that the authority passing the order should exercise its mind and decide upon the method of publication of the order. He meant, we think, that it was necessary for the prosecution to prove affirmatively than the authority had positively considered the question of publication and had come to a positive conclusion that the method adopted was the best method in the circumstances. He said: This power cannot be exercised by anyone other than the authority passing the order. Before a person can be charged with infringement of an order passed under the Defence of India Rules, it is incumbent on the prosecution to establish that the authority passing that order had prescribed a certain method of publishing that order and that method had been carried out..... 11. To the same effect is the judgment of Wali Ullah J. in Emperor Vs. 11. To the same effect is the judgment of Wali Ullah J. in Emperor Vs. Akbar and Others, AIR 1946 All 223 In that case the learned Judge observed: ...From the mere fact of notification of the Control Order in the U.P. Gazette it does not at all appear that the authority responsible for making the order ever directed its mind to the consideration of the question as to the manner best adapted for informing the persona whom the Order concerns. . . . The provisions of the Rule to my mind necessitate proof of two matters: (1) It must be shown that the authority making the. Order-in this ease the Provincial Government-indicated some manner, which in its opinion was considered best adapted for informing the persons concerned and (2) that such direction given by the authority concerned was actually carried out...... 12. That view was in effect the same view as had previously been expressed by Mulla. J. 13. We regret that we find it difficult to share the opinion of these learned Judges. The language of R. 119 Defence of India Rules is that: Save as otherwise expressly provided in these Rules, every authority, officer or person who makes any order in writing in pursuance of any of these Rules shall, in the case of an order of a general nature or affecting a class of persons, publish notice of such order in such manner as may, in the opinion of such authority, officer or person, be best adapted for informing persons whom the order concerns. 14. The Rule, therefore, throws upon the authority making the order not only the right but also, the duty of forming an opinion as to the best manner of publication. In the present case and in those before the other Judges referred to above, all that was known was that the authority had in fact made publication. In the present case the publication was by notification in the Gazette. That notification was signed by the Secretary of the Department of the Government of India to which the matter related and we have no doubt, therefore, that it was in fact the notification of the Government of India, which was itself the authority which made the Sugar Control Order. So far there is no difficulty. That notification was signed by the Secretary of the Department of the Government of India to which the matter related and we have no doubt, therefore, that it was in fact the notification of the Government of India, which was itself the authority which made the Sugar Control Order. So far there is no difficulty. The Secretary of the Food Department, however, did not in terms say that he on behalf of the Government of India had considered the matter and had formed the opinion that publication in the Gazette was the best method of informing the public of the contents of the order. But, in our view, it will be opposed both to principle and common sense if he were to be required to do anything of the kind. If a principle were to be introduced that, wherever, by statute or rule a discretion is reposed in any person to do an act, he had to prove affirmatively his mental processes in exercising discretion, it would lead to impossible results. Nor is it in accordance with well accepted legal principles. We think that the true principle is to be found in the well known legal maxim "omnia rite esse acta," which is the foundation of S. 114, Evidence Act. That section of the Evidence Act gives specifically as an illustration that a Court may presume that official acts have been regularly performed. What is the process enjoined under R. 119, Defence of India Rules but an official act? We have great difficulty in understanding why, once the act of publication itself has been proved, it should not, in conformity with S. 114, Evidence Act, be presumed, that the official process of considering and forming an opinion as to the best method of publication has been regularly performed. So long as the principle of omnia rite esse acta stands, it can be no answer to say that there is a possibility that the process of forming an opinion might have been omitted and the publication might in fact be due to mere office routine. So long as the principle of omnia rite esse acta stands, it can be no answer to say that there is a possibility that the process of forming an opinion might have been omitted and the publication might in fact be due to mere office routine. The very purpose of S. 114 is that it shall be assumed that the authority charged with a duty has performed it and, as we see it, the adoption of the view that has been previously expressed in the cases to which we have already referred would mean the reverse presumption, namely that, in the absence of proof, it has to be assumed that he has not performed it, 15. In a still more recent case in the Patna High Court Mahadeo Prasad Jayaswal Vs. Emperor, AIR 1946 Patna 1 five learned Judges of that Court have considered this question and have come to the conclusion that, where an order passed by the authority has been published by it in the official Gazette, it may be presumed that it was aware of the provisions of R. 119, Defence of India Rules, and that the publication in the Gazette was made in considered compliance with all its provisions, including the provision as to the determination of the most suitable form of publication. With great respect, we think that this is the right view both as a matter of legal principle and as a matter of common sense. There is nothing in R. 119 which required the authority to set out what its opinion was or how it was arrived at. On ordinary principles, a man must be assumed to have intended-i.e. to have considered-that which he does. The fact that he does not declare his reasons is no evidence to the contrary. There is nothing to prevent any aggrieved party challenging the method of publication if he is prepared affirmatively to show that it was not the result of any bona fide consideration at all. But that is a long way from saying that it has in the first place to be assumed that the de facto publication was not the result of the consideration contemplated by R. 119. For the reasons we have expressed above we think that so to hold will be opposed to well-known legal principles. But that is a long way from saying that it has in the first place to be assumed that the de facto publication was not the result of the consideration contemplated by R. 119. For the reasons we have expressed above we think that so to hold will be opposed to well-known legal principles. For these reasons with deference we accept the view expressed by the recent Full Bench of the Patna High Court. 16. In the result, therefore, as regards Revision NO. 1331 of 1945, if must in respect to the applicant Raj Bahadur be allowed so far as his conviction under R. 81 (4), Defence of India Rules in respect of clause 8 (1) of the Sugar Control Order is concerned and his Sentence on that conviction must be set aside. So far, however, as the conviction and sentence of Raj Bahadur under the Magistrate's order, and so far as the convictions and sentences of the applicant Hari Ram in respect of both the Sugar Control Order and the Magistrate's order are concerned, we think that this revision application falls to be dismissed. We have been asked to reconsider their sentences principally in view of the fact that the Defence of India Rules and Control Orders made thereunder have come, or are about to come, to an end. In our opinion that does not affect the matter and we think that the sentences were in the first place by no means severe, even when the confiscation of the sugar is taken into account. 17. As regards the other two revisions before us, they are covered in principle by the judgment we have just delivered in Revision No. 1381 and we accordingly direct that they be dismissed. The respective applicants must now surrender to their bail.