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1946 DIGILAW 177 (ALL)

Baij Nath v. Emperor

1946-07-25

body1946
JUDGMENT Sinha, J. - These are twelve cases in all, but the facts are, in all essentials, almost common. The applicants are grain dealers in the district of Agra in villages Midhakur and Kiraoli on the B.B. & C.I. Railway. On various dates between 28th April and 2nd May, 1943 they booked consignments of arhar to various places in the province of Bengal. The first transaction took place on 27 4-1943. It was entered into by one Baij Nath and forms the subject-matter of Criminal Revision No. 1278 of 1945. The other by Badri Prasad is to be considered in criminal Revision No. 1272. On 28-4-1943, there were four transactions, two by Baij Nath, one by Bhagwan Das and the fourth by Babu Lal. The one by Babu Lal forms the subject-matter of Criminal Revision No. 1270, by Bhagwan Das of Criminal Revision No. 1279 and the two by Baij Nath of Criminal Revision Nos. 1280 and 1281. It might be mentioned that Criminal Revision No. 1280 deals with two transactions-One of 28-4-1943 and the other of 2-5-1943. On the third day came into existence three transactions which form the subject-matter of Criminal Revision No. 1271 by Harjiwan Das, 1275 which also concerns a transaction of 2-5-1943, by Roshan Lal, and 1276 by Baij Nath once again. The 1st of May 1943 witnessed another transaction which forms the subject matter of criminal Revision No. 1273 of 1945 by Basant Lal. We have mentioned a few of the transactions which came into existence on 2nd May. There is yet one more which came into being on this date and with which is concerned criminal Revision No. 1274 of 1945 by Dwarka Prasad. 2. On 20-3-1943, the U.P. Foodgrains (Movement) Control Order was passed by His Excellency the Governor. This order prohibited the export of arhar from these Provinces. On 21-4-1943, another order was passed by him, and it is the effect of this order which falls to be considered. Like its predecessor, it is also styled as "The U.P. Foodgrains (Movement) Control Order, 1943," and was passed in exercise of the powers conferred by R. 81, Defence of India Rules. But it differs from its predecessor in one important particular. The first was passed on 20.3.1943, but was to come into force from 25-3-1943. Like its predecessor, it is also styled as "The U.P. Foodgrains (Movement) Control Order, 1943," and was passed in exercise of the powers conferred by R. 81, Defence of India Rules. But it differs from its predecessor in one important particular. The first was passed on 20.3.1943, but was to come into force from 25-3-1943. The order of 21-4-1943 was, on the other hand, "to come into force at once." It, if anything, indicates that the authority concerned was anxious to see that its operation was not to be delayed. Not only that, care was taken to provide that the previous order "is hereby cancelled." 3. What therefore, has to be considered is whether the transactions in dispute fall within the mischief of both, or either, or neither, of these orders. Mr. Bannerji, the learned Counsel for some of the applicants, contends, and his contention is adopted by the other counsel representing the rest of the applicants, that the effect of the succeeding order is to wipe out the preceding order the moment it was passed. This contention is, as said above, amply borne out by the language of the order of 21-4-1943. When precisely it came into force is yet another matter which demands consideration, but no language could be more explicit or emphatic than the one employed and which could show more clearly that it was the intention of the author of the order that it should florae into effect immediately. Whether it did or could depends not only upon such an intention, but upon yet another provision. This interpretation receives countenance from the definition of the word "commencement" in S. 3, cl. 12, General Clauses Act (Act X [10] of 1879) according to which "commencement used with reference to an Act or Regulation, shall mean the day on which the Act or Regulation comes into force." 4. The learned Crown counsel contends that law abhors vacuum, and, if the effect of the succeeding order is to wipe out the previous order immediately, it must also be deemed to come into force simultaneously. This would be normally so, but the authority concerned was alive to the extraordinary situation created by these orders coming into being in quick succession. It, therefore, issued a notification that "this excludes the normal rule that ignorance of the law is no defence." 5. This would be normally so, but the authority concerned was alive to the extraordinary situation created by these orders coming into being in quick succession. It, therefore, issued a notification that "this excludes the normal rule that ignorance of the law is no defence." 5. It has come into evidence, and, indeed, it has not been denied by the learned Crown counsel, that the publication in the Gazette was made on 1st May, it was received in the town of Agra on 3rd, and at the particular railway Station on 5-5-1943. One of the witnesses in one of the twelve cases was Ram Gopal, the station master of Midhakur, who conceded that he obtained information of this order when he received the Gazette on 5th May and not earlier. It is, therefore, obvious that the transactions between 27th April and at least up to 30-4-1943, are not affected by the notification of either of the two orders, that is the order of 20th of March or of 21-4-1943. 6. There remain the transactions which took place on 1st and 2nd May 1943. The learned Crown counsel has strenuously contended that whatever might be the fate of the previous transactions, these are not immune from the effect of the order of 21-4-1943. We feel it difficult to give our assent to this contention. These orders also affect people living in rural areas, far from railways, and generally cut off from all means of communication. It is for this reason that S. 119, Defence of India Rules, insists upon notice to the people concerned, and also insists upon the manner or method in which that notice is to be given. To quote it: Notice of such order in such manner as may, in the opinion of such authority, officer or person, be best adopted for informing persons whom the order concerns. 7. Then follow the different methods prescribed for different classes of people. This notification is itself a departure from the principle of law embodied in the maxim ignorajitia legis non excusat. Even in England a distinction was made in (1918) 1 K.B. 101 : 87 L.J.K.B. 122 : 118 L.T. 95 Johnson v. Sargant & Sons between an ordinary law or enactment on the one side and the Defence of the Realm Regulations. Even in England a distinction was made in (1918) 1 K.B. 101 : 87 L.J.K.B. 122 : 118 L.T. 95 Johnson v. Sargant & Sons between an ordinary law or enactment on the one side and the Defence of the Realm Regulations. At page 103 the learned Judge makes the following observation: While I agree that the rule is that a statute takes effect on the earliest moment of the day on which it is passed or on which it is declared to come, into operation, there is about statutes a publicity even before they come into operation, which is absent in the case of many Orders such as that with which are now dealing, indeed, if certain Orders are to be effective at all, it is essential that they should not be known until they are actually published. ID the absence of authority upon the point I am unable to hold that this Order came into operation before it was known, and, as I have said, it was not known until the morning of May 17. 8. The Defence of India Rules have been largely if not entirely, modelled on the Defence of Realm Act and the Rules made thereunder, and it is permissible to borrow light from this authority. The learned Crown counsel, however, contends that the publication in the Gazette must be deemd to convey good and effective notice, and the transactions of 1st and 2nd May, 1943, come within the mischief of the Order of 21st April 1943. Reliance is placed for this proposition on (47) 34 AIR 1947 All 105 Emperor v. Raj Bahadur decided by a Bench of this Court on 9th May 1946. We do not think that this authority really helps him. All that it says is that the publication in the Gazette is a good publication and it is not necessary for the prosecution to prove that it was made in a manner which was "proper in the opinion of such authority, officer or person." We shall assume that the Governor or the Secretary of the department concerned directed its publication and that it was done in the manner prescribed. But the object of the publication is mentioned in the Rule itself. But the object of the publication is mentioned in the Rule itself. It is intended for "informing persons whom the Order concerns." It is still open to the applicants to contend that even though there was a publication, the Gazette never reached them. Once it has reached them and conveyed the necessary information it is not open to take exception to the manner or the method in which the information was conveyed, but the receipt of the information is a sine qua non. 9. We are, therefore, of opinion that the applicants are not guilty of the violation of the provisions of the Order of 20th March 1943, because that Order was wiped out by the Order of 21st April 1943. They are not guilty of the breach of the Order of 21st April 1943, because they received the information, on the testimony of one of the prosecution witnesses himself only on 5th May 1943. We, therefore, allow this application, set aside the conviction and sentence. The fine, if paid, must be refunded. The applicant is on bail and he need not surrender.