JUDGMENT Ghulam Hasan and Madeley, JJ. - This is a government appeal directed against an acquittal by the Sessions Judge of Fyzabad. Ganeshi Lal had been convicted by the City Magistrate of Fyzabad of an offence under Clause 13 of the Hoarding and Profiteering Prevention Ordinance, No. XXXV of 1943 for contravention of Clause 9 which provides that no dealer or producer shall, unless previously authorized to do so by the Controller General or other officer empowered in this behalf by the Central or the Provincial Government, without sufficient cause, refuse to sell to any person any article within the limits, if any, as to quantity imposed by the Ordinance. Ganeshi Lal was fined Rs. 1,000. The prosecution case is that on the 25th January, 1945, Azimullah went to the Firm of Gobrey Ram Tulshi Ram, Local hardware merchants to purchase cut pieces of iron sheets required for the manufacture of trunks, and in spite of there being sufficient stock of the same, Ganeshi Lal, who is the son of Lala Gobrey Ram and the proprietor of the Firm, refused to sell the required black sheet pieces on the excuse that the complainant had given an application against the Appellant. 2. Ganeshi Lal denied the visit of Azimullah to his shop and also that he had refused to sell the iron sheets. He further stated, I gave the cut piece to every person who came to my shop to purchase it an their signatures are entered in the cash memo. 3. He alleged enmity. He filed a written statement in which, while repeating his former allegations he stated in para 8 Supposing it is assuming (which is not admitted by the accused under any circumstances) that Azimullah came to his shop to purchase sheets and that the accused refused to sell them, then under the circumstances when Azimullah himself had sufficient stock of the required iron and the accused knew that he was guilty of hoarding and balack marketing, the accused had sufficient reason to refuse to sell the said iron to him. 4. At the trial the accused produced evidence to prove that Azimullah had on recent dates obtained stocks of iron for his trade. 5. Both Ganeshi Lal and Lal Bahadur, the partners of the Firm, were put on their trial. 4. At the trial the accused produced evidence to prove that Azimullah had on recent dates obtained stocks of iron for his trade. 5. Both Ganeshi Lal and Lal Bahadur, the partners of the Firm, were put on their trial. The trial Court after a careful examination of the evidence, came to the conclusion that it was proved that Azimullah had come to the shop of the accused to purchase iron sheets. 6. It appears that all the arguments urged before the City Magistrate related to the factum alleged by the prosecution. Even the fact that Azimullah had one day before purchased "sufficient stock of iron cut piece" was apparently used only as a reason for holding his attempt to buy from the Firm Gobrey Ram Tulshi Ram improbable. No evidence was led that Azimullah was a black marketer or profiteer and no arguments on the point seems to have been urged before the Magistrate. Moreover, we do not see what bearing it could have upon the case. A person who commits a breach of the rules cannot excuse himself on the ground that his would be customer has also committed a breach of the rules. If Azimullah had committed breaches of the rules, Tulshi Ram should have brought the fact to the notice of the authorities with a view to the prosecution of Azimullah. 7. As stated previously Ganeshi Lal was convicted and sentenced to a line of Rs. 1,000 (which has been paid). Lai Bahadur pleaded that he was not present at the time and was given the benefit of the doubt and acquitted. 8. Ganeshi Lal then went in appeal to the Sessions Judge. The Judge did not discuss the evidence about the factum as, according to the view he took, it was unnecessary. He dealt with the argument that the sale of these cut iron pieces is governed by either the Iron and Steel (Control of Production and Distribution) Order, 1941 or the Iron and Steel (Scrap Control) Order, 1943 and not by the Ordinance No. XXXV of 1943 in the following passage: The case before me is of black sheet cuttings and not black sheets to which reference is made in the second schedule of the said Order, 1 feel, therefore, no doubt that the said Order of 1941 would be inapplicable to the case before me. The difficulty in applying the Iron and Steel (Scrap Control) Order, 1943, is that there is no evidence that the Appellant is a scrap merchant as defined in Clause 2(g) As such I feel considerable doubt if Clause (4) of the said Order would be applicable to the present case As a matter of fact none of the aforesaid orders was in view of the Appellant or his Learned Counsel during the trial of the case. These points were taken for the first time in appeal on the grounds of appeal being allowed to be amended by this Court. 9. The Judge then comes to the following finding, The provisions of the Hoarding a and Profiteering Ordinance No XXXV of 1943, may be taken to he applicable to the facts of the present case. I may say at once that it is clearly borne out from the prosecution evidence, and this not been disputed before me, that the quantity of the Appellant's stock of iron was about a ton only, and out of this Azimullah wanted to purchase 8 to 10 maunds. 1 think the Appellant had sufficient reason for refusing to sell the said quantity to Azimullah who had no permit. The Appellant had to sell to his bona fide customers and had no intention of closing down his shop, and the Appellant's conduct in refusing to sell appears perfectly justified. This view finds support from 1943 Bombay p. 49. 10. In Mahaaev Mahalu v. Emperor1 it was held, A retail dealer, having only four pounds of sugar refusing to sell one pound of it to a casual customer but only selling one anna worth of it for the reason that he wished to keep the remainder of it for selling to his regular customers, cannot be said to offend against Rule 81(2)(a) Defense of India Rules. 11. This is a well-known principle which is followed every day by shops but it appears to have no application to the present case. There are several serious and obvious defects in the passage of the lower Court's judgment above quoted. In the first place the learned Judge says that the provisions of Ordinance No. XXXV of 1943 may be taken to be applicable to the facts of the present case, whereas it was his duty to come to a definite finding whether they are applicable or not. In the first place the learned Judge says that the provisions of Ordinance No. XXXV of 1943 may be taken to be applicable to the facts of the present case, whereas it was his duty to come to a definite finding whether they are applicable or not. We cannot help thinking that his finding as to "sufficient cause" has been unconsciously influenced by his uncertainty as to the law applicable to the case. Secondly, the Judge has made out a new case for the Appellant who never pleaded that he had not sufficient iron to supply the demand of Azimullah or that he would have to close up shop if he supplied that demand or that he wanted to keep the cut pieces for regular customers or that Azimullah was not a customer of his. Moreover the evidence is not that the Appellant offered to sell a small quantity to Azimullah but that he refused to sell at all. No permit was required for the purpose of these goods 12. A.I.K. laid Bom. 49. under Ordinance No. XXXV of 1943. The question of permit is derived from the two Orders which the Judge thinks do not apply. This shows how his mind in dealing with the question of "sufficient cause" was influenced by his uncertainty as to the law applicable to the case. We are satisfied that the Judge's finding as to "sufficient cause" cannot be maintained. We now proceed to consider the other reasons urged by Ganeshi Lal's Counsel why the acquittal of his client should be maintained. 13. Though the legal arguments logically come later, they were argued before the evidence of the factum by Ganeshi Lal's Learned Counsel and we therefore take the case in that order. 14. It was first argued that "any person" in Rule 9 of Ordinance No. XXXV of 1943 does not include another dealer. No authority was cited for this proposition and we think that there is no force in it. "Any person" is a term on the face of it of the widest significance. Moreover Azimullah is not a dealer in the same commodities as Ganeshi Lal. Azimullah buys iron to manufacture boxes. He is a producer of and dealer in iron trunks and is naturally a customer so far as the raw materials required for that manufacture are concerned. 15. Moreover Azimullah is not a dealer in the same commodities as Ganeshi Lal. Azimullah buys iron to manufacture boxes. He is a producer of and dealer in iron trunks and is naturally a customer so far as the raw materials required for that manufacture are concerned. 15. Secondly, it is argued that these iron cut pieces must come under one of the two Control Orders of 1941 and 1943 mentioned above in this judgment. The argument is that these iron cut pieces are either scrap iron; or they are not. If they are scrap iron, they come under the scrap Control Order, and if they are cot, they come under the iron and Steel Control Order. We may say at once that this is a mixed question of fact and law relating to the meaning of terms used by a particular class of persons viz. persons dealing in iron goods, and if the accused wished to prove that these goods tell within the scope of either of the two Control Orders above referred to, he should have pleaded this in the trial Court and produced evidence to prove it u/s 4', Evidence Act. Not only did he not produce evidence, but ha never took any plea of. this nature. Indeed his pleadings in the trial Court are, in our opinion, inconsistent with the plea now raised. Even in the grounds of appeal before the lower Court this plea was not at first taken and the memo. of appeal was allowed to beg amended. It seems obvious that the plea was an after thought. 16. In our opinion the Firm Gobrey Ram Tulshi Ram is not governed by the Iron and Steel (Scrap Control) Order l943. In the first place these pieces seem to be cut to a certain specification. Scrap is defined in Clause 2(f) of the Order as meaning all iron or steel material which is commonly known as scrap, and includes defective iron or steel material whether it is suitable only for reenrolling or remolding or can be used for other purposes. Some additions have subsequently been made to this but they do not affect the case. Prima facie these cut pieces or Kandar pieces, as they are termed, do not come within the definition. Some additions have subsequently been made to this but they do not affect the case. Prima facie these cut pieces or Kandar pieces, as they are termed, do not come within the definition. Counsel has argued from certain invoices of goods supplied from Cawnpore to Azimullah, who bought various kinds of iron for his trade as a trunk manufacturer, that these cut pieces must be scrap because Azimullah had to have a movement permit before he could obtain them. As to this argument, a movement permit is not the same as a permit to buy or sell. The invoices and cash memo are printed at pages 6 to 14 of the typed book and seem to go rather against Ganeshi Lal's contention than in favour of it. The first relates to "thin bundle scrap" ordered from Cawnpore and mentions a movement permit. The same remark applies to the second and third. The fourth is a cash memo. relating to Kandar sheets brought from a merchant in Fyzabad. There is no mention of any permit. The same remark applies to the next except that it relates to square iron sheets. The next relates to black sheet cuttings which were bought from another merchant in Fyzabad. There is no mention of any permit. The other three are also case memos, relating to cut pieces and no permit is mentioned. So far as we are able to conclude from the evidence on the file, Kandar sheets or black sheet cuttings, which is their other name, are not known as scrap in the trade and no permit is required for their purchase. It is true that Azimullah states that he twice got permits for two tons each time of cut piece iron sheets, but the matter was not further cleared, and it would appear that these were movement permits. There is another reason, however, why the Control Order of 1943 does not apply to I Soles by Gobrey Ram Tulshi Ram. Clause (4) provides Disposal of Scrap.-No person or authority having the management of a controlled source shall sell or other wise dispose of any scrap save under the entherfly of and in accordance with the conditions contain d 0r incorporated in a written order of the Controller. 17. Clause (4) provides Disposal of Scrap.-No person or authority having the management of a controlled source shall sell or other wise dispose of any scrap save under the entherfly of and in accordance with the conditions contain d 0r incorporated in a written order of the Controller. 17. Section 2(a) defines "controlled source" as meaning (1) a. producer, (ii) a Railway administration, (iii) any factory, local authority, scrap merchant or person declared by the Controller to be controlled source. The whole order deals with controlled sources. It is quite obvious that even if Ganeshi Lal could prove that the Firm Gobrey Ram Tulshi Ram deals in scrap, it is not a controlled source for the simple reason that he would at once have proved the declaration under Clause 2(a) if it had been made. Moreover Ganeshi Lal pleades that he sells to any one who comes. 18. Coming to the Control Order of 1941, it is claimed that these were plain "black sheets" but 2S the learned Sessions Judge remarks they are not called "i. lack sheets" but "black sheet cuttings". Furthermore a permit would have been required under Clauses 4, 5 and 7 read with Government of India Notification No. 130 Section (A)(1) 43 dated October 2, 1843, for the purpose of more than 56 lbs. within any one month if they had been 'black sheets" within the meaning of Schedule 31 of that Order. Azimullah was Dying to purchase 8 to 10 maunds. Ganeshi Lal would, therefore, immediately have refused to sell on the ground that he had no permit. Moreover Azimullah would never have dared to report the matter for the simple reason that he himself would have been trying to contravene the rule. The reason why Ganeshi Lal was prosecuted was that the commodity he refused to sell were not black sheets but black sheet cuttings. These do not come under the Iron and Steel (Control of Production and Distribution) Order of 1941. 19. We now turn to the evidence of the factum. There are three witnesses of it, Azimullah himself, Mohammad, Puttoo and Rafiul Rahman, and we do not find that they have been in any way shaken in cross-examination. The defense evidence does not relate to the incident as all with the exemption, of one witness whom we shall discuss later. 19. We now turn to the evidence of the factum. There are three witnesses of it, Azimullah himself, Mohammad, Puttoo and Rafiul Rahman, and we do not find that they have been in any way shaken in cross-examination. The defense evidence does not relate to the incident as all with the exemption, of one witness whom we shall discuss later. The other witnesses give evidence of Previous purchases of cut pieces made by Azimullah and have no relation to the factum. The fourth witness, Munnu Lal, says that on the 24th January, 1945 he left his trunk with Azimullah for repairs. Next day he met Azimuilah in chowk and Azimullah said he was going to buy iron sheets. Witness asked why, when he had just received a consignment of iron sheets, be wanted more. Azimullah gave him the trunk at about 11 A.M. It is not clear why this witness was produced His evidence does not go to prove an alibi for Azimullah, and on the other hand it shows that Azimullah was intending that day to make purchases and in so far it corroborates the evidence. No fresh argument has been put before us relating to the evidence except that, since Bahadur Lal was acquitted, it should not be believed as regards Ganeshi Lal. Bahadur Lal was given the benefit of the doubt. The case was proved beyond doubt against Ganeshi Lal and therefore he was convicted. 20. We therefore allow this appeal and set aside the order of acquittal passed by the Sessions Judge. We convict Ganeshi Lal under Clause 13 of the Hoarding and Profiteering Prevention Ordinance No. XXXV of 1943 and restore the sentence passed by the City Magistrate of a fins of Rs. 1.000. As this has already been paid, it is not necessary to specify any period of imprisonment in default.