JUDGMENT Harries, C.J. - These are two connected appeals from convictions by a Presidency Magistrate for offences under the Iron and Steel (Control of Prduction and Distribution) Order and Essential Supplies Act and sentences in each case of one year's rigorous imprisonment and a fine of Rs. 1,000, in default of payment of the fine, each was ordered to undergo a further period of six months' rigorous imprisonment. 2. It seems that towards the end of 1945, there was a proposal to extend the spinning section of the Acharjya Praphulla Chandra Cotton Mills at Khulna, and accordingly, building material would be required, such as iron joists, steel sheets, plates, pipes, etc. At that time these materials were controlled and could only be obtained on a permit or license granted by the iron and steel control department of the Government of India. 3. The two Appellants were directors of the managing agents of these cotton mills and they applied to the control authorities for a license to acquire the necessary steel for the proposed extension of these cotton mills. It is not challenged before us that the two Appellants, as directors of the managing agents were entitled to apply for this license and there can be no doubt that they did make an application in writing for the license, in which they expressly stated that the materials were required for the extension work in these mills. In due course, the authorities granted a license empowering the Appellants to acquire approximately 280 tons of various types of steel material. 4. The case for the prosecution is that the Appellants could not use the material which they acquired under this license for any purpose other than the extension work on these cotton mills. The Appellants however, it is said, granted sub-licenses and the material was acquired by the sub-licensees and disposed of presumably in the black market. It is not suggested before us in these appeals that any of the material which was acquired by the Appellants was ever used for the purpose for which the license was granted, namely, in the extension of these cotton mills. In misusing the steel acquired under the license, the prosecution suggests that there was a clear breach of Clause 8 of the Iron and Steel (Control of Production and Distribution) Order and therefore the Appellants committed an offence u/s 7(1) of the Essential Supplies Act. 5. In misusing the steel acquired under the license, the prosecution suggests that there was a clear breach of Clause 8 of the Iron and Steel (Control of Production and Distribution) Order and therefore the Appellants committed an offence u/s 7(1) of the Essential Supplies Act. 5. The Iron and Steel (Control of Production and Distribution) Order, 1941, was in force during part of the year 1946. Clause 4 of that Order was in these terms: Subject to the provisions of Clause 7 no person shall acquire or agree to acquire any iron or steel except under the authority of and in accordance with the conditions contained or incorporated in-- (a) written order of the Controller, or (b) a licence issued by a Scheduled Department, or (c) a sub-license granted by the holder of a license issued by a Scheduled Department who has been authorised by the Scheduled Department to grant sub-licences, or (d) a special written order of the Government of India in the Department of Supply. 6. It will be seen from this clause that no person could lawfully acquire any iron or steel without a license or orders of the Controller or the Department of Supply of the Government of India except in the cases mentioned in Clause 7, which are not material in this case. 7. Clause 8 of the Order is in these terms: A person acquiring iron or steel in accordance with the provisions of Clause 4 shall not use the iron or steel otherwise than in accordance with any conditions contained or incorporated in the document which was the authority for the acquisition. 8. It is clear from this clause that if steel was acquired under a license which had been granted for the acquisition of steel for a particular purpose, then the user of steel acquired under such license for any other purpose would be a clear infringement of this clause and would amount to an offence u/s 7(1) of the Essential Supplies Act. 9. According to the prosecution, the Appellants in this case were granted license No. 310832 on January 2, 1946 to acquire the 280 tons of steel, to which I have already made reference. It is said that in this license it was expressly stated that the steel to be acquired was required for extension work in the cotton mills at Khulna. According to the prosecution, the Appellants in this case were granted license No. 310832 on January 2, 1946 to acquire the 280 tons of steel, to which I have already made reference. It is said that in this license it was expressly stated that the steel to be acquired was required for extension work in the cotton mills at Khulna. Unfortunately, neither this license nor a copy was produced by the prosecution. The absence of the original document does not seem to have been noticed by either the prosecution or the court below and there has been no consideration of the question whether or not secondary evidence of this document was admissible. The conditions upon which the license was granted were contained in the license and no evidence would be admissible as to the contents of the license except the license itself, unless the prosecution showed that the case fell within the provisions of Section 65 of the Indian Evidence Act. Secondly, evidence, however, is admissible, if it is proved that the original had been destroyed and I think there is such evidence in this case. Mahendra Lai Mitra, P.W. 6, stated that he had received a letter from the police asking him for the license and he stated in evidence that the Department could not produce the license as it had been destroyed as being an old paper. I think that Mr. Mitra, who was the Secretary of the Iron and Steel Control Board, Calcutta, was a person who could speak from his own knowledge whether these old licenses were retained or destroyed and I think that his evidence that this license had been destroyed made it possible for the prosecution to adduce secondary evidence. The secondary evidence, however, which was produced is most unsatisfactory. Reliance was placed upon a License Register, Ex. 28 and a License Listing file, Ex. 29. These registers were produced by one Khagen Ghosh, P.W. 14, a Superintendent of the Statistical Section of the Iron and Steel Control Department and the court apparently assumed, as indeed the prosecution invariably assumes in this class of cases, that the production of a document or a book or register is sufficient proof of that document or book or register. A document or a register is not proved by its mere production. A document or a register is not proved by its mere production. A register or a book of account must be proved by the person who kept it and if, for example, such person is dead, proof must be given of his handwriting and of the fact that such person kept the books in the ordinary course of his duty. It is quite obvious that Khagen Ghosh, the Superintendent, did not keep these records, but he makes no endeavour whatsoever to prove them. All he did was to produce them. In an earlier case it was strenuously contended in this Court that, because entries in an account book were relevant they proved themselves. In other words, if an account book was put in evidence the entries were proved. In that case I pointed out that relevant facts must be proved and the mere fact that they are relevant does not render proof unnecessary. That being so, this register and file are clearly inadmissible and therefore, cannot be looked at to ascertain the contents of the lost license., In any event it is quite clear that these documents do not contain the conditions upon which this license was issued and therefore, even if they were admissible, they would not amount to secondary evidence of all the contents of the license. 10. Certain sub-licenses were put in which had been issued by the Appellants. Mr. Bannerjea pointed out that it had been stated in evidence by Mr. Mahendra Lai Mitra, P.W. 6, that the conditions of a sub-license must follow the conditions of the main license. Therefore, Mr. Bannerjea said we could look at the conditions in the sub-license to ascertain what were the conditions of the main license. In the sub-licenses, it is stated that they are granted so that steel could be acquired for extension work in these mills. That purpose should be the same purpose as that stated in the main license. But is a court entitled to assume that these Appellants, who are alleged to be acting dishonestly, would feel bound to state the same purpose in the sub-licenses as was stated in the main license? That purpose should be the same purpose as that stated in the main license. But is a court entitled to assume that these Appellants, who are alleged to be acting dishonestly, would feel bound to state the same purpose in the sub-licenses as was stated in the main license? It will be seen later that these Appellants granted these sub-licenses during a period when the main license was not in force and that shows the danger of assuming that in granting these sub-licenses the Appellants did as they ought to have done. They might or might not have acted properly. That being so, I do not think that these sub-licenses amount to secondary evidence of the contents of the main license. 11. The only evidence as to the purpose for which the main license was granted was that given by Khagen Ghosh, P.W. 14, when he stated that the license was granted for an industrial new building. 12. I am very doubtful whether Khagen Ghosh's evidence is sufficient to prove the contents of the license which was lost. But for the purposes of this case I will assume that the prosecution did, by secondary evidence, establish that this license was granted to the Appellants for the purpose of acquiring steel for extension work in these mills. 13. Again, we are in a difficulty as to the period covered by this license and no witness speaks as to that. We have been referred to Ex. 30, which is a certified copy of the register and files produced by Khagen Ghosh, P.W. 14. But, as I have already pointed out, these documents have not been proved. However, if we can look at them, they show that the license for the 280 odd tons of steel was granted to cover the period April to June, 1946. In other words, that license authorised the Appellants to acquire steel during the period April to June, 1946. 14. The charge, however, refers to acquisition between February, 1946 and December, 1946 under a license and the misuser of the steel so acquired. If Ex. 30 is admissible at all and that is the only evidence as to the period covered by the license, then there was no license for February and March, 1946 and for no month in 1946 after June. If Ex. 30 is admissible at all and that is the only evidence as to the period covered by the license, then there was no license for February and March, 1946 and for no month in 1946 after June. Therefore, the Appellants could not possibly be convicted under Clause 8 of the order for acquisition of steel before the month of April, 1946, because such acquisition would not be under this license. This point appears to have been overlooked by everyone except by the learned advocates before us and the reason is not far to seek. According to Ex. 30, the license was granted on January 2, 1946 and everyone seems to have assumed that it applied immediately; but it will be seen from the letter-press explaining the code that the license was granted for the period April to June. How could the Appellants be guilty of an offence under Clause 8 of this Order for using steel for purposes other than extension of these mills, when they had purchased under no license at all? During the period, when no license was effective, the offence, if any, committed by the Appellants would be the offence of purchasing without a license, not of misusing steel purchased under a license, which is the charge in this case. 15. The evidence shows that purchases were made on seven occasions in March, 1946 and on three occasions in April, 1946 and three occasions in July, 1946. It seems to me clear that, with regard to the steel purchased in March and July, 1946, the charge as framed was bound to fail, as the charge assumes purchases under a license and user of the steel not in accordance with the conditions of the license. The purchases in March and July were under no license at all and if any offence was committed, it was an offence of purchasing steel without a license; but, unfortunately, the Appellants were never charged with that offence and they cannot possibly be convicted in this Court of such an offence, if it is an offence, without their having had an opportunity in the court below of meeting such a charge. 16. However, with regard to the purchases in April, 1946, these were clearly purchases under the license which, as I have said, covered the period April to June, 1946. 16. However, with regard to the purchases in April, 1946, these were clearly purchases under the license which, as I have said, covered the period April to June, 1946. There were no purchases apparently in the month of May or June, 1946 and therefore, the only purchases which can be said to come within the purview of the charge in the present case are the three purchases in April, namely, one purchase on April 19, of 29 tons and two purchases on April 26, of approximately 17 tons. It is not suggested by the defence that the steel so purchased was ever used for the extension work at these mills. What the defence contends, however, is that, in the month of April, 1946, the Steel Control Order had been relaxed and no license was necessary to purchase steel during the month of April, 1946. 17. That the Control Order was relaxed is quite clear. Exhibit A is an order issued by the Government of India amending the Iron and Steel Control Order. The order was dated April 4, 1946. By this Order, Clause 4 of the Iron and Steel Control Order, which was the clause requiring a license for the purchase of steel, was repealed and the following clause was substituted in its stead: No person shall acquire or agree to acquire any iron or steel from a producer or a stock-holder except under the authority of and in accordance with the conditions contained or incorporated in a general or special written order of the Controller. 18. It is clear, therefore, that, after April 4, the only restriction on the right to purchase steel was the restriction on the right to purchase from a producer. No purchase could be made from a producer except under the authority and in accordance with the conditions contained in a written order of the Controller of Iron and Steel. 19. It is conceded by the prosecution that all the purchases in this case were made from Martin and Co. who were stock-holders and not producers and therefore, such purchases would not come within the purview of Clause 4 as amended. After the repeal of the original Clause 4, purchases of steel could be made from a stockholder without any license or permit of any kind. who were stock-holders and not producers and therefore, such purchases would not come within the purview of Clause 4 as amended. After the repeal of the original Clause 4, purchases of steel could be made from a stockholder without any license or permit of any kind. It is in evidence that this amendment was in operation from April until the end of August, 1946, though it is suggested by the defence that it continued in force until December, 1946. 20. It is, therefore, clear that the April purchases made from Martin and Co. were made after this amendment, as the purchases) were made on April 19 and 26, 1946. 21. At that time the Appellants were entitled to purchase without any license whatsoever and could dispose of the goods they purchased without breach of any condition contained in any license. It is true that, on January 2, 1946, a license for the period April to June had been granted to the Appellants; but, as a result of the amendment of the order on April 4, 1946, this license became a worthless piece of waste paper as it was wholly unnecessary. If the Appellants could, after April 4, purchase steel for any purpose, then the fact that they had been granted a license earlier to purchase steel only for certain purposes cannot affect the case. In April there was no restriction on their right to purchase from stock-holders and what they purchased in April they could dispose of as they deemed fit. The fact that they did not use the steel as required by the license, which had become wholly ineffective, cannot possibly make them criminally liable. 22. The learned magistrate seems to have thought that this amendment of the Order on April, 1946, did not affect Clause 8 of the Order. It is true that Clause 8 of the Order is not amended, but the moment Clause 4 was amended, Clause 8 meant something quite different from what it had meant before. 23. Clause 8 made it an offence for any person, who acquired steel in accordance with the provisions of Clause 4, to use it for other purposes. After the amendment, Clause 4 merely applied to acquisitions from producers and therefore, Clause 8 would only cover such a case. 23. Clause 8 made it an offence for any person, who acquired steel in accordance with the provisions of Clause 4, to use it for other purposes. After the amendment, Clause 4 merely applied to acquisitions from producers and therefore, Clause 8 would only cover such a case. That being so, after the amendment, although the wording of Clause 8 remained wholly unaffected, it could only apply to the misuser of steel obtained from producers under an order of authorisation of the Controller. Clause 8 could not, after the amendment, apply to licenses granted for the period after the Order had been amended. 24. That being so, no offence was committed by the Appellants in re-selling the steel which they acquired from Martin and Co. in April, as during that month they were not bound by any conditions as the license containing those conditions had ceased to be effective. 25. With regard to the purchases made in July, it is clear that these were not purchases which could have been made under the license, even if it had remained effective, because, as I have said, the license was only for the period April to June, and therefore, these purchases should never have been included in the charge made against the Appellants. If the Control Order had not been amended, these purchases could have been regarded as purchase in contravention of Clause 4; but as the Order had been amended, these purchases from a stock-holder were perfectly lawful during the month of July. That being so, the Appellants committed no offence whatsoever in respect of these purchases. 26. That being so, it appears to me that, even it the prosecution had succeeded in proving the terms of the license, of which I am very doubtful, nevertheless no offence has been made out. During the month of March, purchases were made, but not under a license and it may be that these purchases amounted to a crime, but they certainly did not amount to the crime with which these Appellants were charged. The purchases in the month of April did not require a, license; neither did the purchases in July. During the month of March, purchases were made, but not under a license and it may be that these purchases amounted to a crime, but they certainly did not amount to the crime with which these Appellants were charged. The purchases in the month of April did not require a, license; neither did the purchases in July. That being so, the resale of the goods so purchased could not be an offence under Clause 8 of the Order, because it could not be said that the goods had been acquired under Clause 4, which, after the amendment, was confined only to acquisition from producers. The prosecution, therefore, failed to prove that the Appellants were guilty of the offence with which they were charged and they should have been acquitted. 27. In the result, therefore, I would allow these two appeals, set aside the convictions and sentences and acquit the Appellants. The Appellants need not surrender to their bail and their bail bonds are cancelled. If the fines or any portions thereof have been paid, such must be refunded. J.P. Mitter J. 28. I agree.