NAGINLAL HORAVARMAL v. STATE — 1968 DIGILAW 24 (GUJ)

N. G. SHELAT, J. ( 1 ) [his Lordships after stating the facts further observed] ( 2 ) BEFORE to consider any points raised in regard to the merits of the case Mr. Thakore the learned advocate for the applicants raised a contention that it is essential for the prosecution to establish knowledge or mens rea in respect of the Gujarat Ground Oil (Export Control) Order 1965 the contravention whereof is made punishable under Rule 125 (9) (a) of the Defence of India Rules 1962 His contention was that unless that knowledge or mens rea is established which again has got to be done as contemplated in Rule 141 of the Rules no conviction of the applicants can at all be based. The Gujarat Groundnut Oil (Export Control) Order 1965 as already stated hereabove was published in Part IV-A of Gujarat Government Gazette of 26th August 1965 at page 1431. That has been published under a Notification No. GG 528 (A) DIR-2565-G. in exercise of the powers conferred by Rule 125 of the Defence of India Rules. That Rule 125 (9) (a) of the Rules provides that if any person contravenes any order made under this rule he shall be punishable with imprisonment. . . It follows therefrom that the Order in question has been made under this role and it is that way that the contravention of that Order made by any person becomes punishable under law. Mr. Thakore invited a reference to some observations made in the case of Ravula Hariprasada Rao v. The State A. I. R. 1951 Supreme Court 204 where the Supreme Court has after quoting the observation from the Privy Council Case reported in A. I. R. 1947 P. C. 135 expressed the opinion that the view of the law as propounded by the Privy Council is the correct view. I would refer to the relevant observations made by the Privy Council in the case of Srinivas Mall v. Emperor A. I R. 1947 P. C. 135 which runs thus:-IT is of the utmost importance for the protection of the liberty of the subject that the Court should always boar in mind that unless the statute either clearly or by necessary implication. rules out mens rea as a constituent part of a crime an accused should not be found guilty of an offence against the criminal law unless he has got a guilty mind. rules out mens rea as a constituent part of a crime an accused should not be found guilty of an offence against the criminal law unless he has got a guilty mind. It appears therefore clear that It is essential for the prosecution to establish mens rea or knowledge in respect of the orders said to have boon issued by the State Government the contravention whereof is made punishable under Rule 125 (9) (a) of the Defence of India Rules That would take me to refer to Rule 141 of the Rules which provides for the manner in which any such order is required to be published for the information of the public or any particular individuals. That Rule 141 runs thus:-141 (1) 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 in the case of an order affecting an individual corporation or firm serve or cause the order to be served in the manner for the service of a summons in rule 2 of order XXIX or rule 3 or order XXX as the case may be in the first Schedule to the code of civil procedure 1908 of 1908) and in the case of an order affecting an individual person (not being a corporation or firm)serve or cause the order to be served on that person- (i) personally by delivering or tendering to him the order or (ii) by post or (iii) where the person cannot be found by leaving an authentic copy of the order with some adult male member of his family or by affixing such copy to some conspicuous part of the premises in which he is known to have last resided or carried on business or personally worked for gain and thereupon the persons corporation firm or person concerned shall be deemed to have duly informed of the order. . . . . . . . . . Now this rule can well be divided in two parts. . . . . . . . . . Now this rule can well be divided in two parts. The first part relates to an order of a general nature or affecting a class of persons made in writing in pursuance of any of these Rules. If such an order is issued by any person officer or any authority contemplated therein it has to 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. In other words the authority contemplated therein as urged by Mr. Thakore must form an opinion as to the manner it can be best adapted for informing persons whom the order concerns and that he shall then publish notice of such an order amongst other things. Then comes the second part which contemplates an order affecting an individual corporation or firm. It then provides the manner in which such an order can be served or caused to be served. Such an order Is required to be served in the manner for the service of a summons in rule 2 of Order XXIX or rule 3 of Order XXX as the case may be in the First Schedule to the Code of Civil Procedure 1908 Further in the case of an order affecting an individual person (not being a corporation or firm) It has to be served on that person (i) personally by delivering or tendering to him the order or (ii) by post or (iii) where the person cannot be found by leaving an authentic copy of the order with some adult male member of his family or by affixing such copy to some conspicuous part of the premises in which he is known to have last resided or carried on business or personally worked for gain etc. The order in question before us undoubtedly is of a general nature and it has been made by proper authority in pursuance of the Rule It was therefore urged that the authority has not complied with the manner in which such an order was to be published. The order in question before us undoubtedly is of a general nature and it has been made by proper authority in pursuance of the Rule It was therefore urged that the authority has not complied with the manner in which such an order was to be published. According to him the notification published in the Gazette already referred to hereabove is not enough to Impute its knowledge to the accused in the case if at all the authority had formed any opinion in that regard as at any rate there has been no material on record to show that the authority considered that aspect as contemplated under Rule 141 so as to say that the publishing of the order in the official Gazette was quite enough to Impute knowledge thereof to the accused in the case. In support thereof reliance was sought to be placed on a decision in the case of Emperor v. Leslie Gwilt 47 Bom. L. R. 431 where such a question arose for consideration of rule 119 (1) of the then Defence of India Rules 1939 and it was held that an order made under the Defence of India Rules 1939 must in the case of an order of a general nature or affecting a class of person be published in such manner as may In the opinion of the person making the order be best adapted for informing persons whom the order concerns. In the absence of such a direction mere publication of the order in the local official Gazette is not enough to fix its knowledge in the person concerned in the absence of direct evidence on the point. The High Court also considered the question as to whether any presumption can arise having regard to sec. 114 illustration (e) of the Indian Evidence Act and held that no such presumption can arise. The burden of proving the manner which in the opinion of the authority issuing the order was best adapted to inform the persons concerned in on the prosecution. The meaning of sec. 114 illustration (e) is that it an official act is proved to have been done it will be presumed to have been regularly done. It does not raise a presumption that an act was done of which there is no evidence and the proof of which is essential to the case. The meaning of sec. 114 illustration (e) is that it an official act is proved to have been done it will be presumed to have been regularly done. It does not raise a presumption that an act was done of which there is no evidence and the proof of which is essential to the case. The aforesaid Rule 141 (1) which we have set out hereabove appears to be equivalent to the one that the High Court of Bombay happened to consider viz rule 119 (1) of the Defence Or India Rules 1939 A similar view was taken also by the Nagpur High Court in the case of Shakoor Hasan Kachhi Memon v. Emperor A. I. R. 1944 Nagpur 40. ( 3 ) ON the other band Mr. Thakar the learned Assistant Govt. Pleader invited a reference to the decisions of different High Courts which have taken a contrary view in that regard. In Debi Prasad v. Emperor A. I R. 1947 Allahabad 191 (F. B. it was held that the publication of the U. P Cotton Cloth and Yarn Control Order in the official Gazette gives rise to the presumption under sec. 114 Evidence Act that the provisions of Rule 119 (1) Defence of India Rules including the provision for determining the most suitable form of publication were fully complied with. In the case of Public Prosecutor v. Badulla Sahib and others A. I. R. 1948 Madras 262 it was held that Rule 119 Defence of India Rules does not say that the authority should declare or state in writing that in its opinion the manner of publication decided upon in a particular case was best adapted for informing the persons concerned of the provisions of the order and where the publication of the order in the Provincial Gazette was done under the authority it can be assumed that unless the Provincial Government is satisfied that a publication in the official Gazette is the proper mode by which the order can be made known to the public that course would not have been taken. In other words publication of any such order in the official Gazette of the State would be enough compliance of rule 119 (1) of the Rules. In other words publication of any such order in the official Gazette of the State would be enough compliance of rule 119 (1) of the Rules. A similar view and that way obviously contrary view to that of the High Court of Bombay referred to hereabove was taken by the Full Beach of the High Court of Patna in the case of Mahadeo Prasad Jayaswal v. Emperor A. I. R. 1946 Patna. There it has been observed by Fazi Ali C. J. speaking on behalf of the majority of the Bench as under. WHERE an Order of a general nature under the Defence of India Rules is made by ar. authority or officer subordinate to the Central or Provincial Government who has not at his disposal any recognized machinery or medium for publishing and notifying the orders made by him and who has to select in each case his own method of promulgating them it is necessary to inquire whether there was any publication at all of the Order and if so whether the publication was made by the authority or officer in full compliance with the provisions of R. 119 (1) including the provision as to his determining the most suitable form of publication. In such cases R. 119 must be strictly complied with and the prosecution must establish that the authority making the Order did form an opinion that the particular manner of publication adopted by it was best adapted for informing persons concerned of the provisions of the Order. But if there is some evidence as to the publication of an Order though the publication may be seemingly inadequate and it is also proved that the accused had knowledge of the Order then the Courts will not as a rule insist on very strict proof of the other ingredient of the Rule namely that the authority or the officer making the Order had exercised his mind to determine that the Order was to be published in the manner best adapted for informing the persons concerned of its contents. ( 4 ) IF the matter were to stand on the basis of these authorities the Bombay view would have to be adopted since it would bind this Court it being decision prior to May 1960 and that way binding on this Court. ( 4 ) IF the matter were to stand on the basis of these authorities the Bombay view would have to be adopted since it would bind this Court it being decision prior to May 1960 and that way binding on this Court. But by introducing sub-rule (2) to rule 141 that conflict of decisions appears to have been resolved. In this connection Mr. Thakar invited a reference to a decision In the case of Bhagwan Singh v. The State and another A. I R. 1965 Punjab 86 where it was held that even if the provision with regard to the publication of notification contained to sub-rule ( 1) is not complied with It will be open to the prosecution to prove that the accused were aware of the Order In question. It is then observed that under the existing law the mere notification of the order will suffice and it is not open to an accused to contend that he was not aware of the provisions of the order in question. This view was followed in the case of Public Prosecutor Andhra Pradesh v. D. Bhadraiah and others A. I. R. 1967 Andhra Pradesh 75. In the case of The State v. Manefkha Lukmankha Pathan 69 B. Is. R. 715 we find the same view expressed observing that under rule 141 (2) of the Defence of India Rules 1962 notification of an order issued under any of these Rules in the official Gazette is due publication thereof. It was however said that these decisions have not considered any argument that he sought to raise before this Court and according to him they gave no reasons for holding or observing accordingly. Before considering his arguments I would first set out that sub- rule (2) to rule 141 of the present Defence of India Rules 1962 It came to be added on 10-8-64. That sub-rule (2) runs thus:-141 (2) If in the course of any judicial proceedings a question arises whether a person was duly informed of an order made in pursuance of these Rules compliance with sub-rule (1) or where the order was notified the notification of the order shall be conclusive proof that he was so informed; but a failure to comply with sub-rule (1)- (i) shall not preclude proof by other means that he had information of the order (ii) shall not affect the validity of the order. Analysing this provision it appears that if any question arises in a judicial proceeding as to whether a person was duly informed of an order a question the Court has to consider whether compliance with sub-rule (1) has been made by the authority or the officer concerned. If that has been done no further question arises as to whether the accused before the Court in that proceeding knew about it or not. The second question to be considered by the Court in the alternative would be whether the order was notified and if so the notification of that order shall be taken as conclusive proof that he was so informed. Then it Provides as to what is to be understood if there has been a failure to comply with sub-rule (1 ). Then it says that the prosecution shall not be precluded from offering any proof by other means that he had information of the order. Another consequence thereof would be that it shall not affect the validity of the order. In other words if sub-rule (1) of rule 141 is not complied with the validity of the order in question cannot be affected though it may affect the operation of the order as against the person concerned and secondly the Court cannot shut out or preclude the prosecution from offering some other proof showing that the person concerned had information about it. In a given case the prosecution may well be able to show by some other evidence that he actually knew about the order being either in his possession or on his file or in some other manner. Such evidence can be allowed to be led so as to show that he had information of the order. Thus the procedure contemplated in sub-rule 141 can be taken to have been complied with if there has been compliance with sub-rule (1) or if any such order contemplated therein has been notified the notification of that order shall be taken to be conclusive proof that the person in that judicial proceeding was informed about it. That appears to be the natural meaning that could be given to sub-rule (2) of rule 141 of the Defence of India Rules. ( 5 ) THE contention of Mr. Thakore was of a twofold character. That appears to be the natural meaning that could be given to sub-rule (2) of rule 141 of the Defence of India Rules. ( 5 ) THE contention of Mr. Thakore was of a twofold character. The first was that this sub-rule (2) refers to an order affecting an individual person contemplated in sub-rule (1) of rule 141 of the Rules and not to an order of a general nature or affecting a class of persons covered by the first part of rule 141 (1) of the Rules. His emphasis was on the use of words a person In sub-rule (2) thereof. I do not think any such interpretation is possible to be given for two reasons. The first is that it relates to a question when it arises in any judicial proceeding where a person was duly informed of an order made in pursuance of these Rules in respect of which he is sought to be dealt with. The words a person would mean any person who is before the Court in any judicial proceeding and the question arising being as to whether he was informed of an order made in pursuance of these Rules and that way contemplated in sec. 141 of the Indian Penal Code. Immediately thereafter we and compliance with sub-rule (1) and again a further reference about a failure to comply with sub-rule (1) contemplated in sub-rule (1) of rule 141 as a whole covering both the classes of people and not in respect of any particular individual as suggested by Mr. Thakore before us ( 6 ) IT was next urged by Mr. Thakore that the words or where the order was notified the notification of the order shall be conclusive proof that he was so informed relate to cases in which orders were notified by the authority concerned. Such orders are contemplated under different rules such as rules 26 to 29. According to him therefore where the order was notified the words where the order was notified can be taken to mean the orders contemplated to be notified under rules 26 to 29. The simple answer to that argument would be absence of any such reference to other rules wherein the words or where the order was notified have been referred to. The simple answer to that argument would be absence of any such reference to other rules wherein the words or where the order was notified have been referred to. The expression or where the order was notified the notification of the order is wide enough to include all orders notified or the orders in respect of which notifications have been issued by the authorities concerned. Its operation is not restricted to any such orders contemplated under rules 26 as urged by Mr. Thakore. Rule 2 sub-rule (3) defines the terms notified and notification as meaning notified and notification respectively in the official Gazette would appear therefrom that anything that is notified has a meaning as notified in the official Gazette and anything that is to be by way of a notification has the meaning to have the same published. What is of importance is the publication of the order in question in the official Gazette and if that is shown it serves as a conclusive proof that any party before the Court in a judicial proceeding can be taken to have been so informed about the order in question. By introducing sub-rule (2) in rule 141 of the Rules the effect of contrary decisions of different High Courts has been thus set at rest and it is made clear that once the order is issued in pursuance of these Rules and if it is shown to have been published by the State Government in its official Gazette it shall be conclusive proof of the fact that he was so informed and that it would make no difference whether compliance of sub-rule (1) of Rule 141 has been otherwise not duly made. It is therefore clear that the accused-applicants can be taken to have full knowledge about the existence of the order by reason of the same having been published in the official Gazette of the State Government as already stated hereabove. [the rest of the judgment is not material for publication] applications allowed. .