Mangi Lal v. State of Maharashtra

Sikri , J. This Court . granted special . leave to appeal in this case limited to the followmg two pomts :

( 1 ) whether the confiscation of the foodgrains in the

house of the appellant was legal; and (2) whether r. 141 (2) of the Defence of India Rules,

1962 is not ultra vires the Defence of India Act. The facts relevant to the first pqint are as follows : Certain shpherds belonging to a wandering' tribe ~ere apprehended by the police one night while they were carrymg . 12 bag~ages containing juar on tile backs of 12 horses. On bemg ~uest1on.ed they informed the police that they had purchased all this quunllty of juar from the appellant at the rate of 78 paise per kg. On this information the police raided the houses of the appellwt and forther found 34 quintals and 63 kgs of juar. The appellant had two houses at Janephal and in one house 3 quintal; and 48 kgs while in the other house 31 quintals and 18 kgs. of juar was found, which was sei7ed by the police. The last declaration of stock which had been given by the appellant was on June 5, 1965.

The appellant was tried and convicted on three courts by the Judicial Magistrate, First Class, Mehkar. He was convicted under r. 125(9), Defence of India Rules, for contravening cl. 4(b) of the Maharashtra Jwar (Restrictions on purchases and sale and control of movement) Order, 1964, and sentenced to rigorous imprisonment for six months and fine of Rs. 500/-, in default further rigorous imprisonment for six months. He was further convicted for contravening Buldana District Price Control Order, 1965, and sentenced to rigorous imprisonment for six months and ~nc of Rs. 500/-, in default rigorous imprisonment for six months. He was also convicted for contraven-vening S. 3 of the Maharashtra Declaration of Stock Order, 1964, and sentenced to rigorous imprisonment for six months an~ fine of Rs. 500/- in default further rigorous imprison-ment for six. months. The sentences of imprisonment on each eou~were directed to run concurrently. The Magistrate further orde d that the maddemal befo:·2 the Court be confiscated to the Gover ment.

The appellant ~I?pealed unsuccessfully to the Sessions Judge. He then filed a rev1s1on before the High, Court. The High Court set aside the conviction and sentence passed on the appellant in respect of contravention of cl. 3 of the Maharashtra Foodgrains (Declaration of Stocks) (Second) Order, 1964, But while main-taining the conviction for the other two charges the High Court modified the sentences passed on the appellant and instead of the sentences awarded by the lower courts sentenced the accused to imprisonment already undergone and fine of Rs. 1,000 on each of the two counts. The High Court observed :

"The order regarding forfeiture of the juar seized from the house of the accused is maintained. The juar seized from the house in the occupation of Ratanlal will however be released."

The learned counsel contends that the High Court having set aside the conviction and sentence in respect of contravention of cl. 3 of the Maharashtra Foodgrains (Declaration of Stocks) (Second) Order, 1964, it was illegal to maintain the order regarding forfeiture 9f the juar seized from the house of the appellant because, he says, the Maharashtra Jowar (Restriction on Purchase and Sal.e and Control of Movement) Order, 1964, and the Buldana District Juar (Price Control) Order, 1965, did not contain any provision authorising the Court to forfeit the juar, the subject-matter of the contravention of these two orders.

Rule 125 (9) provides :

"(a) If any person contravenes any provision of this rule or any order made under this rule, he >hall be punishable with imprisonment for a term which may extend to t'.1ree years, or with fine, or with both :

Provided

( b) If any order made under this rule so provides, any court trying a contravention of the ord~r may direct that any property in respect of which the Court is satisfied that the order has been contravened shall be forfeited to Government."

The learned counsel for the State has not been able to point out any provision in the two orders mentioned above containing any provision contemplated in r. 125.(9)(b). 'fhe only provi-sion contaoined in the Maharashtra Jowar (Restriction on Purchase and Sale and Control of Movement) Order, 1964, is regarding forfeiture to the Government of packages, coverings or receptacles in which any stocks of jowar are found. This obviously does not enable the Court to order forfeiture of Juar.

The Buldana District Juar (Price Control) Order, 1965, it is true, authorises the Collector to seize stocks but does not enable the Court to forfeit the juar. In the result we hold that the order of the High Court maintaining the order of forfeiture is allegal and liable to be set aside.

On the second point the learned counsel for the appellant contends that r. 141 ( 2) of the Defence of India Rules, 1962, is ultra vires because it lays down a rule of evidence contrary to the law cor.tained in section 114 of the Indian Evidence Act. Rule 141 ( 2) is in the following terms :

"141(2) If in the course of any judicial proceedings a question arises whether a person was duly· informed cf an order made in pursuance of these Rules, compli-ance with sub-rule (I), 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 (I )-

( i) shall not preclude proof by other means that he

had information of the order, (ii) shall not affect the validity of the order.

Section 3 of the Defence of India Act enables the Central Gov-ernment, by notification in the Official Gazette, to make such rules as appear to be necessary or expedient for securing the defence of India and civil defence, the public safety, the mainte-nance of public order or the efficient conduct of military oper:1-tions, or for maintaining supplies and services essential to the life cf the community. Sub-s. (2) mentions various matters en which rules can be made, but this is without prejudice to the generality of the powers conferred by sub-s. (I).

It seems to us that r. 141 (2) is within the powers conferred by s. 3 (I) of the Defence of India Act. The .fact that the rule is contrary to an existing act does not matter because s. 43 of rhe Defence of India Act provides that "the provisions of this Act or any rule made thereunder or any order made under any such rule shall have effect notwithstanding anything inconsistent there-with contained in any enactment other than this Act or in any instrument !Javing effect by virtue of any enactment other than this Act." The section contemplates that the rules may be incon-sistent with existing legislation but by virtue of s. 43, if other-wise valid, they would have effect notwithstanding that they are inFonsistent with existing legislation. We use the words "if ot;herwise valid" because the rules must fall within the powers given under s. 3 (1). Section 3 gives very wide powers. It seems to us that r. 141 (2) faUs withins. 3 because it is essential to the scheme of the Defence of India Rl)les. The Rules must necessarily provide for the publication of orders made under the Rules and they mus: also provide for proof in judicial proceedings of the fact of publication.

The learned counsel has not been able to show us any case in which a rule like r. 141 (2) has been challenged, much less declared ultra vires, both in England and in India.

In the result the appeal is partly allowed, the or\)er of the High Court maintaining the forfeiture of the seized stock of juar set aside and the rest of the order of the High Court maintained.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 193 of 1967.

Appeal by special leave from the judgment and order dated March 7, 1967 of the Bombay High Court, Nagpur Bench in Criminal Revision Application No. 306 of 1966.

G. N. Dikshit, S. K. Bisaria and R. N. Sachthey, for the appellant.

H. R. Khanna and S. P. Nayar, for the respondent.