Sir John Beaumont.-

This is an appeal by special leave from the judgment and order of the High Court of Judicature at Bombay dated 5th September, 1946, setting aside the acquittal of the appellant of an offence under clause 18(2) of the Cotton Cloth and Yarn (Control) Order, 1943, by the judgment and order of the City Magistrate of Sholapur and sentencing the appellant to undergo rigorous imprisonment for one month and to pay a fine of Rs. 1,550.

The facts giving rise to the prosecution of the appellant were stated in a written report made by Mr. Mulik, Sub-Inspector of Police, Food Control, Sholapur, to the Sub-Inspector of Police, Sholapur, on 24th January, 1945. The report which is Ex. No. I "L" was in the following terms;

"I, Raghunath Santaji Mulik, Sub-Inspector of Police, Food Control, Sholapur, give in writing as follows:-

Having got information that there were cloth without ‘Textile’ mark and grain hoarded in the bungalow situate at Motibag belonging to the Old Mill at Sholapur, Mr. Yasin Ansar Bhai, the Inspector of Police, took search of the said bungalow on the date the 4th August, 1944; but as it drew dark the search of the outhouse pertaining to the said bungalow remained to be taken. Therefore, the rooms of the said outhouse were sealed. On the date the 5th August, 1944, the Inspector of Police ordered me to take search of the said outhouse. In pursuance thereof I took search of the said outhouse. In the same Dhoti pairs 196 (measuring) 1,903¼ yards with a name in the borders; Dhoti pairs 426 (measuring) 3,804¼ yards with no name in the borders; Patals (Sarees) 25 (measuring) 125 yards; and muslin pieces 3 (measuring) 60 yards in all 5,892 yards of cloth without textile mark were found. All that has been seized after making a Panchanama.

Mr. Gokulchand Dwarkadas Morarka is the agent of the Sholapur Old Mill. Whenever he comes to Sholapur, he puts up in the bungalow situated at Motibag. Mr. Gokulchand Dwarkadas has purchased from the said mill by oral order the aforesaid cloth between the dates the 2nd December, 1942 and 15th March, 1943, for his own use; and all that cloth has been taken and kept in the said bungalow on 2nd August, 1943.

As Mr. Gokulchand Dwarkadas Morarka has been staying at Malad, I went to Malad and took search of his house. Whatever clothes of daily wear were found in the same, were sufficient (for use) to him and the members of his family. Accordingly, a Panchanama of the clothes m his house was made.

As Mr, Gokulchand Dwarkadas Morarka has kept with him cloth in excess of what was necessary, I have a complaint against him on behalf of the Government according to clause 18(2), Cotton Cloth and Yarn (Control) Order (of) 1943."

For the purposes of the present appeal it will be assumed that the facts stated in that report were proved and constituted an offence under section 18(2), Cotton Cloth and Yarn (Control) Order, 1943.

Section 23 of that Order as amended provides that:

"No prosecution for the contravention of any of the provisions of this Order shall be instituted without the previous sanction of the Provincial Government (or of such officer of the Provincial Government not below the rank of District Magistrate as the Provincial Government may by general or special order in writing authorise in this behalf)."

On 5th January, 1945, sanction to the prosecution of the appellant was given by Order of the Government of Bombay in the following terms:

Sanction to Prosecute.

(Signed) H.N.G.

Cotton Cloth and Yarn (Control)

Order, 1943.

Contravention of the Provisions

Prosecutions for-

Government of Bombay.

Finance Department (Supply).

Resolution No. 518.

Bombay Castle, 5th January, 1945.

Endorsement from the District Magistrate, Sholapur, No. XIX/4500, dated 8th November, 1944.

Resolution:Government is pleased to accord sanction under clause 23 of the Cotton Cloth and Yarn (Control) Order, 1943, to the prosecution of Mr. Gokulchand Dwarkadas Morarka for breach of the provisions of clause 18(2) of the said Order

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