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IN THE HIGH COURT OF ALLAHABAD
Raghubar Dayal and Agarwala, JJ.
MURLIDHAR DALMIA - Appellant
Versus
STATE - Respondents
Criminal Revn. 543 Of 1949
Decided On : 09/18/1952
CRIMINAL LAW - CONTROL ORDERS - COTTON CLOTH AND YARN CONTROL ORDER, 1945 - U. P. CONTROLLED COTTON CLOTH AND YARN DEALERS LICENSING ORDER, 1945 - INTERPRETATION - SENTENCE - ENHANCEMENT - FORFEITURE OF PROPERTY.
Fact of the Case:
The applicant was convicted for breach of Clauses 13 (1) (c) and 18 (2), Government of India Cotton Cloth and Yarn Control Order, 1943, and Clause (4), U. P. Controlled Cotton Cloth and Yarn Dealers Licensing Order, 1945. He was sentenced to undergo rigorous imprisonment for six months and to pay a fine of RS. 1,000 or undergo further rigorous imprisonment for two months.
Finding of the Court:
1. The conviction of the applicant for breaches of Clause 18 (2), Government of India Cotton cloth and Yarn Control Order, 1945, and Clause 4, U. P. Controlled Cotton Cloth and Yarn dealers Licensing Order, 1945, cannot be maintained. 2. The applicant did not contravene Clause 4, U. P. Controlled Cotton Cloth and Yarn dealers Licensing Order, 1945, as he had applied for a licence under this Order within a month of the coming into force of this order and was deemed to hold a licence under this Order on 4-6-1946 when this controlled cotton cloth was recovered from his godown. 3. The applicant did not contravene Clause 18 (2), Government of India Cotton Cloth and Yarn Control Order, 1945, as there was nothing on the record to show what were the normal requirements of the applicant for the purpose of his business and, in the absence of any such evidence, it cannot be held that 1330 yards of cloth was in excess of his normal requirements. 4. The articles recovered from the applicants godown just consist of ten yards pieces of white cambric cloth roughly sewn together with a loop of markin (inferior cloth) at one end for passing through the waist-cord. They do not answer the definition of the word "cloth" in Clause 3 (a), Government of India Cotton cloth and Yarn Control Order, 1945, and cannot be said to be "ready-made clothing". 5. The applicant committed a breach of Clause 13 (1) (c) of that order which was punishable under Rule 81 (4), defence of India Rules. 6. The sanction of the District Magistrate to the prosecution of the applicant under Clause 23, Government of India Cotton Cloth and Yarn Control Order, 1945, was not bad as it appeared that he had been informed about the actual description of the articles recovered. 7. The combined sentence for the different offences of which an accused is convicted does not vitiate the trial, though it is essential that separate sentences should be expressly mentioned in the judgment with respect to each offence of which the accused is found guilty. 8. A composite sentence of imprisonment should be taken to mean that that identical sentence was awarded for each of the offences of which the accused was convicted and that all such identical sentences for all the offences were ordered to run concurrently. 9. A composite sentence of fine should be treated to be made up of separate sentences of fine, equal in amount, for each of the offences of which the accused had been convicted, provided that such amount is not more than the maximum allowed under that offence.
Issues: 1. Whether the applicant contravened Clause 18 (2), Government of India Cotton cloth and Yarn Control Order, 1945, and Clause 4, U. P. Controlled Cotton Cloth and Yarn dealers Licensing Order, 1945? 2. Whether the applicant contravened Clause 13 (1) (c), government of India Cotton Cloth and Yarn Control Order, 1945? 3. Whether the sanction of the District Magistrate to the prosecution of the applicant under Clause 23, Government of India Cotton Cloth and Yarn Control Order, 1945, was bad? 4. Whether the combined sentence for the different offences of which an accused is convicted vitiates the trial? 5. How should a composite sentence of imprisonment and fine be interpreted?
Ratio Decidendi: 1. The conviction of the applicant for breaches of Clause 18 (2), Government of India Cotton cloth and Yarn Control Order, 1945, and Clause 4, U. P. Controlled Cotton Cloth and Yarn dealers Licensing Order, 1945, cannot be maintained as the applicant had applied for a licence under this Order within a month of the coming into force of this order and was deemed to hold a licence under this Order on 4-6-1946 when this controlled cotton cloth was recovered from his godown. 2. The applicant did not contravene Clause 18 (2), Government of India Cotton Cloth and Yarn Control Order, 1945, as there was nothing on the record to show what were the normal requirements of the applicant for the purpose of his business and, in the absence of any such evidence, it cannot be held that 1330 yards of cloth was in excess of his normal requirements. 3. The articles recovered from the applicants godown just consist of ten yards pieces of white cambric cloth roughly sewn together with a loop of markin (inferior cloth) at one end for passing through the waist-cord. They do not answer the definition of the word "cloth" in Clause 3 (a), Government of India Cotton cloth and Yarn Control Order, 1945, and cannot be said to be "ready-made clothing". 4. The applicant committed a breach of Clause 13 (1) (c) of that order which was punishable under Rule 81 (4), defence of India Rules. 5. The sanction of the District Magistrate to the prosecution of the applicant under Clause 23, Government of India Cotton Cloth and Yarn Control Order, 1945, was not bad as it appeared that he had been informed about the actual description of the articles recovered. 6. The combined sentence for the different offences of which an accused is convicted does not vitiate the trial, though it is essential that separate sentences should be expressly mentioned in the judgment with respect to each offence of which the accused is found guilty. 7. A composite sentence of imprisonment should be taken to mean that that identical sentence was awarded for each of the offences of which the accused was convicted and that all such identical sentences for all the offences were ordered to run concurrently. 8. A composite sentence of fine should be treated to be made up of separate sentences of fine, equal in amount, for each of the offences of which the accused had been convicted, provided that such amount is not more than the maximum allowed under that offence.
Final Decision: 1. The revision is allowed to the extent that the conviction of the applicant under Rule 81 (4), Defence of India Rules, with respect to his alleged contravening the provisions of Clause 18 (2), Government of India Cotton Cloth and Yam Control Order, 1945, and Clause 4, U. P. Controlled Cotton Cloth and Yarn Dealers Licensing Order, 1945, and the order of forfeiture of the property recovered are set aside. 2. The revision is dismissed with respect to the accuseds conviction and sentence under Rule 81 (4), Defence of India Rules, with respect to his contravening the provisions of Clause 13 (1) (c),government of India Cotton Cloth and Yarn Control Order, 1945, the sentence being of six months rigorous imprisonment and RS. 333-5-4 fine. 3. The property in suit is directed to be returned to the applicant.
( 1 ) MURLIDHAR Dalmiya is proprietor of firm Onkarnath Nandkishoro at Kanpur. His godown was searched on 4-6-1946 and there were found 133 pieces of cotton cambric cloth, each of 10 yards sewn in the shape of lehangas. None of these pieces had any marking in compliance with the directions of Clause 10 or 10b, Government of India Cotton Cloth and Yarn Control Order, 1945. He was thereafter prosecuted and convicted under Rule 81 (4), Defence of India Rules, for breach of Clauses 13 (1) (c) and 18 (2), Government of India Cotton Cloth and Yarn Control order, 1943, and Clause (4), U. P. Controlled Cotton Cloth and Yarn Dealers Licensing Order, 1945 :
( 2 ) WE may quote the various clauses for whose breach the applicant has been convicted, Clause 13 (1) (c) is :
"where the markings to be made and the time and manner of marking them in respect of any class or specification of cloth or yarn have been specified under Clauses 10 or 10b no person other than the manufacturer thereof shall have in his possession or under his control any such cloth or yarn which is not so marked, unless it be for bona fide personal requirements. "
( 3 ) CLAUSE 18 (2) is :
"no dealer or other person not being a manufacturer shall, save with the permission of the textile Commissioner, at any time hold stocks of cloth or yarn in excess of his normal requirements. "
( 4 ) CLAUSE 4, U. P. Controlled Cotton Cloth and Yarn Dealers Licensing Order, 1945 is :
"subject to the provisions of Clause 16 no person other than a dealer shall obtain or attempt to obtain or store for sale or, distribution controlled cotton cloth or cotton yarn and save as hereinafter provided, no dealer shall obtain or attempt to obtain or store for sale or distribution or sell or distribute to any person controlled cotton cloth or cotton yarn except under and in accordance with the conditions of a licence in the appropriate form granted under this Order. "
( 5 ) CONTROLLED cotton cloth is defined in Clause 2 (a) of this Order thus :
"controlled cotton cloth means any type of cloth manufactured either wholly from cotton or partly from cotton and partly from any other matter and containiog not less than 10 per cent, of cotton by weight; but does not include -- (1) ready-made clothing other than dhoties and sarees. "
( 6 ) THE definition of cloth in Clause 3 (a), Government of India Cotton Cloth and Yarn Control order, 1945, is identical with the definition of "controlled Cotton Cloth" in Clause 2 (a), U. P. Controlled Cotton Cloth and Yarn Dealers Licensing Order, 1945, and need not be quoted.
( 7 ) THE conviction of the applicant for breaches of Clause 18 (2), Government of India Cotton cloth and Yarn Control Order, 1945, and Clause 4, U. P. Controlled Cotton Cloth and Yarn dealers Licensing Order, 1945, cannot be maintained, oven if what was recovered from his possession comes within the definition of the words controlled cloth or cotton cloth.
( 8 ) HE would have committed a breach of Clause 4, U. P. Controlled Cotton Cloth and Yam dealers Licensing Order, 1945, if he had obtained or stored this cloth for sale when he had not obtained a license for it under this Order. It is admitted that he had not obtained any licence under this Order but had applied for one. It is now conceded in this Court on behalf of the State that he did apply for a licence under this Order within a month of the coming into force of this order. The order came into force on 1-10-1945 and he applied on 27-10-1945. Prior to that he held a Registration Certificate granted under the U. P. Cotton Cloth and Yarn (Control) Order, 1943. In view of these facts and in view of the provisions of Clause 9, U. P. Controlled Cotton cloth and Yarn Dealers Licensing Order, 1945, it would be deemed that he held a licence under this Order on 4-6-1946 when this controlled cotton cloth was recovered from his godown. Clause 9 is :
"a registration certificate granted under the United Provinces Cotton Cloth and Yarn Control order,
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