JUDGMENT

Malik, J. - In these four miscellaneous applications a common question of law of general importance has arisen and it has, therefore, keen referred to a Bench for decision.

2. In the first Miscellaneous Application Order 437 of 1947, Jagdam Sahai who was a Chief Sorter in the Oudh and Tirhut Railway, was convicted under Rule 81(4), Defence of India Eules, for having contravened the provisions of Clause 3, United Provinces Food-grains (Movement) Control Order, 1943. Jagdam Sahai was in charge of the mail van between Gorakhpur and Palheza Ghat. On 21-10-1943, it was found by the Railway Sub-Inspector of Police, Bhagwan Singh Kapoor, when the train reached Palheza Ghat, that several of the mail bags contained foodgrains which could not be exported Outside the Province without fulfilling the requirements of the Control Order referred to above. Besides Jagdam Sahai, there were three other sorters in the van, Jamuna Singh, K. Kumar and Munshi Ram. All the four were tried and convicted by a Magistrate. The learned Sessions Judge dismissed their appeals and there were revisions filed in this Court. The revisions were also rejected and now applications have been filed for certificates that the cases involve substantial questions of law as to the interpretation of the provisions of the Government of India Act, 1935.

3. The application by Jagdam Sahai has been numbered and registered as Miscellaneous case Order 437 of 1947, and Dr. Surendra Nath Sen has appeared for him, while the application on behalf of the other three, Jamuna Singh, K. Kumar and Munshi Ram has not yet been numbered as no notice was issued of that application to the Government Advocate. Mr. Rup Kishore Srivastava has appeared for them. These two applications, therefore, arise out of the same case.

4. The point on which leave has been asked for is whether on a correct interpretation of Section 270, Government of India Act, 1935, sanction of the proper authority was necessary under that section for the prosecution of the accused, inasmuch as it was their duty, they being in charge of the mail bags, to see that the mail bags reached their destination. The second point is that the United Provinces Foodgrains (Movement) Control Order, 1943, came into force on 21-4-1943, and it was published in the Goverment Gazette on the same date and the applicants had no knowledge of its provisions. The third ground is that there was nothing to show that the bags had not been tampered with and filled with grain before the accused took, over charge at Gorakhpur.

5. Obviously, the second and third points do not relate to the interpretation of the Government of India Act, or of any Order in Council made thereunder. The first point was not raised at any earlier stage of these proceeding's. It is difficult to accept on the facts of this case that the accused did not know that the mail-bags contained grain and that they were carrying the grain in execution of their duty. It is, however, not necessary for us to give any decision on this point as it was never raised before this Court or the subordinate Courts.

6. The next application is Miscellaneous Order 438 of 1947 and is by one Debi Ghulam, who was. the proprietor of a cloth shop known as D. Gupta and Co. Cawnpore. The charge against him was that he was in possession of cloth in contravention of Clause 14, Central Cotton Cloth and Yarn (Control) Order, 1943, after 31-3-1945, and after 31-12-1945 respectively, cloth which he should have sold before those dates. He was convicted by the Magistrate and his conviction was affirmed by the learned Sessions Judge, and a revision to this Court was also dismissed.

7. Learned Counsel has taken his stand on only one ground; that the Magistrate was not justified in passing an order of forfeiture, forfeiting the cloth that was found in possession of the applicant in contravention of the above order. He relies on Section 299, Government of India Act, 1935, which lays down that no person shall be deprived