ORDER
1. This is a revision on behalf of the State praying for the enhancement of the sentence passed by the Munsiff of Secunderabad, holding the respondent guilty of having violated Notification No. 282 of 1355 F. and Notification No. 33 of 1950 issued under R. 72 of the Defence of Hyderabad Regulation. The respondent was charged under Notification No. 282 of 1355 F., under the Essential Articles Restricted Acquisition Order of 1355 F. This Notification enjoins that a person could keep with him only a particular quantity of grain and it was alleged by the prosecution that he was entitled to keep only 132 seers of rice while there was found with him 7 'pallas' and 95 seers of rice without permit. This grain was seized on the 27th of February 1950.
The Munsiff tried the case and finding the respondent guilty sentenced him to a fine of Rs. 300 & in default of the payment of the fine to undergo rigorous imprisonment for three months. The grain also was confiscated. The State has preferred this revision to say that the sentence imposed on the respondent was inadequate especially when he admitted the guilt, and the enhancement was prayed for as it would act as deterrent and would serve as a lesson to other merchants.
2. In this application the advocate for the respondent raised the question that the charge itself could not stand because of a legal flaw. In answer to this, it was contended by the Public Prosecutor that the accused not having filed any appeal against the order of the Munsiff, it was not open to him to urge that the charge was bad or that the conviction could not be sustained but he could only argue against the case of enhancement of the sentence. With regard to the objection of the Public Prosecutor, we may straightaway say that under the provisions of Section 439, Sub-section 6 of the Indian Criminal Procedure Code, it is open to an accused, who has not filed an appeal, to urge that the charge and the conviction both were bad and, therefore, when the law allows the accused to question the legality of the charge and the conviction, the effect of his not filing an appeal cannot stand in the way. There can foe no doubt that when we are deciding this case we are to be governed by the Indian Criminal Procedure Code, the Code having been applied to the Hyderabad State. Therefore, the preliminary objection of the Public Prosecutor falls.
Coming to the main argument of the advocate for the accused, we are inclined to hold that there is much force in his argument. Whenever a Notification is issued under a special law there is always a provision in the Notification as to how it would be notified or made public. That is to say whenever Notifications are issued a mode is prescribed as to how the contents of the Notification would be brought home to the public and different methods are adopted having regard to the particular locality or the citizens of that place. The main contention of the advocate for the accused is that this Notification No. 282 was not applied to Secunderabad in the way in which it had to be made public. The gist of the argument is when there was a provision in the Notification itself as to the mode in which it has to be made public, there was no such publicity made. There was no press note issued giving the summary of the Notification itself.
We called upon the Public Prosecutor to satisfy us in this regard as to whether any press note was issued subsequent to the publication of this Notification. Section 110(1) of the Defence of Hyderabad Rules says that it shall publish notice of the order or Notification in such manner as in the opinion of the Authority be considered to be the best in informing the persons whom the order concerns. Under this the President thought the issue of press note was the best way but no press note was issued at all. Where it was not brought to the notice of the public by means of a press note, could a conviction for violation of Notification be sustained, is the matter we have to decide. There is ample authority for the proposition that in the absence of evidence that the requirements of Rule 90 were complied with, the prosecution should fail. Here there is no proof of the promulgation of the order as such the conviction cannot stand. There being no evidence suggesting the knowledge of the accused of the issue of a press note or any notice, the contention that the promulgation of the Notification is enough to sustain a conviction cannot be accepted.
No doubt the mode of publication, however inadequate or unsatisfactory it might be, could not be canvassed in a Court. That is a matter left to the discretion of the authority concerned. There must doubtless be clear proof of the mode of making it known to the public. The provisions relating to publicity being mandatory failure to conform to the requirements of the law would not justify a charge being fastened on a person of violating any order or provision of law. We cannot invoke the presumption arising under Section 114(e) of the Indian Evidence Act and presume that being an official act it would have been done properly. But in cases where certain things are required to be done before any liability could be fastened it is essential that the person seeking to fasten the liability should prove that the prescribed things were actually done.
3. We, therefore, dismiss the Revision, and also set aside the order of the Magistrate convicting the respondent and acquit the accused. The accused would be entitled to a refund of the fine if he has paid the same.
4. The grain that has been confiscated be returned to the accused and if it has been sold the value thereof may be paid to him.