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TMI Blog1971 (10) TMI 119X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the mills to the Textile Commissioner and other authorities, and the Resident (Executive) of the two companies (M/s. Udyog Services Ltd., and M/s. Shree Services Trading Co.) which were working as a liaison agency between the textile mills, the first accused, and the Textile Commissioner at the material time, i.e. , between October 20, 1964 and June 20, 1965. Of these two appeals one has been presented by the Century Spinning Manufacturing Co., Ltd., and the other by the remaining three accused persons. The Company runs textile mills and as in the correspondence with the Textile Commissioner it is generally described as the Mills, we will hereafter call the appellant No. 1 as the Mill. 2. The material facts necessary for our purpose lie in a narrow compass. In the opinion of the Chief Presidency Magistrate they were mostly a matter of common ground between the parties. In this Court, however, certain differences did appear between the rival versions given at the bar, but being on minor points they do not affect the broad material features of the case. The relevant facts necessary for understanding the real controversy may briefly be stated: 3. The mill manufactures, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said Order, by a Notification No. S.C. 3656 dated October 13, 1964, he specified the principles upon which the maximum ex-factory as well as retail prices inter alia of dhotis were to be calculated. The term dhoti was defined as meaning any type of bleached cloth, whether mercerised or not, of plain weave which complied with certain specifications mentioned therein one of which was that it must have a with ranging between 71 cm. and 137 cm. By another notification No. S.O. 3657 of the same date, in exercise of powers conferred upon him by Clause 20 of the said Order, the Textile Commissioner laid down that no producer should produce, inter alia, any dhoti or saree which did not conform to the specification laid down in Schedule 11-A annexed thereto and item 94 in that schedule provided that in the production of dhotis of superfine variety (with which the court is concerned in the present case) the yarn used in the warp was to be of 100 counts in the weft of 120 counts and reeds and picks to be 88 and 80 respectively. By a third Notification No. S.O. 36658 also of the same date in exercise of powers conferred upon him by Clause (22) of the said Order, the Textile Commissioner dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xhausted. It was added in that letter that the mill had already started manufacturing dhotis of constructional particulars in conformity with those provided by the Textile Commissioner which would replace the said Param Sukh dhoti. According to the High Court, it is common ground that the mill went on manufacturing Param Sukh dhotis which did not comply with the specifications notified by the Textile Commissioner even after the stock of beams had been exhausted. 6. On February 11, 1965 the mill by writing signed by the second accused applied to the Textile Commissioner for the necessary Deviation Order pursuant to the circular letter of November 2, 1964. On 7/11th March, 1965 the office of the Textile Commissioner asked the appellant mill for information regarding the production figures of dhotis for the preceding three years for examining its claim. On March 13, 1965 the necessary production figures for 1962, 1963 and 1964 were furnished and a request was made for early grant of the necessary Deviation Order. On April 12, 1965 the mill sent to the office of the Textile Commissioner a statement showing month-wise production of Param Sukh dhotis during the preceding three years ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the mill had contravened notification No. S.O. 3657 between October 20, 1964 when the statutory control was imposed and June 25, 1965 by manufacturing Param Sukh dhotis with the aforementioned constructional particulars which did not conform to Schedule II-A to the said notification and also by stamping them as controlled cloth. It is further the prosecution case that the mill had contravened notification No. S.O. 3658 read with notification No. S.O. 3656 between the aforesaid dates by manufacturing Param Sukh dhotis with the width of 140 cms. and by stamping them as controlled cloth. All the four accused persons were, therefore, charged with criminal conspiracy under Section 120B Indian Penal Code read with Section 7 of the Act and also for the substantive offence under Section 7. 8. There is no dispute that the mill did not stop the manufacture of Param Sukh dhotis of the aforesaid constructional particulars with a width of 140 cms. between October 20, 1964 and June 25, 1965. It was, however, contended on behalf of the appellants that the exemption granted to the mill by the Deviation Order was retrospective in nature and related back to the date of imposition of statutor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Court. The contention of the prosecution that profit motive is irrelevant for considering the contravention of the control orders appeared prima facie attractive but in view of the decisions of this Court in Nathulal v. State of M. P. 1966CriLJ71 and in the case of Deokaran Das v. State of Bihar Criminal Appeal No. 38 of 1968, D/-26-11-1968 (SC) (unreported) the trial Court held, to quote its own words; the mill must be deemed not to have committed any offence for any part of the relevant period, if the operation of the Deviation Orders is taken to relate back to the date of imposition of the statutory control, while it should be taken to have committed no offence from the date of his application, if the Deviation Orders are not deemed to be retrospective in their operation. if the accused had a bona fide belief that they were entitled to the Deviation Order and, therefore entitled to manufacture the dhotis then there being no guilty mind or intention to contravene the provisions of the control order they could not be held liable. The last point on the question whether the three notifications were laid before both the Houses of Parliament does not concern us now, because a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ok the view that under Section 251-A(2) the accused could only be discharged if, to quote its own words no reasonable persons could come to the conclusion that there was any ground whatsoever to sustain the charge against the accused The High Court concluded that the charge against the accused in this case could not be said to be groundless if it took the counsel five days to convince the trial Magistrate that it was so, and it took two and a half days for the counsel to attempt to convince the High Court that the charge was groundless. That Court, however, did not base its decision on this ground alone. In its opinion all the documents referred to in Section 207-A, Criminal P.C. were before the Magistrate who had, after a detailed scrutiny, written a lengthy judgment, but without discussing the statements of witnesses recorded by the Police under Section 161, Criminal P.C. This was considered to be one infirmity which exposed the order of discharge to attack on revision. In the High Court the counsel for the accused did not submit, that the Deviation Order was retrospective in the sense that it condoned the offence: that order was contended to be retrospective because the mill w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eport, the accused appears or is brought before a Magistrate at the commencement of the trial, such Magistrate shall satisfy himself that the documents referred to in Section 173 have been furnished to the accused, and if be finds that the accused has not been furnished with such documents or any of them, he shall cause them to be so furnished. (2) If, upon consideration of all the documents referred to in Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge him. (3) If, upon such documents being considered: such examination, if any, being made and the prosecution and the accused being given an opportunity of being heard, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try, and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused. (4) The charge shall then be read and explain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (7), and the accused does not admit that he has been previously convicted as alleged in the charge, the Magistrate may, after he has convicted the said accused under Sub-section (5) or Sub-section (12), take evidence in respect of the alleged previous conviction, and shall record a finding thereon. Though at the bar of this Court as also in the High Court considerable arguments and discussion centered round this point, in our opinion, the construction and meaning of this section so far as relevant for our purpose does not present any difficulty. Under Sub-section (2), if upon consideration of all the documents referred to in Section 173, Criminal P.C. and examining the accused, if considered necessary by the Magistrate and also after hearing both sides, the Magistrate considers the charge to be groundless, he must discharge the accused. This sub-section has to be read along with Sub-section (3), according to which, if after considering the documents and hearing the accused, the Magistrate thinks that there is ground for presuming that the accused has committed an offence triable under Chapter XXI of the Code with in the Magistrate's competence and for which he can punish ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ads as under: 17. Constructional particulars of dhotis and sarees. (i) Some mills have represented that they have been manufacturing certain types of dhoties and sarees which do not fall strictly within the constructional particulars prescribed in the Control Order. Where a mill has been manufacturing any dhoti or saree of constructional particulars not falling within the specifications given in the Control Orders, the Textile Commissioner will permit the mill on application to continue to manufacture such varieties provided the mill has been traditionally manufacturing the same varieties of dhoties and/or sarees for a period not less than three years continuously prior to October, 1964. Mills may apply to the Textile Commissioner with full details for approval and issue of deviation orders. This order clearly permits the mill in question to continue to manufacture Param Sukh variety of dhotis if it had been traditionally manufacturing the same for a period of not; less than three years continuously prior to October, 1964. The mill was, however, required to apply to the Textile Commissioner with full details for approval and issue of Deviation Orders. The right to continue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 the appellant had actually applied to the Textile Commissioner for a Deviation Order which was issued on June 25, 1965. It is no doubt true that on the same day the office of the Textile Commissioner had also written to the mill that the manufacture of dhotis sort Param Sukh having the particulars viz: 100s-120s, 88-84 without obtaining the necessary Deviation Order was a violation of the Cotton Textile (Control) Order, 1948: but in the same communication it was added that since the said sort was a traditional one. being continuously under manufacture by the mill for three years prior to October 20, 1964 a D.O. was being separately issued. Though the mill was cautioned against repetition of such irregularity it nevertheless indicates that this irregularity was not considered sufficiently serious to call for prosecution. On this material we have no hesitation in holding that the Textile Commissioner had felt fully satisfied that there was no cogent ground for prosecuting the appellant for any alleged violation of the notifications issued on October 13, 1964. 20. It was contended before us on behalf of the respondent that the contravention of the notification being a cognizable ..... X X X X Extracts X X X X X X X X Extracts X X X X
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