PLD 1952 Sind 57 (PLP)

TYABJI, C. J.‑The appellant Saleh Muhammad son of Khamisa Katri has been convicted by the Special First Class Magistrate at Karachi of an offence under section 3 of the Hoarding and Black Market Act, XXIX of 1948, and sentenced to R. I. for six months and a fine of Rs. 100 or in default to further simple imprisonment for a term of three months. The appellant was tried summarily, and the facts held to be proved against him are these. On the 21st November 1949, the appellant sold one maund and nine seers of sugar for Rs. 57 to a person, who had no ration card. On that date the rate of sugar was controlled and the maximum price fixed for sugar was Rs. 35 per maund. The sale by the appellant work ed out at Rs. 48‑8‑6 per maund. There is very little to be said with regard to the facts, and a perusal of the judgment of the Magistrate makes it clear that the charge against the appel lant was clearly proved. Mr. Shaikh, who appears on behalf of the appellant, argued in this appeal that the conviction of the appellant was wrong, and contended (1) that there was no notification No. M/418/48, dated the 28th September 1948, published in the Pakistan Gazette of the 8th October 1948, fixing the retail price of sugar at annas fifteen per seer as alleged by the prosecution, and (2) that the complaint made by the Addi tional District Magistrate, Karachi, on which the proceedings before the Magistrate, who tried and convicted the appellant, were initiated was not proper, as it was signed by Mr. B. L. Tobin, the Additional District Magistrate of Karachi and not by the District Magistrate of Karachi. There is no substance in the allegation that there was no such notification as was alleged by the prosecution, and Mr. Inamullah has produced a copy of the notification before me. With regard to the second point, the learned Advocate points out that the complaint in this case had been made by the Additional District Magistrate, who had purported to act in exercise of the power conferred on him as a District Magistrate under subsection (2) of section 72 of the Hoarding and Black Market Act, XXIX of 1948. Section 12 of the Act is as follows :‑ "

12. Power of Government as to prosecution. (1) No Court shall take cognizance of any offence of hoarding or dealing in the black market except upon a complaint in writing by or under the written authority of the Govern ment. (2) The Government may by order direct that in case of trials other than trials before a Special judge powers con ferred upon it by subsection (1) shall, in such circumstances and under such conditions, if any, as may be specified in the order, be exercised by District Magistrates". The learned Advocate argued that as the complaint was made by Mr. Tobin who was the Additional District Magis trate and signed the complaint as such, it was not a complaint by the District Magistrate and the lower Court had, therefore, no jurisdiction to take cognizance of the complaint. The learned Advocate relied upon the decision in Prabhulal Ramlal Kabra v. Emperor (1944) A I R 31 Nag. 84, and on Emperor v. Sibnath Banerjee and others (1943) A I R 30 F C 75, and contended that these decisions supported his contention, that an Additional District Magistrate could not be regarded as a District Magistrate within the meaning of section 12 of the Hoarding and Black Market Act. I am unable to accept this contention. Section 10 of the Criminal P. C. is as follows :‑ "10. (1) In every district outside the presidency towns the Local Government shall appoint a Magistrate of the first class who shall be called the District Magistrate. (2) The Local Government may appoint any Magistrate of the first class to be an Additional District Magistrate and such Additional District Magistrate shall have all or any of the powers of a District Magistrate under this Code (or any other law for the time being in force) as the Local Govern ment may direct. (3) For the purpose of sections 192, subsection (1), 407 subsection (2) and 528, subsections (2) and (3) such Addi tional District Magistrate shall be deemed to be Subordinate to the District Magistrate" The terms of clause (2) make it quite clear that an Additional District Magistrate could exercise all the powers conferred upon a District Magistrate by the Criminal P. C. or by any other Law for the time being in force. It is also clear that clause (3) of section 10 does not affect the powers con ferred on District Magistrate and Additional District Magis trates except only in so far as the Subordinate of the Additional District Magistrate to the District Magistrate is concerned. The Additional District Magistrate was therefore a District Magistrate within the meaning of clause (2) of section 12 of the Hoarding and Black Market Act. It is true that the Nagpur decision in Prabhulal Ramlal Kabra v. Emperor supports the argument of the learned Advocate, but I find it impossible to accept that decision as correct on the point before me. In that case Mr. S. D. Dave, the Additional District Magistrate of Raipur, has passed an order on the 11th September 1942 in exercise of the powers conferred by sub‑rule 5 of rule 26 of the Defence of India Rules. It was the Crown contention that Mr. S. D. Dave was a "District Magistrate" and that by reason of a Govern ment Notification, which had been issued by the Provincial Government on the 7th April 1942, the power exercised by Mr. Dave had been conferred on all "District Magistrates" The notification of 7th April had been issued in exercise of the powers conferred by subsection (5) of section 2 of the Defence of India Act of 1939. The learned judges of the Nagpur High Court decided that the order passed by Mr. Dave on the 11th September was void on two main grounds. It was held in the first place that the notification issued by the Provincial Government, dated the 7th April 1942, was an administrative or executive order, and that the powers conferred thereby could not therefore be regarded as conferred by a law. It was also held, secondly, that Mr. Dave, the Additional District Magistrate, was not the District Magistrate. It was stated :‑ "Section 10 (2) Criminal P. C., which authorises an Additional District Magistrate to exercise all the powers of a District Magistrate under "any other law", clearly would not authorise an Additional District Magistrate to exercise the District Magistrate's powers under some special law which enacted that the District Magistrate alone and no other person or authority should be empowered to do a certain act. The matter is obvious when there is an express prohibition but the result is the same when a prohibi tion is implied". and "Now, it is evident that this delegation must be a delegation under the Act and for the purposes of the Act. If therefore the delegation is to the District Magistrate, the District Magistrate alone can act. He becomes persona designata and all other persons and authorities are neces sarily excluded". In view of the Privy Council decisions in Empress v. Burah (1879) I L R 4 Cal. 172, Russell v. The Queen (1882) 7 A C 829, and Emperor v. Benorailal (1945) A I R, P C 48, the decision of the learned judges on the first point cannot be accepted. It is clear that the notification, dated the 7th April was a notification issued in pursuance of an enactment, which had legislated conditionally on the matter, and that on the publication of the notification the powers were conferred on District Magistrate by virtue of the enactment itself, and there was no delegation at all. With all respect to the learned judges of the Nagpur High Court, I am unable to agree that on the facts of that case, the powers conferred on District Magistrates by the notification were not conferred by law, and that therefore section 10 of the Criminal P. C. did not apply and a distinction had to be made between District Magistrates and Additional District Magistrate. I am also unable to see how the decision in Emperor v. Shibnath Banarjee and others (1943) A I R, F C 75, support the contention of the learned Advocate before me. He referred to the discussion on pages 85 and 86 of the report relating to the question whether when an enactment authorised the Provincial Government to exercise certain powers, the powers conferred could properly be exercised by officers who, under the rules of business and standing orders, could act on behalf of the Provincial Government. In this case there is no doubt that the power was in express terms conferred on District Magistrates, and the only question is whether the words "District Magistrates" in the context included Additional District Magistrates. I cannot therefore accept the contention of the learned Advocate for the appellant that the complaint in this case had not been filed by a District Magistrate within the meaning of clause (2) of section 12 of Act XXIX of 1948. This appeal is accordingly dismissed. As the appellant is on bail, he is remanded to custody. A. H. Appeal dismissed.