P L D 1963 (W (PLP)

SHAKIRULLAH JAN, J.‑Abdul Majid son of Muhammad Azeem, caste Rajput Bhatti, aged about 27 years, resident of Fateh Rehan, Police Station Shahdara, District Sheikhupura, was convicted under section 11 (a) read with section 14 of the West Pakistan Supplementary Paddy and Rice (Control) Order, 1958, and section 6 of the West Pakistan Foodstuffs (Control) Act, 1958, and sentenced to two years' rigorous imprisonment in addition to the confiscation of the case property Exh. P. 1 to Exh. P. 4, by Mr. Muhammad Shaukat Tarar, Magistrate 1st Class, Sheikhupura, by his order dated the 6th May 1961, On appeal, the conviction of the petitioner was maintained, by Mr. Muhammad Ayub Khan, Additional Sessions Judge, Lahore at Sheikhupura, by his order dated the 2nd June 1961, who, however, reduced the sentence to six months' rigorous imprison ment. The convict has come up in revision to this Court.

2. The facts of the case briefly are that on receiving secret information that the petitioner was illegally husking paddy into rice, Raja Qurban Ali, Inspector of Enforcement Staff, accom panied by Malik Muhammad Yunus, Assistant Food Controller, Muhammad Rafiq, Food Inspector and Qadar Bakhsh Lambar dar, raided the mill and found the petitioner unlawfully husking paddy into rice.

3. In support of the story regarding the guilt of the petitioner, the prosecution produced Raja Qurban Ali (P. W. 2), Malik Muhammad Yunus (P. W. 1), Muhammad Rafiq (P. W. 3) and Qadar Bakhsh (P. W. 4). The statements of these witnesses have established the guilt of the petitioner beyond doubt. On entering the mill they found the petitioner husking paddy into rice. The recovery of the rice, paddy and khanjan from the mill premises which were taken into custody and exhibited during the trial fully supported the prosecution story regarding the guilt of the petitioner. Nothing substantial has been urged on the facts of the case. We, therefore, hold that the petitioner was rightly convicted of the above‑mentioned offence.

4. In support of this revision petition, an additional ground was urged which is common to five other similar petitions, that the West Pakistan Supplementary Paddy and Rice (Control) Order, 1958 was not intra vires of the West Pakistan Foodstuffs (Control) Act of 1958. Section 3 (2) of the Act reads as follows :‑ "

3. Powers to control supply, distribution, etc. of foodstuffs. (1) The Government, so far as it appears to it to be necessary or expedient for maintaining supplies of any food stuffs or for securing its equitable distribution and availability at fair prices, may, by notified order, provide for regulating or prohibiting the keeping, storage, movement, transport, supply, distribution, disposal, acquisition, use or consumption thereof and trade and commerce therein. (2) Without prejudice to the generality of the powers con ferred by subsection (1) an order made there-under may provide :‑‑ (a) . . . . . . . . . (b) . . . . . . . . . (c) for regulating by licences, permits or otherwise, the storage, transport, distribution, disposal, acquisition, use or consumption of any foodstuff ;" In pursuance of the power conferred by this section, the Governor of the West Pakistan promulgated the aforementioned Order which, inter alia, provides that no unlicensed miller can process paddy into rice with an exception for manual rice husking [section 11 (a)]. The State counsel urged that the conversion of the paddy into rice is the use of the foodstuff which is prohibited by the Order within the scope of clause (c) of subsection (2) of section 3 of Act XX of 1958. The meaning of the word " use" as given at page 469 of " New English Dictionary on Historical Principle, Volume X, Part I " is " the act of employing a thing for any (especially a profitable) purpose ; the fact, state, or condi tion of being so employed ; utilization or employment for or with some aim or purpose, application or conversion to some (especially good or useful) end ". At page 470, in para. 20 the meaning of the word "use" is given as " the character, property, or quality which makes a thing useful or suitable for some purpose ; capability for securing some end ; usefulness, utility ; advantage ; benefit ". The learned State counsel further relied upon British Motor Syndicate Limited v. Taylor & Son (1 Ch. D 577). The facts of that case are that the defendants had bought in England certain articles which infringed the plaintiffs' patent, and sent them to their branch house in Paris where they were sold to various foreign firms. It was held that the transport of the articles within the United Kingdom under the circumstances was "making use" of the invention within the meaning of the patent, and constituted an infringement thereof. At page 583 it was observed :- " The first meaning assigned to the word `use' in Johnson's Dictionary is ` to employ to any purpose '; it is, therefore, a word of wide signification. It seems to me that the terms ` use 'and ` make use of ' are intended to have a wider application than ` exercise ' and ` put in practice ' and without saying that no limit is to be placed on the two former expres sions in the patent, I think, on the best consideration that I can give, that they are not confined to the use of a patented article for the purpose for which it is patented. In my opinion, the transport within the United Kingdom of the articles made according to the plaintiffs' patent under the circumstances which occurred in this case was, indirectly at least, ` making use of ' those articles within the meaning of the patent, and consequently is an infringement." The learned counsel for the State also relied upon the decision in Writ Petition No. 42 of 1961 (Messrs Saadat Factory v. The Chairman, Municipal Committee, Dera Ghazi Khan) heard on the 21st of November 1962, by a Division Bench of this Court of which one of us was a Member, wherein it was observed :- " It appears to us that if such a person does something more than mere retention of the goods as, for instance, subjects it to some kind of process of milling, pressing , etc. ; although he may not be consuming or selling those goods, he is using them and, as such he would be liable to pay octroi duty under rule V.17 and cannot, therefore, avail of the Re‑export Pass System under rule Vol. 32‑A. We are also of opinion that the `retention' of such goods, though temporary in the sense that the goods, after being subjected to some kind of process, are re‑exported, is not temporary in the sense that the goods are retained in the original condition ; the intention being not merely to ` retain ' them but to subject them to some kind of process. For this further reason also rule V.32‑A would not be applicable to such a case. The ordinary dictionary meaning of `use ' is utilization or employment for or with some aim or purpose or application or conversion to some end. In special senses it means the act of using or the fact of being used as food etc. Keeping in mind this dictionary meaning, there should be no difficulty in holding that by employing the word `use' in rule V.32‑A the intention was that if the goods so imported were intended to be utilized in some manner, though not consumed or sold, the facility afforded by this rule would not be available to the importer." The learned counsel for the petitioner, on the other hand, urged that the word " or " used in between " use " and " consumption " shows that the word was used in a restricted sense. He further urged that if the intention of the Legislature was to prohibit the husking of paddy into rice, it could have said so. The word " use " was claimed to have been used in a cognate sense which should not be stretched so as to infringe upon the rights of the citizen to pursue a lawful profession. We are unable to agree with the learned counsel as we are of the view that processing paddy into rice is such use of it as would bring it within the scope of clause (c) of section 3 (2) of the West Pakistan Foodstuffs (Control) Act, 1958.

5. As a result of the foregoing discussion, we hold that the petitioner was rightly convicted, but in view of the fact that the case was registered against him in 1961, we alter the sentence of imprisonment to a fine of Rs. 500 or in default to undergo six months' simple imprisonment. For the same reason we do not maintain the forfeiture order under section 14 of the West Pakistan Supplementary Paddy and Rice (Control) Order, 1958. K. B. A. Petition dismissed. Sentence altered.