P L D 1961 Dacca 137 (PLP)

SATTAR, J.‑The petitioners obtained this Rule for a writ of certiorari against their conviction by a Special Magistrate, (Food) Dacca under section 6 of Act I of 1956. The allegations against the petitioners are that Abdul Malek, the petitioner No. 1 is the contractor of the Tuberculosis Hospital, Mahakali, Dacca and Sayedur Rahman, the petitioner No. 2 is his employee. There was a ration permit in the name of the Medical Superintendent of the Hospital who authorised Abdul Malek to draw rationed articles for the Hospital and store the same and supply to the Hospital authorities. It is said that the accused persons obtained supply of 72 maunds 20 seers of sugar between 9‑9‑57 and 22‑4‑58, out of which 9 maunds 14 seers of sugar was not supplied to the Hospital authorities but the account book of the contractor showed that he had supplied the same. It is, therefore, the prosecution case that the accused persons contravened clause 7 of the Bengal Rationing Order, 1943 and para graph 32 of the East Bengal Urban Area Rationing Regula tions 1956. The defence of the accused persons is that the allegations of misappropriation were untrue and that Abdul Malek and Syedur Rahman not being the permit‑holders were not liable to be pro secuted under Act I of 1956. The learned Magistrate on a consideration of the facts of the case has found that the contractor used to draw sugar on behalf of the Superintendent of the Hospital and store the same in a room from where he used to supply it to the Hospital authorities for consumption of the patients and that there was a short supply of some quantity though the same was falsely shown as having been consumed in the account book of the contractor. The learned Magistrate has further found that this quantity which was not actually supplied to the Hospital authorities was misappropriated by the contractor and petitioner No. 2 abetted the same. The Special Magistrate appears to have come to the conclusion that the ration permit was in favour of an "appointed establish ment proprietor" as defined in sub‑clause 3 of clause 2 of the Bengal Rationing Order, 1943 and as the contractor managed or had control over the rationed articles drawn by him on behalf of the permit‑holder he was guilty of violation of clause 7 of the Bengal Rationing Order and paragraph 32 of the East Bengal Urban Area Rationing Regulations 1956. Clause 7 of the Bengal Rationing Order, 1943 runs as follows :‑‑ "No person shall, on and after the rationing date in a rationed area in which an article is rationed obtain or attempt to obtain such rationed article except for household consumption or for establishment consumption or in connection therewith and except under and in accordance with the provisions of this Order and of the regulations made thereunder." Clause 32 of the East Bengal Urban Area Rationing Regulations, 1956, is in the following terms "An appointed establishment proprietor shall in respect of his establishment maintain regular and accurate accounts of each rationed article obtained by him on ration permit and shall obey all general or special directions given in writing from time to time by the Director or any officer authorised by the Director in this behalf concerning the manner in which and the conditions subject to which any rationed article may be supplied or obtained for establishment consumption or in connection therewith." The only point that arises in this case depends on the answer to the question if the relevant permit was in favour of an "appointed establishment proprietor" and if so, whether the petitioners had any obligation under clause 32 of the East Bengal Urban Area Rationing Regulations, 1956. An appointed establishment pro prietor within the meaning of sub‑clause (3) of clause 2 of the Bengal Rationing Order, 1943 is the proprietor appointed under paragraph 3 of the said Order. In this case there is nothing to show that there was any appointment in respect of the Tuberculosis Hospital, Dacca, under clause

3. The only document that is available is the permit (Exh. 2) and Mr. Sobhan, counsel, contends that as the permit is in favour of an establishment as defined in clause 5 (b), it is to be presumed that the Superintendent, Tuberculosis Hospital was an "appointed establishment pro prietor", as contemplated in sub‑clause (3) of clause

2. In support of this contention the learned counsel relies on clause 5 (b) of paragraph 2 of the Bengal Rationing Order. According to that clause "Establishment" means all the establishments referred to in sub‑clauses (i) to (vi) of clause 4 and includes all establishments other than private house‑hold3 providing food for consumption but does not include establishments which are controlled or managed by any person belonging or attached to, or employed with His Majesty's Forces or by any person belonging or attached to, or employed with, the Forces of the nations to alliance with His Majesty and which provide food to the members of the said Forces of consumption. Firstly, this sub‑clause does not make any reference to clause 3 of paragraph

2. Clause 3 contemplates the appointment of certain persons as establishment proprietors under paragraph

3. Paragraph 3 deals with the appointment of some classes of persons or department of Government for supply of rationed articles in certain areas. It is mentioned in that paragraph that persons owning or managing or having control of establishments may be appointed as establishment proprietors for the said purpose. In the absence of anything to show an appointment as contemplated by paragraph 3 of the Bengal Rationing Order, 1943, we cannot hold that there was any obliga tion on the part of the permit holder to act under paragraph 32 of the East Bengal Urban Area Rationing Regulations, 1956. It is, therefore, clear that clause 32 is not applicable to the facts of this case. We do not see how the petitioners can be said to have violated the provisions of paragraph 7 of the Bengal Rationing Order, 1943. Petitioner No. 1 was a contractor for the supply of certain articles to the Tuberculosis Hospital and by an arrangement with the Hospital authorities he used to draw ration articles for the said Hospital and store the same for the purpose of supply to the Hospital authorities for the consumption of the patients. We have not been able to see how because of this internal arrangement between the petitioner No. 1 and the hospital authorities he can come within the mischief of either the Bengal Rationing Order 1943 or the East Bengal Urban Area Rationing Regulations, 1956. If the petitioner No. 1 has committed any offence which does not strictly come within the purview of these Rationing Regulations he cannot be tried by a Special Magistrate and cannot be said to have contravened a notified order. The trial of the petitioners, in our view, was held without jurisdiction and, therefore, must be quashed. The Rule is made absolute and the conviction of the peti tioners‑is quashed and the sentences are set aside. We, however, direct that each party will bear its own costs. Fine, if realised, will be refunded to the petitioners. ISPAHANI, C. J.‑I agree. K. B. A. Rule made absolute.