[1942] EACA 65

## APPELLATE CRIMINAL

# BEFORE SIR JOSEPH SHERIDAN, C. J., AND BARTLEY, J.

# REX. Respondent $\mathbf{v}$

# GULABCHAND S/O RAMJI, Appellant

## Criminal Appeal No. 185 of 1941

Criminal Law—Defence (Price of Goods) Regulations, 1940—Selling price regulated goods at price in excess of maximum fixed price—Admission by advocate of fact prejudicial to accused—Proof of order fixing maximum price.

The appellant was convicted of selling two bags of sugar for Sh. 74 the maximum fixed price for sale being Sh. 70. Before the trial commenced the advocate for the accused agreed that the fixed price for sugar of the class sold was Sh. 35 per bag and no admissible evidence was called to prove the maximum regulated price but the order fixing the maximum price was in court.

Held (17-1-42).—That an accused's advocate cannot bind the accused by any admission prejudicial or adverse to him.

Held further that an order of a District Commissioner under Regulation 6 (1) of the Defence (Price of Goods) Regulations, 1940, fixing the maximum price of goods was part of the law of the land and that a court will take judicial notice of such order under section 57 (1) of the Indian Evidence Act.

#### Shah for the Appellant.

#### Spurling. Crown Counsel, for the Crown.

JUDGMENT.—The appellant was convicted of selling price regulated goods at a price in excess of the maximum retail price fixed therefor contrary to Regulation 4 (1), Defence (Price of Goods) Regulations, 1940 (Government Notice No. 15 of 1941) in that on the 17th September, 1941, he sold two bags of sugar No. 2 weighing 224 lb. for Sh. 74 the maximum middleman's price therefor being Sh. 35 per bag. The sentence inflicted was a fine of £150 and in default to six months simple imprisonment.

Mr. Shah for the appellant confined his arguments to the following three grounds of appeal:-

(1) The learned Magistrate failed to appreciate that the controlled or fixed price had to be proved by evidence.

(2) The learned Magistrate failed to appreciate that an accused's advocate cannot bind the accused by any admission prejudicial or adverse to him.

(3) The sentence imposed is much too excessive in the circumstances.

The record disclosed that before the accused was called upon to plead to the charge his advocate agreed that the fixed price for sugar of this class was Sh. 35 per bag and no admissible evidence was called to prove the maximum regulated price. Mr. Spurling for the Crown, very properly in our view, admitted that an accused's advocate cannot bind the accused by any admission prejudicial or adverse to him but he contended that the order of the District Commissioner under Regulation 6 (1) of the Defence (Price of Goods) Regulations, 1940, fixing the maximum price of goods was part of the law of the land and that a court

will take judicial notice of such order under section 57 (1) of the Indian Evidence Act. Mr. Spurling referred the Court to the following provisions of the law in support of his argument: $\rightarrow$

"These Regulations may be cited as the Defence (Price of Goods) Regulations, 1940, and shall be read as one with the Defence Regulations, 1939, hereinafter referred to as the Principal Regulations."

Regulation 1, Defence (Price of Goods) Regulations, $1940$ :—.

"The Interpretation and General Clauses Ordinance shall apply to the interpretation of these Regulations, and of any orders or rules made thereunder, as it applies to the interpretation of an Ordinance, and for the purposes of section 2 of the said Ordinance, these Regulations and such orders and rules as aforesaid shall be deemed to be Ordinances."

Regulation 2 (4) of the Defence Regulations, 1939: $\rightarrow$

"When any order is made under the provisions of these Regulations, the Governor, or other authority issuing the order, shall cause notice of the effect of such order to be given as soon as may be in such manner as he thinks necessary for bringing it to the notice of all persons who in his opinion ought to have notice of the order and the provisions of section 9 of the Interpretation and General Clauses Ordinance shall not apply to any such order."

Regulation 99 (1), Defence Regulations, 1939: —

"Where an Ordinance confers power on any authority to make orders or rules or to issue proclamations or notices the following provisions shall. unless the contrary intention appears, have effect with reference to the making, issue and operation of such orders, rules, proclamations or notices: —"

Section 9, Interpretation and General Clauses Ordinance: —

"(d) All orders and rules shall be published in the Gazette and shall have the force of law upon such publication thereof or from the date named therein, subject to disallowance by His Majesty."

In our view the logical interpretation of these provisions of war legislation is that submitted by Mr. Spurling, that orders under the Defence Regulations although not published in the Official Gazette are part of the law of the land and consequently courts will take judicial notice of such orders under section 57 of the Indian Evidence Act. It is not denied that at the hearing of the case in the learned Magistrate's court the order of the District Commissioner fixing the maximum price was in court and was consulted.

Before considering the next ground of appeal we would refer to the decision in Abdulla Kanji v. Rex 19 K. L. R. 29 where it was held that the coming into force of orders made under the Defence Regulations, 1939, does not depend on their publication.

The only other point for consideration is the question of the severity of the sentence which we agree is excessive. In another appeal case heard at this sitting of the Court we expressed the view that "the Defence Regulations are of an exceptional nature designed for exceptional times such as those through which we are passing and that consequently exceptional penalties are called for". Nevertheless we feel that by imposing a fine of Sh. 1,000 or in default three months simple imprisonment the Regulations will be amply vindicated in this case and we reduce the fine and imprisonment in default accordingly.