iminal Appeal No 193 of 1967
Appeal by special leave from the judgment and order dated March 7 1967 of the Bombay High Court Nagpur Bench in Criminal Revision Application No 306 of 1966
271 GN Dikshit SK Bisaria appellantand RN Sachthey for the appellant
HR Khanna and SP Nayar for the respondent
The Judgment of the Court was delivered by Sikri J
This Court granted special leave to appeal in this case limited to the following two points 1  whether the confiscation of the foodgrains in the house of the appellant was legal and 2 whether r 141 2 of the Defence of India Rules 1962 is not ultra vires the Defence of India Act
The facts relevant to the first point are as follows Certain shpherds belonging to a wandering tribe were apprehended by the police one night while they were carrying 12 baggages containing juar on the backs of 12 horses
On being questioned they informed the police that they had purchased all this quantity of juar from the appellant at the rate of 78 paise per kg
On this information the police raided the houses of the appellant and further found 34 quintals and 63 kgs of juar
The appellant had two houses at Janephal and in one house 3 quintals and 48 kgs while in the other house 31 quintals and 18 kgs
of juar was found which was seized by the police
The last declaration of stock which had been given by the appellant was on June 5 1965
The appellant was tried and convicted on three courts by the Judicial Magistrate First Class Mehkar
He was convicted under r 1259 Defence of India Rules for contravening cl
4b of the Maharashtra Jwar Restrictions on purchases and sale and control of movement Order 1964 and sentenced to rigorous imprisonment for six months and fine of Rs 500  in default further rigorous imprisonment for six months
He was further convicted for contravening Buldana District Price Control Order 1965 and sentenced to rigorous imprisonment for six months and fine of Rs 500  in default rigorous imprisonment for six months
He was also convicted for contravenvening section 3 of the Maharashtra Declaration of Stock Order 1964 and sentenced to rigorous imprisonment for six months and fine of Rs 500 in default further rigorous imprisonment for six months
The sentences of imprisonment on each count were directed to run concurrently
The Magistrate further ordered that the maddemal before the Court be confiscated to the Government
The appellant appealed unsuccessfully to the Sessions Judge
He then filed a revision before the High Court
The High Court 272 set aside the conviction and sentence passed on the appellant in respect of contravention of cl 3 of the Maharashtra Foodgrains Declaration of Stocks Second Order 1964
But while maintaining the conviction for the other two charges the High Court modified the sentences passed on the appellant and instead of the sentences awarded by the lower courts sentenced the accused to imprisonment already undergone and fine of Rs 1000 on each of the two
counts
The High Court observed The order regarding forfeiture of the juar seized from the house of the accused is maintained
The juar seized from the house in the occupation of Ratanlal will however be released The learned counsel contends that the High Court having set aside the conviction and sentence in respect of contravention of cl 3 of the Maharashtra Foodgrains Declaration of Stocks Second Order 1964 it was illegal to maintain the order regarding forfeiture of the Juar seized from the house of the appellant because he says the Maharashtra Jowar Restriction on Purchase and Sale and Control of Movement Order 1964 and the Buldana District Juar Price Control Order 1965 did not contain any provision authorising the Court to forfeit the juar the subject matter of the contravention of these two orders
Rule 1259 provides a If any person contravenes any provision of this rule or any order made under this rule he shall be Punishable with imprisonment for a term which may extend to three years or with fine or with both Provided b If any order made under this rule so provides any court trying a contravention of the order may direct that any property in respect of which the Court is satisfied that the order has been contravened shall be forfeited to Government The learned counsel for the State has not been able to point out any provision in the two orders mentioned above containing any provision contemplated in r 1259b
The only provision contained in the Maharashtra Jowar Restriction on Purchase and Sale and Control of Movement Order 1964 is regarding forfeiture to the Government of packages coverings or receptacles in which any stocks of jowar are found
This obviously does not enable the Court to order forfeiture of Juar
273 The Buldana District Juar Price Control Order 1965 it is true authorises the Collector to seize stocks but does not enable the Court to
forfeit the juar
In the result we hold that the order of the High Court maintaining the order of forfeiture is allegal and liable to be set aside
On the second point the learned counsel for the appellant contends that r 1412 of the Defence of India Rules 1962 is ultra vires because it lays down a rule of evidence contrary to
the law contained in section 114 of the Indian Evidence Act
Rule 141 2 is in the following terms 141 2 If in the course of any judicial proceedings a question arises whether a person was duly informed of an order made in pursuance of these Rules compliance with sub rule 1  or where the order was notified the notification of the order shall be conclusive proof that he was so
informed but a failure to comply with sub rule  1  i shall not preclude proof by other means that he had information of the order ii shall not affect the validity of the order
Section 3 of the Defence of India Act enables the Central Government by notification in the Official Gazette to make such rules as appear to be necessary
or expedient for securing the defence of India and civil defence the public safety the maintenance of public order or the efficient conduct of military operations or for maintaining supplies and services essential to the life of the community
Sub section
2 mentions various matters on which rules can be made but this is without prejudice to the generality of the powers conferred by sub section
It seems to us that r 141 2 is within the powers conferred by section 3 1  of the
Defence of India Act
The fact that the rule is contrary to an existing act does not matter because section 43 of the Defence of India Act provides that the provisions of this Act or any rule made thereunder or any order made under any such rule shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument having effect by virtue of any enactment other than this Act
 The section contemplates that the rules may be inconsistent with existing legislation but by virtue of section 43 if otherwise
valid they would have effect notwithstanding that they are inconsistent with existing legislation
We use the words if otherwise valid because the rules must fall within the powers given under section 3 1
Section 3 gives very wide powers
It seems to us that r 141 2 falls within section 3 because it is essential 274 to the scheme of the Defence of India Rules
The Rules must necessarily provide for the publication of orders made under the Rules and they must also provide for proof in judicial proceedings of the fact of publication
The learned counsel has not been able to show us any case in which a rule like r 1412 has been challenged much less declared ultra vires both in England and in India
In the result the appeal is partly allowed the order of the High Court maintaining the forfeiture of the seized stock of juar set aside and the rest of the order of the High Court maintained
YP Appeal partly allowed


Summary:
The appellant was convicted and sentenced under r 125a Defence of India Rules for contravening el
4b of the Maharashtra Jwar Restriction on purchases and sale and control of movement Order 1964 for contravening Buldana District Price Control Order 1965 and for contravening el
3 of the Maharashtra Foodgrains Declaration of Stock Second Order 1964
The Magistrate further ordered that the maddamal Juar before the court be confiscated by the Government
The appellant appealed unsuccessfully to the Sessions Judge
But the High Court set aside the conviction and sentence under el
3 of the Maharashtra Food Grains Declaration of Stock Order and maintained the other convictions in an appeal to this Court the appellant contended that i the High Court having set aside the conviction under el
3 of the Maharashtra Foodgrains Declaration of Stocks Second Order 1964 the order for forfeiture could not be maintained because the Maharashtra Jwar Restriction on Purchase and sale and control of movement Order964 and the Buldana District Jwar Price Control Order 1965 did not contain any provision authorising the court to forfeit and ii r 1412 of the Defence of India Rules 1962 was ultra vires because it laid down a rule of evidence contrary to the law contained in section 114 of the Indian Evidence Act
HELD i The order of forfeiture was illegal
The only provision contained in the Maharashtra Jwar Restriction on Purchase and Sale and Control of Movement Order 1964 is regarding forfeiture of packages covering or receptacles in which any stocks of juar are found
This does not enable the Court to order forfeiture of juar
The Buldana District Juar Price Control Order authorises the Collector to seize stocks but does not enable the Court to forfeit juar
274 H ii r 1412 is within the powers conferred by section 31 of the Defence of India Act
The fact that the rule is contrary to an existing Act does not matter because section 43 of the Defence of India Act provides that the provisions of this Act or any rule made thereunder or any order made under any such rule shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument having effect by virtue of any enactment other than this Act 275 F G