ORDER
Sen, J.
1. This is a reference made by the Sessions Judge of Dacca recommending that the conviction and sentence passed on one Gouranga Chandra Pal be set aside. The facts which need be stated for the purpose of this reference briefly are as follows : Gouranga Chandra Pal is a dealer in mustard oil at Mirkadim within the jurisdiction of Police-station Munshiganj. The case against him is that he did not submit certain fortnightly returns and did not maintain a register or any accounts showing receipts, sale and the daily stock position with respect to mustard oil, thereby committing an offence made punishable under Rule 81(4) of the Defence of India Rules.
2. Under Rule 81 of the Defence of India Eules, the Central or Provincial Government may make certain orders of thenature mentioned in the rule. If any person contravenes an order made under the rule he is punishable under Sub-rule (4) of Rule 81. The case for the prosecution is that the District Magistrate, on 5th April 1946, made an order under R. 81 whereby he directed that dealers in mustard oil should submit the return and maintain the register mentioned above. The allegation against the accused is that he contravened the order and did not submit the return or maintain the register.
3. The defence taken waa that the order passed by the learned Magistrate was not duly promulgated in accordance with the provisions of Rule 119 of the Defence of India Rules. The accused did not contend that he had obeyed the order passed by the learned Magistrate. The trial Court has found that the order of the District Magistrate was not duly promulgated in accordance with the provisions of Rule 119, but it has held that there was a compliance with the “spirit” of the rule and that the accused knew of the existence of the order and was therefore liable to punishment under Rule 81(4). It thereupon convicted the accused and sentenced him to pay a fine of Rs. 100, in default to undergo rigorous imprisonment for a period of three months.
4. The Sessions Judge was moved by the accused and he has referred the case to this Court and recommended that the conviction and sentence should be set aside. The ground on which he has recommended this is that the order passed by the learned District Magistrate was not promulgated in accordance with the provisions of Rule 119 and that the failure to observe the provisions of Rule 119 rendered the prosecution and conviction of the accused bad. The learned Judge has not at all dealt with the question whether the accused knew of the order or not. He recommends the setting aside of the order of conviction and sentence on the sole ground that the promulgation of the order was not in accordance with Rule 119.
5. Rule 119 provides, inter alia, that where an authority, officer or person makes any order in writing in pursuance of the Defence of India Rules he shall in case of an order of a general nature or affecting a class of persons publish notice of such order in such manner as may in his opinion be best adapted for informing the persons whom the order concerns. Now, in this case, the order was passed by the District Magistrate and he directed that the order should be published in a certain manner, namely that a copy of the order should be hung up on the notice board of the Sub-Divisional Controller, Civil Supplies. Now this order was not published on the notice board but the substance of the order was proclaimed by beat of drum in the locality where the accused and others had their shops. The publication, therefore, obviously was not in accordance with the manner of publication decided upon by the District Magistrate who according to Rule 119 was the only person or authority competent to decide the manner of publication.
6. The point which arises for consideration is whether the failure to publish the order in the manner prescribed by the District Magistrate absolves the accused from obeying it. A large number of cases have been placed before me and the trend of decisions is that the failure to publish an order made under Rule 81, Defence of India Rules, in accordance with the provisions of Rule 119 would be fatal to a prosecution of a person disobeying such order. In this. connection I would refer to the following cases : Leslie Gwilt v. Emperor 32 A.I.R. 1945 Bom. 368 This was a decision of the High Court of Bombay. Mahadeo Prasad v. Emperor 33 A.I.R. 1946 Pat. 1. This was a decision of a Full Bench of the High Court, Patna. Babulal v. Emperor 32 A.I.R. 1945 Nag. 218. This was a decision of the High Court, Nagpur. In these cases, the exact point which has arisen in the present case did not arise for decision, but there are “obiter dicta” which express the view that failure to publish the order in accordance with the provisions of B. 119, Defence of India Rules would be fatal to the prosecution. As against these decisions, there is a decision of Bombay High Court, Imperator v. Rayangouda Lingangouda 31 A.I.R. 1944 Bom. 259. In that case it was held by Macklin J. that failure to carry out the provisions of Rule 119 would not render a prosecution bad but would merely deprive the prosecution of a convenient method of poof of knowledge in the accused which is afforded by Rule 119 and the view seems to have been held that if the accused actually knew of the order he would be liable for any disobedience thereof in spite of any non-compliance with the provisions of Rule 119. The other cases mentioned above took a contrary view. Since these decisions were made Rule 119 has undergone amendments. The amendments have not been noticed either by the trial Magistrate or the Sessions Judge. I must not be taken to be blaming them for not knowing of these amendments. It is extremely difficult for any Court to apprise itself of the frequent amendments made with respect to the Defence of India Rules. The amendments were however brought to my notice and they render the discussion of the case law on the subject unnecessary. Rule 119 as it originally stood provided that where an order was published in accordance with Sub-rule (1) of Rule 119 the persons concerned shall be deemed to have been duly informed of the order. The rule as it now stands provides that i£ in the course of any judicial proceeding a question arises whether a person was duly informed of an order made in pursuance of the Defence of India Rules, compliance with Sub-rule (1) shall be conclusive proof that he had information of the order; but a failure to comply with Sub-rule (1) shall not preclude proof by other means that he was so informed and shall not affect the validity of the order. See Rule 119 as amended by the amendment dated 21-7-1945, No. 5 D C (13/45) and Rule 119 as amend-ed on 22-9-1945, No. 5 D C (13/45).
7. In view of these amendments, a failure to observe the provisions of Sub-rule (1) of Section 119 would not necessarily be fatal to a prosecution. It would be open to the Crown to prove that the accused had information of the order aliunde. It has also been provided that the validity of the order would in no way be affected by any defect of its publication or promulgation.
8. In the present case as I have said before, the order has not been published in accordance with the provisions of Rule 119(1). The question which arises now is whether the prosecution has succeeded in proving by other means that the accused was informed of the order. I need hardly point out that the onus is on the prosecution to prove that the accused had knowledge of the order, inasmuch as no presumption of knowledge can arise where there has not been a compliance with the provisions of Rule 119, Sub-rule (1). The learned Sessions Judge has not considered this matter at all because he was not aware of the amendments to Rule 119 and he dealt with the case on the footing that noncompliance with the provisions of Rule 119, Sub-rule (1) rendered the prosecution bad. The learned Magistrate has to some extent considered the question of the accused’s knowledge of the order, but the fact of the recent amendments not being known to him has had the effect of rendering his consideration of this question somewhat nebulous and unsatisfactory. In his judgment he says in one paragraph:
The defence does not contend so much that the accused was not aware of the order or that he had no opportunity of knowing the same as that there was no legal promulgation inasmuch as the District Magistrate’s direction was not categorically complied with to the letter.
In another part of his judgment he says this:
The spirit of this rule (Rule 119) however as I have pointed above is to see whether the accused knew or had an opportunity of knowing the order * * * It cannot however be disputed that the plea of non-publication indirectly implies the plea of want of knowledge on the part of the accused. Can it therefore be argued that the accused had no knowledge of the order? The answer must be in the negative * * * All that has to be seen is whether the accused had a reasonable opportunity of knowing the order.
In another part of the judgment he says:
I am perfectly satisfied that the accused had full knowledge of the order in this particular case which was promulgated in the locality in the best way possible * * *.
These remarks of the learned Magistrate indicate a certain amount of confusion of thought. He seems to think that even if the order has not been published in accordance with the provisions of Rule 119, Sub-rule (1) the accused would be liable if he had a “reasonable opportunity of knowing the order.” This is entirely wrong. If the order has not been duly published it is incumbent [upon the prosecution to prove actual knowledge on the part of the accused of the order. Proof that the accused had reasonable opportunity of knowing of the order would be entirely insufficient to fix the accused with liability. The point therefore which has to be decided in this case is whether the accused had actual knowledge of the order. The learned Magistrate says in one part of his judgment that he is perfectly satisfied that the accused had such knowledge; but he gives no adequate reasons for this view except saying that the order was promulgated by beat of drum in the locality where the accused had his shop or where he had been carrying on his business for about six months before the case was started. I have been through the evidence with a view to ascertain whether there is anything there which justifies a definite finding that the accused had, in fact, knowledge of the order. From the evidence as recorded, it seems that this point never occurred to the prosecution and no evidence has been given to show that as a matter of fact the accused had knowledge of this order. Evidence has been given regarding the mode of publication, namely, by beat of drum in the locality. It is possible that the accused may not have been present when the order was promulgated in this manner. The onus is on the prosecution to prove actual knowledge on the part of the accused. That onus the prosecution has failed to discharge by adducing any evidence on the point. The learned Magistrate has also misguided himself by thinking that “an opportunity of knowing of the order” would amount to actual knowledge of the order.
9. In view of what has been said above, I must accept the recommendation of the learned Sessions Judge though for reasons other than those stated in the letter of reference. I accordingly set aside the order of conviction and sentence and direct that the fine if paid be refunded.