{"id":206475,"date":"1961-08-03T00:00:00","date_gmt":"1961-08-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-vs-abdul-aziz-on-3-august-1961"},"modified":"2018-10-14T03:51:11","modified_gmt":"2018-10-13T22:21:11","slug":"state-vs-abdul-aziz-on-3-august-1961","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-vs-abdul-aziz-on-3-august-1961","title":{"rendered":"State vs Abdul Aziz on 3 August, 1961"},"content":{"rendered":"
Bombay High Court<\/div>\n
State vs Abdul Aziz on 3 August, 1961<\/div>\n
Equivalent citations: AIR 1962 Bom 243, (1962) 64 BOMLR 16, ILR 1962 Bom 371<\/div>\n
Author: Naik<\/div>\n
Bench: Naik, Abhyankar<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
 Naik, J. <\/p>\n
 (1) This is an appeal by the State from  an order of acquittal. The material facts lie within a narrow compass and may be briefly set out as  follows: There is a Co-operative Society known as Malegaon  Powerloom  Said  Manufacturers Co-operative Association, Ltd.,  Malegaon.  This Society was  registered under the Co-operative Societies Act. The  respondent (original accused No. 1) was the Chairman and Mohamed Gofran,  Mohammed Amir Gofran,  Mohamed Ishak, Mohammed Siddik,  Abdul Majid, Abdul Rehman and Haji Imamuddin  were members of the Society  at the material time. On   10th January 1955 accused No. 1, as the Chairman of the Association, made an application for the  issue of a licence for importing silk  yarn for consumption in the powerlooms of the members of  the Association. On 2nd January 1956 a licence was issued to the said Association  permitting  imports upto the limit specified therein. Warden and Co., who have  their office at  Bombay  represent certain manufacturers  in  foreign  countries. On  13th May  1956  accused No. 1  placed an order with  Warden and Co., for  importing  120 deniers and 150 deniers of silk  yarn. Accordingly,  Warden and Co., placed order with the foreign manufacturers for supplying them  with the necessary quantity of silk  yarn. Letters  of credit were opened by the  Association  and Wardan  and Co.,  stood  guarantee in respect  of the payment of the  amount of the price of the goods to be imported. The  goods ordered by Warden and Co., were  received  in  the months of July and August.  The particulars  relating to the arrival  of these goods  have been mentioned at Exhibit E by Warden and Co.,  and these particulars  are as follows:\n<\/p>\n
 1. 149 cases of  60  deniers, dull III.\n<\/p>\n
 2. 65 cases of  120 deniers  bright I.\n<\/p>\n
 3. 25 cases of 150 deniers Bright Hanks.\n<\/p>\n
In all,  239 cases containing  silk  yarn, arrived and were taken  delivery of by Warden and Co., in   the months of June and July.  Out of this 25 cases of 120 deniers  Bright I,  were delivered to the Silk  Processing and Lace Mills, according  to the  instructions  of the Association for   doubling the yearn.  Similarly, 25 cases  of  150 denier  bright hanks  were also delivered to the Association, 13 cases were delivered on 19th September  1956 and  12 cases on 27th September  1956. Considerable correspondence took  place  between  Warden and Co.,  on  one hand and  the Association  on  the other regarding the  delivery of the remaining  quantity. On  17th July 1956,  Warden and Co.,  wrote a letter to the Association  stating  that  they had  written letters  requesting the  Association to  take delivery of the  ordered  goods,  but that they had not yet heard  anything from the  latter in  that  respect.  They further  stated that the market in art silk  yarn was going  down every  day. Therefore, they requested that immediate  arrangement for delivery may kindly be made  to avoid further   unpleasantness. They wrote a second  letter on  27th July  1956 pointing out  that on the credit  and  reputation  of accused No. 1 the Chairman of the Association,  the Company   indented  the  goods  without asking  for  any  deposit. They   also pointed out that the market rates of art  silk yarn had already gone  down and were still showing  a downward  tendency. They, therefore  requested the Association  to make full  payment and to obtain  delivery  of the  goods within a fortnight and in  case, it did not  do so, Warden and Co.,  would  be forced to sell the goods  in  the market  at the risk and  cost of the  Association.  On 16th August  1956,  accused No.  1 as the Chairman  of the Association, wrote  a letter to  Warden and Co.,  stating that the  Association had received  art silk  of  60 deniers dull III,  but  the consumers  complained that they  were not  of the same quality as the goods  ordered by them.  He, therefore,  refused to accept  delivery of the same.  Accused No.  1, therefore, requested  Warden and Co., (hereinafter   referred to as the Company)  to exchange the silk yarn with  one of better quality.  On 22nd August 1956, the Association,  wrote a second letter, which is  in the nature of a reminder.  On  28th August  1956 it wrote a third letter stating that the Association  had received three cases of   60 deniers dull III cones and it was found that they  are  below  the  standard of the sealed sample given  to   it  by the Company.  The  letter then refers to  certain conversation that  was supposed to  have  taken  place between  Abdul  Latif  and the Managing  Director of the Company  and adds:\n<\/p>\n
  “We hereby  confirm your agreement  to  dispose of this yarn at our cost and risk and to  pay us damages for this yarn as suggested by  our Association.”\n<\/p>\n
There is an endorsement  on  behalf of the Company  to the following  effect: “We confirm  the  above”.  On 17th September  1956,  the Association  wrote  another  letter to the Company, the contents of which  it  is not  necessary  to refer for the purpose of this appeal.  On 24th September  1956 it wrote another letter to the Company.  This letter refers  to  sending five cases  of  120  denier Bright  art silk  to the Silk  Processing  and  Lace Mills  for doubling purpose. On 19th October  1956,  again the  Association wrote a  letter  to the Company  the  contents of which are  not relevant  for the present  purpose.  On  9th November  1956, the Company  wrote a letter to the Association, which   is somewhat  important in that  letter, they stated:\n<\/p>\n
  \". . .    . . .    . . .     . . . Kindly note that it your  accounts are not finalised within  the next week from this date, we will be reluctantly compelled to, in  accordance with our  contract, dispose of the stock  held by  us and to appropriate the amounts received  by us towards  your outstandings. . . . . . . . . . . . . . .\" \n \n\nAgain  on  13th November  1956  the Association   wrote a letter  stating:\n  \". . .   . . .   . . .   . . .  As the  price of the art silk yarn  has fallen greatly,  it is not  possible for our Association   to take  delivery of the  balance  goods. As  such,  you  are therefore,  requested  to  dispose of the balance goods  lying with  you in   such a manner that  our Association  suffers no loss whatsoever   but gets a not profit  of  at  least  4 per cent on  these goods.. . . . .\" \n \n\nIt is common ground that thereafter   Warden and Co., proceeded to sell  away the  silk  yarn in  the open market.  That is  why the members of the Association   including  accused No.  1,  who is the  Chairman, were prosecuted  for an offence under section 5  of the  Imports  and Exports (Control) Act, 1947,  (hereinafter  referred to as the Act of  1947).  The case for the prosecution was that    the members of the Association  have contravened  the  terms of the licence  by consenting  to dispose of the silk  yarn  that  was imported on condition that  the yarn  would  be  utilised  for the  manufacturing  purposes  by the members of the  Association themselves.\n \n\n<\/pre>\n
 (2) All the  accused  pleaded not guilty  to the charge. Accused No. 1 submitted  a  lengthy written statement and contended as follows: The Association  was not in  good financial position  to purchase all the  yarn  at one time.  They, therefore,  asked the company  to finance,  the  import of goods and indent  the  same for them. When the goods arrived, the  Association  paid  the money and took  delivery of the part of the silk yarn imported  and  distributed the same  to  the members. As regards the  remaining part, when the  sample was shown  to the members, it  was found  that the goods  were  defective. The  Association   thereafter asked the company to  exchange the  yarn for  better one,   as they refused to do so,  the Association  did not  take delivery of the  remaining  goods. The  Association had  no other  alternative  but to give consent  to selling the  goods by the Company, because the  latter had threatended them  to  sell the  yarn. The Association  asked  for damages for the loss of profit  and  the Company  sent a cheque for a sum of Rs. 5,040, which  has been deposited  in  the  bank account  of the Association.\n<\/p>\n
 (3) The  trying  Magistrate, in the  first place,  held that the breach of the conditions,  of the licence  does not amount to the  breach of the order.  Therefore, even if it is held proved that the Association consented to the  selling  away  of the  goods by the Company  in violation of  the  terms of the licence,  they would not  be  guilty of the  offence of section 5 of  the Act of 1947.  In the second place, the  trial Magistrate accepted  the  theory  set  up  for the  defence  viz., that the  goods  were of an  inferior quality  and that is  the reason,  why  the  Association    was not prepared to accept the delivery. He also held that  the Company had  the right to have the goods   sold by reason of the fact that the Association  refused to accept  delivery on making  payment.  Consequently,  he  acquitted all the accused. It is against  that judgment  that the State has preferred an  appeal against  accused No. 1, who  was the Chairman  of the Association.  The  State  has not preferred  any appeal  from the  order of acquittal in  favour of the remaining  accused.\n<\/p>\n
 (4)  Mr.  Kotwal,  the learned Government  Pleader, contended that in  holding that the breach of the conditions of the licence  does not  amount to the  breach of the order, the trial Magistrate has ignored the  provisions of  Rule 5 (4) of the Order issued by the Central  Government under the provisions  of section  3 of the Act in 1955.  He also contended that there is no satisfactory evidence to show that, as a matter of fact,  the goods  that  were sent  by the  suppliers from  foreign  countries  were  of  inferior  quality  and, therefore, could not be  used  by the manufacturers.  He also urged that  Warden & Co.,  had no right whatsoever, to sell  away the  goods and that the Company  in collusion with the members of the Association  had  devised  a subterfuge for  enabling them  to sell away  the goods  in open market.  He also  argued  that the entries  in the  outward register  have been fabricated with a view to show that  attempts  were made to inform the  Controller of  Imports that the goods  were unusable and they  should be  allowed to be  substituted.\n<\/p>\n
 (5) We propose  to discuss first, the  question as to whether the breach of  conditions  of  the licence amounts to contravention  of the  order within the meaning  of that expression in section  5 of the Act of 1947.  For this purpose, it would be desirable  to trace  the history of the various  Orders  that were passed  by the Central Government, prohibiting  imports and  controlling  them. In 1943  the Central  Government  issued a Notification under the provisions  of Rule 84(3)  of the Defence of India  Rules  regulating  imports of  certain kinds of goods. One of the provisions  of  this Order was that goods  of the  description  specified  in the schedule thereto  could not  be  imported without obtaining   a special  licence in that behalf. After the enactment of the Imports and  Exports (Control) Act of  1947, a fresh Notification was  issued on 6th March 1948. Sub-clauses  (v) of  clause (a) of  the said Notification provided that  the licensing  authority may impose such other   conditions,  which it considers expedient from the administrative point of  view and which are not inconsistent with the provisions of the Act. This notification (we  prefer to call it  an  Order, because  that is  how it has been referred to in the relevant section in the Act of  1947) was  issued under the powers conferred upon the  Central Government  by section 3 of the Act. Section 3 of the Act of  1947  runs thus (relevant portion cited);\n<\/p>\n
 “The Central  Government may,  by order published in the Official  Gazette, make  provisions for  prohibiting,  restricting or otherwise controlling, in  all cases or in specified classes of cases, and  subject to such exceptions, if any,  as may be made by or under the order-\n<\/p>\n
 (a) the import, export, etc. . .    . .     . . \n \n\n (b) the bringing into any  port or place in India of goods of any specified description . . . .\"  \n \n\nAs stated above, the Order of 1948 was issued by the Central  Government   by virtue of the powers conferred upon them by section 3 of the Act. Section 5 of the Act of  1947, which is the  penalising  section runs  thus:\n<\/pre>\n
  “If any person contravenes, or attempts to contravene, or abets a contravention of  any order made or deemed to have been made under this Act, he shall without  prejudice to any  confiscation  or penalty to which  he may  be  liable under the provisions  of  the Sea Customs  Act, 1878 (VIII of 1878), as applied by  sub-section (2)  of section 3, be punishable with imprisonment   for a term which  may  extend  to one year,  or  with fine or with  both”.\n<\/p>\n
It would thus be seen that the act,  which  was penalised by section 5 of the Act of  1947, was the act of contravention or  attempted contravention or  abetment  of contravention  of  any order made under the Act.  The  Order  issued on  6th March 1948  merely provided that  officer  issuing  the licence may  issue the licence subject to the conditions  laid down  therein and  these conditions have been enumerated  in sub clauses (I)  to  (v) of the  said Notification.  The Order did not  contain any  provision to the effect that the person to whom  the  licence is issued is  bound to obey the conditions of the licence.  That being  the case, the question arises  as to whether the breach of any of the conditions imposed by the licensing  authority would  amount to the breach of the order. Since there was no  provision  which laid down that the conditions  of the licence  must be complied with, it follows that the breach of the conditions  would not  amount to the breach of the order. The conditions, after all, are imposed  by the licensing authority  and unless the Order itself provided  that the licensee is  under an  obligation to comply with these conditions,  the breach of the conditions  of the licence would not amount to  the contravention of the Order. This was the view that  was taken by the Calcutta  High Court in  C. T. A. Pillai v. H. P. Lohia,  . The  relevant observations  are to  be  found  at page  90.  In  1955, however a new  Notification  was issued by the Central  Government on  7th December  1955,  by virtue  of the   provisions  of  section  3 of the Act of 1947 which  replaced the Notification  issued in 1948.   Rule  5 of this Order is important. It  relates to the  conditions of  licence and in effect. Provides  that the licensing authority may impose conditions as  specified therein.  Clauses (4) of  Rule 5 lays  down:\n<\/p>\n
  “The licensee shall comply with all conditions imposed or deemed to be  imposed under this clause”.\n<\/p>\n
The effect of this provision is that, the Order itself lays down that the conditions  of the  licence  must be complied with. In other words  the contravention of the conditions  of  the  licence  is tantamount to contravention of the Order itself. The Order itself provides that  the conditions of the licence  shall be complied with. It, therefore, follows that  non-compliance with the conditions  of the licence  amounts to contravention of the Order.\n<\/p>\n
 (6) Mr.  Peeerbhoy, for the respondent raised  two contentions on this point.  First of all, he suggested that clause (4) of Rule  5 of the Order of 1955 amounts to  a twice delegated legislation, in that  it  authorises  the  licensing  authority to lay down a   rule,  the breach of  which would amount to an offence. We are unable to  accept this line of  reasoning.  Rule  5 of the  Order empowers the licensing authority to impose conditions  on  the lines laid down in the  various clauses of that  Rule. Now the  conditions of the  licence can be attacked  on  two grounds. First  of  all they can  be  attacked on the  ground that they are not in conformity  with the conditions mentioned in  the various clauses of  Rule 5 of  the Order of  1955.  Secondly, they  can be  attacked on the  ground that they are  opposed to the provisions  of  section 3 of the Act of  1947.  Section  3 of the Act in effect,  provides that the Central  Government may pass  order  providing for  prohibiting,  restricting  or otherwise  controlling  the  imports  and exports. Mr. Peerbhoy argued that  the  licensing authority  may impose  any conditions  according to  his whim and those conditions  may  even  be  unreasonable and in  that  case, it would  not be  property to  hold that  breach of such   condition  amounts also to the breach of the Order. This argument is beside the point. If the conditions imposed by the licensing authority  travel  beyond  the scope of the  object mentioned in section  3 of the Act or the ambit of Rule 5, the condition can  successfully  be  attacked as invalid and  not binding. So  long  as  there is no  challenge  to the conditions imposed on the licensee on any of  the  grounds  available under  section 3 of the Act of  1947 or  Rule 5 of the Order, it must follow that  the conditions  are  reasonable  and proper  and are  within the  ambit of the powers conferred  upon the licensing  authority. Once we hold that  the  conditions  laid   down by the  licensing authority cannot  be impugned on  any of the grounds that  are open to the accused No. 1,  then the bottom  of  argument advanced by Mr.  Peerbhoy  would  be knocked out. It is not  as if the licensing authority has the power of  laying down the  penalty. All  that  the  licensing authority  can do, is to lay down  certain  conditions  and  the Order  provides  that  the licensee shall  comply with  these conditions.  This provision does not  depend upon the  whim  or the  caprice or the  sweet will of the licensing  authority,  but, this is a  provision  made  by the Order itself.  There is,  therefore, no question of any  double  delegation.  The Rules have been made  by the Central  Government  by virtue of the  powers given to  them by section 3 of the Act of  1947.\n<\/p>\n
 (7) The second  line of  attack pursued by Mr. Peerbhoy was based on the ground that the legislature felt it necessary to amend  the provisions of section  5 of the Act of 1947.  The provisions of  section 5 of the Act were amended in  1960  and the amending  provision came into force on  7th March 1960. The amending provisions  does not apply to this  case, because the  contravention has taken  place prior  to 7th March 1960. But, that is not the question, which  we  are considering.  The only  question  which we are considering is, whether  without amending  section 5 of the Act, the  Order issued by the Central Government  under  section 3 thereof, can make a provision  compelling  compliance with the conditions  of the  licence so  that the breach of these conditions  would amount to  breach  of the Order. In order to appreciate this argument,  it is necessary  to cite the section   as amended  in  1960.  Section 5 of the  Act, as amended, runs thus:\n<\/p>\n
  “If any person contravenes or  attempts to contravene or abets a  contravention  of any  order made or deemed to  have been made under this Act or  any condition  of a licence granted under any such order, he shall, . . . . . .be punishable with imprisonment, etc. . . . . . . .”\n<\/p>\n
Mr.  Peerbhoy’s  argument  was  that it was  wholly unnecessary for the legislature to amend section 5 of  the Act of 1947, if their object was, achieved by incorporating Rule 5(4) in the Order of  1955. We are unable to accept  this line of  reasoning. The  legislature thought it fit to amend the provisions  of  section 5 of the Act of  1947,  to remove all doubts  and to allow no room or  scope for any kind of  argument.  In other words, the  provision is intended to  clarify the  existing  legal position.  The  amendment appears  to have been  conceived in  the spirit of  what is  known as abundant  caution. The  Statement of  Object contained in the Bill, which  later on  became  the amending Act, explains  the  necessity  of amending  section 5 as follows:\n<\/p>\n
  “. . . . .  .to amend Section 5 of  the Act so as to expressly provide  that breach of a condition  of the licence  is also  an offence  punishable under the Act.”\n<\/p>\n
We, therefore,  feel  no  hesitation in holding  that  even in the absence of the amendment of section 5 of the Act,  the contravention  of the conditions  of the licence amounts  to contravention of the Order by virtue of the provisions of  Rule 5(4) of the Order  of  1955.\n<\/p>\n
 (8)  Mr. Peerbhoy then contended that the obligation  to comply  with the conditions  of  the  licence imposed by Rule 5(4) is on the holder of the licence,  and in this case the Association  is  the holder of the licence Accused No. 1,  according to him, is not the holder of the licence. In order to understand this argument, it is necessary to see why and  for what  purpose the  Association  is formed. The application was  made by the Association  for a licence on 12th January 1955.  Against  the column, “Name of  the industry and the purpose for which the raw materials are   required” it is stated:\n<\/p>\n
  “Members of the Association  for the purpose of manufacture of  sarees  and borders”.\n<\/p>\n
In recommending the application  to the Textile Commissioner, Bombay,   the Textile Controller, Bombay, states: (Part of  Exhibit A).\n<\/p>\n
  \"..    . .    . . . .    ..The Malegaon Powerlooms  Sadi Manufacturers Association,  Ltd. Malegaon,  was an  approved retail  agency for the distribution  of  yarn during the period  when there  was controlled distribution of year. This office has  no objection,  if the Association's  application is recommended  to the Controller  of  Imports for the Imports of  art silk  yarn.\" \n \n\nIn the written statement  at  paragraphs  (3) and (4), accused  No. 1 stated  as follows:\n  \"The members of our  Association,  are poor powerloom  weavers  and it is the object of the   Association  to help  the members  by  securing  cheap  raw material and by  other means. During the period of  controls,  i.e. between the years 1944 and 1952,   the Association  used to  secure cotton  yarn  quota  from the Government  and distribute  the  same  among its members at  controlled  rates.\" \n \n\nIn paragraph (4), it  is  stated:\n  \"In  1955, I  applied on behalf of the Association,  to the Controller of Imports for a  licence   to import art yarn.. . . . . . . .\" \n \n\n<\/pre>\n
This will show that the Association is not a body of  manufacturers.  It does not  by itself undertake any  manufacturing activity.  The Association is composed of members,  who are  manufacturers and an  Association  has been formed, so that the imported quota would be equitably distributed amongst  the  members of the  Association. In other words, the Association  is  just a distributing agency.  At this stage, it is necessary to note that,  one of the  conditions of  the licence is that the goods  will be  utilised for consumption. That condition  runs thus:\n<\/p>\n
  “This licence is issued subject to the condition that the goods will be utilised only for  consumption as raw material or accessories in the licence-holder’s  factory  and that no portion thereof  will be sold to any party.”\n<\/p>\n
Since the Association  has no factory  of its own,  it follows that goods  cannot be  utilised  by the Association  for consumption  in the  factory.  The licence (Exhibit  C) is  headed by the words “AU”. The letters “AU” convey the meaning of  Actual User.  It is, therefore, clear that although the licence is issued in the name of the Association,  the goods are intended for distribution  to the members of the Association who  are manufacturers. If this  view is correct, then  it  must  follow that the obligation cast by Rule  5(4) of the Order is not only binding  open the Association  but is also  binding upon the members of  the Association  and each of them is bound to comply with the conditions  as actual user of the goods that have fallen to his share in the  process of distribution.\n<\/p>\n
 (9) Conceding, for a moment, that the principal obligation lies upon the Association, the question  is, whether  the members of the Association are liable as abettors. Section 5 of the Act of 1947 penalises abetement of contravention of  any order. Mr. Peerbhoy,  however, contended that unless the principal accused is also prosecuted,  the abettors cannot be proceeded  with.  Alternatively, he suggested that, if abettors  are to be  proceeded  then, the  prosecution will have to bring home guilty intention  or guilty knowledge to the members concerned. He conceeded that the offence of contravention contemplated by section 5 of the Act of  1947, did not  require  any mens rea. He, however, argued that, so far as the abettors are concerned, mens  rea will be an essential part of the offence of  contravention. In that connection, he referred to the provisions  of  Section 107, Indian Penal Code and argued that aiding or abetting  must  be intentional. In the view that  we have taken  above, it is not necessary to pronounce any verdict on this contention.  It is sufficient to note that abetment has not been  defined in the Imports and Exports (Control) Act of 1947.  That being the case, we will have to take into  account the definition  of that term contained in  Section 3(1) of the General Clauses Act, 1897. Sub-section  (1) provides:\n<\/p>\n
  “Abet, with its  grammatical variations. . . . . . shall have the same  meaning  as in the  Indian Penal Code.”\n<\/p>\n
All the  definitions  contained in  Section 3 of the Act, however,  are subject to the qualification,  which is laid down in that  section to the following effect:\n<\/p>\n
  “In this Act, and  in all Central Acts and Regulations made after the commencement of this Act, unless there is anything  repugnant  in the subject or context . . . . .”\n<\/p>\n
Although,  therefore,  the definition  contained in section 107,  Indian Penal Code, will be applicable,  it is necessary to find out as to whether there is anything  repugnant  in the subject or context.  Section 5 of the Act of 1947 by itself makes no reference to mens rea.  Abetment of the contravention  of the Order is coupled together with contravention  itself in  the same provision.  It must, therefore, be  treated as standing  on the same footing. In  our view, therefore, the offence of abetment also would not require any kind of mens rea.\n<\/p>\n
 (10) Apart from this legal aspect, in the present case there is no dispute that accused  No. 1 was aware of the terms and conditions imposed in the licence. It is also undisputed that he has given his consent to the Company for selling away the goods. Of course,  according to accused No. 1,  the sale was necessitated by reason of  the fact that the prices of art silk  had gone down. We will deal with this aspect of the defence  a little later.  For the purpose of the present argument  we are  assuming that   no such defence  is available  to  accused No. 1  and in  that case, it is quite clear that  accused  No. 1 knew  conditions  therein   and he acted in violation  of those terms intentionally and  deliberately. Mr. Peerbhoy faintly suggested that   accused No. 1 only carried out  the wishes of the majority of the  body of the Association, as  its   Chairman. Now,  it is not  the defence of accused No.1 that the resolution was carried    by majority of members nor  is  it his  case  that  in the meeting, where this question was discussed,  he voted  against the proposition for allowing the Company to seel  away the goods. Mr. Peerbhoy complained that if  the Association had been made an accused the entire  record would  have been brought  before the Court. There is no   doubt that the Association  could have been prosecuted.  But, after all, the  Association must act through  certain   human agency  and that  agency is the managing  committee.  The members of the  managing  committee can certainly  be prosecuted  for the offence of contravention and  it  is not open to them to say that,  because the  Association  is not an  accused,  they  should get  certain   benefit,  even if they  have not  claimed  any.\n<\/p>\n
 (11) The next  line of argument pursued by Mr. Peerbhoy  was that, there is no  specific  provision in  the Act of 1947,  under which the  office holders  of the Association   or the managing members thereof, have been  made specifically  liable  in that connection, he referred  us to  Section 10 of the Essential  Commodities Act, 1955.  In order to appreciate  Mr. Peerbhoy’s  argument  based on  Section  10 of that Act, it is necessary,  first  of all, to refer to Section 8  of  the same  Act  Section  8 runs  thus:\n<\/p>\n
  “Any  person who  attempts to contravene or  abets a contravention of  any order made under Section 3 shall be  deemed to have contravened that order.”\n<\/p>\n
It will thus be noticed that  abetment  of  contravention  and an attempt at contravention  are placed on the same footing  as contravention. Section 10 of the said Act  runs thus:\n<\/p>\n
  “(1) If the person contravening  an  order made under Section 3 is a company, every person  who, at the time of the contravention was committed, was in charge of, and  was responsible to the company  for the conduct of the business of the company as well as the  company,  shall be  deemed to  be  guilty of the  contravention and shall be  liable to  be proceeded against  and punished  accordingly.”\n<\/p>\n
We are unable to understand how these provisions  assist  Mr. Peerbhoy in the argument he  is  advancing.  Section 10  of the Essential  Commodities  Act, is a special  provision  and applied to  those who ere in charge of and  were responsible for the  conduct of the business of the company at time of the contravention of the  Order.  It will at once be noticed  that the  liability of the Officer-holders under Section 10  does  not  depend upon their abetment. Whether they have  abetted or not,  they will still be  liable for   the contravention, if it is found that they were,  at the relevant time, incharge of and were responsible to the company for the conduct of the  business thereof.  Merely  because  this special provision  has not been incorporated in the Act of  1947,  it does not follow that the officers  are not liable. They may not  be  liable merely  because they  happen to be officer-bearers,  as would be  the case under Section 10 of the Act of 1955. If it is, however, found as a fact that they were guilty  of  abetment, they would  obviously  be liable for the  offence  of  contravention.  (The rest of the judgment  dealing with the  merits of the  case has been omitted as it is not material for this report-Ed.)<\/p>\n
(12) Appeal allowed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court State vs Abdul Aziz on 3 August, 1961 Equivalent citations: AIR 1962 Bom 243, (1962) 64 BOMLR 16, ILR 1962 Bom 371 Author: Naik Bench: Naik, Abhyankar JUDGMENT Naik, J. (1) This is an appeal by the State from an order of acquittal. The material facts lie within a narrow compass and […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-206475","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nState vs Abdul Aziz on 3 August, 1961 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-vs-abdul-aziz-on-3-august-1961\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State vs Abdul Aziz on 3 August, 1961 - 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