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Criminal Appeal No. 145 of 1955, decided on 22nd March. 1956.

, S. 3 read with S. 2 (2) (c) (ii)‑Refusing to sell motor tyers to person whose name was not mentioned in permit‑No offence.

Under a notification, dated 10th July, 1953 published under clause 3 (h) of Essential Commodities (Control of Distribution) Order, 1953, by the Deputy Controller General of Prices and Supplies, dealers were forbidden from supplying motor tyers to anyone except the person in whose name the permit was issued.

Where, therefore, a son of the permit‑holder approached the appellants for the purchase of motor tyres.

Held, that the appellants were within their rights to refuse delivery of tyres without as signing any reason for the same.

Held further, that there was no legal duty on the dealers to have given the reason for such refusal.

‑Effect of expiry of temporary statute applied in case of cancellation of Notification.

Khalid Ishaq for Appellants.

Zia Shaikh for the Crown.

---‑The two appellants have been convicted by the First Additional City Magistrate Karachi, under section 3 read with section 2 (2) (c) (ii) of Act XXIX of 1948 ; appellant Nisar Ahmed has been sentenced to undergo rigorous imprisonment for three months and to pay a fine of Rs. 250 and in default to undergo 2 months' R. I., while appellant Muhammad Yousuf has been sentenced to imprisonment till the rising of the Court and to pay a fine of Rs. 100 and in default to undergo rigorous imprisonment for six weeks.

The facts, shortly put, are these One Haji Fazal Khan was granted a permit to purchase motor tyres of the size specified in the permit by the Director of Civil Supplies, Karachi. He asked his son Nur Ahmed to go and purchase the tyres from Messers. Good Year Repair Station on Lawrence Road. The appellant Nisar Ahmed is the proprietor of the firm, while Muhammad Yousuf is his Manager. According to the prosecution, the requisite tyres were available with the firm, but they refused to sell to Nur Ahmed, though they had asked him to come thrice to their shop. Nur Ahmed was, therefore, obliged to inform Mr. A. S. Qureshi, Inspector of Price and Supplies. The latter accompanied Nur Ahmed, to the shop of the appel lant Nisar Ahmed, who, however, refused to supply the tyres in question. The Enforcement Police was then called, and they searched the shop and 2 tyres of the requisite size mentioned in the permit were recovered. The appellants were thereafter challaned.

Mr. Khalid, the learned Advocate for the appellants, has raised threefold contentions before me. In the first place he contended that according to the notification, dated 10th July 1953, published under clause 3 (h) of the Essential Commodities (Control of Distribution). Order 1953 the tyres could be supplied by the dealer only to the person who was named in the permit. In the second place, he contended that the Notification, dated 10th July 1953, having ceased to have effect before the conclusion of the case against the appellants, the conviction of the appellants was bad in law. In the third place, it is contended that the punishment being over six months of imprisonment, the learned Magistrate could not try the offence summarily, unless there was an application moved by the prosecution under section 12 of the Essential Supplies Temporary Powers Act, 1946.

This appeal can be disposed of on the first question raised by Mr. Khalid, namely, that the appellants were within their right to refuse the supply of tyres to Nur Ahmed, as he was not the person mentioned in the permit.

Under section 3 of the Essential Supplies Temporary Powers Act 1946, the Central Government has been given the power to control production, supply and distribution of Essential Commodities. The Central Government by virtue of section 3 of the Essential Supplies Temporary Powers Act, 1946, published a notification on 6th July 1953, known as Essential Commodities (Control of Distribution) Amend ment Order, 1953, whereby the previous order of 1953 was amended, and clause 3 (h) was inserted.

Clause 3 (h) reads as under :‑

"The Controller General may by a notification in the Gazette direct dealers in specified scheduled articles to sell those articles only to such persons as are authorised by a competent authority to be specified in the notifica tion to purchase them, and no dealer shall after the issue of the notification sell the article or articles specified therein except to duly authorised purchasers";

By virtue of clause 3 (h), on 10th July 1953, the Deputy Controller General of Price and Supply issued an order whereby he directed that every dealer in tyres and tubes of Motor vehicles mentioned in item 13 of the Schedule appended to the Essential Commodities (Control of Distribution) Order, 1953, shall sell the same " only to such persons as are granted permits to purchase the same . . . .". The contention of Mr. Khalid was that Nur Ahmed was not such a person who had been granted a permit for the supply of tyres. The appellants, therefore, were within their rights to refuse to supply the tyres to Nur Ahmed.

The learned Magistrate has observed that had the appellants given him the reason for the refusal to supply the tyres to Nur Ahmed, the real permit‑holder would have come and purchased the tyres. It is true that as an honest dealer and a good citizen, it was his duty to have given him the reason of refusal, but I may, however, mention that no such duty is cast upon dealers under the law. It is well settled principle of interpretation of .penal statutes that it should be strictly construed. The notifica tion in question is, in my opinion, of a penal nature, the non‑compliance of which is likely to lead to criminal pro secution, and must be construed strictly. Under the notifi cation of 10th July 1953, published under clause 3 (h) of the Essential Commodities (Control of Distribution) Order, 1953, by the Deputy Controller General of Price and Supply, the dealers were forbidden from supplying the tyres to A anyone except to those in whose names the permits stand. The appellants, therefore, were within their rights to refuse delivery to Nur Ahmed without assigning any reason for the same.

The next contention of Mr. Khalid is that the notifica tion of 10th July 1953, referred to above, was in the nature of a temporary statute, and having been admittedly cancelled during the pendency of the prosecution of the appellants, C prosecution for the breach of the order of 10th July 1953, if at all, was bad in law. There is much force in this argument. In support of this contention, Mr. Khalid has relied on the case of Habibullah v, The Crown (P L D 1955 Lab. 396).

So far as the last contention is concerned, Mr. Khalid has not pressed the point as I find from the record that an application under section 12 had been made.

For the foregoing reasons, I would allow the appeal, set aside the conviction and sentence imposed on the appellants and direct that they be set at liberty. Their bail bonds stand cancelled. The amount deposited as security to be refunded, and the fine, if paid, to be refunded to the appellants.

A. H. Appeal accepted.

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