TMI Blog1948 (1) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... itten report made by Mr. Mulik, Sub-Inspector of Police Food Control Sholapur to the Sub-Inspector of Police, Sholapur, on 24th January 1945. The report which is Ex. 1 L was in the following terms: I, Raghunath Santaji Mulik, Sub-Inspector of Police, Wood Control, Sholapur, give in writing as follows: Having got information that there were cloth without Textile mark and grain hoarded in the bungalow situate at Motibag belonging to the Old Mill at Sholapur, Mr. Yasin Ansar Bhai, the Inspector of Police took search of the said bungalow on the date. 4th August 1944; but as it drew dark, the search of the outhouse pertaining to the said bungalow remained to be taken. Therefore, the rooms of the said outhouse were sealed. On the 5th August 1944, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t report were proved and constituted an offence under Clause 18(2), Cotton Cloth and-Yarn (Control) Order, 1943. 4. Section 23 of that Order as amended provides that: No prosecution for the contravention of any of the provisions of this Order shall be instituted without the previous sanction of the Provincial Government (or of such officer of the Provincial Government not below the rank of District Magistrate as the Provincial Government may by general or special order in writing authorise in this behalf). 5. On 5th January 1945, sanction to the prosecution of the appellant was given by Order of the Government of Bombay in the following terms: SANCTION TO PROSECUTE. (Signed) H.N.G. Cotton Cloth and Yarn (Control) Order, 1943. Contravention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een held that the burden of proving that the requisite sanction had been obtained rested on the prosecution, and that such burden involved proof that the sanctioning authority had given the sanction in reference to the facts on which the proposed prosecution was to be based, facts which might appear on the face of the sanction, or might be proved by extraneous evidence. The Court accepted this view of the law, but held that in the case of the appellant it had been proved that the facts on which the prosecution was proposed to be based had been before the sanctioning authority when the sanction was given. The view of the Court upon this question appears from the following passage in the judgment of the Court: A Sub-Inspector who attached the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the sanction was given. Their Lordships see no justification for drawing inferences in favour of the prosecution upon matters on which they withheld evidence under their control. Under Section 114, Evidence Act, illust. (g) the normal presumption is that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. 9. Upon this state of the evidence, the respondent has argued that the view which has prevailed in the High Court of Bombay is wrong and that a sanction which names the person to be prosecuted and specifies the provision of the order which he is alleged to have contravened is a sufficient compliance with Clause 23 of the said Order. In their Lordships' view, in order to compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has to be given to a prosecution for the contravention of any of the provisions of the Order. A person could not be charged merely with the breach of a particular provision of the Order he must be charged with the commission of certain acts which constitute a breach, and it is to that prosecution - that is, for having done acts which constitute a breach of the Order - that the sanction is required. In the present case there is nothing on the face of the sanction, and no extraneous evidence, to show that the sanctioning authority knew the facts alleged to constitute a breach of the Order, and the sanction is invalid. 10. Mr. Megaw for the respondent has suggested that this view of the law would involve in every case that the Court would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tituting the offence charged. 12. It was argued by Mr. Megaw, though not very strenuously, that even if the sanction was defective the defect could be cured under the provisions of Section 537, Criminal P.C., which provides, so far as material, that no finding, sentence or order passed by a Court of competent jurisdiction shall be altered or reversed on account of any error, omission or irregularity in any proceedings before or during the trial, unless such error, omission or irregularity has, in fact, occasioned a failure of justice. It was not disputed that if the sanction was invalid the trial Court was not a Court of competent jurisdiction, but Mr. Megaw contends that there was in this case a sanction, and that the failure of the Crown ..... X X X X Extracts X X X X X X X X Extracts X X X X
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