Das, J.The petitioner has been convicted under Rule 81(4), Defence of India Rules, and he has been sentenced to rigorous imprisonment for one year and a fine of Rs. 100 only and, in default, rigorous imprisonment for three months more. It was alleged that the petitioner had sold 21/2 seers of maize for a sum of 12 annas only on 8th February 1944, in contravention of an order of the Sub-divisional Officer of Gopalganj dated 80th December 1943, by which order the learned Sub-divisional Officer had fixed the price of maize at 5 seers and 5 chhataks per rupee. According to the rate so fixed, the price of 21/2 seers of maize would be about 8 annas only. The petitioner was alleged to have charged 12 annas and thereby contravened the order of the Sub-divisional Officer passed under Rule 81(2)(b), Defence of India Rules.

2. The point raised before us is a very short point. The contention that is raised on behalf of the petitioner is that in the absence of any evidence showing due publication of the order of the Sub-divisional Officer, the petitioner was not affected by the order and consequently his conviction was wrong. R. 119, Defence of India Rules, lays down that a notice of the order shall be published in such manner as may, in the opinion of the authority passing the order, be best adapted for informing persons whom the order concerns. It further lays down that on such publication the person or persons concerned shall be deemed to have been duly informed of the order. By a subsequent amendment, it has been laid down that the aforesaid provisions would not apply in the case of an authority who is empowered to take action by a notified order. The present is not a case where the authority or officer, empowered under Rule 81, is to take action by notified order; therefore, the subsequent amendment relating to notified orders, is not relevant for the purposes of the present case. It would appear from the provisions of Rule 119 that there are two essential requirements; one is that the authority or person passing the order must determine the manner in which notice of the order shall be given for informing persons whom the order concerns; secondly, a notice of the order shall be published in the manner so determined. It has been held in a number of cases that the order does not become legally effective till it is duly published: vide, AIR 1944 40 (Nagpur) . There have been several such cases of late, before this Court, such as, Ram Kishore Prasad v. Emperor Reported in AIR 1945 Pat. 306 , Criminal Revision No. 158 of 1944 and Madan Lal v. Emperor Reported in A. I. R. 1945 Pat. 119. It has been held in all those cases that the order comes into operation only when it has been duly published, that is, when it has become known, and the legal fiction of Rule 119 is applicable only when it has been proved that everything that was required to be done by the authority or officer concerned, has been actually done.

3. In the particular case under our consideration, there is no direct evidence that the Sub-divisional Officer who passed the order on 30th December 1943 determined the manner in which it should be published. The only evidence in the record is the statement by a clerk of the price control office (P.W. 2). This witness has said that the rates fixed by the Sub-divisional Officer were circulated to merchants and consumers in all markets of the sub-division. There is no evidence if this was the manner of publication determined by the Sub-divisional Officer, and there is also no evidence when this circulation was done. The question, therefore, arises whether the prosecution has proved in this case that the essential requirements of Rule 119 have been complied with. In my opinion, the answer to this question must be in the negative. The learned advocate for the Crown suggested that the only reasonable inference from the evidence of P.W. 2 referred to above, would be that the Sub-divisional Officer had determined that the manner of publication of the order would be by circulation of the rates to merchants and consumers in the sub-division. I do not think such an inference necessarily follows. As to the presumption of Section 114, Clause (e), Evidence Act, it has been held in a number of cases that where under an Act certain things are required to be done before any liability attaches to any person in respect of any right or obligation, it is for the person who alleges that that liability has been incurred to prove that the things prescribed in the Act have been actually done. This principle has been laid down in Asharullah Khan v. Triloohan Bagchi (86) 13 Cal. 197. The principle was reaffirmed in Walvekar v. Emperor AIR 1926 cal. 9665 and again in Khurshid Chik Vs. Raniganj Municipality, .

4. It was essential for the prosecution to prove in this case that the Sub-divisional Officer had determined the manner in which notice of the order was to be published, and that the order had been so published before the alleged offence had been committed by the petitioner. On neither of these points is there any clear evidence on the record. In Cri. Revn. No. 291 of 19443 the position was different. There it was found that publication had taken place after the commission of the offence. In criminal Revision No. 158 of 1944 the position was that the District Magistrate had passed the order on 11th August 1942 but the order had not been promulgated till 12th November 1942, that is, three months after the order. In cri. Revn. No. 1058 of 19442 there was no evidence that the order had been promulgated. In this particular case there is some evidence that the order in question was circulated to merchants and consumers; but there is no evidence that this was the manner of publication determined by the Sub-divisional Officer, and there is also no evidence when the circulation had taken place. The offence was alleged to have been committed in this case on 8th February 1944, that is, about a month and nine days after the order. The learned advocate for the Crown suggested that it would be unreasonable to infer that circulation had not taken place within that period. I do not think it is possible to draw any sure inference in the matter. I have pointed out that at least in one case the publication was not done till three months after the order. In my view, it was for the prosecution to prove that the Suta divisional Officer had determined the manner in which notice of the order should be published and that the order had been so published before the alleged offence was committed. In the absence of any evidence on either of the two points mentioned above, the conviction of the petitioner cannot be sustained.

5. I would accordingly allow the application, set aside the conviction and sentence passed against the petitioner and direct that he be acquitted. The fine, if paid, should be refunded to the petitioner. In Cri. Revn. No. 1058 of 1944,2 the attention of the Provincial Government has already been drawn to a large number of cases in which this Court had to interfere with similar convictions, on the same ground. It is, indeed, a matter of regret that convictions for a breach of rules, intended for the protection of the community, have to be set aside on grounds which can be easily avoided if the authorities concerned exercise due care and attention in the strict observance of the requirements of the law.

Chatterji, J.

6. I agree. It was suggested on behalf of the Crown that the accused, though he filed a lengthy written statement, did not plead that the order in question was not circulated to him or that he was not aware of it. But the lacuna in the prosecution evidence, which my learned brother has pointed out, cannot be remedied by such omission on the part of the accused.