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The State Vs. Hiralal Manilal Mody - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Revn. Appln. No. 841 of 1950
Judge
Reported inAIR1951Bom369; (1951)53BOMLR268; ILR1951Bom626
ActsEssential Articles Restricted Acquisition and Possession Order, 1943; Essential Supplies (Temporary Powers) Act, 1946 - Sections 1; India (Central Govt. & Legislature) Act, 1946 - Sections 2 and 4; Code of Civil Procedure (CPC) , 1908; Constitution Law; Imperial Act
AppellantThe State
RespondentHiralal Manilal Mody
Appellant AdvocateG.K. Daphtary, Adv. General and ;B.G. Thakor, Addl. Asst. Govt. Pleader
Respondent AdvocatePurshottam Tricumdas and ;A.D. Desai, Advs.
Excerpt:
essential articles restricted acquisition and possession order, 1943, clauses 3 (1) (2), 2 (2), 3-a - essential supplies (temporary powers) act (xxiv of 1946), sections 1 (3), 7--india (central government and legislature) act (9 & 10 geo. vi, c. 39), sections 2, 4--indian independence act, 1947, sections 9 (c), 19 (4)--words 'producer, dealer, manufacturer, carrier or werehouse-man' in e a. r. a. p. order whether refer to essential articles only--operative period of act xxiv of 1946--adaptation made to parliamentary act whether applicable to act xxiv of 1946--construction of statute.;the words 'producer, dealer, manufacturer, carrier or warehouse-man' in clause 3 (1) (2) of the essential articles restricted acquisition and possession order, 1943, are used in reference to essential.....bavdekar, j. 1. the opponent in this case one hiralal manilal mody is a sweetmeat seller. he prepares sweet-meats & also sells them. upon information received, the inspector of rationing raided his residential premises, his shop, where he sells sweet-meats & his godown. nothing was found in the shop which could be objected to under the essential supplies (temporary bowers) act, 1946, but in the residential premises of the opponent there were found 165 lbs. of wheat & wheat flour & 277 lbs. of rice. other things were also found, but it is not necessary to refer to them for the purpose of the present appeal. the opponent in this case was possessed in respect of the persons who were living with him in his residential premises nine ration cards & it is not in dispute that if the opponent was.....
Judgment:

Bavdekar, J.

1. The opponent in this case one Hiralal Manilal Mody is a sweetmeat seller. He prepares sweet-meats & also sells them. Upon information received, the Inspector of Rationing raided his residential premises, his shop, where he sells sweet-meats & his godown. Nothing was found in the shop which could be objected to under the Essential Supplies (Temporary Bowers) Act, 1946, but in the residential premises of the opponent there were found 165 lbs. of wheat & wheat flour & 277 lbs. of rice. Other things were also found, but it is not necessary to refer to them for the purpose of the present appeal. The opponent in this case was possessed in respect of the persons who were living with him in his residential premises nine ration cards & it is not in dispute that if the opponent was entitled to have in his possession all that would be warranted by these nine ration cards he was in possession of 106 lbs. of rice in excess of what he could possess. The opponent's defence, however, was that besides these nine ration cards he had six ration cards which could be taken into consideration in deciding what quantity of cereals he could lawfully possess. These ration cards were of six servants. They were not domestic servants but they were servants employed by the opponent in preparing the sweet-meats & in selling them at his sweet-meat shop & their ration cards are in the name of one of them as the head of the family. The ration cards have got to give not only the name of the individual in respect of whom they are issued but except in the case of individual ration cards the name of the head of the family. It was the opponent's case that even so he was entitled to keep in his possession rice under the ration cards of these six servants because they were his servants & should be regarded as part of the household. The reason for the contention that they were 'part of the household' would appear from the Essential Articles Restricted Acquisition & Possession Order, 1943. The opponent was prosecuted for an offence under Section 7, Essential Supplies (Temporary Powers) Act, 1946. That section makes penal a contravention of an order made under Section 3 & it is not in dispute that the Essential Articles Eestricted Acquisition & Possession Order, 1943, is an Order made under Section 3 because of the provisions of the Act. Clause 3-A of the Order says that no person shall, on & after such date as may be notified by the Provincial Govt. in the Official Gazette in respect of any area, have in his possession or under his control, any essential article in excess of the normal quantity except under the authority of & in accordance with the conditions of a licence granted by an officer authorised by the Provincial Govt. in this behalf. The word 'normal quantity' has been defined by Clause 2, Sub-clause (2) of the same Order. That sub clause says that 'normal quantity' means in relation to the quantity of any essential article required by any person, such quantity as would be required for use & consumption in the household or establishment or of the animals in the custody of that person during a period of one month or such longer period as ought fairly to be allowed in view of the existence of any speaial circumstances: Provided that in respect of any area the Provincial Govt. may by notfn. in the Official Gazette prescribe any special basis for determining the normal quartity & thereupon the normal quantity shall be reckoned in such area on the said basis & for this purpose a householder in such area shall be deemed to require as his normal quantity the aggregate of the quantities reckoned on the said basis in respect of each member of his household including such servants as form part of the household.

2. It is not in dispute that the Provincial Govt. has by notfn. taken action under the provisions. But the opponent contends that taking, that quantity as normal quantity in respect of each individual he is entitled to have it multiplied not by nine but nine plus six on the ground that the servants to whom the six ration cards belong form part of his household.

3. So far as 484 pounds of flour which was found in the godown of the opponent is concerned, he did not claim either that he had a licence or that he had any ration cards in respect of which he held the quantity. His defence was that what was found as a matter of fact was not wheat flour but was a flour of maize.

4. The learned trial Mag. repelled both the contentions which were advanced on behalf of the opponent. He held that the opponent was not entitled to have the normal quantity calculated on the basis of fifteen ration cards. He also held that what was found in the godown of the opponent was wheat flour & not corn flour. He, therefore, convicted the opponent of the offence under Section 7, Essential Supplies (Temporary Powers) Act, 1946. But instead of sentencing him to the minimum, sentence prescribed by Section 3, Bombay Essential Supplies (Temporary Powers) & the Essential Commodities & Cattle (Control) (Enhancement of Penalties) Act, 1947, he sentenced him to only one day's rigorous imprisonment & a fine of Rs. 500, in default, further R. I. for one month. He was indeed conscious that the offence of the opponent was not of the nature of an accident but was clear & systematic & deserved strict punishment, but he thought that the sentence the strictness required need not exceed one day's R. I. & a fine of Rs. 500, in default, further R. I. for one month. The Govt. of the State of Bombay have consequently made this appln. to us to enhance the sentence which has been passed upon the opponent.

5. Mr. Purshottam who appears to show cause why the sentence should not be enhanced says in the first instance that the conviction of the opponent was wrong both on facts & in law. He points out in the first instance that it is not in dispute that the six persons whose ration cards the opponent relied upon were the opponent's servants. He says that it makes no difference that the servants were not the domestic servants of the opponent because where Essential Articles Res-tricted Acquisition & Possession Order, 1943, defines normal quantity, it does not refer to servants as domestic servants. It is true that the words 'such servants as form part of the household' find mention in the proviso to Clause 2, Sub-clause (2). But he says that the servants in this case must be regarded as part of the household of the opponent inasmuch as they occasionally took their meals with the opponent. He points out that in case the opponent was so minded, there was nothing to prevent him to keep rice in two places. He could keep some rice in his residential premises & some rice he could allow to be kept by the servants where they themselves actually re-sided & counsel contends that it cannot be an offence to do what could have been done by the opponent in a different manner.

6. Now, it is quite true that if the opponent had resorted to the artifices of being in possession of rice in two places (1) in residential premises & (2) where the servants used to stay, depending upon the servants to supply to him a small quan. tity of rice whenever required, it would not have been possible to prove that he had committed any offence. But that does not mean that if the opponent was in possession of rice greater than what was warranted by the nine ration cards, he would not have been guilty of any offence, because he kept in two places the rice. If he was himself in possession of rice though it was kept in different places he would be as guilty of contravention of Clause 3A of the Order as if he had kept the rice in the same premises. The question would not be with regard to his being guilty but with regard to the difficulty of proving that the opponent had committed the offence. It is no argument, therefore, to say that it cannot be an offence to do what the opponent could have done in a different manner.

7. Coming next to the principal question whether the normal quantity in this case would mean the normal quantity prescribed for each individual multiplied by fifteen or multiplied only by nine, in our view it could not possibly be said that the servants of the opponent who used to prepare sweet-meats & sell them were part of his household. They did not reside in the same premises. They had ration cards in which one of them was mentioned as the head of the family.They did not usually take their meals with him. It was only occasionally that they took their meals with the opponent. It is obvious, therefore, that it cannot possibly be said that the opponent's six servants were part of the household of the opponent.

8. Coming next to the question as to whether what was found in the godown of the opponent was wheat flour or was maize flour it was the evidence of the Inspector who took the search as well as the panch who was examined to prove the search of the godown that what was found was as a matter of fact wheat flour. The panchnama which has been prepared also specifically mentions that it was 484 lbs. of wheat flour that was found. It is in evidence that this flour was subsequently attached by the police & was sent to the godown of the rationing dept. It was sent to them as wheat flour and they accepted it as wheat flour. There is nothing whatever to suggest that at the time when the flour was attached the opponent claimed that the flour was maize flour. It is true that it appears from the evidence that the Inspector who carried out the search took samples of the wheat flour which was found in the opponent's godown bat he did not produce these samples, nor did he lead any evidence to show that the samples were examined by an expert who found that the flour was wheat flour. The learned counsel who appears on behalf of the opponent says further that if wheat flour was ground fine, it would be difficult to distinguish it from maize flour. Now, the panch who was examined in order to prove the finding of the wheat flour was a manufacturer of Batasas & other sweet-meats. One would expect that he would know the difference between wheat flour & corn flour. One would similarly expect that the rationing godown keeper to whom the quantity which was secured from the opponent was sent & who had to supply to people wheat flour would know what was wheat flour & what was not wheat flour. In our view, in these circumstances it is not possible to accept the contention of the opponent that what was secured from his godown was flour of maize. The opponent has indeed pointed out that some time later his premises were searched again & in the cellars of the premises was found flour of maize. The learned Advocate-General has disputed before us that this maize flour was in the premises of the opponent when the search took place, but we find no difficulty in believing that the flour must have been there from an earlier time. It appears from the evidence which was produced by the opponent that after this maize flour was detected attempts were made to freeze the flour & the opponent led evidence to show that permits had been issued to him from time to time under which he secured the maize flour & protested that the flour which he secured under the permits should have been confiscated. These permits bore dates 8-6-1948, 21-6-1948 & 16-8-1948. It is true that these permitscannot show that the opponent was in possession of the flour of maize which was found in his possession subsequently, but the opponent said that he was in possession of it, & considering the dates which I have mentioned above & considering also the date of the search which took place in this case which was on 22-10-1948, we think that it may reasonably be true opponent was in possession of the flour of maize found with him afterwards, on the date of search, but that does not mean that the flour which was secured by the police was flour of maize. As a matter of fact, it is conceded that if the flour was regarded as flour of maize, there would no be reason for the police to secure the flour because it was not prohibited at the time when the search took place to be in possession of any quantity of maize flour. In our view, therefore, even upon the assumption that prior to the search the opponent had obtained flour of maize & was in possession of some of it on the date of the search, there is no reason for supposing that what was secured from the opponent's house was as a matter of fact flour of maize. Mr. Purshottam contends, however, that even if we accept on facts the finding of the lower Gt. the opponent would not be guilty of any offence because Section 3 (1), Essential Articles Restricted Acquisition & Possession Order, 1943, has got a proviso. It says:

'(2) The restriction contained in Sub-clause (1) shall not apply to the acquisition in the ordinary course of his business of any essential article by a person carrying on the business of a producer, dealer, manufacturer, carrier or warehouseman.'

It is contended on behalf of the opponent that this sub-section is really of the nature of a proviso & in case any manufacturer is in possession of any essential article in the ordinary course of his business, he does not contravene Clause 3-A. The opponent has got no factory, but the learned counsel says that even so, he is a manufacturer because the verb 'manufacture' as mentioned in Bouvier's Law Dictionary means to make or fabricate from raw materials by hand, art, or machinery, & work into forms convenient for use. It has been pointed out in that dictionary that making for instance fish lines, ropes, etc., from raw material has been held to be a manufacture. Similarly the making of cordage, rope & twine. The learned counsel says that if a person manufactures, for example, chocolates, there is no good reason for saying that he is not a manufacturer. What the opponent does is instead of manufacturing sweets of the western kind he is manufacturing sweets of the eastern kind, & he says, therefore, that the opponent is a manufacturer. It is contended on behalf of the State by the learned Advocate General that if a person manufactures Basundi from milk he could not be said to be a manufacturer. We think that it is not necessary to go into the question whether the opponent could or could not be said to be a manufacturer for the reason that Sub-clause (2) of Clause 3 (1) of the EssentialArticles Restricted Acquisition & Possession Order, 1943, could not possibly have been intended to apply to any manufacturer. It must be taken that when that clause used the words 'producer, dealer, manufacturer, carrier or warehouseman' it used them with reference to essential articles. We are not indeed prepared to accept the argument of the learned Advocate General that there is no good reason why the manufacturer, e.g. of pins, should have been intended to be exempt from the restriction contained in Sub-clause (1) because it is not as if, even if we accept the interpretation of the learned counsel who appears on behalf of the opponent, it would be permissible for a manufacturer of pins to be in possession of articles in contravention of Clause 3A whether he wanted them for the manufacturer of pins or not. He would have to show besides that the articles were possessed by him in the ordinary course of his business. If, therefore, a manufacturer was found in possession of any essential article in excess of the normal quantity, upon the interpretation sought to be placed upon it by the opponent he would have to show that not only he was a manufacturer but also he required that article in the ordinary course of his business, e.g., a cotton cloth manufacturer may say that he requires starch. But it appears to us when we take into consideration the words 'essential article'' which occur in Clause 2 with the words 'producer, dealer, manufacturer, carrier or warehouseman' that these persons are exempt from the possession of an essential article when they are themselves the producers, etc. of that article & not any other article. The Legislature seema to have contemplated that if a person produces wheat, e.g., a large scale cultivator, he must necessarily be in possession of that article at any rate for sometime e.g. before he gave Govt. his quota. Similarly, if he was a dealer of an essential article, he must necessarily be in possession of a greater quantity than the normal quantity. In our view, the same applies to manufacturer, carrier or warehouseman. It is true that the words 'producer, dealer, manufacturer, carrier or ware-houseman' are not followed by the words, 'of the essential article', but it is well known that the meaning of the words is apt to be restricted because of the context in which the words occur. The context in which these words 'the producer etc.' occur is as regards circumstances in which a restriction which would otherwise apply is not to apply. Now, we fail to understand why the Legislature should have intended to release the restriction in the case of a person who did not produce an essential article but produced some other article for the manufacture of which it was necessary to possess that article. The Essential Articles Eestricted Acquisition & Possession Order, 1943, is an Order which seeks to provide for a restricted use of certain essential articles & makes unlawful the possession of more than the normal quantity except in accordance with a licence. Itis true that if, for example, there was a sweetmeat manufacturer & the making of sweet-meats required sugar which was regarded as an essential article, he would have to obtain possession of a larger quantity of sugar for the purpose of bis business, that is of manufacturing sweets, but it is not as if Clause 3-A prohibits by anybody whatsoever & under any circumstances the possession cf any essential article in excess of the normal quantity. It says that such a quantity cannot be possessed without a licence, & we fail to understand why the Legislature should have gone to the extent of absolving a manufacturer, of things other than the essential article concerned from the necessity of taking out a licence under Clause 3-A. The argument which has been advanced on behalf of the opponent would have had greater force if no one could possess any essential article in excess of the normal quantity even with a licence. If we remember that, in our view, in the context in which the words appear, the words 'the essential article' having already preceded the words 'the producer, dealer, manufacturer, carrier or warehouseman', the Legislature has merely avoided the repetition of the words because from the context it would be quite clear that the producer, dealer, manufacturer carrier & warehouseman were of the essential articles.

9. The learned counsel who appears for the opponent then contended that in that case he would argue that Act XXIV [24] of 1946 expired on 31-3-1947, & even though attempts have been made by the Legislature to extend it from time to time it was not in force on the date upon which the opponent is alleged to have committed the offence in this case. In order to understand the argument it is necessary to state that under the 1935 Constitution the powers of the Indian Legis-lature were confined to legislating in the fields mentioned in the Central & Concurrent List. During the course of the war they had the power to legislate even on subjects which were exclusively in the Provincial List. But these powers would not have continued after 31-3-1946. In order to confer, therefore, upon the Indian Legislature power to legislate in respect of the Provincial List there was passed by the Imperial Parliament 9 & 10 Geo. VI, c 39, on 26-3-1946. Section 2 of that Act provided :

'Notwithstanding anything in the Govt. of India Act, 1935, the Indian Legislature shall during the period mentioned in Section 4 of this Act have power to make laws with respect to the following matters.'

It would not be necessary to reproduce the matters in regard to which the powers were conferred upon the Indian Legislature because it is not in dispute that the Essential Supplies (Temporary Powers) Act, 1946, is within the powers conferred upon the Indian Legislature under Section 2 so far as the field of legislation is concerned. What is argued is that it was not within the powers of the Indian Legislature to pass this Act for a period subsequent to 31-3-1947. The section, however, did not end with matters in regard to which the Indian Legislature could make laws. It stated further:

'but any law made by the Indian Legislature which that Legislature would not but for the provision of this section, have been competent to make shall, to the extent of the inoompetency, cease to have effect on the expiration of the said period except aa respects things done or omitted to be done before the expiration thereof.'

10. The period during which the Indian Legislature was empowered to make these laws was provided for by Section 4 of the Act. It was to the following effect:

'The period mentioned in the two last preceding sections is the period of one year beginning with the date on which the proclamation of Emergency in force at the passing of this Act ceases to operate or, if the Governor-General by public notfn. so directs, the period of two years beginning with that date: Provided that if & so often as a resolution approving the extension of the said period is passed by both houses of Parliament, the said period shall be extended for a further period of twelve months from the date on which it would otherwise expire so, however, that it does not in any case continue for more than five years from the date on which the Proclamation of Emergency ceases to operate.'

11. The Proclamation of Emergency in force at the time of the passing of 9 & 10 Geo VI, c 39, ended on 31-3-1946, so that the powers conferred upon the Indian Legislature by Section 2 of the Act could be exercised by that Legislature up to 31-3-1947. It is not in dispute that if the Governor-General issued a notfn. extending the period during which the Indian Legislature could make laws upon the subjects mentioned in Section 2, it could pass legislation within the period of two years commencing 31 3-1946. The powers could be exercised thereafter if there was a resolution approving the extension of the period passed by both Houses of Parliament & such extension could be had at the most for one year on three occasions. The Governor-General has admittedly issued a public notfn. extending the period during which the powers could be exercised by the Indian Legislature up to 31-3-1948, but there has been subsequently no extension of the period by a resolution passed by both the Houses of Parliament. The reason was that there came into force the Indian Independence Act before 31-3-1948. Now, by Section 9, Sub-section (1), Clause (c) of the Act, there was conferred upon the Governor-General power to make by order such provision as appeared to him to be necessary or expedient for making omissions from, additions to & adaptations & modifications of, the Govt. of India Act, 1935, & the Orders in Council, rules & other instruments made thereunder, in their application to the separate new Dominions of India & Pakistan. Then under Section 19(4) it was provided that references to the Govt. of India Act, 1935, included references to any enactments amending or supplementing that Act, & in particular, references to the India (Central Govt. & Legislature) Act, 1946, i. e. 9 & 10 Geo. VI, C. 39. Power was, therefore, given to the Governor-General to adapt, to makeadditions to or alterations in 9 & 10 Geo. VI, c. 39, the India (Central Govt. & Legislature) Act, 1946. In exercise of the powers conferred by this section the Governor-General issued what is called an Adaptation Order. By that Order there was substituted for the words 'both Houses of Parliament' the words 'the Dominion Legislature' in Section 4 & there was added Section 4A as follows:

'Powers of the Dominion Legislature to be Powers of the Constituent Assembly.--The powers of the Dominion Legislature under this Act shall, until other provision is made by or in accordance with a law made by the Constituent Assembly under Sub-section (1) of Section 8, Indian Independence Act, 1947, be exercisable by that Assembly, & accordingly references in this Act to the Dominion Legislature shall be construed as references to the Constituent Assembly.'

It is not in dispute that the Constituent Assembly has exercised its powers under this provision & at the time when this offence in this case is alleged to have been committed, the period mentioned in Section 4 of 9 & 10 Geo. VI, c. 39; had been extended to 31 3-1949.

12. So much about the powers of the Indian Legislature to pass the legislation, viz. the Essential Supplies (Temporary Powers) Act, 1946. This Act was actually passed by the Indian Legislature in the year 1946 & it received the assent of the Governor-General on November 16 & 19, 1946. Section 1, Sub-section (3) provided for the duration of the Act as follows:

'It shall cease to have effect on the expiration of the period mentioned in Section 4, India (Central Govt. & Legislature) Act, 1946 (9 & 10 Geo. VI, c. 39), except as respects things done or omitted to be done before the expiration thereof.'

13. The first contention which has been made on behalf of the opponent is that the meaning of the words used by the Indian Legislature in Section 1 (3), Essential Supplies (Temporary Powers) Act, 1946, is that the Act was to cease to have effect on 31-3-1947. Now, in order to find out what is the duration of the Essential Supplies (Temporary Powers) Act, 1946, we have got to refer to Section 4, India (Central Govt. & Legislature) Act, 1946 inasmuch as the period after which it is to cease to have effect has been mentioned in reference to the provisions of the latter Act. That Act did not as a matter of fact provide for one period. It provides for five possible periods The first waa one year from the date of the cessation of emergency, i. e., 31-3-1947; the second was two years from the date of the cessation of emergency, if the Governor-General by public notin. extended it up to that period. Then the section contemplated three further periods of one year each during which it would stand extended if both the Houses of Parliament passed a resolution to that effect. The learned counsel who appears on behalf of the opponent says, however, that at the time when the Essential Supplies (Temporary Powers) Act, 1946, came into force the Legislature must have known that its powers would come to an end on 81-3-1947, unless the Governor-General were to issue a notfn.extending those powers & he says that consequently they would not care to pass an Act for a period beyond the period for which they could legislate.

14. Now, this argument postulates in the first instance two things. One is that the Indian Legislature had no power to pass an Act beyond 81.3-1947, at the time when they enacted the Essential Supplies (Temporary Powers) Act, 1946. In the second instance assuming that they had no power to do so, it postulates an intention in the mind of the Indian Legislature not to pass an Act beyond their powers.

15. Now, it is quite true that in case one were to find words ussd in an enactment which were capable of having two meanings, & one meaning showed that the Legislature was acting within the ambits of its powers, while the other showed that it would be acting beyond its powers, the Ct. will give to the words that meaning which will not render the legislation ultra vires as being beyond its powers. But we are not satisfied in this case in the first instance that the Indian Legislature had no power to pass an Act at the time when they enacted the Essential Supplies (Temporary Powers) Act, which would continue beyond 31-3-1947. It will be convenient to refer to this matter a little later because the argument will have to be examined in some detail But even if we assume for the purpose of argument that the Indian Legislature had no power to pass an Act in exercise of the powers conferred upon them by 9 & 10 Geo. VI, c. 39 which would be in operation after 31-3-1947, we have no doubt that the Legislature did intend by the words which were used in Section 1, Sub-section (3), Essential Supplies (Temporary Powers) Act, to legislate beyond that period & as a matter of fact it purported to legislate for the same period for which it would have powers to legislate. We asked the learned counsel who ap-pears on behalf of the opponent that if the intention was to legislate only up to 31-3-1947, where was the difficulty in saying in Sub-section (3) of Section 1 that the Act shall cease to have effect on 31-3 1947. If the intention was to say that it was obviously a very roundabout way of saying it that the period on the expiration of which the Act shall cease to have effect will be the period mentioned in Section 4, India (Central Government and Legislature) Act, 1946. We have no doubt whatsoever, therefore, that the Legislature intended that the Essential Supplies (Temporary Powers) Act, 1946, should continue beyond 31-3-1947, & should as a matter of fact continue up to the last date upon which they would have powers to legislate under the India (Central Government & Legislature) Act, 1946. What the Legislature intended to say by those words was that the Act would continue to remain in force up to the last date up to which they could legislate not only under the powers they then possessed but because of extension of the period during which they could legislate by a notfn. issued by the Governor-General or under the lastpara. of Section 4, India (Central Govt. & Legislature) Act, 1916. Upon the date upon which their power ceasad, the Act also would cease. It is true thatone possible reason why there is a provision in Section 1, Sub-section (3), that the Essential Supplies (Temporary Powers) Act, 1946, was to cease to have affect at the expiration of the period mentioned in Section 4 of the India (Central Govt. & Legialature) Act, 1945, was that even if the Indian Legislature had omitted to mention in the Essential Supplies (Temporary Powers) Act, when the Act would cease to be in force it would have ceased to be in force in part at the expiration of the period mentioned in Section 4, because of the last sentence of Section 2, Sub-section (1) of the India (Central Govt. & Legislature) Act, 1946. That sentence said, as I have already stated above,

'but any law made by the Indian Legislature which that Legislature would not, but for the provisions of this section, have been competent to make shall, to the extent of the incompetency, cease to have effect on the expiration of the said period except as respects things done or omitted to be done before the expiration thereof.'

The Essential Supplies (Temporary Powers) Act would necessarily in part be under the powers given by the India (Central Government & Legislature) Act, 1946. In part, it would also be under the ordinary powers of the Indian Legislature. Another possible reason why the Legislature thought it would be best to provide for the expiration of the Act at the end of the period mentioned in Section 4, India (Central Government & Legislature) Act, 1946, was that if it did not do so, an argument may be made out that the Act was intended to remain in force in perpetuity unless it was repealed & this was beyond the powers of the Indian Legislature under the India (Central Government & Legislature) Act, 1946. They might have anticipated a further argument that i the Legislature passed such an Act which was beyond its powers in regard to its duration, then as re-.garda the duration which was within its competency the Act was ultra vires because what was ultra vires could not be separated from what was within the powers of the Indian Lagislature. Another possible reason why the Legislature seems to have thought fit to enact Section 1, Sub-section (3), is that it wanted to examine afresh after the expiration of the period mentioned in Section 4 of the Imperial Act the whole provision & re-enact even those provisions of the Essential Supplies (Temporary Powers) Act, 1946, aa were within its ordinary competency under the Indian Constitution. But these things do not affect the conclusion we have reached that the intention of Section 1, Sub-section (3), Essential Supplies (Temporary Powers) Act, 1946, was not to legislate only up to 31-3-1947, but up to the end of the period when the powers of the Legislature under the Imperial Act came to an end

16. It is contended, however, on behalf of theopponent, that assuming it was the intention of the Legislature in enacting Section l, Sub-section (3), Essential Supplies (Temporary Powers) Act, 1916, that the Act should remain in force up to the expiry of the period during whioh they would have the powers, the Act was ultra vires of the Indian Legislature. It is contended that at the time when the Act was enacted the powers of the Indian Legislature were to remain in force only up to 31-3-1947. They could, therefore, enact legislation which was valid only up to 31-3-1947, & it is contended that it was not open to them to pass an Act which was to be valid for a longer period in anticipation that their powers would be extended. Now, the contention that assuming that the powers of the Indian Legislature were to enact a law which was valid only up to 31-3 1947, they could not anticipate that the powers would be extended & enact a law which is valid beyond that period no exception can be taken. But the question is what were the powers of the Indian Legislature under the India (Central Government & Legislature) Act, 1946. It is contended on behalf of the opponent that prior to the notfn. issued by the Governor-General their powers were to pass a law before 31-3-1947, & that the law they had power to enact would be valid only up to 31-3-1947. In support of this contention, reliance ia placed upon the opening words of Section 2, Sub-section (1) of the Imperial Act. It is quite true that thit section uses the words 'during the period mentioned in section four.' But the section by itself does not mention that the legislation when enacted was to be valid only during that period. The learned counsel who appears on behalf of the opponent argues that if powers were conferred upon the Legislature to enact legislation during a period, the presumption is that legislation was to be valid only during that period and not beyond. It is not necessary for us to express any opinion upon this contention because it is not in dispute that the Imperial Parliament could by the Act of 1946 confer upon the Legislature power to enact during any specified period legislation which was valid beyond that period. That of course had to be done either expressly or by necessary implication, & in our view the Imperial Parliament has done it by necessary implication because of the words which occur at the end oE Section 2, Sub-section (1). They provide that any law which has been made by the Indian Legislature which that Legislature would not, but for the provisions of Section 2, have been competent to make, shall cease to have effect on the expiration of the period mentioned in Section 4. It is obvious that if the powers which were conferred upon the Indian Legislature were to enact a law which would be valid only during the period during which they could enact the law, these words would be tautological. The learned counsel who appears on behalf of the opponent says that those words were put in there because it was desired to anticipate an argument that any law which would be made by the Indian Legislature during the period within which powers were conferred uponthem would be invalid thereafter not only to the extent of the incompetency of the Legislature but wholly. Now, if that was the intention, what wewould expect the Parliament to say would be that any law which had been made by the Indian Legislature which would have been within the competency of that Legislature even apart from the provisions of the section would not cease to have effect merely on the ground that certain other portions of the law were beyond its ordinary competency. If that was the result which was intended to be achieved by Parliament, they would Bay so. We do not understand why they would leave that to be implied by providing that the statute shall cease to have effect to the extent it was beyond their ordinary powers & an inference to be raised therefrom that the other portions of the statute would nevertheless be valid. In our view, therefore, the intention expressed by the language used in Section 2 was to confer upon the Indian Legislature power to enact a law during the period during which they were competent to enact it. But the law, if the Legislature so desired, could be valid up to the expiration of the period during which they would have powers to enact the law. The law of course would cease to have effect in any case after the period of five years.

17. The learned counsel who appears on behalf of the opponent argues that Section 2, Sub-section (1) not only restricts the period during which any law could be enacted by the Indian Legislature under the powers conferred by that section, but also limits the period during which the Act was to bevalid. It is not as if restriction has been placed only upon the period during which the law could be enacted, but there was a restriction placed also upon the period during which the law was to have effect. That may be conceded & as I have alrfady pointed out, the law would in any case not be valid after five years from the cessation of the emergency. But that does not alter the fact that within the restricted limit placed by the final words of Section 2, Sub-section (1), the Indian Legislature had power to enact a law which would be valid beyond the period during which at the time of the passing of the Act they were empowered to pass the legislation.

18. Then we come to the argument that assuming that Section 1, Sub-section (3), Essential Supplies (Temporary Powers) Act, 1946, was within the powers of the Indian Legislature to enact, it ceased to have any effect after 31-3-1947. It is contended on behalf of the opponent that Section l, Sub-section (3), does not itself enact the period during which the law was to have effect. It enacts a period during which it was to have effect by reference to another Act, viz. the India (Central Govt. & Legislature) Act, 1946. It is said that in that case it would be correct to say that the provisions of the latter Act are incorporated into the Essential Supplies (Temporary Powers) Act, 1946, & it is argued that in case there is any amendment of the India(Central Govt. & Legislature) Act, 1946, the amendment could not be taken to have been incorporated also in the Essential Supplies (Temporary Powers) Act in the absence of any specific law declaring it to be applicable. It is indeed conceded that if an Act had been passed declaring that the amendment which had been made to the India (Central Govt. & Legislature) Act, 1946, was applicable also to the Essential Supplies (Temporary Powers) Act, 1946, then that amendment would be applicable. But it is said that in the absence of any express law declaring that an amendment to the India (Central Govt. & Legislature) Act, 1846, would be applicable to the Essential Supplies (Temporary Powers) Act, 1946, it cannot be said that when the powers of the Legislature were extended the period during which the Essential Supplies (Temporary Powers) Act, 1946, was to have effect was also extended.

19. Now, the principle with regard to changes in an incorporated Act not affecting the provisions of an incorporating Act has been recognized in England with regard to repeals. Cases on the subject will be found quoted in Maxwell 1946 Edn. 406, This principle was extended by the P. C. to a case which went up to them in an appeal from India from this Ct. in Secretary of State v. Hindustan Co-operative Insurance Society 33 Bom. L. R. 1006 : A. I. R. 1981 P. C. 149. After pointing out that this principle was well established in England & that it was usually given effect to in the repealing Acts by the incorporation of a special section to the effect 'The repeal by this Act of any enactment shall not affect any Act .... in which such enactment has been applied, incorporated or referred to.' Their Lordships went on to observe (p. 1012) :

'It seems to be no less logical to hold that where certain provisions from an existing Act have been incorporated into a subsequent Act, no addition to the former Act, which is not expressly made applicable to the subsequent Act, can be deemed to be incorporated in it, at all events if it is possible for the subsequent Act to function effectively without the addition.'

It was upon that view that they decided that the local Act was not affected by amendments which had been made to the Land Acquisition Act. It appears to us, however, that it is after all a question of intention of the Legislature. The learned Advocate General who appears on behalf of the State has contended that it is true that the wording of Section 4, India (Central Govt. & Legislature) Act, 1946, has been changed by adaptations made by the Governor-General. But he says that an adaptation is different from an amendment, & whereas an amendment or an incorporated statute may apply to the incorporating statute an adaptation will apply (sic). In our view there is considerable force in this contention. There were adaptations made under the powers given by the Indian Independence Act to both the Govt. of India Act, 1935, & a similar Constitution Act, viz. the India (Central Govt. & Legislature) Act, 1946.The adaptation effected was that inasmuch as owing to the change in the status of India it was not possible to call upon the Houses of Parliament to pass a resolution there was to be substituted for 'both Houses of Parliament' the words 'the Dominion Legislature.'

20. Now, an adaptation does not leave an enactment as it was any more than an amendment does but there is this difference between the two, viz., that an adaptation leaves the original statute unchanged in substance. The adaptation made in thia case left the original period up to which the Indian Legislature could make laws even upon a Provincial subject as well as the period up to which its powers could be extended by the Governor. General unchanged. It left unchanged the maximum period during which it could make such laws. The only change effected by the adaptation was that it being inappropriate after India became a dominion that the powers of the Legislature should be extended by a resolution of both Houses of Parliament it provided instead that it should be extended by a resolution of the Indian Legislature. In our view, therefore, the principle ihat an amendment to an incorporated statute is not to be taken as affecting an incorporating statute in the absence of an express provision to ihat effect cannot be applied to an adaptation. But even if this is not for any reason correct, in our view the adaptation made to the India (Central Govt. & Legislature) Act, 1946, would affect the Essential Supplies (Temporary Powers) Act, 1946.

21. The intention of the India (Central Govt. & Legislature) Act, 1946, was that the powers which were conferred upon the Indian Legislature by the Act could be extended from time to time in the first instance by the Governor-General for a period of one year & in the second instance by both the Houses of Parliament for three further periods of one year each. It was also the intention that any legislation which was passed by the Indian Legislature under the powers conferred by the section should be valid up to the end of the period during which the Indian Legislature were empowered to pass the Act if the Indian Legislature so enacted. It was contemplated that the powers might be extended from time to time with the concomitant result of the extension of the period of legislation if the Indian Legislature so provided by any law that they passed. If we come to the Essential Supplies (Temporary Powers) Act, 1946, the plain intention of Section 1 Sub-section (3), was that the Act was to remain in force as long as the powers of the Indian Legislature continued. That being the dominant intention it must be given effect to as if Section 1, Sub-section (3) of the Essential Supplies (Temporary Powers) Act, 1946, had provided in so many words that the Act shall cease to have effect after the expiry of the period during which the Indian Legislature would have power to legislate on the matters refd. to in Section 2, Imperial Act. In our view, therefore, theEssential Supplies (Temporary Powers) Act, 1946, did not come to an end on 81-3-1947. Its period was extended upon the notfn. being issued by the Governor-General up to 31-3-1948, & its period was subsequently extended when the Constituent Assembly extended the period for one year. The Act had not come to an end, therefore, at the time when the offence in this case took place. What happened subsequently it is unnecessary to consider in this case.

22. It is contended, however, that if we assume that the Act has not come to an end it must be held that Section 1, Sub-section (s) of the Act, was ultra vires because it was delegated legislation. It is said that the original period of the Act was to be only up to 31-3-1947. If the Act provided that the Governor-General by notfn. should extend this period, then in that case it was giving power to an executive authority to extend the period of the legislation. Similarly, if it was provided that the Act should be extended in case there was passed a resolution by the Indian Legislature, that was again a case of delegated legislation. There were obvious difficulties in the way of this argument because in the first instance the Governor-General could not possibly be said to be an executive authority. It is not in dispute that under the Constitution Act, the Governor-General was given large legislative powers. Even under the Indian Independence Act these were large legislative powers given to the Governor-General & a Legislature constituted is obviously not an executive authority. What has been done in this case, therefore, is, that, putting the case for the opponent at the highest, there has been an extension of the legislation which was valid up to 31-3-1947, first by the action of a legislative authority different from the ordinary Legislature & subsequently by merely resolutions passed by the Indian Legislature. But in our view this question of delegation does not arise at all in the present case. There could be said to be a delegation only if the Act were to remain in force in the first instance up to 31-3-1947, but subsequently could be extend. ed either by a notfn., issued by the Governor-General or a resolution passed by the Indian Legislature beyond that period. We have already held that the intention in Section 1, Sub-section (3), exacting that the Act would cease to have effect on the expiration of the period mentioned in Section 4, India (Central Government & Legislature) Act, 1946, was that without any further action on the part of the Legislature the Act should continue to be in force up to the end of the period during which the Indian Legislature would have powers to legislate under the Imperial Act. Once it is taken that the Legislature intended that & provided for it by legislation, it could not be said that there was as a matter of fact any further legislation. It is true that it looks in this case as if the period of the legislation has been increased because of the notfn. issued by the Governor-General & becauseof the resolution passed by the Indian Legislature. But that is not how the period as a matter of fact was extended. In the first instance the Indian Legislature passed an Act by which the period would be one year in the first instance, but it would be greater in case a notfn. was issued or a resolution was passed. But the notfn. which was issued or the resolution which was passed did not directly extend the period of the Act. It actuallyextended the period during which the Indian Legislature could pass an enactment under the powers conferred upon it by the Imperial Act & consequently because of the provision of the Essential Supplies (Temporary Powers) Act the Act continued to be valid during the extended period, the Legislature itself having so provided.

23. In our opinion, the opponent was rightly convicted of the offence with which he was charged. The sentence which has been passed in this case, in our opinion, is entirely inadequate to the offence which he had committed. He was found in possession of a large quantity of rice & a large quantity of wheat flour, in excess of the quantity which he was allowed to possess under the law. The learned trial Mag. was himself aware that the offence was a serious offence & he also seems to have come to the conclusion that the offence of the opponent was a systematic evasion of the law. In our view, in these circumstances, there is no reason why the learned Mag. should not have imposed substantive sentence. Such a sentence is as a matter of fact obligatory under the Bombay Essential Supplies (Temporary Powers)& the Essential Commodities and Cattle (Control) (Enhancement of Penalties) Act, 1947. The Act provides for a minimum sentence unless the Ct. for reasons to be recorded in writing thinks fit to impose a lesser sentence It also says that the man shall also be liable to fine. The learned Mag. ought, therefore, in our view, to have imposed the minimum sentence of six months E. I., but inasmuch as the learned Mag. himself did not impose this sentence & we are dealing with the questionupon a rule for enhancement, we think that a sentence of four, months' R. I. & a fine of Rs. 1,000 would meet the ends of justice. In case the fine is not paid, there will be a sentence in default of payment of fine or R. I. for one month.

Dixit, J.

24. While I concur in the judgmentjust delivered by my learned brother, I wish to add a few words with regard to one of the contentions raised by Mr. Purshottam. That contention is that the Essential Supplies (Temporary Powers) Act, 1946, ceases to be operative on or after 1- 4-1947 This Act owes its origin to a Parliamentary Acb which is known as 'India (Central Govt , & Legislature) Act, 1946.' This latter Act was passed by the British Parliament) on 26-3 1946. The reason for passing the Act was that it was considered necessary to continue the controls in respect of matters which were then being dealt with under the Defence of India Act. There wasa Proclamation of Emergency A the Proclamation of Emergency ceased to be operative from 1-4-1946. & the laws then in force were to cease in operation after six months, that is to say, after 30 9-1946. In order to meet this situation the British Parliament passed the Act which is the India (Central Govt. & Legislature) Act, 1946. We are concerned with two sections in the Act. Section 2(1) gives powers to the Indian Legislature to make laws with respect to the matters mentioned in the section & those powers were to be exercised during the period mentioned in Section 4. Section 4 prescribes the duration of legislative powers under the Act. That section runs as follows:

'The period mentioned in the two last preceding sections is the period of one year beginning with the date on which the Proclamation of Emergency in force at the passing of this Act ceases to operate or, if the Governor-General by public notfn. so directs, the period of two years beginning with the date : Provided that if & so often as a resolution approving the extension of the said period is passed by both Houses of Parliament, the said period shall be extended for a further period of twelve months from the date on which it would otherwise expire so, however, that it does not in any case continue for more than five years from the date on which the Proclamation of Emergency ceases to operate.'

25. Now, Section 4, in the first place, indicates the commencement of the period In the body of the section are mentioned two periods & in the proviso to the section two other periods are mentioned. The idea underlying the section was that the legislative powers were to be exercised, to begin with, for a period of one year beginning with the date on which the Proclamation of Emergency in force ceased to operate, but, in any case, the period was not to exceed a period of five years.

26. The Essential Supplies (Temporary Powers) Act, 1946, was enacted in November 1946. Prior to that there was the Essential Supplies (Temporary Powers) Ordinance, 1946, which was promulgated on 26-9-1946, & which was replaced by the Act in question. Pursuant to the powers given by Section 2 the Essential Supplies (Temporary Powers) Act, 1946, was enacted According to Section 4, the original period of one year was to be extended to two years by a notfn. to be issued by the Governor-General. In this case it is not in dispute that such a notfn. was issued by the Governor General, so that the Essential Supplies (Temporary Powers) Act, 1946, would be valid up to 1-4-1948. But prior to that came about a change in the political status of India & the Indian Independence Act, 1947, was passed. It is not again in dispute that by virtue of the provisions contained in that Act & as a result of certain adaptations, resolutions were passed by the Constituent Assembly & the powers of the Legislature were extended from time to time. The result was that, as contemplated by Section 4 of the Act of Parliament, the powers of the Indian Legislature were extended up to thetime when the present Constitution of India came into force.

27. Now, the contention taken on behalf of the opponent is that the Indian Act ceased to be operative on 1-4-1947. The offence with which the opponent has been charged in this case is alleged to have taken place on 22-10-1948, so that if the Indian Act ceased to be operative on 1-4-1947, the opponent cannot be convicted of the offence charged against him. In order to understand this argument it is necessary to turn to Section 1(3) of the Indian Act. It runs as follows :

'It shall cease to have effect on the expiration of the period mentioned in Section 4, Indian (Central Govt. & Legislature) Act, 1946 (9 & 10 Geo. VI, C. 39) except as respects things done or omitted to be done before the expiration thereof, & Section 6, General Clauses Act, 1897 (X [10] 1897), shall apply upon the expiry of this Act as if it had then teen repealed by a Central Act.'

That was the section as it originally stood before its amendment. Now, the argument on behalf of the opponent is that the Indian Act was enacted in November 1946, the period contemplated by Section 4 was a period of one year &, therefore, it must be that period during which the Indian Act was to be in force. This argument seems, no doubt, to be attractive. But if reference is made to Section 2 (1) of the Act of Parliament, it will be noticed that the argument is not really correct. In the first place, Section 2 (1) uses the words 'during the period' while giving to the Indian Legislature power to make laws with respect to matters specified in the section. Section 2 (1) concludes by providing as follows :

'But any law made by the Indian Legislature which that Legislature would not, but for the provisions of this section, have been competent to make shall, to the extent of the incompetency, cease to have effect on the expiration of the said period except as respects things done or omitted to be done before the expiration thereof.'

It is to be noticed that the language of Section 1(3) may be compared with what occurs in Section 2 (1). Section 1 (3) of the Indian Act begins by providing that the Act shall cease to have effect on the expiration of the period ....' It is precisely that period which is mentioned in Section 2 (1) of the Act of Parliament. It provides that

'any law made by the Indian Legislature which that Legislature would not, but for the provisions of this section, have been competent to make, shall cease to have effect on the expiration of the said period.'

Although, therefore, the words 'it shall cease to have effect on the expiration of the period' mentioned in Section 4 seem to be puzzling, the key to the proper interpretation of the words occurring in Section 1 (3) of the Indian Act is to be had from the language used in Section 2(1) of the Act of Parliament. It is not in dispute that the Governor-General issued a proclamation extending the powers of the Indian Legislature to make laws with respect to matters specified in the section. It is also not in dispute that by a resolution passed by the Constituent Assembly the powers of the Indian Legislature were extended by competent authority. The result, therefore, is that so far as Section 4 of theAct of Parliament is concerned, the powers were extended from time to time by proper authority.' The only question which then remains is whether the Essential Supplies (Temporary Powers) Act, 3946, had a period of one year only within which it was to be in force. It is to be remembered that Section l (3) of the Indian Act does not provide in terms that the period was to be a period of one year only. The language employed in Section l (3) of the Indian Act is negative in form. It says that 'it shall cease to have effect ...' That means that it shall have effect until the expiration of the period mentioned in Section 4. Then one has to see as to what is the period mentioned in Section 4. Now, the period mentioned in Section 4, as I have already stated, is, to begin with, a period of one year, but, in any case, the period is not to exceed a period of five years, & looking to the opening words of Section 2(1) & particularly to the concluding words in Section 2(1), it seems to me that it is clear that when Section 1(3) refers to the period, it must mean the period which is refd. to in Section 2(1) & that the powers could be exercised during the period mentioned in Section 4. It is true that a Legislature may provide a specific period of time during which a piece of legislation is to be in force. In this case Section 1(3) of the Indian Act has not provided a specific period, but the period is mentioned by reference to Section 4 of the Act of Parliament. It is obvious having regard to the language of Section 2(1) that not only did the Parliament give to the Indian Legislature the power to make laws with respect to certain matters but the Parliament also specified in Section 4 the period during which those powers were to be exercised. It seems to me, therefore, that the exercise of the powers & the period within which to exercise them really go hand in hand, so that if the powers were validly extended from time to time, it can-not be contended that the Essential Supplies (Temporary Powers) Act, 1946, was valid only for the period of one year as mentioned in the first part of Section 4. In view of this conclusion, it seems to me that it is not necessary to consider the other question which has been raised on behalf of the opponent viz., that the power for extending the period was left to an outside authority. In my opinion, on the construction of Sections 2 & 4 of the Act of Parliament & Section l (3) of the Indian Act, it is clear that the period during which the Essential Supplies (Temporary Powers) Act, 1946, was to be operative wag the period mentioned in Section 4 & this is made amply clear by the language employed in the concluding words of Section 2(1) In my opinion, therefore, the contention raised on behalf of the opponent is not a valid contention & must be rejected.


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