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Bachchu Lal Gupta Vs. Rex - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Case NumberCriminal Revn. No. 1380 of 1948
Judge
Reported inAIR1951All404
ActsGovernment of India Act, 1935 - Sections 297; Uttar Pradesh Oilseeds and Oilseed Products Control Order, 1945; Defence of India Act, 1946 - Sections 1(4); Defence of India Rules
AppellantBachchu Lal Gupta
RespondentRex
Appellant AdvocateA.P. Dube, Adv.
Respondent AdvocateDeputy Government Advocate
Excerpt:
.....executive action is taken by virtue of the entry in the provincial legislative list, the order complained of was passed under the delegated authority given to the provincial government by the central government under the defence of india rules made in accordance with the provisions of the defence of india act. that being so, the applicant was clearly guilty when against the provisions of the u......oilseeds and oil seeds' products control order, 1945, punishable under section 81 (4), defence of india rules and the essential supplies act (xxiv [24] of 1946) for carrying oil seeds from allahabad to a place outside the province without permit and was sentenced to pay a fine of rs. 750/- or in default of payment to undergo rigorous imprisonment for a period of thirty days,3. an appeal was filed in the court of the additional sessions judge of allahabad who dismissed the same.4. after the dismissal of the appeal the applicant has filed this revision. it has been urged by learned counsel that the case is covered by a decision of a bench of this court in ram charan v. rex, 1949 a. l. j. 197 : : air1949all463 : 50 cr. l. j. 694). that case, however, related to export of matches under.....
Judgment:
ORDER

Malik, C.J.

1. Mr. A. P. Dube, learned counsel for the applicants, and the Deputy Government Advocate are agreed that in all these oases the same point his been raised and the decision in one case would govern all the connected cases. Learned counsel have, therefore, given to me the facts of only one case (Cr. Revn. No. 1380 of 1913) as all the other cases are and to be exactly similar.

2. On 16-3 1946, 60 bags of alsi were sent from Allahabad by the accused, Bachchu Lal Gupta, to a firm of commission agents at Satna, firm Sukhnandan Prasad Hanuman Prasad. The arrangement was that the commission agents would sell the alsi and after deducting their commission remit the balance to Bachchu Lal Gupta at Allahabad. Satna is in Rewa State outside the United Provinces. At the Octroi barrier at Chak Ghat the goods were weighed and entries were made in certain forms in triplicate, one form wag given to the sender, another was retained by the office and the third was given to the carrier. The applicant was prosecuted and convicted under Section 8, U. P. Oilseeds and Oil seeds' Products Control Order, 1945, punishable under Section 81 (4), Defence of India Rules and the Essential Supplies Act (XXIV [24] of 1946) for carrying oil seeds from Allahabad to a place outside the Province without permit and was sentenced to pay a fine of Rs. 750/- or in default of payment to undergo rigorous imprisonment for a period of thirty days,

3. An appeal was filed in the Court of the Additional Sessions Judge of Allahabad who dismissed the same.

4. After the dismissal of the appeal the applicant has filed this revision. It has been urged by learned counsel that the case is covered by a decision of a Bench of this Court in Ram Charan v. Rex, 1949 A. L. J. 197 : : AIR1949All463 : 50 Cr. L. J. 694). That case, however, related to export of matches under another order and the decision is therefore not applicable to this or the connected cases. I would, therefore, examine the arguments of learned counsel independently of the decision in that case.

5. The U. P. Oilseeds and Oilseeds' Products Control Order, 1945, passed on 1-9-1945, was issued in exercise of the powers conferred by Sub-rule (2) of Rule 81, Defence of India Rules. This was in supersession of two previous Orders, the United Provinces Oilseeds and Oil Control Order, 1943, and the D. P. Oilseed and Oil Price Control Order, 1943, Clause 8 of this Order provided that:

'No person shall export or enter into any contract for export of oilseeds or their products by rail, road or river, from any place within the United Provinces to any place outside the United Provinces except under and in accordance with the terms of a permit issued by the Provincial Government or the Controller in this behalf.'

Clause 13 of the Order provided that:

'If any person contravenes any of the provisions of this Order, or of any order made under it, or makes any false declaration regarding any matter in respect of which he is required under such order to give information, he shall be punishable under Sub-rule (4) of Rule 81, Defence of India Rules, with imprisonment for a term which may extend to three years or with fine or with both, and any Court trying an offence under this Order may also direct that any oilseeds or their products together with the packages and containers thereof in respect of which the Order has been contravened, be forfeited to His Majesty.'

The above Order was passed, as has already been said, under Rule 81 (2), Defence of India Rules.

6. On 3-9-1939, the Governor-General had issued a proclamation that a grave emergency existed whereby the security of India was threatened. Under Section 102, Sub-section (l), Government of India Act, 1935 (25 & 26 Geo. V. Ch. 42) on declaration of such emergency the Federal Legislature has the power to make laws for a Province or any part thereof with respect to any of the matters enumerated in the Provincial Legislative List. Item 29 of List II, Provincial Legislative List, related to production, supply and distribution of goods etc. Before the declaration of emergency the Government of India had not but the Provincial Government had, under Section 100, Sub-section (3), Government of India Act, the power to make laws about matters in List II. After the declaration of emergency the Government of India had concurrent powers with the Provincial Government, though under Section 102(2) if any Provincial law was repugnant to any provision of the Federal law, the Federal law was to prevail during the period of emergency and for six months thereafter. The result of the proclamation of emergency, therefore, was that the whole field of legislation became open to the Central Legislature including the matters which were included in the Provincial Legislative List.

7. The Defence of India Act (XXXV [35] of 1939) was then passed and Section 2 of the Act gave the Central Government power by notification in the Official Gazette to make such rules as appeared to it to be necessary or expedient for securing the defence of British India, the public safety, the maintenance of public order or the efficient prosecution of war, or for maintaining supplies and services essential to the life of the community. Section 2(4) of the Act gave the Central Government authority to delegate any power or duty conferred on it to the Provincial Government whether or not the power or duty related to a matter with respect to which a Provincial Legislature had power to make laws.

8. The Central Government framed the Defence of India Rules under the Defence of India Act. Rule 81 (2) provided that the Central Government or the Provincial Government, so far as it appeared to it to be necessary or expedient for securing the defence of British India or the efficient prosecution of the war or for maintaining supplies and services essential to the life of the community, had power to issue certain Orders and Clause (a) of Sub-rule (2) of Rule 81 was as follows :

'For regulating or prohibiting the production, treatment, keeping, storage, movement, transport, distribution, disposal, acquisition, use or consumption, Of articles or things of any description whatsoever and in particular for prohibiting the withholding from sale, either generally or to specified persons or classes of persons, of articles or things kept for sale, and for requiring articles or things kept for sale to be sold either generally or to specified persons or classes of persons or in specified circumstances.'

Acting under this sub-rule the U. P. Oilseeds and Oilseeds Products Control Order, 1945, was passed.

9. On 20-3-1946, the Governor-General issued a proclamation declaring that the state of emergency would cease on l-4-1946, and the proclamation declaring a state of emergency, dated 3-9-1989, was withdrawn on 1-4-1916. Before, however, that was done, an Act was passed, 9 and 10 Geo, VI, 1946, Chap. 23 known as the India (Proclamations of Emergency) Act, 1946, amending Section 102, Sub-section (l), Government of India Act, 1935, and giving the Central Government with retrospective effect power to make laws, whether or not for a Province or any part thereof, with respect to any matter not enumerated in any of the Lists in Schedule 7 to the Government of India Act.

10. This was followed by the India (Central Government and Legislature) Act, 1946, 9 and 10 Geo. VI, 1946, Chap. 39 which was passed on 26-3-1946, to amend Sub-section (4) of Section 102, Government of India Act, 1935, as to the effect of laws passed by virtue of a proclamation of emergency. Section 102(4) was as follows :

'A law made by the Federal Legislature which that Legislature would not but for issue of a Proclamation of Emergency have been competent to make shall cease to have effect on the expiration of a period of six months after the Proclamation has ceased to operate except as respects things done or omitted to be done before the expiration of the said period.'

11. Section 2, Sub-section (l), India (Central Government and Legislature) Act, provided that the Indian Legislature should during the period mentioned in Section 4 of this Act have power to make laws with reference to certain matters. These included

'trade and commerce (whether or not within a Province) in and the production, supply and distribution of, cotton and woollen textiles, paper (including newsprint), foodstuffs (including edible oil seeds and oils) petroleum and petroleum products, spare parts of mechanically propelled vehicles, coal, iron, steel and mica,'

and for offences against laws with respect to any of these matters, and jurisdiction and powers of all Courts, except the Federal Court, with respect to any of those matters. Sub-section (4) of Section 2 of the Act was as follows :

'Sub-section (2) of Section 107, Government of India Act, 1935 (which relates to inconsistency between Federal laws and Provincial laws) and Sub-section (2) of Section 126 of that Act (which relates to the giving of directions to a Province as to the carrying into execution of Federal laws relating to matters specified in Part II of the Concurrent Legislative List) shall apply in relation to a law enacted by virtue of this section with respect to any matter, being a matter with respect to which a Province has power to make laws, as if that matter were a matter specified in Part II of the Concurrent Legislative List.'

This Act was to remain in force for one year beginning with the date on which the Proclamation of Emergency in force at the passing of the Act ceased to operate or, if the Governor General by public notification so directed, the period of two years beginning with that date. It also gave the power for further extension by a resolution, if and so often, approving the extension of the said period was passed by both Houses of Parliament, but the period was not to exceed twelve months and the total period was not to exceed five years from the date on which the Proclamation of Emergency ceased to operate.

12. In exercise of the power conferred by Section 4, India (Central Government and Legislature) Act, 1946, the Governor-General extended the period mentioned in Sections 2 and 3 of the Act by two years beginning with the first day of April 1946, by Notifn. No. 7-WL (1)/47, dated 1-3-1947, issued by the Legislative Department.

13. The Essential Supplies (Temporary Powers) Ordinance, 1946 (XVIII [18] of 1946) was passed by the Government of India on 25-9-1946, under the powers given to it under Section 2, India (Central Government and Legislature) Act, 1946, with respect to the commodities mentioned in Section 2 (a) of the said Act. Clause 5 of this Ordinance made provisions for the continuance in force of existing orders and provided that until other provisions were made a breach of any order issued under Rule 80-B, or Sub-rule (2) or Sub-rule (3) of Rule 81, Defence of India Rules, in respect of any matter specified in Section 3, would be deemed to be a contravention of the provisions of Section 3. Clause 3 of the Ordinance gave the Central Government the power, so far as it appeared to it to be necessary or expedient for maintaining or increasing supplies of any essential commodity, or for securing their equitable distribution and availability at fair prices, to issue orders for that purpose. Under Sub-clause (d) of Clause 3 the Central Government had the power to issue orders

'for regulating by licences, permits or otherwise the Storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity.'

Clause 8 provided for penalties for contravention of any order made or deemed to be made under Clause 3. This Ordinance was replaced by the Essential Supplies (Temporary Powers) Act, 1946 (XXIV [24] of 1946), the provisions of which are very similar to the provisions of the Ordinance.

14. It is admitted by learned counsel that the U. P. Oilseeds and Oilseeds' Products Control Order, 1945, was kept alive even after the Defence of India Rules lapsed by reason of Clause 5 of the Ordinance of 1946 and Section 17, Essential Supplies (Temporary Powers) Act 1946.

15. The first point that has been urged by learned counsel is that the U. P. Oilseeds and Oilseeds Products Control Order 1945, prohibiting export outside the Province of alsi was ultra vires as it contravened the provisions of Section 297, Government of India Act. I have dealt with this question in the case of Munni v. Rex (Cri. Revn. No. 266 of 1949, decided on 6-6-1949). In that case I have pointed out that Section 297 applies to Acts passed by the Provincial Legislature by virtue of the entry in the Provincial Legislative List relating to trade and commerce within the Province. In case the Provincial Legislature passes an Act, not by virtue of the entry in the Provincial Legislative List but under some other authority given to it, I do not see how Section 297 can be made applicable. Section 297 does not lay down that the Provincial Legislature or the Government shall, in no case, pass any law or take any executive action prohibiting or restricting the entry into or export from the Province of goods of any class or description. It limits the power of the Provincial Legislature and the Government only in cases where the law or the executive action is taken by virtue of the entry in the Provincial Legislative List, The order complained of was passed under the delegated authority given to the Provincial Government by the Central Government under the Defence of India Rules made in accordance with the provisions of the Defence of India Act. The order was kept alive by the Essential Supplies Ordinance and the Essential Supplies Act which were passed under the authority given to the Central Legislature by the India (Central Government and Legislature) Act, 1946.

16. The Essential Supplies Ordinance and the Essential Supplies Act gave the Central Government authority to delegate the power to make orders under Section 3 to the Provincial Government. The notification issued by the Government of India No. PY. 603 (2), dated 21-10-1946, which continued in force by reason of the provisions of Section 17, Essential Supplies Act, was passed with the concurrence of the Government of India as required by the Act and was as follows:

'In exercise of the powers conferred by Section 4 of the Essential Supplies (Temporary Powers) Ordinance, 1946 (XVIII [18] of 1946) the Central Government is pleased to direct that the powers conferred on it by Sub-section (1) of Section 3 of the aforesaid Ordinance to provide for the matters specified in Sub-section (2) thereof shall, in relation to foodstuffs, be exercisable also by any Provincial Government, subject to the conditions, that (a) before making any order relating to any matter specified in Clause (a), (b), (c), (d), (f) and (g) of the said Sub-section (2), the Provincial Government shall obtain the concurrence of the Central Government, (b) no order made in the exercise of the aforesaid powers shall have effect so as to prohibit or restrict the export from any place in the Province to any place outside India of any articles or things.' This notification places a restriction on the powers of the Provincial Government to prohibit or restrict the export from any place in the province to any place outside India, but places no restriction on the power to prohibit movement from one Province to another. That being so, the applicant was clearly guilty when against the provisions of the U. P. Oilseeds and Oilseeds' Products Control Order, 1945, he exported alsi from Allahabad to the Rewa State.

17. Mr. A. P. Dube has drawn my attention to a notification, dated 5-3-1947, published in the Gazette of India Extraordinary of the same date. This is Notifn. No. C. G. 603 (2) III (2) and is as follows:

'In exercise of the powers conferred by Sub-section (1) of Section 3 of the Essential Supplies (Temporary Powers) Act, 1946 (XXIV [24] of 1946), the Central Government is pleased to direct that no order made or deemed to be made under the said Act by a Provincial Government shall have effect so as to prohibit or restrict the movement of edible oilseeds or oils other than cocoanut oil from any place in a Province to any other place within or outside the Province, or so as to regulate or control the price, production or distribution thereof in any way.'

Learned counsel has urged that this, In effect, is the same as Section 297, Government of India Act, 1935. It would be noticed, however, that this notification does not relate to all the ten essential commodities mentioned in the Essential Supplies Act but only to edible oilseeds or oil other than cocoanut oil. After the issue of this notification, the Provincial Government has no power to restrict the inter-Provincial movement of edible oil-seeds or oils other than cocoanut oil. The accused in this case, however, has been charged with an offence committed in March 1946, almost a year before this notification, and this notification has no retrospective effect.

18. The question then raised is about the effect of this notification by which the inter. Provincial movement of edible oilseeds or oils other than cocoanut oil has been permitted and to that extent the U. P. Oilseeds and Oilseeds' Products Control Order, 1945, has been abrogated.

19. Mr. Dube has urged that though at the time when the oil-seeds were despatched outside the Province it might have been an offence under the U. P. Oilseeds and Oilseeds' Products Control Order, yet the applicant cannot be convicted as that Order is no longer valid and has been now abrogated. He has relied on a passage in Halsbury's Laws of England, Hailsham Edition, vol. 31, p. 512, which is as follows:

'After the expiration of a statute, in the absence of provision to the contrary, no proceedings can be taken on it, and proceedings already commenced ipso facto determine.'

Learned counsel has urged that there being no provision to the contrary the applicant could not be convicted.

20. The learned Deputy Government Advocate has referred me to Section 6, General Clauses Act which is as follows:

'Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made then unless a different intention appears, the repeal shall not--

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed.'

It has been, however, conceded that this would only refer to repeals where a Central Act or Regulation is repealed by another.

21. Mr. Dube has relied on Section 102, Sub-section (4), Government of India Act, 1935. I do not see how this sub-section helps the applicant. It provides that the emergency having ceased laws made during the state of emergency by reason of the declaration of such emergency shall cease to have effect after six months, But it will not affect what has already been done or omitted to be done before the period has expired, that is, if a contravention has been made of such Jaw by doing something or by appearing to do something that contravention remains actionable, and this only applies to laws made by the Federal Legislature.

22. The Defence of India (Second Amendment) Ordinance 1946, (XII [12] of 1946), issued on 30-3-1946, amended Sub-section (4) of Section 1, Defence of India Act, 1939, by adding the words 'but its expiry under the operation of this sub-section shall not affect--

(a) the previous operation of, or anything duly done or suffered under this Act or any rule made thereunder or any order made under any such rule, or

(b) any right, privilege, obligation or liability acquired, accrued or incurred under this Act or any rule made thereunder or any order made under any such rule, or

(c) any penalty, forfeiture or punishment incurred in respect of any contravention of any rule made under this Act or of any order made under any such rule, or

(d) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, foreiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy, may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if this Act had not expired.'

23. The notification of the Government of India about transport of edible oil seeds or oils other than cocoanut oil from any place in a Province to any other place within or outside the Province was passed on 5-8-1947. The applicant was sent up for trial on 27-3 1947, for what he had done long before this notification and under this amendment to Section 1, Sub-section. (4), Defence of India Act, the applicant still remains liable for the contravention of which he was guilty before the notification. I am, therefore, of the opinion that the applicant can be convicted and sentenced as the notification is sued by the Government of India on 5-31947, was not retrospective and permitted inter-Provincial movement of edible oil seeds or oils other than cocoanut oil with effect from the date of the issue of the notification.

24. Having considered this matter, in all its aspects I am of the opinion that the applicant was rightly convicted,

25. The applicant in this casa and the applicants in the connected cases have been convicted and sentenced to pay separate fines for breaches committed of the Order during the course of the same or connected transactions. To my mind, the ends of Justice would be met by substantially reducing the fines in many of the cases.

26. The applicant, Bachchu Lal Gupta has been sentenced to pay a fine of Rs. 750/-. The fine is reduced to RS. 200/- only. If the amount in excess of Rs. 200/- has been realised it shall be refunded to the applicant. In default of payment of fine the applicant shall undergo rigorous imprisonment for thirty days.


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