Jagdish Sahai, Broome, Manchanda and Pathak, JJ.
1. We are in agreement with the conclusions drawn by the learned Chief Justice. It was strenuously contended by Mr. Khare that the Full Bench has been wrongly constituted inasmuch as the judgment of B.D. Gupta, J. has been affirmed by a Division Bench of this Court consisting of V.G. Oak and Seth, JJ.; but now that a Full Bench has been constituted, we do not think it is* for us to enter into the question of the propriety of the constitution of this Bench.
2. This and connected special appeals are from a judgment of B. D. Gupta, J. allowing the respondents' petitions and directing the appellants to release forthwith the entire quantities of foodgrains seized by them under paragraph 18 of the Uttar Pradesh Foodgrains (Control Requisition, and Distribution) Order, Order, 1963. Under Section 3 of the Defence of India Act the Central Government was authorised to make rules for securing the defence of India and civil defence, the public safety and the maintenance of public order or for maintaining supplies essential to the life of the community and in particular rules providing for or empowering authorities to make orders providing for the control of trade and the prevention of hoarding, profiteering, blackmarketing or any other unfair practices in relation to any goods notified by or under the rules sis essential to the life of the community. The rules may also provide for the seizure, detention and forfeiture of any property in respect of which any contravention of or any attempt to contravene, or any abetment to, or any attempt to abet, the contravention of any of the provisions of the rules or any order issued thereunder. Section to lays down that no order made in exercise of any power conferred by or under this Act shall be called in question in any Court and that when an order purports to have been made or signed by any authority in exercise of any power conferred by or under the Act, a Court shall presume that it was so made by that authority.
In exercise of the power conferred by Section 3 the Central Government made 'Rules under the Defence of India Act, 1962'. One of them is Rule 125, which is to the effect that if the State Government is of opinion that it is necessary or expedient so to do for securing the maintenance or increase of supplies essential to life of the community or for securing the equitable distribution and availability of any article or thing at fair prices it may, by order, provide for regulating or prohibiting the production, manufacture, supply and distribution, use and consumption of articles or thing, or for preventing any corrupt practice or abuse of authority in respect of any such matter and, in particular, for regulating the keeping, storage, distribution, disposal, acquisition or use of articles or things of any description whatsoever, for the minimum and maximum stock of any article or thing appearing to the Government essential to any or the purposes mentioned above to be held by any consumer or by any producer, manufacturer, distributor, dealer or any other person and for any incidental or supplementary matters for which the Government thinks it expedient for the purposes of the order to provide, including in particular, the entry into, search and inspection of premises and places, and seizure by a person authorised to make such search of any articles or things in respect of which he has reason to believe that a contravention of the order has been, is being or is about or likely to be committed.
Sub-rule (7) lays down that any articles or things seized under the authority of any order made under the above provision must be conveyed without delay before a Magistrate, who may give such directions as to their temporary custody as he thinks fit and that where no prosecution is instituted for a contravention of the order in respect of the articles or things seized within a reasonable period the Magistrate must direct their return to the person from whom they were seized and that in other respects the provisions of the Code of Criminal Procedure, so far as they are applicable, will apply to any search or seizure made under the authority of any such order. Sub-rule 9 (a) provides that any person contravening any order made under this rule is liable to punishment with imprisonment, or fine, or with both. Rule 5 lays down that any person to whom any provision of these Rules relates, or to whom any order made in pursuance of these Rules is addressed or relates, or who is in possession or control of anything to which such provision relates, or in respect of which such order is made, fails without lawful authority or excuse to comply or secure compliance with such provision or order, he shall be deemed to have contravened the provision or order within the meaning of the Rules. Rule 144 includes within the meaning of 'contravention' attempt to contravene, abetment of contravention or doing any act preparatory to contravention.
2. In exercise of the power conferred by Rule 125 of the Defence of India Rules the State Government passed what is known as the Uttar Pradesh Foodgrains (Control, Requisition and Distribution) Order, 1963, to be referred to henceforth as 'the Order'. The order has been amended from time to time and the provisions in force when the foodgrains were seized from the possession of the respondents were as under.
3. Clause 3 prohibits a person other than a regular or approved dealer from selling any of the foodgrains (wheat, gram, jwar, bajra, paddy, barley, maize and peas). Clause 3-A authorises the Government to fix by a notification the maximum quantity which may at any time be possessed by a member of a household, a producer or a regular dealer, the maximum quantity which may be sold in any one transaction and the maximum price which may be charged by a producer or regular dealer; no such notification has been issued by the State Government. Clause 3-B (a) prohibits a producer from having in his possession at any time a quantity of foodgrains exceeding 20 quintals for the use of his household and 40 kg. per acre of his agricultural holding for use as seed, Clause 3-B (b) requires that no regular dealer can have in his possession at any time a quantity of foodgrains exceeding one hundred quintals 'provided that if he receives any quantity of foodgrains exceeding one hundred quintals from any mandi then the mandi in which he receives it, he may dispose of the quantity in excess of the maximum permitted under this para within a week from such receipt.' Clause 3-B (c) prohibits the members of a household from having in their possession at any time a quantity of foodgrains exceeding 4 quintals for their personal consumption. Clause 3-B (e) provides that no person shall have in his possession any quantity of foodgrains except to the extent allowed under para (a), para (b), para (c) or para (d) 'provided that the District Magistrate, on being satisfied that it is in the public interest so to do, may, on an application presented before him......grant exemption to any institution . . . .' Clause 3-C is as follows:---
'Notwithstanding anything contained in.... clause 3-B any person who 'on 3-8-64' has in his possession any quantity of foodgrains in excess of the maximum permitted under the said Clause 3-B may, within fifteen days From the said date dispose of the same by way of sale under intimation to the District Magistrate'.
Clause 5 prohibits a regular or approved dealer from entering into any transaction involving purchase or sale or storage for sale in a speculative manner, prejudicial to the maintenance of easy availability of the supplies of any of the foodgrains in the market, or from withholding from sale any of the foodgrains ordinarily kept by him for sale. Clause 7 obliges every regular and approved dealer to maintain an account of all purchases, sales and transaction in respect of foodgrains. Clause 18 authorises any Food Officer or the Superintendent of Police to enter and search any premises used or believed to be used for the purchase, sale or storage for sale of any of the foodgrains and to seize any of them in respect of which he has reason to believe that a contravention of this Order has been, is being or is about or likely to be committed and to take all measures for their safe custody pending such production as provided under Rule 125 (7) of the Defence of India Rules. Clause 19 makes it an offence punishable under Rule 125 (9) (a) of the Defence of India Rules for any person to contravene any provision of the Order.
4. In exercise of the power conferred by Clause 18 of the Order on or about 25-9-1964 Food Officers raided the houses of the respondents in this and connected appeals and seized quantities of rice, paddy, wheat, etc. Thereupon the respondents filed petitions for mandamus requiring them to release the foodgrains seized by them. They contended that the provisions of the Order were arbitrary and discriminatory and that in any case the seizure of foodgrains within the exempted limits was illegal. The petitioions were contested by the appellants.
5. In Special Appeal No. 929 of 1964 the respondent claimed to be a dealer purchasing food grains from producers and selling them in the market. 76 quintals of wheat were seized by the District Magistrate on 26-9-64 from a warehouse where it was kept on its behalf. In the counter-affidavit filed on behalf of the appellants it was denied that it was a dealer because its licence had been suspended under an order, dated 28-1-64. It said in its rejoinder-affidavit that the suspension order was cancelled and the licence was renewed for the period ending on 31-12-64. So it is a regular dealer. Under para 6 of the licence granted to it, it was forbidden to contravene any provision of any Jaw relating to food stuffs for the time being in force
6. In Special Appeal No. 921 of 1964 the respondent is a producer and on 26-9-64 the appellants seized 258 quintals of rice, 30 quintals of paddy, 19 quintals of wheat and 1 1/2 quintals of barley from his house. His case is that the seized foodgrains belonged to thirteen persons who, once members or a joint family, are now separate from one another, though living in a common house. The appellants denied that the seized foodgrains belonged to thirteen different families and not to one and asserted that out of the foodgrains found in his granary 3 quintals of gram, 1 1/2 quintals of Kerao and 20 quintals of rice were left for his consumption and for seed purposes and were not seized at all and that no quantity of gram was seized at all though found there.
7. In Special Appeal No. 933 of 1964 the respondent is a regular dealer and had in its possession on 8-9-64 more than 100 quintals of foodgrains which had been in its possession for more than a week. The foodgrains were seized actually on 26-9-64. Its ease is that it had received the quantity in excess of the maximum quantity permitted, namely 100 quintals, from an outside mandi within a week of the date of the seizure and that whatever was the excess quantity in its possession on 8-9-64 had been sold out within a week.
8. In Special Appeal No. 938 of 1964 the respondent is a dealer and was granted a licence under the U. P. Foodgrains Licensing Order, 1964, valid for the period ending on 31-12-64, but failed to comply with the condition that it must furnish a, security. The appellants treated it as not a regular dealer, contending that on account of its failure to deposit the security the licence did not come into force at all. The respondent denied that there was any contravention of the U. P. Foodgrains dealers Licencing Order because it had to furnish the security within three months. The U. P. Foodgrains Dealers Licencing Order, 1964, was made by the State Government in exercise of the powers conferred upon it by Section 3 of the Essential Commodities Act, 1955 and came into force on 29-2-64. Clause 6 of it provided for the deposit of a security by a dealer at a certain rate. It was amended with effect from 30-7-64 and the amended clause reads as follows:--
'Every dealer who at the commencement of this Order holds a valid licence granted under the Uttar Pradesh Foodgrains dealers Licencing Order, 1963, shall within a period of three months from the date of such commencement ......shall....deposit......security according to a certain scale.'
The only difference between the amended clause and the original clause is in respect of the scales of security. The respondent's case is that the period of three months is to be computed with effect from 30-7-64 and that consequently on 26-9-64 when the foodgrains were seized the period had not expired and consequently there was no default by it in furnishing the security and the licence had not ceased to be effective.
9. In Special Appeal No. 926 of 1964 the seized foodgrains have been released.
10. In Special Appeal No. 904 of 1964 the respondent is a regular dealer in foodgrains. On 22-9-64 it was permitted export of 440 quintals of gram during the period 23-9-64 to 28-9-64. So it purchased about 146 quintals of gram on 24-9-64 and had already in its possession 5 quintals from before for personal use. On 26-9-64 before it could export the gram was seized by the appellants.
11. In Special Appeal No. 903 of 1964 about 300 quintals were seized from the respondent's possession on 26-9-64. Its case is that only a day before it had received 180 quintals in a truck. This was denied in the counter-affidavit filed on behalf of the appellants because a truck could carry only 60 quintals. The respondent's case is that the truck had made three trips. The investigation into the offence alleged to have been committed by the respondent resulted in a final report on 12-10-61.
12. In Special Appeal No. 914 of 1964, 339 quintals of foodgrains were seized from the respondent's possession and its case is that the whole quantity was received by it in the period between 19-9-64 and 26-9-64.
13. In Special Appeal No. 927 of 1964 a large quantity of foodgrains was seized from the possession of the respondent, who is a regular dealer, on 26-9-64. Its case is that it sells 300-400 quintals of foodgrains daily and that prior to the date of the seizure it had been enquiring from the district authorities what it should do with the excess stock. It also claims that it was a commission agent-cum-bailee and was not free to dispose of the food-grains and consequently was not liable for the possession of foodgrains of more than 100 quintals.
14. In Special Appeals Nos. 905, 915, 916 and 921 of 1964 the respondents are producers of foodgrains. In Special Appeals Nos. 907, 911, 919, 920 924, 928. 936 and 942 of 1964 they are dealers and foodgrains were seized from their possession and sealed. In Special Appeals Nos. 912, 917, 922, 923, 925, 932 and 940 of 1964 the respondents are dealers and the foodgrains in their possession were sealed and left in their possession and not seized.
15. The Government of India Cotton Cloth and Yarn (Control) Order through Clause 14 provided that no dealer should after 31-12-44 have in his possession any cloth manufactured in India before 1-8-43 or any cloth manufactured and packed after 31-7-43 and before 1-1-44 and that no manufacturer or dealer could have in his possession any other cloth, wherever manufactured, after 31-12-44. In the Order, as originally made, there was prohibition against keeping cloth manufactured before 1-8-43 in full Hales after 31-8-43 and against having it in possession after 31-10-43. The order did not state what was to happen if any portion of the cloth remained undisposed of. This rule came up for interpretation before a Full Bench of this Court in Laljee v. Emperor : AIR1948All38 . Malik, J., speaking on behalf of himself and Verma and Mootham, JJ. said that 'this stringent rule may have been passed' (because) 'It was thought that if the dealers offered the cloth for sale there was such a demand for it that there was no possibility of its remaining undisposed of after that period'. On 22-1-44 Clause 15-A was added in the Order providing that notwithstanding anything contained in Clause 14 the cloth not disposed of within the period specified in it could be kept and sold by a dealer subject to the conditions notified in that behalf by the Textile Commissioner prescribing special marking to be made on it, provided that it was not to be kept undisposed of for more than six months after the date of the marking. There was no exception to this provision; ail cloth has to be disposed of within six months from the date of the marking. With reference to the provisions of Clauses 14 and 15-A, Malik, J. observed at p. 538 (of All LJ): (at p. 40 of AIR):--
'These Control Orders were passed with the object of protecting the public from dishonest dealers who were to take advantage of the uncertain market due to war conditions and hoarding goods with the object of being able to sell them later at a better price. That being the object, even if there were a few cases where au honest dealer, who made every effort to sell the cloth but was not able to dispose of it within the period fixed by law, suffered in consequence through no fault of his, the Courts have to enforce the law, though in awarding sentence the Court can consider that circumstance and award a lighter sentence. It is the duty of the Courts to administer the law. If Courts of law did not hold themselves hound to subordinate their own ideas of what is reasonable to an assumed superior resonableness in the law, though that assumption may not always be well founded, the law could never perform its function of being a controlling force in society.'
At p. 539 (of All LJ): (at p. 40 of AIR), ho observed that a duty was cast upon a dealer by Clause 14 to dispose of the cloth before 31-12-1944 and that 'the law, in its wisdom, assumed that he would be able to do so if he wanted to'. He disagreed with Provincial Government, C. P. and Berar v. Shamsherali, ILR (1945) Nag 909: (AIR 1945 Nag 249), in which it was held that Clause 14 was incomplete and unworkable in so far as no provision was made for disposal of cloth lying unsold with dealers after 31-12-44 and the dealer was not liable to be punished because he had a lawful excuse for possession of the cloth after 31-12-44. He pointed out that the order may be defective but the defect was due to the circumstance that the legislature thought that there will be no such cloth left unsold if it was placed in the market. Then coming to the question whether there was a lawful excuse for possession of the cloth after 31-12-44 within the meaning of Rule 5 of the Defence of India Rules, he held that it did not arise because it was not pleaded that the cloth could not be disposed of by 31-12-44. Though what amounts to lawful authority or excuse was not a question raised before him he was inclined to the view that 'the word 'lawful excuse' means any excuse which is recognised as a good excuse in law'. He distinguished between 'any reasonable excuse' and 'lawful excuse' because an excuse may be good in fact though not tenable in law. In the result he held that a dealer had no right to retain possession of cloth after 31-12-44 and that as the Textile Commissioner had not issued any notification prescribing the markings he could not rely upon Clause 15-A. He refused to hold that the Order was unworkable and should not be enforced even though if might not have been very well drafted,
16. The same Cotton Cloth and Yarn (Control) Order, 1943 was considered in Arbind Kumar Deb v. Rex : AIR1949All473 , by another Full Bench of this Court; the judgment was delivered by Mustaq Ahmad, J. with whom Wali Ullah and Raghubar Dayal, JJ. agreed. A dealer was prosecuted for contravention of Clause 14 by being found in possession of cloth after 31-12-44 and the defence offered was that he was unable to dispose of it by 31-12-44 in spite of best efforts. The learned Judges held that there cannot be a contravention of the Order unless the failure to comply with it is without lawful authority or excuse, that the onus is upon the prosecution to prove the absence of lawful authority or excuse, that a lawful excuse is an excuse 'which, though not expressly sanctioned by law, is reasonable and not prohibited by law or opposed to any principle of law', that the failure on the part of the authorities to provide for the mode in which the dealers were to act in the event of cloth remaining with them undisposed of itself amounted to a lawful excuse and that there can be a lawful excuse even though no active steps have been taken by a dealer prior to 31-12-44 for getting rid of the cloth before the expiry of that date.
17. There is undoubtedly a conflict between the above decisions of the two full benches. The interpretation of 'lawful excuse' given by Malik. J. in the earlier decision was not accepted by Mushtaq Ahmad, J. in the later decision, Mustaq Ahmad, J. treated Malik, J.'s interpretation as by way of obiter and, there-fore, not binding on the Full Bench of which he was the spokesman. Malik, J.'s interpretation was followed by Mootham, J. in Mithan Lal v. Emperor : AIR1948All165 , and he held that the dealer's inability to dispose of cloth by 31-12-44 did not furnish a lawful excuse for contravention of the Order. With great respect to Mustaq Ahmad, J. I do not agree that the interpretation of Malik, J. was by way of obiter. the was as much concerned with a lawful excuse as was Mustaq Ahmad, J. because both had to consider whether the dealer, who found himself in possession of cloth after 31-12-44, was guilty of the contravention of the Order within the meaning of Rule 5 of the Defence of India Rules and, therefore, liable to be convicted under Rule 81 (4). What Malik, J. said was not that the question what amounts to lawful excuse was irrelevant but that it was not necessary to be decided because a lawful excuse was not pleaded at the trial. He did not discuss the question of onus of proof and assumed that it was for the accused, and not the prosecution, to prove a lawful excuse. What is a lawful excuse depends upon facts and law; it is a question of fact whether a certain reason or justification given for remaining in possession of cloth after 31-12-44 existed at all or not and it is a question of law whether that reason or justification amounts to lawful excuse within the meaning of Rule 5 of the Defence of India Rules or not. Every judicial process involves finding of facts and application of the law to the facts so found. So here the Court had to find the reason for the dealer's being in possession of the cloth after 31-12-44 and then had to consider whether it amounted to a lawful excuse or not. It was urged before Malik, J. in the oral argument that the reason for the dealer's finding himself in possession of the cloth after 31-12-44 was his inability to sell it earlier but Malik, J. could not act upon it because it had not been proved as a matter of fact in the trial. According to the assumption of Malik, J. it was for the dealer to prove that it was the reason, but he had failed to prove it. So there was no fact to which any law could be applied and it was in this sense that he observed that the question of lawful excuse did not arise before him. It does not follow that it was not open to him to decide what amounts to lawful excuse or whether the reason, even if proved to be the reason, could amount to lawful excuse or not. When a Court rejects a claim or defence it does so in any of the following circumstances:---
(1) The facts on which the defence or claim is based are not proved at all;
(2) They are proved but the law to be applied to them does not make out the claim or defence;
(3) The law sought to be applied to the facts sought to be proved does not establish the claim or defence.
On finding the question of fact against the plaintiff or defendant it may reject his claim or defence at once without considering the question of law. Similarly, it may take up the question of law first and deciding it against the plaintiff or defendant reject his claim or defence without considering the question of fact. Or it may go into both the questions and decide both or even either against the plaintiff or defendant. In any of these circumstances the claim or defence must fail. It is thus clear that a Court is not precluded from going into a question of law merely because the question of fact is decided against the plaintiff or defendant. It may have two strings to its bow and hold that the plaintiff or defendant fails on the question of fact and on the question of law both. This is what happened in Laljee's case : AIR1948All38 . Malik, J. went into the question of fact and denied it against the accused. It was not obligatory upon him to go into the question of law, but he was also not precluded from going into it and did go into it and held that even if the question of fact had been proved in the dealer's favour the reason or justification so proved did not amount to a lawful excuse. A Court having two reasons in support of its view may give both and each of them operates as a ratio decidendi. Merely because on giving one reason it is not necessary for it to give another reason, its giving another reason does not become obiter dictum and does not lack the force of res judicata or a precedent. Malik, J. had two reasons for rejecting the dealer's defence, one that his inability to sell the cloth before l-1-45 was not proved and the other that inability to sell the cloth before that date does not furnish a lawful excuse. Since the inability was not proved in the case there was no fact to which any law could be applied and so he held that the plea of lawful excuse was not made out. This is what he meant by saying that the question of lawful excuse did not arise before him. Still he had the jurisdiction to, and did, decide that the inability does not amount to a lawful excuse. All that may be said is that he did not elaborate the interpretation he placed upon 'lawful excuse' but this does not convert the decision into an obiter dictum. What he laid down was fully endorsed by the other two learned Judges, I have discussed the matter at length not with a view to show that the second Full Bench could not differ from the first Full Bench but to show that there was a decision, and not a mere obiter dictum, by the former Full Bench which conflicts with the decision by the later Full Bench.
18. In this and connected special appeals our brother Bhagwan Das Gupta, J. followed the decision in Arbind Kumar Dev's case : AIR1949All473 . He took the same view of the decision of Malik, J. regarding lawful excuse as was taken in Arbind Kumar Deb's case : AIR1949All473 and, for the reasons given above and with great respect, I disagree with him. He further observed that whether the respondents took active steps for getting rid of the excess stocks of foodgrains before the expiry of the prescribed period did not arise 'because it was not necessary for them to take any such steps'. In the result he held that they did not contravene the Order, that consequently there was no reason to believe that they had contravened the Order and the appellant's acts of seizure of the foodgrains were in excess of the authority conferred upon them by Clause 18 of the Order, and allowed the petitions and directed the appellants to release the foodgrains seized or sealed by them.
19. The order passed by our leraned brother governed not only the petitions giving rise to this and connected special appeals but also a petition of M/s. Shiv Prasad Shanker Dayal. A special appeal filed from that judgment was filed by the State of Uttar Pradesh and it carne up for hearing before our brothers Oak and Seth, JJ. They dismissed it relying upon the decision in Arbind Kumar Deb's case : AIR1949All473 . They conceded that there was a conflict between the two Full Bench decisions and realised that the decision in Laljee's case : AIR1948All38 , was in the appellant's favour but considered themselves bound by the other Full Bench decision because 'the question relating to lawful excuse was not fully discussed in Laljee's case : AIR1948All38 . With great respect to the learned Judges I may say that when they found that there was a conflict between the two Full Bench decisions their refusal to refer the case to a larger bench does not seem to be justified by the fact that the question was not as elaborately discussed in one decision as in the other. Earlier they had observed that 'had the second Full Bench disposed of Arbind Kumar Deb's case : AIR1949All473 , without noticing the previous Full Bench decision in Laljee's case : AIR1948All38 , we would have seriously considered the question of referring the case to a larger Full Bench'; with great respect again I am unable to appreciate the reason. The necessity for reference to a larger bench arises only from a conflict and if there would have been a conflict if the earlier decision had not been noticed in the later decision it would have existed even if it had been noticed. I venture to think that the conflict would have assumed greater proportion if the earlier decision had been noticed in the larger decision and not approved of or followed than if it had not been noticed at all; after all the later Full Bench was not competent to override the earlier decision or to give deliberately a conflicting decision.
20. Sri S.N. Kacker appearing for the respondent in Special Appeal No. 1908 contended that after the dismissal of the special appeal by our brothers Oak and Seth the admission of the special appeals for decision before us is questionable 011 the ground of legality and propriety; the contention has no merit at all. A Division Bench is bound by a decision of another Division Bench in this sense that it cannot give a decision contrary to it but when a Division Bench admitted these special appeals it simply ordered them to be heard in the presence of the respondents and did not give a decision contrary to that given by our learned brothers. Admitting an appeal is not deciding it; otherwise a larger Bench can never be constituted and a wrong decision given by a Division Bench can never be corrected. Before a decision of a Bench is considered by another the appeal must be entertained and heard on merits but if it cannot be admitted at all there will never arise any occasion for its being heard and decided. Sri S. N. Kacker could not point out any authority in support of his contention. Then it was not for him to contend that it was improper and we have no jurisdiction to decide whether the Bench admitting these special appeals acted properly or not.
21. Sri S.N. Kacker, appearing in special Appeals Nos. 918 and 931 contended that there is conflict between the two Full Bench decisions and that in any case referring the special appeals to a larger Bench was not correct or justified. The special appeals have been referred to this Bench by an administrative order of the Chief Justice and it has no jurisdiction to consider its merits. It derives its jurisdiction over the special appeals from the order of the Chief Justice passed under Rules of the Court, and it has not been alleged that it is against any provision of Rules of Court, The Chief justice passed the order on a judicial order passed by a Bench that to resolve the conflict between the two Full Bench decisions they may be referred to a larger Bench, e.g., a Bench of at least five Judges. It is not open to any member of this Bench to question that order of the Division Bench, and I can only express surprise at the suggestion made by counsel that he can do so and that this Bench can hold that the order passed by the Chief Justice referring the special appeals to a Bench of five fudges was not proper or legal.
22. Sri S.C. Khare next argued that this Bench should not reconsider the decision in Arbind Kumar Deb's case : AIR1949All473 , unless it finds a conflict between it and the earlier Full Bench decision or there is a decision of the Supreme Court undermining its authority or its judgment was per incuriam, over-looking a substantial provision of law. What he meant was that this Court should not overrule the decision merely on the ground that it does not agree with it or that it is not correct. In support of this contention he relied upon London Tramways Co. Ltd. v. London County Council (1898) AC 375, laying down that a decision of the House of Lords upon a question of law is conclusive and nothing but an Act of Parliament can set right what is alleged to be wrong in it, Young v. Bristol Aeroplane Co. Ltd. (1944) 2 All ER 293, laying clown that the Court of Appeal is a creature of a statute, that its powers are statutory and that
'it is one Court though it usually sits in two or three divisions; each division has coordinate jurisdiction, but the full Court has no greater powers or jurisdiction than any division of the Court' (p. 298).
Enatullah v. Kowsher Ali, AIR 1926 Cal 1153, laying down that a Full Bench decision which has stood for over half a century, is not contrary to any principle of justice, equity and good conscience, has been followed by other High Courts and is accepted as good law by modern text writers should not be overruled, Ningappa v. Emperor, AIR 1941 Born 408, containing an observation of Beaumont, C. J. that it would be anomalous to hold that a later Full Bench can overrule an earlier Full Bench merely because it consists of more Judges than the earlier, and Bengal Immunity Co. Ltd. v. State of Bihar : 2SCR603 containing observations of Jagannadhadas and Venkatarama Ayyar, JJ. in their dissenting judgments about the Supreme. Court's not overruling its earlier decision.
The House of Lords may not overrule its decision but it does not follow that a Bench of five Judges of an Indian High Court cannot overrule a decision of a Bench of three Judges. The Court of Appeal of England may be bound by its own decision, us held in Armstrong v. Strain, (1051) 1 TLR 856 but where there are two conflicting decisions it is entitled, and bound, to decide which of them to follow. In Re. Shoesmith, (1938) 2 KB 637 Greer, LJ. observed at p. 644 that a full court, of appeal can overrule a decision of the Court of Appeal and that it is only a rule of policy and not of law which compels the Court of Appeal to follow its own decision rendered earlier. Neither the Judicial Committee of the Privy Council nor the Supreme Court of United States nor the Supreme Court of Canada nor the High Court of Australia nor the Supreme Court of India is bound by its own previous decision. Similarly a High Court in India is not bound to follow its own earlier decision and may depart from it. The departure is done by a Bench of a larger number of Judges. It is the practice of this Court that when there is a conflict among two decisions of Benches or a Bench does not agree with the decision of another Bench it refers the case to a Bench of a larger number of Judges. The order passed by a Division Bench of this Court referring those special appeals to a, larger Bench and the order of the Chief Justice listing them for hearing before this Bench of five Judges are in accordance with this practice. We are governed by the law in force here and not by the law governing the Court of Appeal in England or the House of Lords.
In the case of Enatullah, AIR 1926 Cal 1153 (FB) a Bench of seven Judges was constituted to consider the correctness of a Full Bench decision and overruled it. In Mahadeolal v. Administrator General of West Bengal : 3SCR578 the Supreme Court laid down that when the Judges of a Bench disagree with a previous decision recorded by the Judges of another Bench the usual procedure to be followed is of 'referring' the question to a larger Bench'. What is meant by 'a larger Bench' is a Bench composed of more Judges than the Bench giving the earlier decision. A Bench of two Judges is known as a Division Bench and a Bench of three or more Judges as a Full Bench. There is no law or rule or even a convention that a Full Bench can consist of only three Judges; it can consist of three or any larger number of Judges. The principle of stare decisis is 'a principle of policy and not a mechanical formula of adherence to the latest decision' (per Frankfurter, J.) in Helvering v. Hallock, (1939) 84 Law Ed 604 at p. 812. Wigmore states that one of the shortcomings in juducial decision is undue servitude to the bondage of precedent; see Vol. 1 Wigmore on Evidence, third edition, paragraph 8a. An overruling does not, in theory change the law, but only vindicates and reasserts it; see the Article 'What an old reporter told me' (43 Law Quarterly Review, 479). A precedent should not foreclose new truth or enlarged understanding; see Felix Frankfurter, J. in his Article 'Mr. Justice Jackson' in 68 Harward Law Review, p. 937. There must be certainty about the law but the certainty would be a false one if it leads to the conclusion that an error once having been made in a judgment must be followed in all subsequent cases; see the Article by Professor A. L. Goodhard in 79 Law Quarterly Review, p. 313. This Bench has been constituted specially to consider which of the two earlier Full Bench decisions should be followed and it is its duty to consider each of them and to decide to the best of its own judgment which of them lays down the sounder law.
23. The question that we have to decide is whether the seizure of the food grains from the possession of respondents was legal or not. It was contended on behalf of the respondents before our brother Bhagwan Das Gupta that the persons who searched their premises and seized or sealed the food grains were not authorised under the law to do so but the plea has been given up before us. Under clause 18 of the Order they could enter and search the premises if they were believed to be used for storage for sale of the foodgrains and seize any of them in respect of which they had reason to believe contravention of the Order had been or was being committed. Any failure without lawful authority or excuse to comply, or secure compliance, with the Order amounts to contravention of it. None of the respondents barring one claimed that he or it had lawful authority for failing to comply with the Order; the case of all is that their failure was for lawful excuse, None of them contended that in spite of his or its best efforts he or it failed to sell the excess stock before the prescribed period expired and that he or it could not help being found in possession of excess stock on 26-9-1964. Therefore, the inability to sell or otherwise dispose of the excess stock was not an excuse. The essence of an excuse is that it is offered or pleaded; it is not to be assumed by the Court. It is a question of fact and unless an excuse is offered or pleaded it cannot be taken notice of by the Court. When a question arises before it whether a person had an excuse for doing an act or not it is required to consider only that plea that has been offered by it as an excuse. What the respondents offered as an excuse was not their inability but the fact that the Order did not contain any provision laying down how they were to get rid of excess stock when they found no purchasers for it in the market. Our brother Bhagwan Das Gupta has accepted this excuse as a lawful excuse and with great respect I find it difficult to agree with him. He has relied upon the decision in Arbind Kumar Deb's case, : AIR1949All473 . 'Lawful' means according to Murray's Dictionary, 'according, or not contrary, to law, permitted by law.' It is a positive word and is not the same as 'not unlawful, e.g., not prohibited by, or opposed to, any principle or law. Everything that is not unlawful is not necessarily lawful. Moreover it contains no element of reasonableness and everything that is reasonable is not necessarily lawful. 'Without lawful excuse' means according to 'Words and Phrases Vol. 15-A', 'without lawful authority or reasonable belief, any lawful authority'. Financial inability is a lawful excuse for failure to support a child. The law recognises that there must be money for supporting a child and one cannot steal money for this purpose. If one has not the money one will not support the child. Similarly an invitation for a lawful purpose and its acceptance for a lawful purpose is a lawful excuse for visiting the home of a married person at night; the law acknowledges the right of a person to respond to a lawful invitation to visit the home. In Volume 45 Words and Phrases 'wilfully' is treated as the synonymous with intention, designedly, without lawful excuse, i.e. not accidentally. This means that 'without lawful excuse is equal to 'wilfully', 'intentionally', 'designedly' and 'not accidentally.'
Now the act of being in possession of excessive stocks of food grains is not accidental but intentional. With great respect to the learned Judges who decided the case of Arbind Kumar Deb : AIR1949All473 , I am unable to agree that whether neither the order nor the directions issued thereunder provided for the mode in which the dealers were to act in the event of the excessive stocks remaining with them undisposed of it amounts to lawful excuse. The fact of being found in possession of excessive stocks is not itself an excuse or justification; otherwise the whole Order would become meaningless. There would be no sense in laying down that there should be no contravention without lawful excuse if the contravention itself provided a lawful excuse. A lawful excuse is required for the contravention, which means that there is a justification for the contravention which is recognized by the law. Intentionally or deliberately contravening the law can never be said to be a justification or excuse. The question that arises is 'why was there the contravention?' and it is certainly not answered by saying 'you did not provide for what I should do in the alternative .
When the Government through Rule 5 of the Defence of India Rules made failure to comply with an Order an offence it was not required to provide for an alternative to the compliance with the Order. If the law provides for compliance with an Order and also for an alternative to the compliance there can never arise any question of the Order being contravened unless there is a failure to adopt the alternative also. The question is of lawful authority for the failure to comply with whatever is laid down in an Order and, therefore, it would be illogical to say that the failure to provide for an alternative is itself a lawful excuse for contravening the Order. If an Order requires compliance in one or the other of two alternative modes there is a contravention when neither of the alternatives is adopted but if it be said that the failure to provide an alternative is a lawful excuse the failure to provide one more alternative also would be a lawful excuse. The result would be that no matter how many alternatives are provided to the compliance with an Order the failure to provide one more alternative would always be a lawful excuse and this is obviously absurd.
The Order under consideration is quite plain; a producer must not have in his possession more than 20 quintals of food grains and a regular dealer must not have in his possession more than 100 quintals. It is for every producer and every regular dealer to secure compliance with this Order. A producer is not prohibited from producing more than 20 quintals; if he produces more than 20 quintals he is required by the Order to dispose of the excessive quantity. If he fails to do so in spite of best efforts it 'may be said that his failure to secure compliance with the Order is for a lawful excuse. His production of the excessive quantity is lawful and he is not required to destroy or throw away the excessive quantity and if he cannot by any lawful means dispose of it, his remaining in possession of it is for a lawful excuse. But this is the lawful excuse and not the mere fact that the Order does not lay down what he has to do with the excessive quantity. Actually when there was a provision for restraining possession for a lawful excuse there was no necessity of providing in the Order how to secure compliance if the best efforts fail. The very provision that for a lawful excuse a producer can fail to comply with the Order obviates the necessity for a provision in the Order as to what he should do if he cannot get rid of the excess stock. The law itself allows his retention of the excess stock and there is no necessity of any alternative.
In the case of a regular dealer he buys and sells his stocks in the market. The Order means that he must not buy so as to have in his possession more than 100 quintals. If he buys he contravenes the Order at once and there is no question of his having any lawful excuse. If he is compelled to buy it may amount to his having a lawful authority for the failure to comply with the order but not otherwise. If a regular dealer had more than 100 quintals in his possession when the Order was promulgated a contravention of the Order come into existence as soon as it could be said that his failure to comply with it was without a lawful excuse. Naturally he must be allowed certain time within which to get rid of the excess stock by sale. If in spite of his best efforts he cannot dispose of the excess stock by a certain date it can be said that his failure to comply with the Order on that date is for a lawful excuse. But if he does not make any efforts to sell or refuses to sell it cannot be said that his failure to comply with the Order is for a lawful excuse because neither his abstention from taking steps to sell nor his refusal to sell is in accordance with the law or permitted by it. When the Order requires that he must not have in possession more than 100 quintals it means that it requires him not to acquire more than 100 quintals or that if he has already acquired more than 100 quintals he should take steps to get rid of the excess stock. Therefore, his failure to take steps to get rid of the excessive stock is not in accordance with the law; rather it is contrary to the law and, therefore, he does not furnish a lawful excuse,
24. With respect I am unable to accept the proposition of Mushtaq Ahmed J. that lawful excuse does not necessitate any active steps on the part of a dealer for getting rid of the excess stock. The very fact that an order prohibits possession of excessive stock not only contemplates but requires active steps on the part of the dealer to get rid of the excess stock. Unless he takes steps to get rid of the excessive stock there can be no compliance with the Order. The Order has got to be complied with and it can be complied with only by getting rid of the excess stock. The excess cannot be got rid of by itself; the person in possession must take steps to get rid of it. If it cannot be got rid of in spite of necessary steps the fact would be a lawful excuse for the failure to comply with the Order but not the refusal to take necessary steps. Refusal to comply with an order can never be a lawful excuse and no order can ever contemplate that its non-compliance is excused either by the very fact of the non-compliance or by any intention not to comply with it.
25. The order that is under consideration is different from the Cotton Cloth and Yarn (Control) Order 1943 considered in the case of Arvind Kumar Deb : AIR1949All473 and what is a lawful excuse for not complying with the latter does not necessarily become a lawful excuse for not complying with the former. The two Orders being different acts of different nature are required for complying with them and, therefore, a lawful excuse for failure to do one act is not necessarily a lawful excuse for failure to do the other. This is confirmed by what Musthaq Ahmad, J. has himself said in Arbind Kumar Deb's case : AIR1949All473 . He stressed the absence of an alternative in directions issued under the Cotton Cloth and Yarn (Control) Order; he had in mind the directions which could have been issued by the Textile Commissioner under Clause 15-A. The Order under consideration does not contain any provision or any directions to be given by any authority. Consequently the instant case cannot be placed on the same footing as a case governed by Cotton Cloth and Yarn (Control) Order in which directions could be given for an alternative but were not given.
26. As pointed, by Malik J. in the case of Laljee : AIR1948All38 the order was passed in such circumstances that the Government did not contemplate at all that any producer or any regular dealer would have any difficulty in getting rid of his stock if he was at all minded to sell in an open market. The Order was passed because of the refusal on the part of producers and regular dealers to sell food grains in an open market. When the demand was so much greater than the supply that the government felt compelled to make the order it would have been not only unnecessary but also illogical to provide for the contingency of a producer's or regular dealer's being unable to sell his stock in an open market and could not consistently with its object have provided for the inability. The Order was passed for precisely the same reasons for which the Cotton Cloth and Yarn (Control) Order was passed and which are stated by Malik J. All that was needed to prevent the Order being oppressive was that it should not punish failure or refraining from getting rid of excess stock for a lawful excuse and this has been done. I consider that the argument that was accepted in Arbind Kumar Deb's case : AIR1949All473 and is repeated before us is based on mere theoretical considerations completely divorced from the realities and should not be used to strike down the beneficial provisions of the Order. The Order has been passed in the interest of the public and it should be the duty of the courts to sustain it rather than strike it down on mere theoretical considerations.
27. As I said earlier, the question of lawful excuse is one of fact and it cannot be laid down as a matter of law that the omission to provide for an alternative is a lawful excuse. Otherwise, it would be a lawful excuse in every case and this would render the provisions of the Order absurd. If there were a lawful excuse in the eye of law in every case it would have been absurd for the Government to provide that there is contravention of it only if there is no lawful excuse.
28. The respondents knew on 18-8-64 that they could not keep more than certain quantities of foodgrains and they were all found to be in possession of excessive stocks on or about 26-9-64. If they acquired excessive stocks after 18-8-1964 they had no lawful authority or excuse for doing so; they acquired them in the face of the prohibition contained in the Order. If they had the excess stocks on 18-8-1904 it is not their own case that they could not get rid of them even within the period of one month and eight days. When there was so heavy a demand for foodgrains in the markets that the Government: felt obliged to make the order. It can never be believed that in spite of their readiness to sell they could not sell. It is a clear case of deliberate refusal to comply with the Order and thus of complete absence of lawful excuse.
29. I am further of the view that the contention that the mere failure on the part of the Government to provide for an alternative in the Order is a lawful excuse is irrelevant in these special appeals in which we are concerned not with the question whether the respondents have committed the offence of contravening the Order but with the question whether the appellants had reasons to believe that a contravention of the Order had been, was being or was about or likely to be committed. The question before us is of the validity of their acts of seizure of the foodgrains. Clause 18 of the Order authorised to seize them if they had reasons to entertain the belief. What we have to decide is whether they had reasons for the belief or not; if they had reasons for the belief their acts were valid even though it was ultimately found that there was no contravention. If there was a lawful excuse there was no contravention but the question whether there was contravention or not could be decided at the trial of the respondents, i.e., after the seizure. The appellants were not required to assume that the respondents had a lawful excuse for being in possession of the excessive stocks.
As I said earlier lawful excuse has to be pleaded and proved. When the respondents had ample time for getting rid of their excessive stocks the appellants could proceed on the assumption that they had no lawful excuse for being in possession of excessive stocks on 26-9-64. Nothing compelled them to hold that the failure to provide for an alternative in the Order was itself a lawful excuse, the decision in the case of Arbind Kumar Deb : AIR1949All473 , did not have this effect at all. Firstly it did not relate to the contravention of the Foodgrains Order and, secondly, it did not lay down the law correctly. They were bound by the law and not by the decision if it was not correct according to the law. A party to a decision is bound by it whether correct or not, but another person is bound not by it but by law. Sri S.C. Khare's last argument that the decision supplied a lawful excuse is not based on facts. It was not the case of any of the respondents that he was misled by it into thinking that be did not commit any offence by being in possession of the excess stocks. If they relied upon it and on the reliance refrained from taking steps to get rid of the excess stocks it was for them to plead and prove it. There was, however, neither a plea to this effect nor any proof and it was not for their counsel to invent a lawful excuse for them. I even doubt that they were aware of the decision; if they were not aware of it they could not claim to have relied upon it.
In Jyotindra Nath Sarkar v. Lodna Colliery Co. 62 Ind Cas 649: (AIR 1921 Pat 175) (FB) and Rajah of Kalahasti v. Jagannadha, AIR 1932 Mad 574, the High Courts of Calcutta and Madras, respectively, decided that when owing to a decision of a Full Bench a prospective appellant computed the period of limitation from the date on which the decree was actually signed, instead of from the date on which it was passed, the period of limitation should be extended under Section 5 of the Limitation Act because he was misled by the practice derived from the Full Bench decision. We are not concerned here with the question whether there was a sufficient cause, as in a case governed by Section 5 of the Limitation Act. In those cases it was proved that the appellants were misled and this essential fact on which those cases were decided is missing in these special appeals. There is no scope for applying in these special appeals the principle that when a statute is declared invalid acts done in the interregnum are valid. A decision, even if given by a Full Bench, is not a statute and the effect of overruling a decision is not that of invalidating a statute. I have already stated that overruling a decision means reassertion or vindication of the law.
30. In some of these special appeals questions of fact have been raised, such as whether only the quantities in excess were seized or the entire quantities found in possession and whether the quantities found were of one producer or of a number of producers. Our brother Bhagwan Das Gupta has not answered them in favour of the respondent who have raised them. It does not appear that the entire quantities found in their possession have been seized or sealed, but even if this were so, I do not see any illegality in the appellants' doing so. Under Clause 18 of the Order a Food Officer has the right to seize the foodgrains 'in respect of which he has reason to believe that a contravention of this Order has been....committed' and to take all measures necessary for securing their production in a Court and their safe custody pending such production. Consequently the appellants could seize the entire quantities of the foodgrains and not merely the quantities in excess. Unless they produced the entire quantities in the Court they might not be able to prove the possession of excessive quantities. Producing in evidence the entire quantities seized was the best way of proving possession of excessive quantities.
Further I am by no means certain that where an offence consists of being in possession of more than a prescribed quantity if can be said to be committed only in respect of the quantity in excess and not in respect of the whole quantity. It is not possible to separate the quantity into two specific portions and to say that the offence is committed in respect of one and not in respect of the other, which is within the prescribed limits. It cannot be said in respect of any particular grain that its possession is in excess of the permitted quantity; the appellants had to seize specific grains and, if they could not say in respect of any specific grains that they in particular were possessed in excess and not the remaining grains found in the respondents' possession, they had to seize all the grains.
In Special Appeal No. 933 it was argued that the quantities of foodgrains in excess had been received from an outside Mandi within a week of the date of seizure and that consequently the possession did not amount to an offence. The proviso to Clause 3-B (b) of the Order is not appropriately worded. Prohibiting possession in excess of a certain quantity can hardly be said to be subject to a right to sell within a certain period. The proviso permitting a regular dealer to sell the excess within a week docs not at all mean that there was no contravention of the prohibition against possession of more than the prescribed quantity. Even if he is given a right to sell he has possessed excessive quantity against the prohibition and so disobeyed the provision. What seems to be intended, however, was that possession of excessive quantity for a week is not prohibited and the proviso should have laid this down instead of merely conferring a right of sale. No provision conferring a right to sell was required at all because the right to sell is not taken away by any provision. Even without the proviso a regular dealer could sell the excess stock at any time; he remained liable for possession of it but was not deprived of his right to sell. So the proviso, as it exists, has no effect on the prohibition against having in possession more than 100 quintals.
If the intention behind the proviso was the one that I have assumed, the Government has failed to achieve it by the words used. There is no reason why I should give effect to its assumed intention and not to the words used by it; we are governed by what it has said and not what it might have intended to say. I would, therefore, reject the contention that there is no contravention of the Order if the excess quantity was received from an outside Mandi not more than a week earlier. Further, it is not accepted that the excess quantity was received from an outside Mandi and not more than a week earlier. Lastly, there is no evidence that the fact was known to the appellants on the date of the seizure; they were, therefore, entitled to proceed on the footing that the possession was in contravention of the Order. A similar argument advanced in Special Appeal No. 914 must also be rejected.
In Special Appeal No. 927 it is irrelevant that the respondent is a commission agent and bailee; it commits the offence if it is a regular dealer. Every regular dealer is bound to comply with the Order even though it may be a commission agent or bailee. In Special Appeal No. 904 the respondent received permits to export 440 quintals in the period 23-9-64 to 28-9-64. Therefore, in this period it had lawful authority to be in possession of at least 440 quintals and it committed no offence by being in possession of 151 quintals on 26-9-64. But if the fact of the permits was not known to the appellants they had reason to believe that the respondent was guilty and were authorised to seize the foodgrains. It has not been alleged that they knew the fact; so the seizure cannot be said to be illegal.
In Special Appeal No. 938 the respondent was required to give security within three months of the date of the commencement of the U. P. Foodgrains Dealers Licensing Order, 1964. The Order was made on 29-2-64 and was amended on 30-7-64; the date of its commencement was 29-2-64 and not 30-7-64. One has to consider that date of the commencement of the Order and not that on which amendment of a particular provision of it comes into force. The date on which a provision of it is amended is certainly not the date of commencement of the Order. The respondent, therefore, had to furnish the security by 29-5-64 and for its failure to do so its licence could be cancelled.
In Special Appeal No. 903 the appellants do not accept the respondents' case that it received 300 quintals only a day before its foodgrains were seized. The question before me is not what the actual facts were; but what the appellants had reason to believe because their power to search and seize depends upon what they reasonably believed. In some of these appeals the foodgrains were released by the Magistrates concerned before the special appeals were filed. That means that the petitions had become infructuous, but they were disposed of by our brother Bhagwan Das Gupta along with others. The State Government need not nave filed special appeals, but they filed them presumably because they were governed by the judgment which governed other petitions. Each of these appeals, however, has been considered on the merits and separate orders have been passed thereon.
31. For the reasons given above I wouldallow this special appeal. The order passed byB.D. Gupta, J. is set aside and the writ petition stands dismissed. No order as to costs.