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Alla Bux and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Reported inAIR1946All170
AppellantAlla Bux and ors.
RespondentEmperor
Excerpt:
.....it did amount to an attempt to do so. it is also perfectly obvious that the prohibitory order in question had been in force prior to the eventful day at least for two months. temporary postponement of execution of decrees act, 1937, and it was laid down there that section 6, general clauses act, central and provincial, clearly provides that the remedy with regard to the rights and privileges arising under repealed acts can be enforced even after the repeal and to that extent it is to be deemed that the repeal had not taken place. after explaining that the well known principle of english common law as stated above by maxwell had been altered by the interpretation act, 1889, held that an offence committed under a repealed act at the time when the repealed act was in force could be..........corresponding to regulation 63 of the defence of the realm regulations (old) are also similar. rule 3, defence of india rules, provides that:the general clauses act, 1897, shall apply to the interpretation of these rules as it applies to the interpretation of a central act.12. i am accordingly of the opinion that the principles enunciated in bennett v. tatton (1918) 88 l.j.k.b. 313 should govern the decision of the present case. in the light of the above, the position, in my judgment, seems to be clear and can see no illegality in the trial and conviction of the applicants. the conviction however must be altered to one under rule 81(4) read, with rule 121, defence of india rules. on the question of sentence as observed by m& above, i think that in the peculiar circumstances of the.....
Judgment:

Wali Ullah, J.

1. This is an application in revision by Alia Bux, Noor Mohammad, Shakoor, Wazir, Bhuria and Tunda who were tried and convicted under Rule 81(4), Defence of India Rules, and sentenced by a learned Magistrate of the first class to three months' rigorous imprisonment and a fine of Rs. 50 each or in default to one month's rigorous imprisonment. The article in question, namely the potatoes seized, was also forfeited. On appeal, the conviction and sentences passed upon the applicants were affirmed by the learned Sessions Judge.

2. The charge against the applicants was that on the night between 22nd and 23rd December 1943 they were found exporting potatoes from the United Provinces to the Bharatpur State in contravention of Clause 3, U.P. Potatoes and Poultay (Movement) Control Order 1943. It appears that on 22nd December 1943 Mr. Kirpal Singh, Deputy Superintendent of Police, received information that some gar was to be exported from Muttra district to Bharatpur State that night. At about 9 in the night, he took a police force with him and proceeded to a place on the Bharatpur Road near. the borders of British India and Bharatpur State and lay in ambush there. After some time he found some carts laden with gur approaching the border of Bharatpur State and they were caught. Thereafter six camels appeared laden with potatoes whom the six applicants were driving. These camels were proceeding in the direction of Bharatpur State. As the export of potatoes outside the United Provinces had been banned the applicants were arrested and the potatoes were seized.

3. In the course of the trial which followed before a learned Magistrate of the first class it was established that the United Provinces Potatoes and Poultry (Movement) Control Order 1943, issued by His Excellency the Governor of the United Provinces, was notified by means of notification No. 11601 - C.S. dated 22nd October 1943 (published in the U.P. Gazette Extraordinary dated 22nd October 1943). This Order came into force on 1st November 1943. Clause 3 of this Order provided:

On and after the date or which this Order comes into force no person shall carry or cause to be carried or offer for carriage by rail, road or river any poultry, eggs or 'potatoes' from any place in the United Provinces to any place outside this province without the previous permission o Government or of an officer authorised by Government in this behalf:

Provided that nothing in this Order shall apply to the carriage of one head of poultry, six eggs, and one seer of potatoes by a passenger as part of his personal luggage.

4. Clause 4 provided the punishment for contravention of the provisions of the Order and it also provided that any Court trying such contravention might direct that the poultry, eggs or the potatoes with the packings thereof in respect of which it is satisfied that the Order has been contravened be forfeited to His Majesty. Thereafter by means of Notification No. B-12/C.S.-478-1943 dated 31st January 1944 published in U.P. Gazette Extraordinary dated 31st January 1944, certain amendments were introduced into the abovementioned Order whereby the prohibition with regard to the export of potatoes was cancelled. The result, therefore, was that the prohibition with regard to the export of potatoes remained in force only from 1st November 1943 till 31st January 1944. Copies of these two notifications have been placed upon the record and they are Exs. P4 and P5. The alleged offence, as mentioned above, was committed on the night between 22nd and 23rd December 1943. The trial of these applicants commenced in February 1944 and concluded on 29th February 1944.

5. In the course of the trial all the six applicants alleged that they were Kunjras by caste and carried on the business of selling potatoes and other vegetables at Bharatpur. They further alleged that they did not know that the export from Muttra was prohibited and that therefore they had committed no offence. In their defence they produced Gahelu (D.W.) of Chhatta Bazar, Muttra, the Arhatia of vegetables from whom they had purchased the potatoes. Gahelu supported them and further stated that he also did not know that the export of potatoes was prohibited. The learned Magistrate was of the opinion that the prohibitory Order which had been in force prior to the occurrence for nearly two months, must have come to the knowledge of the Arhatia as well as of the applicants. In view of this, the learned Magistrate found the charge proved against the applicants and convicted and sentenced them as mentioned above. On appeal to the learned Sessions Judge, the facts of the case were not disputed and the only point urged was that on the facts found the sentence was too severe. The learned Sessions Judge did not accede to this contention urged on their behalf and dismissed the appeal. The applicants have come up in revision to this Court and it has been strongly contended by their learned Counsel before us that the U.P. Potatoes and Poultry (Movement) Control Order, 1943, was ultra vires the provincial Government inasmuch as it contravened the provisions of Section 297, Constitution Act. For reasons given in our judgment in the connected Reported in : AIR1946All161 , I am of opinion that there is no force in this contention and that this order is perfectly valid.

6. It is next contended that on the date of the trial and conviction of the applicants the prohibition with regard to the exports of potatoes had ceased to be operative and therefore the conviction of the applicants could not be legally sustained. Again, it is contended that the action of the applicants was bona fide inasmuch as they did not know that the export of potatoes was prohibited and therefore they should not have been convicted and that in any event, on this account, the sentence should be drastically reduced. Lastly learned Counsel has argued that the conviction under Rule 81(4), Defence of India Rules, was unwarranted by law. Taking the last point first, on the facts found, it is perfectly clear that the offence committed by the applicants did not actually reach the stage of an 'export' outside the limits of the United Provinces, but it did amount to an attempt to do so. The conviction, therefore, must be altered to one under Rule 81(4) read with Rule 121, Defence of India Rules. With regard to the contention of the learned Counsel that the action of the applicants was bona fide committed in ignorance of the prohibitory order and therefore they were not guilty of any offence it is, in my judgment, devoid of substance. Ignorance of law - or of the prohibitory order in this case - is and can be no excuse for the violation of it. Furthermore, as pointed out by the learned Judge, as traders in potatoes, the applicants are expected to have kept themselves informed of the rules and orders with reference to their trade which were made from time to time. It is also perfectly obvious that the prohibitory order in question had been in force prior to the eventful day at least for two months. Under these circumstances it is very difficult to believe that the applicants were really ignorant of the prohibitory order. In this state of the matter I am disposed to agree with the view of the Courts below that the applicants must be taken to have been fully aware of the prohibitory order when they undertook to take potatoes from the district of Muttra (in the United Provinces) to Bharatpur State.

7. On the question of sentence, however, if the conviction is maintained I would be inclined to accede to the prayer made on behalf of the applicants that the sentence of three months rigorous imprisonment and a fine of Rs. 50, each taken along with the forfeiture of 30 maunds of potatoes seized, is a bit too severe. The crucial question, however, in this case is whether the trial of the applicants was legal in view of the amendment effected in the U.P. Potatoes and Poultry (Movement) Control Order 1943. Learned Counsel for the applicants has strongly contended that after the amendment effected by the subsequent order dated 31st January 1944 the export of potatoes was no longer prohibited and therefore it follows that at the time of the trial, which took place in February 1944, no charge could be validly framed with reference to the original control order and therefore the conviction of the applicants could not be sustained in law. He has referred us to the Full Bench case of this Court Bans Gopal v. Emperor : AIR1933All669 , in which at p. 877, Sulaiman, C.J. is reported to have observed as follows:

According to the English law, as a general rule, unless there is some special provision to the' contrary, after a temporary Act hag expired no-proceedings can be taken upon it and it ceases to have any further effect. It would follow that an offence committed against a temporary Act must be prosecuted and punished before the Act expires, and as soon as the Act expires any proceedings which are being taken against a person will ipso-facto terminate (See Craies on Statute Law 3rd edition, page 342.)

8. This was a case in which one of the charges against the accused was in respect of an offence under Section 21 of Ordinance 2 of 1932 read with Section 17 of Ordinance 10 of 1932. After the framing of the charge the proceedings of the trial Court were stayed for one reason or another and while the proceedings remained suspended both these ordinances' expired by efflux of time. The question arose whether the trial could proceed on the basis of the charge as framed. The learned Judges of the Full Bench had to consider whether Section 6, General Clauses Act of 1897, applied to the case and the prosecution of the accused could continue irrespective of the fact that both the ordinances Nos. 2 and 10 of 1932 had expired. It was held by all the three learned Judges constituting the Full Bench that Section 6, General Clauses Act of 1897, did not apply because the Ordinances had expired automatically by lapse of time and there was no question of a 'repeal' of any of the Ordinances in question. It was in effect, therefore, held that the trial could not be continued by virtue of Section 6, General Clauses Act. The observations of the learned Chief Justice at p. 877 with regard to the position in English law no doubt lend some support to the argument of the learned counsel, but apart from that the decision of the Full Bench itself is not at all helpful inasmuch as we are not concerned in the present case with the question of 'repeal' of one 'Act' by another nor with the question of the automatic expiry of an 'enactment' by efflux of time. Learned Counsel has also referred us to the statement of the English law with regard to 'repeals of Statutes' summarized in Halsbury's Laws of England (Hailsham Edition) vol. 31, p. 560:

A repealing statute, in the absence of saving clauses, operates from its commencement, whether the alteration of the law effected by it has to do with procedure or with matter of substance, and a repealed Act, in the absence of saving clauses, and except as to transactions past and closed, must be considered as if it had never existed.

This again, it may be observed, refers to the operation of a repealing enactment on the position as it stood under the statute repealed. Our attention has also been drawn by the learned Counsel for the applicants to the case in Kay v. Goodwin (1830) 8 L.J.C.P. (O.S.) 212 at p. 1405, where Tendal C.J. is reported to have observed:

I take the effect of repealing a statute to be, to obliterate it as completely from the records of the Parliament as if it had never been passed; and, it must be considered as a law that never existed, except for the purpose of those actions which were commenced, prosecuted and concluded whilst it was an existing law.

In my judgment none of the authorities referred to above is really helpful in the decision of the question which arises in the present case. A Full Bench of three learned Judges of this Court in Radhey Lal v. Roop Ram ('42) 29 A.I.R. 1942 All. 396, had to consider the effect of Section 6, U.P. General Clauses Act, on the repeal of the U.P. Temporary Postponement of Execution of Decrees Act, 1937, and it was laid down there that Section 6, General Clauses Act, Central and Provincial, clearly provides that the remedy with regard to the rights and privileges arising under repealed Acts can be enforced even after the repeal and to that extent it is to be deemed that the repeal had not taken place. It was further observed at p. 573:

In our opinion it is not the law that when a temporary Act comes to an end and ceases to be in force all rights which arose under some of the provisions of the temporary Act automatically disappear with the cessation of the Act. In our opinion it is a question of the interpretation of the particular provision of the statute whether it was to remain effective till the Act was to remain in force or whether it was to remain operative even after the Act had ceased to be in force.

9. With regard to the general principle of English common law bearing on this question their Lordships observed at p. 575:

The principle of English common law which was stated in Maxwell on the interpretation of statutes as follows, was considered in an English case in relation to the Interpretation Act, 1889 : 'Where an Act expired or was repealed it was formerly' considered, in the absence of provision to the contrary as if it never existed, except as to matters and transactions past and closed. Where, therefore, a penal law is broken the offender could not be punished under it, if it expired before he was convicted, although the prosecution, was begun while the Act was still in force. Avory, Shearman and Salter JJ. after explaining that the well known principle of English common law as stated above by Maxwell had been altered by the Interpretation Act, 1889, held that an offence committed under a repealed Act at the time when the repealed Act was in force could be proceeded with after the Act had ceased to be in force and a new Act had taken place of the repealed Act.

10. In view of the observations of the recent Full Bench mentioned above it appears that the general rule of the English Common law, as referred to by Sulaiman C.J. in his observations at p. 877 in the earlier Full Bench case Bans Gopal v. Emperor ('33) 20 A.I.R. 1933 All. 961, has been greatly altered subsequently by Section 38, Clause (2) of the Interpretation Act of 1889. In the present case what has happened is this: the Provincial Government at first issued the original Order which came into force on 1st November 1943, under the powers conferred upon it by Rule 81, Sub-clause (2), Defence of India Rules. The subsequent amendment dated 3lst January 1944 by which the prohibition with regard to the export of potatoes was removed was also effected by the Provincial Government in exercise of the powers conferred by Sub-rule 2(a) of Rule 81, Defence of India Rules. The punitive provisions with reference to which the charge is framed are contained in Rule 81(4), Defence of India Rules, and there is no question of any repeal or amendment of these provisions. The position in short, therefore, in the present case, is that an executive Order of prohibition issued by the Provincial Government in exercise of the powers conferred by Rule 81, Defence of India Rules, has been subsequently revoked - or 'repealed' - by a subsequent executive order in exercise of the same powers. In my judgment, therefore, the position is that one statutory Order has been 'revoked' by another statutory Order. That being the position, the principle of English law applicable to this case is to be found in Halsbury's laws of England (Hailsham Edition) vol. 31, p. 563, where it is summarized thus:

No penalty, forfeiture, or punishment incurred, under a statutory order is affected by a revoking order in the absence of the expression of a contrary intention.

11. In Bennett v. Tatton (1918) 89 L.J.K.B. 313 the offence was alleged to have been committed at the end of December 1917, or the beginning of January 1918 against the Public Meals Order, 1917, which was then in force. This Order was passed under the Defence of the Realm Regulations. But before the proceedings were taken that Order had been revoked by the Public Meals Order of 1918. The net result, therefore, was that when the proceedings were taken against the offender in March 1918 the Order of 1917 was no longer in force. But in place of the Order of 1917, the Order of 1918 was in force and in effect made the same provision as the Order of 1917 requiring the respondent (offender) to keep a record of meals in the prescribed form. The offender could not, however, have been prosecuted under the Order of 1918 as that Order was not in force when the alleged offence was committed. The question arose whether by reason of the enactment, Section 38(2), Interpretation Act, 1889, the old common law principle, namely where a penal statute was broken the offender could not be punished under it if the statute expired before he was convicted, although the prosecution was begun while the statute was in force, was altered or remained in tact. It should be remembered that Regulation 63 of the Defence of the Realm Regulations provided that the Interpretation Act of 1889 was applicable for the purposes of the interpretation of the regulations and of orders and rules made there under. It was held by Avory, Shearman and Salter, JJ. that the old principle of English Common law as stated above had been altered by the Interpretation Act and that the offence committed against the repealed order could be proceeded with even after the order had ceased to be in force and a new order had taken the place of the repealed order. The facts of the present case are very similar to the facts of the English case referred to above. The provisions of the Defence of India Rules corresponding to Regulation 63 of the Defence of the Realm Regulations (old) are also similar. Rule 3, Defence of India Rules, provides that:

the General Clauses Act, 1897, shall apply to the interpretation of these rules as it applies to the interpretation of a Central Act.

12. I am accordingly of the Opinion that the principles enunciated in Bennett v. Tatton (1918) 88 L.J.K.B. 313 should govern the decision of the present case. In the light of the above, the position, in my judgment, seems to be clear and can see no illegality in the trial and conviction of the applicants. The conviction however must be altered to one under Rule 81(4) read, with Rule 121, Defence of India Rules. On the question of sentence as observed by m& above, I think that in the peculiar circumstances of the case a reduction of the sentence would be fully justified. It is clear from the record that the applicants have from the beginning admitted their guilt frankly and they had spent about seven weeks in the lock up prior to their conviction by the learned Magistrate. There seems to be no-question of mala fides in this case. In view of all these circumstances I would reduce the sentence of imprisonment to the period already undergone but would maintain the-sentence of Rs. 50 fine in each case and one month's rigorous imprisonment in default. This is in addition to the order for forfeiture of the potatoes seized. With these modifications the application in revision should be dismissed.

Bennett, J.

13. I agree.


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