1. The petitioner (Puma Chandra Mandal) has been convicted, along with certain others, not before me, under s. 6 of the Mayurbhanj Essential Supplies (Temporary Powers) Act, 1948, (XI of 1948), for having contravened the Export of Rice and Paddy Prohibition Order, 1942, which was ordered to remain in force, as if passed or made under it, in pursuance of Section 16(3) of the aforesaid Act.
2. The question, posed in the revision, is whether, on the date (the 11th February, 1949) the alleged contravention of the order had occurred, there was any law in force penalising the same as an offence, the Mayurahanj Act XI of 1948 having beencontended to have been repealed. To arrive at a solution, a peep into the history of the integration and its reaction on the field of law is unavoidable.
3. On 1st January, 1949, Mayurbhanj State was integrated with the State of Orissa. On that day, the Government of Orissa issued a Notification No. 2-A, publishing an order made in exercise of the powers conferred under Section 4 of the Extra Provincial Jurisdiction Act, 1947, (XLVII of 1947), designating the same as the administration of Mayurohanj State Order, 1949, for effective exercise of extra provincial jurisdiction in the State. In pursuance of this order, the Central Act XXIV of 1943 (The Essential Supplies Temporary Powers Act, 1946), hereinafter referred to as 'the Act' applied to the district of Mayurbhanj, which is equivalent to the ex-State of Mayurbhanj of the pre-integration days. The said Order is hereinafter referred to as 'the Order'. According to para V(a) of the Order, certain enactments including the Act, specified in the first column of its annexed Schedule, were extended to the district of Mayurbhanj. The ambits of their extended application and their reaction on pre-existing Acts, Orders, Regulations or Laws in force in that State were defined by the said paragraph. Paragraph V(a) of the Order reads:
'The enactments specified in the first column of the schedule hereto annexed shall, so far as circumstances admit and subject to any amendments to which the enactments are for the time being generally subject in the territories to which they extend, apply to the State and any provision of any law in force in the State, whether substantive or procedural and whether based on custom and usage or statutes, which is repugnant to any provision of any of the said enactments shall, to the extent of repugnancy, cease to have effect from the date of commencement of this order: Provided that the further modifications and restrictions set forth in the said schedule shall be made in the enactments applied........'
There are two other provisos to this paragraph; but any reference to them is not material for the purpose in hand.
4. Accordingly, as I have already said, one of the Central Acts, as applied to the state, The Essential Supplies (Temporary Powers) Act, 1946 (XXIV of 1946), finds mention as Item No. 19 of the first column of the Schedule, referred to above. In its application, certain modifications as set forth in the second column of the Schedule were made. Of them, material for the purpose, is the modification ejected by repeal and re-enactment of Section 17, which is as follows:
'Savings. 17. Any order made or deemed to be mads under any law in force in the State on the 3lst December, 1948 and relating to matters covered by this Act shall continue in force so far as consistent with this Act until repealed, modified, or altered by a competent authority under this Act'.
The rest of the section, as modified, does not fall to be considered here except for the purpose of interpretation by contrast, of the language employed which I shall make later. By virtue of this modification, the Mayurbhanj Export of Rice and Paddy Prohibition Order, 1942, continued in force until repealed, modified, or altered &c.;
5. The contemplated repeal has since been effected. The Government of Orissa, in exercise of the powers conferred by Sub-section (1) of Section 3 of the Act made an Order, Mayurbhanj State Foodgrains Control Order, 1949, published on 17th February, 1949 It came into operation at once. By virtue of Clause XX of this Order, Mayurbhanj Export of Rice and Paddy Prohibition Order, 1942, dated 29th September, 1942, must be held to have been since repealed. The Clause reads:
'All orders made under notifications, licenses, permits, or directions of any nature issued or deemed to be made or issued under any law in force in the Mayurbhanj State immediately before the commencement of and relating to matters covered by this Order are hereby repealed;....'. This repeal is subject to the Saving Clause: 'But the repeal shall not affect any penalty, forefeiture, or punishment incurred in respect of any contravention of the said orders or notifications, permits, licenses or directions: or any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment as aforesaid; and any such investigations, legal proceedings or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the said orders and the notifications, permits, licenses, and directions had not been repealed and had been duly made and continued in force'.
6. The Export of Rice and Paddy Prohibition Order, 1942, must be taken to be one of the Orders that must have been repealed though it is not specifically enumerated and it should be noted that the Clause does not contain any enumeration but contains description which, in my judgment, covers it, This repeal, however, leaves the position relating to the present Supplies Act, as applied to the district of Mayurbhanj, unaltered on account of the saving clause, quoted above. According to that section, the order was continued in force particularly as it relates to matters covered thereby, namely, the control of production, supply and distribution of and trade and commerce in the foodstuffs &c.; The clear position, therefore, is that at the time this offence is alleged to have been committed, the Act (XXIV of 1946) was in force and by operation of its Section 17, as modified, continued the Mayurbhanj Export of Rice and Paddy Prohibition Order, 1942, in force. The crux of the question, in this background, is whether continuation in force of Mayurbhanj Export of Rice and Paddy Prohibition Order, 1942, without the Mayurbhanj Act XI of 1943, remaining in force side by side, would render the alleged contravention an offence. In its wake arises the question whether application of the Act to the District of Mayurbhanj had the resultant effect of repealing Mayurbhanj Act XI (11) of 1943. It has been strenuously contended by Mr. Patnaik, the learned counsel for the petitioner, that by necessary implication it had the effect. The reading of paragraph V of the Order, however, does not lend support to this contention. The effect of application on the pre-existing law is defined in the following terms, namely,
'and any provision of any law in force in thestate shall, to the extent of repugnancy, cease tohave effect from the date of commencement ofthis Order.'
The virtual repeal, therefore, is of such of the existing laws as are repugnant to the law as applied. Repugnancy is not introduced by the Order itself but not by its permitting other non-repugnant laws to stand side by side. The Mayurbhanj Act XI of 1948 makes a provision for control, distribution, supply, export and import &c.; of essential supplies, such as, rice and paddy, within the confines of the district. Its operation, side by side with the operation of the Act, as modified in its application thereto, produces harmony rather than conflict, consistency rather than its opposite. On the other hand, to avoid repugnancy, the Order, namely, Mayurbhanj Export of Rice and Paddy Prohibition Order, 1942, was made to continue to remain in force. Here, I have to note that Section 17 of the Act, as modified in its application to the district of Mayurbhanj, has not been happily worded.
To my mind, it appears that an order being made to continue in force is quite other than its being deemed to have been issued or made under the said Act. The second portion of the section, when contrasted with the first portion, already quoted, exposes the distinction very lucidly. The second portion deals with all appointments made, licenses or permits granted, or directions issued, and provides that they shall likewise continue in force 'and be deemed to be granted or issued in pursuance of this Act.' The Legislature, in enacting this section, draws a line of distinction between 'continuance in force' and 'deeming to be issued in pursuance of the Act'. The words 'be deemed to be granted or issued in pursuance of the Act' are added to the words 'shall likewise continue in force' in the second portion of the section, in relation to licenses, permits and appointments &c.;, while it is completely absent from the first portion. The position, therefore, comes to this that the Mayurbhanj Export of Rice and Paddy Prohibition Order, 1942, was to continue in force notwithstanding the introduction of the Act (XXIV of 1946) but was not to be deemed to have been issued under it. Does this create a vacuum in the field of law providing for punishing contravention of the Mayurbhanj Export of Rice and Paddy Prohibition Order, 1942. As Mr. Patnaik, has rightly contended if the substantive penal provision, contained in Mayurbhanj Act XI of 1948, or otherwise, were not in force (his contention being that it was not in force having been repealed by virtue of para. V of the Order), the direction contained in the Order would be a mere pious wish. Section 7 of the Act, which provides that penalty, reads: 'that contravention of any order issued under that Act is an offence'. As I have said, on reading Section 17 of the Act, as extended, it is clear that 'continuance in force' and 'deeming to be issued under the Act' are two different things. Therefore, I cannot accept the contention advanced by the learned Government Advocate that Section 17, keeping the Order in force, would amount to as if the Order was issued under the Act and Section 7 would make any offence of any contravention of the Order. To accede to such a contention would amount to reading something into Section 7 which it does neither express nor imply. It is contended, in this context, that the contravention of the Order, though it was in force, should be either punishable under Section 6 of the Mayurbhanj Act or not at all and that the fate of this case, therefore, turns upon whether that provision of the Mayurbhanj Act, notwithstanding extension of the application of the Act, was regaled. This argument, however, loses all force in consideration of the fact that the Mayurbhanj Export of Rice and Paddy Prohibition Order, 1942, itself contains the penal provision in its text: 'Any person wholly contravening any of the provisions of these orders will be punishable with imprisonment for a term which may extend to three years and will also be liable to fine.' Section 6 makes an offence of the contravention of the Mayurbhanj Order. The Central Act, as applied, keeps that Order in force. This brings about harmony between the Mayurbhanj law and the corresponding provision of the Central Act rather than creating any repugnancy.
7. Mr. Patnaik makes a different approach to the question and argues that as the subject treated in the Mayurbhanj Act or law is covered entirely within the purview of the Act (Central), within the meaning of Para. V(b) of the Order, the Mayurbhanj Act is not amongst those that are intended to be saved by the Saving Clause provided therein. This argument suffers from a fallacy as his contention that no penalty is provided for in the Act in its application under the Order owes its force and validity to the fact that the matter of penaltyis not covered by any of the enactments applied to the State. No other circumstances of repugnancy was pointed out to me at the Bar. I should, therefore, hold that (whether Section 6 of the Mayurbhanj Act XI of 1948 was in force or not) when the offence alleged was committed, the contravention of the Order is an offence. The mention of Section 6 of the Mayurbhanj Act is superfluous. In the circumstances, I should hold that the finding that the petitioner had committed the offence of attempting to export rice in contravention of the Order has been rightly arrived at.
8. He has also been convicted under Section 353,I. P. C. I find no substance in this conviction. Thetime at which and the circumstances under whichhe was pelting stones at his pursuers make it clearthat he was thereby trying to secure his own person and liberty against immediate jeopardy and thepersons who were pursuing him cannot be said tohave been then doing so in discharge of duty. Iwould, therefore, set aside the order of convictionunder Section 353, I. P. C. While maintaining the conviction under Section 6 of the Mayurbhanj Act XI of1948, I would, in the interest of justice, alter thesentence passed by substituting for it the period ofimprisonment already undergone and a fine of Rs.100/- (one hundred), in default of payment whereof, the petitioner shall undergo Rule 1 for one month.It is to be noted that the sentence passed by theMagistrate was not adequate in law inasmuch asthe offence is punishable with both imprisonmentand fine.