1. This is a petition for quashing a criminal case (C, C. No. 5 of 1955/T-64 of 1955) pending in the Court of the Subdivisional Magistrate, Balasore, against the three petitioners. Petitioners 1 and 2 were said to be the Managing Directors of a firm known as the Orissa Steel Corporation, with its office at Soro in the district of Balasore. Petitioner 3 was the Manager of the said firm. The prosecution case against the mwas that sometime in 1950 they, on their application, were allotted quotas of iron and steel by the Central Government in pursuance of Clause 4, Iron and Steel (Control of Production and Distribution) Order, 1941 (hereinafter referred to as the Central Order) for the purpose of using the same for fabricating finished goods at their factory at Soro.
Subsequently in 1951 when the Orissa Iron and Steel Products (Control of Prices and Distribution) Order 1951 (hereinafter referred to as the Orissa Order) came into force in the State of Orissa, they were also granted a license under that order for fabricating goods at Soro. This Order was made by the State Government in exercise of the powers conferred by Section 3, Orissa Essential Articles Control and Requisitioning (Temporary Powers) Act, 1950 (Orissa Act 12 of 1951) (hereinafter referred to as the Orissa Act). It was alleged that during the period between 10-5-1953 and 31-1-1954 the petitioners (I) usediron and steel in contravention of the conditions specified in the Quota Certificate under the Central Order and (2) maintained incomplete and incorrect accounts and also submitted false and inaccurate returns to the competent authorities and thereby contravened the provisions of the Central Order which contravention was punishable under Sections 7 and 10, read with Section 9 of the Essential Supplies (Temporary Powers) Act 1946 (Act 24 of 1946) (hereinafter referred to as the Central Act).
It was further alleged that the aforesaid acts committed by the petitioners during the said period amounted to contravention of the conditions under which the license was granted to them under the Orissa Order and that therefore they were also liable to punishment under Clause 11 of the Orissa Order and Section 10 of the Orissa Act.
2. To appreciate the interesting points of law raised on behalf of the petitioners it is necessary to briefly narrate the legislative history of the Central Act and Order on the one hand and the Orissa Act and Order on the other.
3. The Central Act and Order : The Central Order was first made in 1941 in exercise Of the powers conferred by Sub-rule (2) of Rule 81, Defence of India Rules. When the Defence of India Act, 1939 (Act 35 of 1939) and the Rules made thereunder expired on 30-9-1946, the Governor-General promulgated an Ordinance known as the Essential Supplies (Temporary Powers) -Ordinance 1946 (Ordinance 18 of 1946), conferring power on the Central Government to regulate the production, supply and distribution of some essential commodities as specified in the Ordinance and for trade and commerce therein, in that Ordinance there was an express provision saving all orders made under Sub-rule (2) of Rule 81 of the Defence of India Rules, in respect of the essential commodities specified in that Ordinance. Those orders were deemed to be orders made under the Ordinance and continued in force.
The Ordinance was subsequently replaced by the Central Act of 1943 by which also all orders made under the Defence of India Rules and deemed to have continued in force by virtue of the Ordinance, were further deemed, to have been made under the Central Act and to continue in force during the life of that Act. (See Section 17). The net result, therefore, was that the Central Order of 1941 was deemed to have been made under the Central Act of 1946 and was continued in force so long as that Act remained in force.
The power of the Central Legislature to pass that Act in respect of a matter which was in the Provincial List under the provisions of the Government of India Act, 1935 (See Entries 27 and 29 of List II of that Act) was derived from an Act of Parliament known as the India (Central Government and Legislature) Act, 1946. The Central Act was a temporary Act whose life Was periodically extended by various competent authorities, namely:
(1) by the Governor-General upto 31-3-1948;
(2) by the Constituent Assembly (Legislature) upto the 31-3-1950;
(3) by the Adaptation of Laws Order upto 31-3-1951; and
(4) by successive Acts of Parliament upto ?S-1-1955.
It is unnecessary for the purpose of this case to mention in great detail how power was conferred on the aforesaid authorities to extend the life of the Act from time to time.
I should, however, refer to Article 369 of the Constitution and to Entry 33 of List III (Concurrent List) of Schedule 7 to the Constitution. Article369 conferred power on the Parliament to make laws with respect to trade and 'commerce within a State and the production, supply and distribution of various essential commodities including iron and steel as if those matters were enumerated in the Concurrent List (List III) of Schedule 7 to the Constitution. But this power was limited to a period of five years only from the date of commencement of the Constitution, and consequently this power expired on 26-1-1955. The last portion of Article 369 reads as follows:
'Any law made by Parliament which Parliament would not, but for the provisions of this Article have been competent to make, shall, to the extent of the incompetency cease to have effect on the expiration of the said period, except as respects things done or omitted to be done before the expiration thereof.'
Hence, if the competence of Parliament to extend the life of the Central Act was derived solely from Article 369, it is clear that on 26-1-1955 the Act ceased to have any effect 'except as respects things done or omitted to be done before the expiration thereof.'
4. But the Parliament's competence to legislate in respect of these matters was also derived from Entry 33 of List III (Concurrent List) of Schedule 7 which, prior to the Constitution (Third Amendment) Act, 1954, was as follows:
'33. Trade and commerce in and the production, supply and distribution of the products of industries where the control of such industry by the Union is declared by Parliament by law to be expedient in the public interest.'
Hence, if the Parliament by law declares that the control of the iron and steel industry is expedient in the public Interest, it would validly legislate in respect of trade and commerce in, and the production, supply and distribution of iron and steel. Entry 33 in List III was amended by the Constitution (Third Amendment) Act, 1954, by Which some other essential commodities such as foodstuffs, cattle fodder, raw cotton, and raw Jute were also included in that Entry. For the purpose of this case, however, these are not very essential.
5. When the legislative power derived from Article 369 of the Constitution was no longer available after 26-1-1855 the President and the Parliament sought the help of Entry 33 in List III in Schedule 7 for the purpose of legislating in respect of certain essential commodities. The President first promulgated an Ordinance known as the Essential Commodities Ordinance 1955 (Ordinance No. 1 of 1955) by which powers similar to those contained in the Central Act were conferred in respect of certain specified essential commodities including iron and steel.
In Clause 16 pf the Ordinance it was further provided that notwithstanding the expiry of the Central Act all orders made under the Central Act shall be deemed to have been made under the Ordinance and shall continue in force. This Ordinance was subsequently replaced by an Act of Parliament known as the Essential Commodities Act 1955 (Act 10 of 1955) in which by Section 16 all orders deemed to have been made under the Ordinance were declared to be orders deemed to have been made under the Act itself.
Hence, the Central Order of 1941 which was passed in exercise of the powers conferred by sub-rule (2) of Rule 81 of the Defence of India Rules, continues in force to this day by virtue of the various deeming provisions of the Ordinance and the Acts mentioned above.
6. The Orissa Act and Order: The Orissa Legislature first passed the Orissa Act In 1951 forthe purpose of controlling the production, supply and distribution of, and trade and commerce in, certain essential articles. These essential articles were specified in the Schedule to that Act. It will be noticed, however, that these articles are different from the essential articles specified in Section 2 of the Central Act.
The list of essential articles mentioned in theSchedule attached was not exhaustive and Section 2 (a)of that Act conferred power on the State Government to declare by notified order any other article to be an essential article. In exercise of thispower the State Government issued a Notification,No. 12057-S.T. dated 28-3-1951 declaring 'iron andsteel products' to be an essential article for the purpose of the Orissa Act.
Thus, while 'iron and steel' was specified as an essential article in the Central Act (see Section 2(a)(7)) 'iron and steel products' were described as essential articles under the Orissa Act read with the said notification. The life of the Orissa Act was, originally limited to 1-1-1953, but it was further extended by the Orissa Essential Articles Control and Requisitioning (Temporary Powers Amendment) Act, 1952 (Orissa Act 23 of 1952).
This amending Act was declared to be Invalid by a Bench of this Court in Ahmed v. The State of Orissa, 1955 Orissa 184 ( (S) AIR V 42) (A). Consequently, the Orissa Act and the Order made under it ceased to have any force on 1-1-1953. Thereupon, the Governor of Orissa first issued an Ordinance known as the Orissa Essential Articles Control and Requisitioning (Temporary Powers) Ordinance, 195S, which was followed up by an Act of the State Legislature known as the Orissa Essential Articles Control and Requisitioning (Temporary Powers) Act, 1955 (Orissa Act 7 of 1956) by which (see Section 18) it was expressly declared that 'notwithstanding any judgment of any Court' the Orissa Act shall be deemed to have been validly amended and continued in force by Orissa Act 23 of 1952.
This special retrospective provision was made so as to validate most of the actions taken under the Orissa Act during the period from 1-1-1953 till the date of the commencement of the Orissa Ordinance and the Orissa Act of 1955. But a special proviso was inserted in Section 18 of the Orissa Act 7 of 1955 to the following effect:
'Provided that nothing contained in this Act shall render any person liable to any punishment or penalty whatsoever by reason of anything done or omitted to be done by him between the 1st day of January 1953 and the date of commencement of this Act'.
Apparently this proviso which' has the effect of conferring immunity from criminal prosecution in respect of any act done or omitted to be done from 1-1-1953 till the date of commencement of Orissa Act 7 of 1955, was inserted with a view to conform to the provisions of Article 20 of the Constitution so that retrospective validation of the orders made under the Orissa Act may not apply to the penalties incurred under that Act.
Hence there could be no prosecution for contravention of any of the provisions of the Orissa Order or of the Orissa Act, if such contravention had taken place during the period from 1-1-195 till 18-6-1955 when Orissa Act 7 of 1955 came into force.
7. I have already pointed out that the offences said to have been committed by the petitioners relate to the period from 19-3-1953 to the 31-1-1954. So far as contravention of the Orissa Order is concerned no prosecution can lie in Viewof the special immunity conferred by the proviso to Section 18 of Orissa Act 7 of 1955. This was fairly conceded even before the trial Court by the persons in charge of the prosecution. But the trial of the case was pressed in respect of the contravention of the Central Order which occurred during that period and which was punishable under Sections 7 and 10 of the Central Act.
8. Mr. Das on behalf of the petitioners raised the following two points in support of his contention :
(1) No prosecution would lie even in respect of a contravention of the Central Order. There is an inconsistency between Orissa Act 7 of 1955 and the Orissa Order deemed to have been made under that Act on the one hand, and the Central Act and the Central Order deemed to have been made under that Act on the other, and that inasmuch as the Orissa Act received the assent of the President it should prevail over the Central Act to the extent of the inconsistency, by virtue of Article 254(2) of the Constitution.
(2) In any view of the case the Immunity from prosecution conferred by the proviso to Section 18 of Orissa Act 7 of 1955 must also apply to prosecutions for contravention of the Central Order as otherwise there would be a conflict between the two laws in which case, by virtue of Article 284(2) the provisions of Section 18 of Orissa Act 7 of 1955 Will prevail.
9. Though a Division Bench of this Court declared the Orissa Essential Articles Control & Requisitioning (Temporary Powers Amendment) Act 1952 (Orissa Act 23 of 1952) to be invalid, it was retrospectively validated by Section 18 (a) of the Orissa Act 7 of 1955 except as regards penalties incurred thereunder. Hence, during the period in question there were two laws in force in Orissa firstly, the Central Act and the Central Order dealing with iron and steel, and second the Orissa Act and the Orissa Order dealing with Iron and steel products.
The validation of the Orissa Act was assented to by the President with retrospective effect so as to keep it in force during that period. As legislation' in respect of these essential articles is relatable to Entry 33 in List III of Schedule 7 to the Constitution which is a matter in the Concurrent List, and also to Article 369 till 26-1-1955 it is clear that if there is any inconsistency between the Orissa Act and the Central Act then, by virtue of Article 284(2) the Orissa Act would prevail as the Central Act is an earlier Act.
10. It is true that the inconsistency referred to in Article 254(2) of the Constitution is between (1) a law made by the Legislature of a State and (2) an earlier law made by Parliament or an existing law. A law made by the Legislature would ordinarily mean only an Act of the Legislature and may not include subsidiary legislation such as orders and rules made under that Act.
But it is a well known rule that if statutory rules and orders are validly made in exercise of the powers conferred by a statute, they for all practical purposes have the same effect as if enacted in that statute: Patent Agents institute v. Lockwood, 1894 AC 347 (B). Hence I have taken the Orissa Act and the Orissa Order deemed to have been made under it to be laws made by the Orissa Legislature for the purpose of Article 254(2). So far as the Central Act and the Central Order are concerned, there is no such difficulty. They both will come within ale definition of 'existing law' as mentioned in Article 366(10) which includes not only Acts of the Legislature but also rules and orders made by competent authorities.
11. The main question for consideration, therefore, is whether there is any real inconsistency between the Orissa Act and Order on the one hand and the Central Act and Order on the other, or else whether they are complementary toy each other. For deciding this question It is necessary to discuss briefly the true scope of the two sets of enactments.
12. The Central Order, as described by its name, deals only with the control of the production and distribution of iron and steel. For that purpose, Clause 4 of the Order prohibits any person from acquiring iron and steel, either from a manufacturer or stockholder except under the authority of, and in accordance with the conditions contained in, an order of the Controller, usually referred to as the Quota Certificate.
Clause 5 prohibits a producer or stockholder of iron and steel from disposing of iron and steel to any person except, in accordance with such a Quota Certificate issued by the Controller. Clause 8 further says that any person acquiring iron and steel in accordance with the provisions of Clause 4 shall not use them otherwise than in accordance with the conditions contained in the quota Certificate.
Clause 11 requires all persons holding iron and steel to keep such accounts and supply such Information as may be required by the competent authority; and Clause 11(B) confers power on the Controller to fix the maximum price at which iron and steel may be sold. This Order does not purport to control directly the production and distribution of iron and steel products -- that is to say products fabricated out of iron and steel.
Doubtless such control may follow indirectly because, if a person wants to acquire iron and steel for the purpose of fabricating iron and steel products, he will have to first obtain a Quota Certificate under Clause 4 of the Central Order and then use that iron and steel for the purpose mentioned in the Certificate. He must also maintain accounts and supply the information required by the competent authority. But the Order does not purport to control the business of the fabricators of iron and steel products, nor does it fix the maximum prices at which such products may be sold, nor does it say that nobody can engage in the business of fabricating iron and steel products without first obtaining a licence.
These matters are dealt with by the Orissa Order which (see Clause 3) requires any person Who is a fabricator -- that is any person engaged in the business of manufacturing or producing iron and steel products from scrap or iron and steel -- to first obtain a license under that Order before he could acquire iron and steel, or scrap from either the producer, stockholder or other scrap merchants. Clause 6 of the Orissa Order confers power on the Controller to fix prices above which any of the iron and steel products made by a licensee cannot be sold.
Clause 7 prohibits a licensee from disposing of scrap or iron otherwise than as articles manufactured by him in his workshop. Clause 9 requires a licensee to maintain such records and furnish such information as may be required by the Controller. Clause 11 is the penal clause. The makers of the Orissa Order were fully aware of the existence' of the Central Order and in Clause 2(d) of the Orissa Order an expression was defined by reference to the meaning assigned to that expression in the Central Order. Again, in para 8 of the Form of Application for a license under the Orissa Order (Form I) the applicant was directed to state whether he had received a Quota Certificate from the Central Government.
13. From a fair reading of the relevant provisions of the two Orders the following conclusionemerges. Iron and steel products, though made out of iron and steel, are quite different from iron and steel; and while the Central Order is concerned only with the latter the Orissa Order is concerned only with the former. A person may require iron and steel products, for the purpose of fabricating iron and steel products but also, say, for his own consumption or for the purpose of re-sale.
In such a case he will have to obey the provisions of the Central Order only. If, however, that person wants to engage himself, in the fabrication of iron and steel products, he will have to comply with the provisions of both the Orders, that is first of all he must apply for a Quota Certificate under the Central Order mentioning in his application the purpose for which he intends to use the iron and steel that may be supplied to him, and then he must also obtain a license under the Orissa Order so as to engage himself in that business. It follows that unless he has got the necessary Quota. Certificate under the Central Order the State Government would not give him any license under the Orissa Order.
Similarly, the Central Government also would not grant him a Quota Certificate except on the recommendation of the State Government. In fact, in para 5 of the Prosecution Report it is made clear that the allotment of the quota to the petitioners' firm was made by the State Government alter consultation with the Union Government. It is difficult to imagine how there could be any inconsistency or repugnancy between the two Orders.
It is true that an act or omission by a person who has got a Certificate under the Central Order and a license under the Orissa Order may amount to contravention of the provisions of both the orders. Thus the use of iron and steel for a purpose other than that mentioned either in the Quota Certificate or in the fabricator's license would amount to contravention of Clause 8 of the Central Order and Clause 3 of the Orissa Order, but this does not indicate any inconsistency between the two Orders.
14. Similarly, there seems no inconsistency between the Central Act on the one hand and the Orissa Act on the other. The Central Act deals only with 11 specified essential commodities (see Section 2 (a)) whereas the Orissa Act deals with 10 essential articles mentioned in the Schedule to that Act though by virtue of Section 2(a) power was taken to notify other articles also as essential articles.
Though theoretically it may be possible to include in the Schedule to the Orissa Act some of the commodities defined as 'essential' in Section 2 (a) of the Central Act and thereby take power to control those commodities also under the Orissa Act, no such instance was cited before us.
If for instance the State Government had declared iron & steel to be an essential article under the Orissa Act in exercise of the powers conferred by Section 2 (a) of that Act and passed an order similar to the Central Order controlling the production and distribution of iron and steel, an inconsistency between the two laws may arise because Section 8 of the Orissa Act says that :
'Any order made under Sections 3 or 4 shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act'.
But, as pointed out by me already no instance ofdual control of the same article by the Central Actand by the Orissa Act has been cited before us. Onthe other hand, it appears that the two Acts areintended to work side by side and to be complementary to each other so that those essential articleswhich are not controlled by the Central Act maynot escape control altogether and may be broughtwithin the scope of the Orissa Act.
An inconsistency between the two can seldom arise because the powers conferred on Central Government under Section 3 of the Central Act are generally exercised through officers of the State Government. In considering the question of repugnancy the Court must see whether the Tepugnancy exists in fact and must not depend merely on a possibility (See 'Shyam Kant Lal v. Bam Bhajan Singh', 1939 P. C. 74 (83) (AIR V 26) (C).
As further pointed out in that Federal Court decision where the question is whether a Provincial legislation is repugnant to an existing Indian law; every effort should be made to reconcile them and to construe both so as to avoid their being repugnant to each other and care should be taken to see whether the two do not really operate in different fields without encroachment. These observations apply with great force in the present case and I would hold that there is really no inconsistency between the two enactments so as to attract the application, either of Article 254(2) of the Constitution or of 3. 8 of the Orissa Act.
15. Mr. Das then contended that repugnancy or inconsistency between the two enactments may arise even though it may be possible to obey one of them without disobeying the other. It is true that the 'test of obedience' which is bayed on 'Why-brow's case'. (1910) 10 C.L.R. 286 (D), is not the only test for determining inconsistency between two enactment'. There may be an inconsistency when both the enactments impose prohibitions against the same act, but one of the them is more stringent than the other (see 'Attorney-General for Ontario v. Attorney-General for the Dominion of Canada', 1896 A. C. 348 (E); 'Grand Trunk Ry.. Co. of Canada v. Attorney-General of Canada', 1907 A. C. 65 (P); and 'Stewart v. Brojendra Kishore', 1939 Cal. 620 (633) (G).
In the present case, however, it cannot be said that the Orissa Order is in any way more stringent than the Central Order. On oho ether hand, the maximum penalty for contravention of the Orissa Order (see Clause 11) is the same as the maximum for contravention of the Central Order (See Clause 7 (3) ).
16. The other well-known tests to decide inconsistency between two enactments such as whether the necessary effect of the two statutes, involves implied repeal of one, or else whether one of the laws is Intended to be a complete and exhaustive code, do not apply in the present instance and it will be academic to discuss these principles here.
17. The next question for consideration is whether the immunity from criminal prosecution In respect of a contravention of the Orissa Order conferred by the proviso to Section 18, Orissa Essential Articles Control and Requisitioning (Temporary Powers) Act, 1956, (Orissa Act, 7 of 1955) would necessarily involve any inconsistency between the two sets of enactments during the relevant period. For instance, the petitioners are prosecuted for using iron and steel for purposes other than fabrication of iron and steel products during the relevant period.
This act of the petitioners amounts to contravention of Clause 4, read with Clause 8 of the Central Order which is punishable under Section 7 of the Central Act. It also amounts to contravention of Clause 7 of the Orissa Order which is punishable under Clause 11 of that Order. Section 18 of Orissa Act 7 of 1955 confers statutory immunity on them against prosecution for contravention Clause 7 of the Orissa Order.
Mr. Das urged that there must necessarily be an inconsistency between the two enactments inasmuch as the same act when construed as disobedience of the Central Order makes the person liable for criminal prosecution, whereas when it is construed as contravention of the Orissa Order makes him immune from such prosecution. He could, however, cite no authority in support of, his argument that this must necessarily result in an inconsistency between the two enactments. It nay Ed happen that the same act may constitute an offence under two or more enactments.
Section 26, General Clauses Act 1897 (Act 10 of 1897) while contemplating such a contingency says that a person may be liable to be prosecuted and punished under either or any of these enactments, but he shall not be liable to be punished twice for the same offence. There is also a similar provision in the Orisa General Clauses Act 1937 (Orissa Act 1 of 1937). Hence but for the immunity conferred by the proviso to Section 18 of Orissa Act 7 of 1955 the petitioners would have been liable to be prosecuted for contravention of both the orders though they could not be punished twice for the same offence.
The immunity saves them from prosecution only in respect of the Orissa Order but leaves the contravention of the Central Order untouched. 1 am unable to agree with Mr. Das's contention that such a result must necessarily involve any inconsistency between the two laws so as to make Orissa Act 7 of 1955 prevail by virtue of Article 251(2) of the Constitution.
18. I may now deal with another interesting point of law raised, by Mr. Das. It has already been pointed out that the Central Act was kept alive up-to 26-1-1955 by successive Acts of Parliament which were made in exercise of the legislative power conferred by Article 369 of the Constitution. That power expired on 26-1-1955 and all laws made in exercise of that legislative power ceased to have effect on that date except as respects things done or omitted to be done before the expiration thereof.'
Mr. Das urged that inasmuch as the Central Act expired on 25-1-1355, and the penalty under that Act was incurred in the years 1953 and 1954 when it was in force, a prosecution for au offence committed under that Act would not lie after 20-1-1955. Doubtless, if the penalty incurred under that Act be held to be a 'thing done or omitted to be done then criminal prosecution may lie -in respect of that penalty by virtue of the saving provision In Article 369 itself.
Mr. Das, however, urged that, the penalty incurred cannot be said to be 'a thing done or omitted to be done'. Section 6, General Clauses Act, may not be of help tp the State of Orissa inasmuch as that is limited to those statutes which are 'repealed' and it may not apply to those temporary statutes which expire by the efflux of time.
But the expression 'things done or omitted to be done' is a well-known statutory expression occurring not only in the Government of India Act 1935 and in the India (Central Government and Legislature) Act 1946 -- (Section 2(e)) but also in several enactments of the British Parliament. In 'R. v. 'Wicks', 1946 (2) All E. Rule 529(H), this question directly arose for consideration. The Emergency Powers (Defence) Act of 1939 after numerous extensions expired on 24-2-1946 and Section 11(3) of that Act provided that 'the expiry of this Act shall not affect the duration thereof, as respects things previously done or omitted to be done'.
The Court of Criminal Appeal held that these words authorised the trial and conviction of a person after the expiration of the temporary Act even though the offence under that Act had been committed during the life of the Act. The question has been discussed at some length and I think the construction of the expression 'things done t,r omitted to be done' given by Goddard C. J., in the aforesaid English case would apply with full force in construing that expression, in Article 369 of the Constitution,
19. For the aforesaid reasons I am of opinionthat the prosecution of the petitioners for contravention of the Central Order which is punishableunder the Central Act would lie notwithstandingthe expiry of the Central Act on 26-1-4955, and notwithstanding the fact that they have been conferred immunity from prosecution in respect of theOrissa Act and the Orissa Order, by virtue of the proviso to Section 18 of Orissa Act 7 of 1955.
20. The petition is dismissed. The trial of the case should be expedited.
P.V.B. Rao, J.
21. I entirely agree, withmy Lord the Chief Justice.