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Madan Lal Batra Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Review Appeal No. 55 of 1981
Judge
Reported in1998(3)DRJ240
ActsEssential Commodities Act, 1955 - Sections 3
AppellantMadan Lal Batra
RespondentState
Advocates: P.P. Grover and; H.C. Gulati, Advs
Cases ReferredWicks v. Director of Public Pyosecutipits
Excerpt:
.....or operation. on 22nd may, 1979, the appellant was found selling gulabjaman--a preparation of milk product. prosecution was launched after the expiry of the order.;that the prosecution launched after the expiry of the order is illegal and invalid. - - (2) the petitioner moved an application, inter alia, contending that the order having expired by effux of time and there being no saying clause to keep alive its operation, his prosecution after the expiry of the order was bad in law. ' (4) since the provisions of section 6 of the general clauses act in relation to the efflect of repeal do not apply to a temporary act or statutory order like the present, we are simply to see whether there is any saving provision in the order itself which will keep its operation alive as regards the..........argument that the order having been issued in exercise of the power conferred by section 3 of the act and the said section or act not having been repealed, the prosection for an offence punishaole there under was perfectly valid even though it had been initiated after the expiry of the order. evidently, the learned magistrate aid not comprehent that manufacture/ sale of a sweet prepared from milk or milk product was an offence by virtue of she provisions of the order and prosecution for the same could not be launched after its expiration notwithstanding that the act under which the order was issued was still in force. the gravamen of of the charge was the violation of the order during the period of its operation and the act simply provided for its punishment. (9) as a result, this.....
Judgment:

J.D. Jain, J.

(1) On 10th May, 1979, the Administrator, Union Territory of Delhi issued an order stayed 'Delhi (Milk and Milk Products Control order, 1979' (for short the order) under Section 3 of the Essential Commodities Act, 1955 (hereinafter referred to as the Act). The order was promulgated for the purpose of maintaining and increasing the supplies of milk and for securing its equitable distribution in the Union Territory of Delhi. It prohibited manufacture, sale, service, supply or export of milk products and banned the use of milk for the manufacture of case - in, khoa, rubree, paneer or any kind of sweets in the preparation of which milk or any of its products, except ghee was an ingredient. The Order came into force on 15th May, 1979 and ceased to operate on 14th July, 1979. However, while the Order was still in force officials of the Food & Supplies Department, Delhi Administration, conducted a raid on the shop of the petitioner, who runs halwai shop in the name name style of Mohan Sweets, on 22nd May, 1979 and found that 5 kgs. of gulabjaman, a sweet made of Seema Brand milk powder, had been kept for sale in the shop. The petitioner was present there and was looking after his business. He told the officials of the Food & Supplies Department that gulabjaman had been manufactured with Seema powder which contained milk powder and he had purchased the same from M/s. Chander Bhan & Sons of Khari Baoli. The Food & Supplies officials seized the stock of gulabjaman and took three representative samples out of the same. One sample was sent to the Public Analyst, who reported on 5th July, 1079, that the same was preparation of a milk product. Hence, prosecution was launched against the petitioner for contravention of the Order which constituted an offence punishable under Section 7 of the Act. However, it was subsequent to the expiration of the Order.

(2) The petitioner moved an application, inter alia, contending that the Order having expired by effux of time and there being no saying clause to keep alive its operation, his prosecution after the expiry of the Order was bad in law. The learned Magistrate has rejected this contention vide impugned order order dated 2nd December, 1980. Hence, this revision petition.

(3) The short question for consideration is whether the prosecution launched against the petitioner after the expiration of the Order wai valid and legal. The following passage appearing at page 409 in Craies on Statute Law' 7th Edition, enunciates the general principle :

EXPIRATION: 'As a general rule, and unless it contains some special provision to the contrary, after a temporary Act has expired, no proceedings can be taken upon it, arid it ceases to have any further effect. thereforee, offences comitted against temporary Acts must be prosecuted and punished before the Act expires, and as soon as the Act expires any proceedings which arc being taken against a person will ipso facto terminate.'

This principle was affirmed by the Supreme Court in State of Utter Pradesh v. Seth Jagmander Das & others, : AIR1954SC683 . It said :

'WHENa Statute is repealed or comes to an automatic and by efflux of time, no 'prosecution for acts done during the continuance of the repeated or expired Act can be commenced after the date of its repeal or expiry because that would amount to the enforcement of a repealed or a dead Act. In cases of repeal of statutes this rule stands modified by S. 6 of the General Clauses Act. An expiring Act however is not governed by the rule enunciated in that section.'

(4) Since the provisions of Section 6 of the General Clauses Act in relation to the efflect of repeal do not apply to a temporary Act or statutory order like the present, we are simply to see whether there is any saving provision in the order itself which will keep its operation alive as regards the contravention and breaches committed during the period it remained in force. Sub-rule (3) of Rule 1 of the Order is sought to be passed into service by the prasecution in this respect. It reads as under :

'ITshall come into force on 15-5-1979 and shall cease to operate on 14-7-1979 except as respects things done or omitted to be done before such cessor of operation.'

On its plain language this sub-rule provides for automatic expiration of the order by efflur of time. Thus, it ceased to exist on 14th July, 1979. However, the question is whether the contravention of the order by the petitioner by keeping for sale gulabjamans made of milk product can be said to be a thing done or omitted to be done under the order because it is only in that case that the prosecution of the the petitioner for the infringement of the order can be said to valid, The answer to this question, in my view, is clearly available in M/s. Rayala Corporation (P) Ltd. and another v. The Director of Enforcement, New Delhi, A.I.R. 1970 Sc 494. In that case the appellants were, inter alia, sought to be prosecuted for contravention of Rule 132-A of the defense of India Rules, 1962, the charge against them being that they had acquired foreign exchange in violation of the prohibition con taincd in Rule 132-A (2) during the period when the said Rule was in force so that they became liable to punishment under Rule 132-A(4). However, Rule 132-A as a whole had ceased to be in existence as a result of the notification issued by the Ministry of Home Affairs on 30th March, 1965, by which the defense of India (Amendment) Rules 1965, were promulgated. Clause 2 of these Amendment Rules read as under :

'INthe defense of India Rules, 1962 Rule 132A (relating to prohibition of dealings in foreign exchange) shall be omitted except as respects things done or omitted to be done under that rule.'

(5) The argument advanced by the leatned counsel for the appellants in that case was that even if there was a contravention of Rule 132A(2) by the accased when that Rule was in force, the act of contravention could not be held to be a thing done or omitted to be done under that rule so that after that rule had been omitted, on prosecution in respect of that contravention could be instituted. This argument prevailed with their Lord ships who held that:

'WEare inclined to agree with the submission of Mr. Sen that the language contained in clause 2 of the defense of India (Amendment) Rules, 1965 can only afford protection to action already taken while the rule was in force, but cannot justify initiation of a new proceeding which will not be thing done or omitted to be don eunder the rule but a new act of initiating a proceeding after the rule had ceased to exist. On this interpretation the complaint made for the offence under Rule 132A(4) of the D.I.Rs, after 1st April, 1956 when the rule was omitted, has to be held invalid.'

Their Lordships elucidated the position further as follows :

'THE language used in the notification only affords protection to things already done under the rule, so that it cannot permit further application of that rule by instituting a new prosecution in respect oof something already done. The offonce alleged against the accused in the present case is in respect of acts done by them which cannot be held to be acts under that rule.'

It may be pertinent to notice here that reliance was placed by the State on a dacision of the House of Lords in Wicks v. Director of Public Pyosecutipits, (1947) Ac 362. In that case the appellant had been convicted in May 1946 of offences committed in 1943 and 1944 contrary to Regulation 2A of the defense (General) Ragulations 1939, made pursuant to the Emergency Powers (defense) Act, 1939. Both the Act and the Regulations expired on Fabruary 24) 1946. However, Section 11, sub-section 3, of the Act provided that:

'THEexpiry of this Act shall not affeet the operation thereof as respects things previously done or omitted to be done.'

Having regard to this saving provision, the House of Lords held that:

'ALTHOUGHRegulation 2A had expired before his trial he was properly convicted, since Section 11, sub-section 3 did not expire with the rast of the Act, being designed to preserve the right to prosecute after the date of expiry.'

(6) However, this decision was distinguished by the Supreme Court on the ground that the saving provision therein laid down that the operation of the Act itself was not to be affected by the expiry as respects things previously done or omitted to be done. The Act could, thereforee, be held to be in operation in respect of acts already committed so that the conviction could be validly made even after the expiry of the Act in respect of the offence committed before the expiry.

(7) This authority, to my mind, squarely applies to the facts of the facts of the instant case. There is no provision in the Order permitting operation of the Order itself to continue as regards things done or omitted to be done when the same was in force. Hence, the saving clause does not permit institution of prosecution in respect of such offences after the expiry of the Order itself. It is noteworthy that the saving clause embodied in Section 11, sub-section 3 of the Emergency Powers (defense) Act' 1939, was almost in the same terms as Section 6 clause (b) of the General Clauses Act. However, sub-rule (3) of Rule 1 of the Order falls much short of this requirement and does not in terms save the operation of the Order as regards things done or omitted to be done before its cessor. Honce, the prosecution of the petitioner subesquent to the expiry of the Order must be held to be illegal and invalid.

(8) It is somawhat painful to record that the learned Magistrate-rejected this contention of the petitioner rather unceremoniously withour even caring to peruse and understand the ratio of the Supreme Court judgment. He has invented a rather ingeniaus argument that the Order having been issued in exercise of the power conferred by Section 3 of the Act and the said Section or Act not having been repealed, the prosection for an offence punishaole there under was perfectly valid even though it had been initiated after the expiry of the order. Evidently, the learned Magistrate aid not comprehent that manufacture/ sale of a sweet prepared from milk or milk product was an offence by virtue of she provisions of the order and prosecution for the same could not be launched after its expiration notwithstanding that the Act under which the order was issued was still in force. The gravamen of of the charge was the violation of the order during the period of its operation and the Act simply provided for its punishment.

(9) As a result, this revision petition succeeds, the impugned order is set aside and the prosecution of the petitioner is quashed.


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