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George Vs. State of Travancore-cochin - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1954CriLJ63
AppellantGeorge
RespondentState of Travancore-cochin
Cases ReferredGopalan v. State of Madras
Excerpt:
.....the freedom of trade, commerce or intercourse referred to in article 301 covers freedom of inter-state trade, commerce or intercourse as well as freedom of intra-state trade, commerce or intercourse. the expression 'freedom of trade, commerce or intercourse with or within that state' as used in clause (b) article 304 has to be read in juxtaposition with the expression 'freedom of 'trade, commerce or intercourse between one state and another or within any part of the territory of india',and when so read, it will be clear that these expressions really convey the same idea of freedom of trade, commerce or intercouse, inter-state as well as intra-state. tested in the light of this principle, it is clear that the constitutionality of section 3 of the public safety measures act, 1930 could..........so imported and goods so manufactured or produced. clause (b) of the same article empowers the state legislature to make laws imposing such reasonable restriction on the freedom of trade, commerce & intercourse with or within that state as may be required in the public interest. but the power conferred by clause (b) on the legislature of a state is expressly made subject to a proviso which runs as follows : 'provided that no bill or amendment for the purposes of clause (b) shall be introduced or moved in the legislature of a state without the previous sanction of the president.'it is not contended on behalf of the state that the requirements of this proviso had been complied with before enacting section 3, public safety measures act, act 5 of 1950, which measure was admittedly passed.....
Judgment:
ORDER

Sankaran, J.

1. The petitioner in both these criminal revision petitions is the same. He is the second accused in Calendar Case No. 11/50 on the file of the Special First Class Magistrate's Court at Cranganur. He is also the 1st accused in Calendar Case No. 12 of 1950 on the file of the same court. Both these prosecutions were started against him for having contravened the provisions of the Paddy (Acquisition and Movement) Control Order, 1950 issued by the Government of the State of Travaneore-Cochin in exercise of the powers conferred on them by Section 3, Public Safety Measures Act, 1950 (Act 5 of 1950).

According to the prosecution, this accused obtained on loan 75 paras of paddy from the 1st accused in C. C. 11/1950 on 18-6-1950 and transported the same from the 1st accused's house in Kakkulisseri Village to the petitioner's house in Poyya village in the Mukundapuram Taluk. It is stated that the borrowing and the subsequent transport of the paddy were done without obtaining the requisite permits as contemplated by the Paddy (Acquisition and Movement) Control Order. The lender as well as the borrower of the paddy are alleged to have contravened the direction contained in Section 7 of the said Order and to have thus committed an offence punishable under Section 20 (1) of that Order. They were accordingly prosecuted for the said offence in C. C. 11/1950. The prosecution in C. C. 12/50 was for the unauthorised transport of the aforesaid paddy from Kakkulisseri village to Poyya village.

As a result of the trial of these two cases, the learned Magistrate found that the acts attributed to the revision petitioner were really committed by him viz., that he obtained on loan 75 paras of paddy from the 1st accused in C. C. 11/1950 and got it transported to his own house in Poyya village. It was also found that this accused had not obtained the permits as required by the Paddy (Acquisition and Movement) Control Order authorising him to procure paddy and transport it in the manner done by him. In C. C. 11/1950 this accused was convicted under Section 20 (1) of the Paddy (Acquisition and Movement) Control Order and sentenced to pay a fine of Rs. 150/- and in default of payment of fine, to undergo rigorous imprisonment for a period of two months, for having contravened the directions contained in Section 7 of the said Order. The paddy in respect of which the said offence was found to have been committed by him and which was recovered from his house, was ordered to be forfeited to the State.

In C. C. 12/1950 also he was convicted under Section 30 (1) of the Paddy (Acquisition and Movement) Control Order, for the unauthorised transport of the paddy and was sentenced to pay a fine of Rs. 75/- or in default of payment of fine, to undergo rigorous imprisonment for two months. He preferred appeals to the Sessions Court at Anjikaimal against the aforesaid conviction and sentences, Cr. Appeal 1/1952 being against the conviction and sentence in C. C. 11/1950 and Crl. Appeal 2/1952 being against the conviction and sentence in C. C. 12/1950, The learned Sessions Judge confirmed the conviction and sentences and dismissed both the appeals. The petitioner has accordingly preferred these two revision petitions, questioning the legality of the orders passed against him by the lower courts.

2. The position taken up by the revision petitioner is that the prosecutions launched against him in C. C. Nos. 11 and 12 of 1950 are unsustainable for the reason that Sections 7, 17 and 20 (1) of the Paddy (Acquisition and Movement) Control Order of 1950 are illegal and void. It is contended on his behalf that the Paddy (Acquisition and Movement) Control Order, 1950 issued by the State Government in exercise of the powers conferred on them by Section 3 of the Public Safety Measures Act (Act 5 of 1950), was itself illegal and inoperative. It is urged on behalf of the revision petitioner that Section 3 of the Public Safety Measures Act, 1950 is unconstitutional and void and that as such there could be no legal sanction behind the several provisions contained in the Paddy (Acquisition and Movement) Control Order, 1950. The decision on the question of constitutionality raised on behalf of the revision petitioner will determine the fate of both the revision petitions and accordingly they are disposed of by this common order.

3. Section 3 of the Public Safety Measures Act, Act 5 of 1950, is impugned as being void because its enactment was not in conformity with the procedure prescribed by Clause (b) of Article 304 of the Constitution.

This Article occurs in Part 13 of the Constitution, dealing with trade, commerce and intercourse within the territory of India. Article 301 states that subject to the other provisions of Part 13 of the Constitution, trade, commerce and intercourse throughout the territory of India shall be free. The limitations that could be imposed on this freedom are those contemplated by the other provisions contained in Part 13. Article 302 empowers Parliament to enact laws imposing such restrictions on the freedom of trade, commerce and intercourse between one State and another or within any part of the territory of India as may be required in the -public interest. Restrictions on this general power of legislation have been imposed by Article 303 which states that notwithstanding anything in Article 302, neither Parliament nor the legislature of a State shall have power to make any law giving, or authorising the giving, of any preference to one State over another, or making, or authorising the making of, any discrimination between one State and another by virtue of any entry relating to trade and commerce in any of the Lists in the Seventh Schedule.

This restriction has been further qualified by Clause 2 of Article 303 of the Constitution which states that the aforesaid restriction shall not prevent the power of Parliament from passing any such discriminatory measure if it. is declared by such law that it is necessary to do so for the purpose of dealing with a situation arising from scarcity of goods in any part of the territory of India.

Then comes Article 304 defining the power of the Legislature of a State to enact laws regulating trade, commerce and intercourse. Clause (a) of this Article states that notwithstanding anything in Article 301 or Article 303, the Legislature of a State may by law impose on goods imported from other States any tax to which similar goods manufactured or produced in that State are subject, so, however, as not to discriminate between goods so imported and goods so manufactured or produced. Clause (b) of the same Article empowers the State Legislature to make laws imposing such reasonable restriction on the freedom of trade, commerce & intercourse with or within that State as may be required in the public interest. But the power conferred by Clause (b) on the Legislature of a State is expressly made subject to a proviso which runs as follows : 'Provided that no Bill or amendment for the purposes of Clause (b) shall be introduced or moved in the Legislature of a State without the previous sanction of the President.'

It is not contended on behalf of the State that the requirements of this Proviso had been complied with before enacting Section 3, Public Safety Measures Act, Act 5 of 1950, which measure was admittedly passed by the State Legislature after the coming into force of the Constitution. The position taken up by the State is that Section 3, Public --Safety Measures Act, does not come within the ambit of Clause (b) of Article 304. It is contended that Clause (b) of this Article controls only State legislation imposing reasonable restrictions on inter-state trade, commerce or intercourse, but not legislation imposing such restrictions on the freedom of trade, commerce or intercourse within the State itself. In support of this contention, the learned Government Pleader has placed reliance on certain observations contained in the ruling in - 'Atma Ram v. State of Bihar' : AIR1952Pat359 .

At the outset it has to be stated that on the exact scope of Clause (b) of Article 304 of the Constitution no definite ruling was given in that case. The learned Judges who took part in that decision dealt with this matter only incidentally and at the same time they have expressly stated that they were not giving any definite ruling on the question because it was unnecessary to do so in the nature of that case. It is also seen that divergent views were expressed by them on the question of the scope of Clause (b) of Article 304, one view being that the expression 'trade, commerce or intercourse within that State' occurring in Clause (b) is wide enough to include freedom of trade within the State, and the other view being that the expression 'trade, commerce or intercourse with or within that State' applies only to such trade and commerce with or within the State have their inter-State ramifications throughout the territory of India or have inter-State importance. It is stated that this latter view is more in accord with the heading of Part 13 itself which relates to freedom of trade, commerce or inter-course within the territory of India.

With all respect, we have to confess that this view does net commend itself to us. There is no warrant for construing the expression 'trade, commerce or intercourse within the territory of India' as being restricted to trade, commerce or inter-course between one State and another within the Indian Union. The expression is comprehensive enough to bring within its ambit trade, commerce or intercourse between such States as also trade, commerce or intercourse between different places within any one State alone. In other words, the freedom of trade, commerce or intercourse referred to in Article 301 covers freedom of inter-State trade, commerce or intercourse as well as freedom of intra-State trade, commerce or intercourse. Article 302 makes this position clear beyond any room for doubt. That Article states that Parliament may by law impose such restrictions on the freedom of trade, commerce or inter-course between one State and another or within any part of the territory of India' as may be required in the public Interest. The expression 'freedom of trade, commerce or intercourse with or within that State' as used in Clause (b) Article 304 has to be read in juxtaposition with the expression 'freedom of 'trade, commerce or intercourse between one State and another or within any part of the territory of India', and when so read, it will be clear that these expressions really convey the same idea of freedom of trade, commerce or intercouse, Inter-State as well as intra-State. Article 302 deals with the power conferred on Parliament to enact laws imposing restrictions on the aforesaid freedom, of trade, commerce or intercourse, while Article 304, Clause (b) deals with the special power conferred on the state Legislature to enact laws imposing such restrictions on the same freedom. It is in view of such a special power conferred on the State Legislature, which to some extent encroaches on the general power conferred on Parliament under Article 302 that the exercise of the power by the State Legislature has been made subject to the Proviso to Clause (b) of Article 304.

4. Another argument advanced on behalf of the State is that the subjects dealt with under Section 3 of the Public Safety Measures Act, Act V of 1950, are those in respect of which the State Legislature has exclusive power to make laws and that therefore it cannot be said that the exercise of that power is controlled by Clause (b) of Article 304. The subjects dealt with under Section 3 of the Public Safety Measures Act are indicated in the operative portion of Clause (1) of the section which runs as follows:

The Government, so far as it appears to them to be necessary or expedient .... may, by notified order, provide for regulating or prohibiting the production, supply, distribution and transport of essential articles and trade and commerce in such articles.

These subjects come under items 2G and 27 of List II of Schedule VII of the Constitution.

List II, which is the State List, enumerates the matters in respect of which the State Legislature has exclusive power to make laws for such State or any part thereof as provided by Clause (3) of Article 246. Item 26 takes in 'trade and commerce within the State subject to the provisions of entry 33 in List III', while item 27 takes in 'production, supply and distribution of goods subject to the provisions of entry 33 of List III'. List III is the concurrent List and item 33 of that List takes in

trade and commerce in, and the production, supply and distribution of, the products of industries where the control of such industries by the Union is declared by Parliament by law to be expedient in the public interest.

Inter-State trade and commerce is treated as a separate subject by itself and is put under item 42 of List I which is the Union List, and under Clause (1) of Article 246 Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I of Schedule VII.

The question is which of these Lists takes in the subjects dealt with under Section 3 of the Public Sefety Measures Act, 1950. The rule that should guide the determination of this question has been enunciated in a series of decisions. That rule is to the effect that

the impugned, statute is to be examined to ascertain its pith and substance or its true nature and character for the purpose of determining whether it is legislation with respect to matters in this List or in that.

The more important of the decisions which have laid down this rule have been reviewed by the Supreme Court in - 'State of Bombay v. P.N. Balsara' AIR 1951 SC 318 (B), where the rule has again been reiterated and emphasised.

Tested in the light of this rule, it is clear that the subjects dealt with under the impugned section do not come under item 42 of List I or under item 33 of List III of Schedule VII. On the other hand, these subjects really come under items 26 and 27 of List if which is the State List. It follows therefore that under Clause 3 of Article 246 of the Constitution the Legislature of the State was competent to enact the impugned section. But this fact in itself is not sufficient to give validity to the section. On the other hand its validity will depend upon the further question whether or not any other constitutional limitation has been transgressed in the enactment of the section.

In fact the attack on the section is not that the subjects dealt with are beyond the legislative competency of the State Assembly, but that the legislation has been done in complete disregard of the Proviso to Clause (b) of Article 304. Merely because the subjects dealt with are those within the exclusive jurisdiction of the State Legislature, it cannot be said that the aforesaid Proviso is inapplicable to any legislation relating to such subjects. Article 246 cannot be taken to exhaustively deal with all the limitations on the powers of Parliament find the State Legislatures in the matter of enacting laws in relation to the subjects enumerated in the Lists assigned to the respective legislatures. Article 246 occurs in Chapter I of Part 11 of the Constitution. Part 11 deals generally with the relations between the Union and the States, Chapter I deals particularly with the Legislative relations between the Union and the States and all that has been done by Article 246 is to enumerate the subjects assigned to the Union and to the States for the purposes of legislation. These subjects have been classified under three Lists viz., the List, the State List and the Concurrent List. Limitations on the exercise of the legislative powers by these respective bodies have been laid down in other parts of the Constitution.

Articles 302 to 304 deal with some of these limitations. Clause (b) of Article 304 recognises the power of the State Legislature to enact laws imposing reasonable restrictions on the freedom of trade, commerce or intercourse with or within the State as may be required in the public interest. But the exercise of this power has been made subject to the condition of having obtained the previous sanction of the President. Apparently this provision might appear to be in conflict with the exclusive power conferred on the State Legislature under Clause (3) of Article 246. But really there is no conflict or repugnancy between the provisions contained in Clause (3) of Article 246 and Clause (b) of Article 304. No doubt the subjects of trade, commerce or intercourse within the State dealt with under Clause (b) of Article 304 are the subjects coming under items 26 and 27 of the State List and in respect of which the Legislature of the State has exclusive power to make laws for the State. This exclusive power conferred by Clause (3) of Article 248 is not taken away by the Proviso to Clause (b) of Article 304. This Proviso has merely imposed a condition on the exercise of such exclusive powers by the State Legislature in the matter of enacting a law imposing reasonable restrictions on the freedom of trade, commerce or intercourse with or within the State, as may be required in the public interest.

Exclusive power is not the same as absolute power. There is a clear distinction between the two. The expression 'exclusive power' has been used in Clause (3) of Article 246 in contradistinction with similar exclusive powers conferred on Parliament in respect of matters enumerated in the Union List and also the power which the Parliament or the State Legislature may exercise in respect of matters enumerated in the Concurrent List. The Proviso to Clause (b) of Article 304 has only specified the manner in which the exclusive power of legislation conferred on the State Legislature under Clause (3) of Article 246 in the matter of enacting the particular law as contemplated by these clauses should be exercised. Article 304 merely supplements, qualifies and controls the power conferred by Clause (3) of Article 246. These two Articles have to be read and construed together for the purpose of determining the validity of the impugned section of the Public Safety Measures Act, 1950 (Act 5 of 1950).

5. Clause (3) of Article 243 and Clause (b) of Article 304 deal with different aspects of the power of the State Legislature in the matter of enacting laws relating to the specified subjects, the former specifying the exclusive nature of the State Legislature's power in that matter, while the latter specifying the manner in which that power has to be exercised. In such a situation it will be wrong and unjustified to teal the constitutionality of the section in the light of any one only of these two supplemental provisions in the Constitution. To do so would be omitting to give effect to one or the other of the provisions having a direct bearing; on the enactment of the impugned section.

The salutary rule of construction to be adhered to and followed in arriving at the true find real purport of the relevant provisions of the Constitution governing a particular case, has been particularly emphasised by the Supreme Court in - Gopalan v. State of Madras' : 1950CriLJ1383 . There it was pointed out that the Constitution must be interpreted in a broad & liberal manner, that it will be improper to omit any word which has a reasonable and proper place in it or to refrain from giving effect to its meaning and that the presumption, should be that no conflict or repugnancy was intended by its framers. Tested in the light of this principle, it is clear that the constitutionality of Section 3 of the Public Safety Measures Act, 1930 could be upheld only if the require-merits of Clause (b) of Article 304 of the Constitution had also been satisfied in the enactment of the section.

6. As already pointed out, the proviso to Clause (b) of Art-. 304 states that no bill or amendment for the purpose of Clause (b) shall be introduced or moved in the Legislature of the State without the previous sanction of the President. From the authorised reports of the proceedings of the Legislative Assembly of the State, it is seen that the bill which, finally emerged in the form of the Public Safety Measures Act. 1950 (Act 5 of 1950) was first introduced in the Assembly on 13-12-1949 and was referred to a Select Committee on 14-12-1949. The bill as modified and redrafted by the Select Committee was presented before the Assembly on 23-3-1950 and, on the same day, the Minister in charge of the bill moved that, the bill be taken into consideration. Thereupon, the discussion on the bill proceeded and it was finally passed by the Assembly on 29-3-1950. The bill received the assent of the Raj Pramukh and the Notification bringing into force the Public Safety Measures Act 1950 as Act 5 of 1950, was published on 30-3-1950.

It is conceded on behalf of the State that at no stage of the enactment of this measure the sanction of the President as contemplated by the Proviso to CL (b) of Article 304 had been obtained. The mere fact that the bill was originally introduced on a date prior to the date of the Constitution, will not save this Act so far as Section 3 is concerned from the operation of the Proviso to Clause (b) of Article 304. It was only subsequent to the coming into force of the Constitution that the bill In its final form as redrafted by the Select Committee was introduced and moved in the State Legislature. The bill could thus be introduced and moved only after having obtained the sanction of the President. The Proviso to Clause (b) of Article 304 expressly prohibits the introduction and the moving of a bill for the enactment of a measure like the one contained in Section 3 of the Public Safety Measures Act, 1950 without the previous sanction of the President. The direction to that effect is not optional or discretionary, but is mandatory. Contravening of this Proviso must, therefore, be fatal to the validity and the legality of the section. The result is that Section 3, Public Safety Measures Act, 1950 (Act 5 of 1950) has to be declared illegal and void.

The validity of the other sections of the Act does not arise for consideration in these proceedings. The subjects dealt with under Section 3 stand separate and distinct from the subjects dealt with under the other sections and as such the invalidity of B. 3 by itself has no bearing on other sections. The Paddy (Acquisition and Movement) Control Order, 1950, having been issued by the State in exercise of the powers derived from Section 3 of the Public, Safety Measures Act, 1950, is also devoid of legal sanction behind it and accordingly it is also declared to be void. It follows therefore that the acts found to have been committed by the revision petitioner in contrazention(sic) of Sections 7 and 17 of the Paddy (Acquisition and Movement) Control Order cannot amount to commission of offences under law for which he could be convicted and sentenced.

7. In the result we result both these revision petitions and hold that the conviction entered and the sentence passed against the petitioner-accused in C. C. No. 11/1950 and C. C. No. 12/1950 on the file of the Special First Class Magistrate's Court at Cranganore, are unsustainable in law. The conviction and sentences are quashed and the petitioner is acquitted of the offences charged against him in these two cases. The fine, if already realised from him in these cases, will be refunded to him. The value of the paddy recovered from him and forfeited to the State will also be refunded to him.


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