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In Re: Kandaswami Goundan and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Reported in(1948)2MLJ400
AppellantIn Re: Kandaswami Goundan and ors.
Cases ReferredEmperor v. Ranchhodlal Hirabhai
Excerpt:
.....been omitted from all those sections as well as from section 8, it would have made no difference to the meaning of that ordinance at all, because by virtue of section 5 of that ordinance to which i have already referred certain orders were deemed to be made under section 3 and, to my mind the use of the alternative phraseology 'or deemed to be made' was entirely redundant and unnecessary......supplies (temporary powers) act, 1946 (act xxiv of 1946) makes punishable the contravention of orders deemed to be orders made under the act by virtue of the provisions of section 17(2) of the act. the learned judges overruled a previous decision of the same court by sen and jahagirdar, jj., passed on the 20th january, 1948 (criminal appeal no. 431 of 1947, unreported). the judgment overruled by the full bench had accepted a similar contention as is now raised by mr. kailasam; but that point of view has been dissented from and overruled in bombay. having considered the arguments carefully and read the judgment of the full bench with the consideration it deserves, i am inclined to agree with the view of the bombay high court. all the three judges were unanimous in holding that.....
Judgment:
ORDER

Govinda Menon, J.

1. These two cases can be disposed of by a common judgment as the point arising in both of them is identical. I shall first of all deal with Cr. R.C. No. 1267 of 1947 which arises out of C.C. No. 410 of 1947 on the file of the Additional First Class Magistrate, Pollachi. The sole accused in that case was convicted by the trial Court of an offence under Section 7(1) of the Central Act XXIV of 1946 for selling paddy to a person other than the Collector or his agent. This conviction was upheld by the learned Sessions Judge of Coimbatore, and the aggrieved party comes up in revision. In Cr. R.C. No. 1307 of 1947 the three petitioners were the accused in C.C. No. 499 of 1947 in the Court of the same Additional First Class Magistrate, Pollachi. They were the purchasers of the quantity of paddy from the accused in the previous case and were convicted of an offence under the same section of the same Act for transporting paddy without a permit.

2. Though in the lower Courts the petitioners in both the cases questioned the credibility of the prosecution evidence and denied the actions attributed to them, in this Court the counsel in each of these cases has wisely not attempted to do so. I agree with the lower Court that the sale and transport of paddy as alleged by the prosecution are both true occurrences.

3. But the question is whether there was a contravention of Section 7(1) of the Central Act. The circumstances that led up to the contravention are that by Order No. 467, dated the 15th June, 1946, promulgated under Section 81(2) of the Defence of India Rules then in force, the Collector of Coimbatore had prohibited the sale of paddy to any person other than an authorised dealer or himself.

It is now proved beyond doubt whatever, that the petitioners in Cr. R.C. No. 1307 of 1947 are not authorised dealers at all and therefore the sale of paddy to them contravened the order of the Collector. As is well known the Defence of India Rules expired on the 30th of September, 1946 and were replaced by Ordinance No. XVIII of 1946 by which certain provisions of the Defence of India Rules were continued. This ordinance, again, was substituted by Central Act XXIV of 1946 passed in November of that year. The question is whether the contravention of the Collector's order No. 467 can be said to be an offence under Section 7(1) of the Central Act.

4. By Section 3 of Ordinance XVIII of 1946 it was enacted that the Central Government, so far as it appears to it, to be necessary or expedient for maintaining or increasing supplies of essential commodities or for securing their equitable distribution and availability at fair prices can, by notification, provide for regulating or prohibiting the production, supply and distribution of such commodities, and trade and commerce therein, and power was given under Section 4 to delegate the functions of the Central Government to any Provincial Government or such officer or authority subordinate to the Provincial Government as may be specified in the direction. By Section 5 it was enacted that until other provisions are made under this Ordinance any order whether notified or not made by whatsoever authority under Sub-rule (2) or Sub-rule (3) of Rule 81 of the Defence of India Rules in respect of any matter specified in Section 3 which was in force immediately before the commencement of the Ordinance shall, notwithstanding the expiration of the said rules, continue in force so far as consistent with the Ordinance and be deemed to be an order made under Section 3... etc ...Section 8 of the Ordinance provided that any person who contravened any order made or deemed to be made under Section 3 shall be punishable with imprisonment. etc. It is undisputed that the sale of paddy was one of the subjects contemplated by Section 3, and therefore if it was an offence to sell and transport paddy in derogation of the provisions of the Collector's order, dated 15th June, 1946, when the Defence of India Rules were in force, it was certainly an offence under the Ordinance as well, and that so long as the Ordinance was in force a person could be convicted of that offence. This ordinance was replaced by the Central Act XXIV of 1946 which came into force on the 19th November, 1946. Section 3 of the Act is in the same terms as the corresponding section of the Ordinance, and Section 7(1) provided for penalties for contravening an order made under Section 3. There was added in this Act Section 17 which runs as follows:

(1) Essential Supplies (Temporary Powers) Ordinance, 1946, is hereby repealed.

(2) Any order made or deemed to be made under the said Ordinance and in force immediately before the commencement of this Act shall continue in force and be deemed to be an order made under this Act; and all appointments made, licences or permits granted and directions issued under any such order and in force immediately before such commencement shall likewise continue in force and be deemed to be made, granted or issued in pursuance of this Act.

At the time the alleged offence in this case was committed, that is, on 5th February, 1947, the statutory enactment in force was Act XXIV of 1946. I have already mentioned that the act complained against would have been an offence if the Ordinance previously repealed were in force; but Mr. Kailasam for the petitioner raises the question that on a true and proper construction of Section 7(1) of the Act along with Section 17 of the same enactment it is not possible to hold that a contravention of an order made prior to the enactment of Act XXIV of 1946 is an offence. What he states is that Section 7(1) makes punishable only an order made under Section 3 and not an order which is deemed to be made under Section 3 by virtue of Section 17 of the Act which provides that any order made or deemed to be made under the Ordinance and in force immediately before the commencement of the Act shall be deemed to be an order made under the Act. In other words the argument is that the omission of the words in Section 7(1) ' deemed to be made under Section 3 ' was a casus omissus and therefore the Act will not be applicable to the offence in question. He also invited my attention to similar provisions in a few other Acts recently passed by the various Legislatures. In Madras Act XIV of 1946 dealing with the continuance during a limited period, of the powers to control the production, supply, distribution, transport, and prices of essential articles, etc., which came into force on the first day of October, 1946, Sections 9 and 12 are instructive in this connection. There is a specific provision in Section 12 that a contravention of an order previously made under the Defence of India Rules or under the enactments which were continued under Section 9 shall be punishable, etc. Therefore whenever the Legislature thought that the continuance of a previous order is to be in force after the coming into existence of a repealing ajad re-enacting statute it makes a specific provision to that effect. It is also instructive to refer to an Act of the Central Legislature, and that is Act X of 1947 called the Explosives (Temporary Provisions) Act, 1947. Under Section 3 of that Act, all declarations and orders made under Rule 88 of the Defence of India Rules or that rule as continued in force by the Emergency Provisions (Continuance) Ordinance, 1946 (XX of 1946), and in force immediately before the commencement of this Act, so far as they are not inconsistent with the provisions of this Act shall continue in force and be deemed to have been in force under the corresponding provision of Section 2 of this Act. Section 4 states that if any person contravenes any order made or deemed to have been made under Sub-section (2) of Section 2, he shall be punishable, etc. So even in a Central Act, where it was thought desirable to make a contravention of any order deemed to have been made under a previous Act an offence it is definitely stated that the same shall be deemed to be an offence.

5. Central Act XVIII of 1947 which came into force on the 25th March, 1947, dealing with the prohibition and control of imports and exports is also useful to be referred to. Sections 4 and 5 of this Act are practically identical with Sections 3 and 4 of Act X of 1947. Even here there is a provision making the contravention of previous rules and Ordinances as deeming to be a contravention of this Act and made punishable as such. If we are to be guided by the specific provisions made under the three Acts above referred to by me, it seems to me that there is something to be said for the argument of Mr. Kailasam; but it is a well-known and accepted canon of construction of statutes that in construing a particular enactment it is not quite safe to rely upon the scheme and the provisions of other statutes though similar.

6. The identical point I am now considering came up for decision very recently before a Full Bench of the Bombay High Court reported in Emperor v. Ranchhodlal Hirabhai : (1948)50BOMLR295 , where Chagla, C.J. and his two colleagues, Bhagwati and Tendolkar, JJ., have held that Section 7 of the Essential Supplies (Temporary Powers) Act, 1946 (Act XXIV of 1946) makes punishable the contravention of orders deemed to be orders made under the Act by virtue of the provisions of Section 17(2) of the Act. The learned Judges overruled a previous decision of the same Court by Sen and Jahagirdar, JJ., passed on the 20th January, 1948 (Criminal Appeal No. 431 of 1947, unreported). The judgment overruled by the Full Bench had accepted a similar contention as is now raised by Mr. Kailasam; but that point of view has been dissented from and overruled in Bombay. Having considered the arguments carefully and read the judgment of the Full Bench with the consideration it deserves, I am inclined to agree with the view of the Bombay High Court. All the three Judges were unanimous in holding that unnecessary and superfluous words have been omitted in passing Act XXIV of 1946. Bhagwati, J., in his judgment at page 301 observes as follows:

When, however. Act XXIV of 1946 came to be enacted the draftsman in the main body of the Act set out provisions relating to orders made under the Act and Section 3 thereof and it was only when he came to Section 17 of the Act that he made provisions for the continuance in effect of the orders made under Ordinance XVIII of 1946 and orders which were deemed to be made under that Ordinance by virtue of the provisions of Section 5 thereof. These orders were to be on the same footing as the orders which would be made by the Central Government under Section 3 of the Act and the orders which would be made under Section 3 of the Act and which under Section 17 of the Act were deemed to be made under the Act were both treated on the same footing. In this view, it was not necessary to enact in the main body of the Act any special provisions for the orders which were deemed to be made under the Act. It would have been absolutely superfluous to do so in so far as under Section 17 the same effect was given to the orders deemed to be made under the Act as to the orders made under Section 3 of the Act. It is clear therefore that the deletion of the words 'orders deemed to be made under the Act' from the earlier sections of the Act which expression found its place in Ordinance No. XVIII of 1946 was advisedly made as unnecessary or superfluous. The intention of the Legislature in the enactment of Act XXIV of 1946 was quite clear. It wanted to penalise the contravention of all orders which were the subject-matter of Section 3 of the Act, and it comprised within that category not only the orders which were specifically to be made under Section 3 of the Act but also the orders which were deemed to be made under the Act by virtue of Section 17 of the Act. This being the position, it could not be attributed to the Legislature that its intention was only to penalise orders made under Section 3 of the Act and to exclude from the provisions, of the penal section enacted therein orders deemed to be made under the Act by virtue of Section 17 of the Act.

I am in entire agreement with the observations of the learned Judge. Tendolkar, J., also gives the reasons similar to those given by his colleagues. At page 303 the learned Judge observes as follows:

As I read the ordinance, if the words ' or deemed to be made ' had been omitted from all those sections as well as from Section 8, it would have made no difference to the meaning of that Ordinance at all, because by virtue of Section 5 of that Ordinance to which I have already referred certain orders were deemed to be made under Section 3 and, to my mind the use of the alternative phraseology ' or deemed to be made' was entirely redundant and unnecessary. That being so. no inference can arise from the fact that the Legislature has thought it fit to change the language of Ordinance No. XVIII of 1946 in enacting Act No. XXIV of 1946. The words ' or deemed to be made ' are omitted in the Act not only from the penal Section 7 but also from Sections 13, 8, 9, 10, 15, 14(1) and 16(1) and (2) which correspond respectively to the sections of the Ordinance which I have enumerated above. The object in doing so was quite obviously to avoid the unnecessary repetition of these words in all these sections and to improve the drafting to that extent. I am unable to hold that any change in the law was either intended or effected by deletion of those words.

7. I do not intend to discuss this matter at any great length as I am in entire agreement with the observations of the learned Judges mentioned above, and I therefore hold that the contention advanced by Mr. Kailasam ought not to be accepted.

8. The next question is whether in the circumstances of the case the sentence of two months' rigorous imprisonment is excessive. It is stated that the petitioner in Criminal Revision Case No. 1267 of 1947 has already undergone imprisonment for over a week. I would in the circumstances of the case reduce the sentence of imprisonment to the period already undergone, but in addition impose a fine of Rs. 100 or in default rigorous imprisonment for two weeks. I would also reduce the sentence of imprisonment passed on the petitioners in Cr. R.C. No. 1307 of 1947 to the period they have already undergone. The fine imposed on the first petitioner will stand.

9. With these modifications the two revision petitions are dismissed.


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