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Sudhanshu Bhusan Pal and ors. Vs. State of West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Revn. No. 4078 of 1958
Judge
Reported inAIR1963Cal61,1963CriLJ49,67CWN159
ActsConstitution of India - Articles 19(6), 226 and 245; ;Code of Criminal Procedure (CrPC) ; ;Essential Commodities Act, 1955 - Sections 3, 3(1), 5 and 16(1); ;West Bengal Soft Coke Distribution Order, 1955
AppellantSudhanshu Bhusan Pal and ors.
RespondentState of West Bengal and ors.
Appellant AdvocateArun Kumar Dutta, Adv.
Respondent AdvocateN.C. Chakravarti and ;S. Biswas, Advs. for Opposite Parties 1 to 3
DispositionPetition dismissed
Cases ReferredRamrichpal Agarwalla v. State of West Bengal
Excerpt:
- .....june, 1955, of government of india in the ministry of production expressly delegates powers of the central government under section 3 of the essential commodities act to the state governments of the then part a states and which includes the state of west bengal. 1 therefore, hold that the west bengal soft coke distribution order, 1955, order no. 2215 s. d. dated the 7th october, 1955 and published in the calcutta gazette, dated the 20th october, 1955, is not repealed by section 16(1)(b) of the essential commodities act of 1955. hence the first challenge to the prosecution must fail.6. before leaving this question it is also necessary to point out that under section 16(2) certain savings are effected, 'notwithstanding such repeal'. those savings include any 'license or permit granted or.....
Judgment:

P.B. Mukharji, J.

1. Two petitioners, Sudhanshu Bhusan Pal and Bhagat Singh make this application under Article 226 of the Constitution challenging the order charging them in the criminal case and prosecution under Sections 7 and 8 of the Essential Commodities Act dated the 5th January, 1958.

2. The petitioners obtained this Rule on the 10th December, 1958 and even a stay of the pending criminal proceedings. There was no order for expeditious hearing of this application. The result is that the criminal proceedings have remained stayed for these long four years. Such a prolonged stay of a pending criminal case through the process of Article 226 of the Constitution is in many cases calamitous for the ultimate prosecution because by the time when the application ultimately fails, the long stay has practically wiped out in many cases important, relevant and irreplaceable evidence on which the prosecution was launched and on which prosecution depended. The sections of the Criminal Procedure Code could easily have been invoked by the petitioners for determination of the point which they seek by this application under Article 226 of the Constitution. In fact the petitioners before the Criminal Court took time to make an application for revision under Section 439 of the Code of Criminal Procedure, but instead of ultimately doing that what they did they adopted Article 226 of the Constitution. A revision petition under Section 439 of the Code of Criminal Procedure could have disposed of this matter speedily instead of holding up the criminal prosecution for four years. Even the Constitutional point could have been referred under Section 432 of the Code of Criminal Procedure. Even if the criminal court did not act under Section 432, Criminal Procedure Code, Section 439 of the Code could have been used to determine the point. The reason why I am indicating this is that this kind of procedure and this kind of stay of pending criminal cases and prosecution except in very special circumstances, should not as a rule be encouraged under the cover of Article 226 of the Constitution. Ordinary procedure under the Criminal Procedure Code is in such cases speedier and ampler remedy and the discretion of Constitutional remedy under Article 226 should not be used to subvert the ordinary process of law and procedure.

3. Coming now to the facts of this case, the charge against the petitioners is that they illegally possessed and transported for sale in Lorry No. WBL 2992 soft coke in excess of the amount mentioned in the road pass without any permit or document on the 5th of January, 1958 at the crossing of Taratala Road and Budge Budge Road and they were charged with diverting the soft coke other than that specified in the road pass and in the permit in violation of the Colliery Control Order 1945 and Soft Coke Distribution Order 1955 under Section 7 of the Essential Commodities Act. No further facts are relevant for the purpose of determining the points canvassed before me.

4. This prosecution under the Essential Commodities Act is challenged on the ground first, that the West Bengal Soft Coke Distribution Order 1955, whose violation is alleged against the petitioner, is no longer good law as it stands repealed by reason of Section 16(1)(b) of the Essential Commodities Act, 1955. The argument on this point is that Section 16(1)(b) repeals 'any other law in force in any State immediately before the commencement of this Act in so far as such law controls or authorises the control of the production, supply and distribution of, and trade and commerce in, any essential commodity'. Therefore, Mr. Dutta, learned Advocate for the petitioners contends that the West Bengal Soft Coke Distribution Order, 1955, has been repealed and therefore, no prosecution for its violation can any longer be initiated.

5. The argument would have been very forceful but for the fact that it is based on a disregard of the significant expression in Section 16(1)(b) of the Essential Commodities Act which says that it repeals 'any other law in force in any State immediately before the commencement of this Act.' The repeal, therefore, is only in respect of law which was current immediately before the Essential Commodities Act commenced. But this West Bengal Soft Coke Distribution Order, 1955, commenced not before the Essential Commodities Act, 1955, but after the Essential Commodities Act came into force on the 1st April, 1955. The West Bengal Soft Coke Distribution Order, 1955, came into force in October, 1955. Therefore, the Soft Coke Order here was passed after and indeed by reason of and under the provisions of Essential Commodities Act, 1955. In the preamble to the West Bengal Soft Coke Distribution Order, 1955, it is clearly said that this Soft Coke Order is made in exercise of the powers conferred by Section 3(1) of the Essential Commodities Act, 1955 read with Clauses (c), (d), (e), (f), (i) and (j) of Sub-section (2) of that section and theOrder No. 18CI(4)/55/I dated the 10th June, 1955 of the Government of India in the Ministry of Production. That Order of the 10th June, 1955, of Government of India in the Ministry of Production expressly delegates powers of the Central Government under Section 3 of the Essential Commodities Act to the State Governments of the then Part A States and which includes the State of West Bengal. 1 therefore, hold that the West Bengal Soft Coke Distribution Order, 1955, Order No. 2215 S. D. dated the 7th October, 1955 and published in the Calcutta Gazette, dated the 20th October, 1955, is not repealed by Section 16(1)(b) of the Essential Commodities Act of 1955. Hence the first challenge to the prosecution must fail.

6. Before leaving this question it is also necessary to point out that under Section 16(2) certain savings are effected, 'Notwithstanding such repeal'. Those savings include any 'license or permit granted or direction issued.....in force immediately before such commencement shall continue in force until and unless it is superseded by any.....licence or permit granted or direction issued under this Act.' That means that licenses and permits in force immediately before the commencement of the Essential Commodities Act, do not ipso facto expire on the passing of that Act but continue until such licences or permits are superseded by other licences or permits granted under the Act. In this case the history of facts shows that the licence was issued in 1955 and renewed from year to year to the petitioners. The incident on which the charge is based took place on the 5th January, 1958 and the charge laid against the petitioners was made on the 23rd September, 1958. On the 10th December, 195S when the petitioners obtained this Rule and stay of the criminal proceedings, the licence then current was the 1958-59 licence. Such licence would not ipso facto become invalid by reason of the Essential Commodities Act but will continue until superseded by new licences or permits under Sub-sections (2) to (6) of the Essential Commodities Act.

7. Mr. Dutta on behalf of the petitioners made his second challenge to the prosecution by contending that the Essential Commodities Act, 1955, is ultra vires the Constitution being in breach of the petitioners' fundamental right of trade under Article 19(1)(g) of the Constitution and also by contending that Clause 18 of the West Bengal Soft Coke Distribution Order, 1955, is equally unconstitutional on the same ground. Therefore, the argument is that both the Essential Commodities Act, 1953 and Clause 18 of the West Bengal Soft Coke Distribution Order, 1955 are ultra vires the Constitution. I shall take these two points separately.

8. The challenge to the Essential Commodities Act, 1955, must, in my opinion, fail. The argument challenging the Constitutional validity of the Essential Commodities Act, 1955, is based primarily on the ground that there is unconstitutional delegation of powers under the Act which are unconstitutional and bad on the ground that there is no guide so far as such delegation is concerned. The delegation under the Essential Commodities Act is challenged on two grounds, one being that there is unconstitutional delegation under Section 3 of the Act and the other is the unconstitutional delegation by the Central Government to other agencies under Section 5 of that Act.

9. Taking up the allegation that there is unconstitutional delegation by Section 3 of the Essential Commodities Act to the Central Government it is necessary to state the reasons why this challenge cannot succeed. The Essential Commodities Act in its preamble states that it is an Act to provide, in the interest of the general public, for the control of the production, supply and distribution of, and trade and commerce in, certain commodities. The object, therefore, expressly is 'in the interests of the general public' so far as the preamble is concerned. The definition of the 'essential commodity' in Section 2 of the Act includes vital commodities for the maintenance of the life of the people. They include inter alia foodstuffs, coal, iron and steel, paper, petroleum etc. The significant feature is that Section 3 definitely lays down expressly certain guides. It is true that it gives power to the Central Government to make an order providing for 'regulating or prohibiting the production, supply and distribution' of the essential commodities and 'trade and commerce therein'. But the guides for forming that opinion are expressly laid down in Section 3(1) of the Act by such expression: 'that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity, or for securing their equitable distribution and availability at fair prices'. They, in my opinion, are sufficient guides and whenever the Central Government has to make an order under Section 3(1) of the Act these are the objects which should guide their opinion. No doubt these guides are reasonable. No doubt these guides are 'in the interests of the general public', an expression used not only in the preamble of the Act which I have already quoted but also in Sub-clause (6) of Article 19 of the Constitution. What could be more reasonable and what could be more in the interests of the general public than maintenance or increase of supply of essential commodities or securing their equitable distribution and availability at fair prices? I am, therefore, of opinion in the first place that Section 3(1) of the Essential Commodities Act does not suffer from excessive delegation without guides. I am also of the opinion in the second place that Section 3(1) of the Essential Commodities Act is not in violation of the fundamental right of the petitioners to trade under Article 19(1)(g) of the Constitution because it imposes reasonable restriction on the exercise of that right in the interests of the general public within the meaning of Sub-clause (6) of Article 19 of the Constitution.

10. In this connection and in support of the view I have expressed above reference may be made to the observations of Mehr Chand Mahajan, C. J. in Harishankar Bagla v. State of Madhya Pradesh reported in : 1954CriLJ1322 on an analogous Act, Essential Supplies (Temporary Powers) Act, 1946 and the Cotton Textile (Control of Movement) Order, 1948 specially at page 388. On the Essential Commodities Act, 1955, the relevant observations of the Supreme Court in Narendra Kumar v. Union of India, reported in : [1960]2SCR375 are:

'It must therefore be held that Clause 3 of the Order even though it results in the elimination of the dealer from the trade is a reasonable restriction in the interests of the general public. Clause 4 readwith the principles specified must also be held for the same reason to be a reasonable restriction'.

These observations are also in support of the view that i am taking here. In that case the relevant section of Essential Commodities Act, 1955 was discussed in the light of Article 19 of the Constitution although it dealt with a different Order, namely, Non-ferrous Metal Control Order, 1958 and specially Clauses 3 and 4 thereof with which we are not concerned. A Division Bench of the Mysore High Court in Nagareddy Thimappa v. State of Mysore, reported in AIR 1960 Mys 192, also upholds at page 193 the Constitutional validity of the Essential Commodities Act, 1955, and the particular Mysore Rice Procurement (Levy) Order, 1959 which it considered. The decision of a Single Judge of this Court in Ramrichpal Agarwalla v. State of West Bengal, reported in : AIR1958Cal257 , discussing the Essential Commodities Act, 1955 does not really deal with the points that have been urged before me in this application.

11. It was then contended by Mr. Dutta that Section 5 of the Essential Commodities Act is ultra vires the Constitution on the ground of unconstitutional delegation. Here again Mr. Dutta's difficulty is the decision of the Supreme Court in : 1954CriLJ1322 where Mehr Chand Mahajan, C. J., at page 389 already quoted, holds that the Central Government's delegation of its own power to make orders under Section 3 to the State Government is not unconstitutional. Mahajan, C. J. disposes of the problem in this way:

'In other words, the delegate has been authorised to further delegate its powers in respect of the exercise of the powers of Section 3'.

This argument was negatived and overruled by the Supreme Court.

12. It is perhaps necessary even then to add a few words of my own, on the argument that has been specially advanced by Mr. Dutta on this point. The argument is that Section 3(1) of the Act specially casts the responsibility for forming the opinion and making the order on the Central Government. It is the Central Government's opinion that such order should be necessary or expedient for maintaining or increasing supplies of any essential commodities or for securing their equitable distribution and availability at fair prices. In such circumstances then, is it possible to say that the 'opinion' of the Central Government could be delegated to somebody else and that somebody else's opinion would be a equally good substitute. This argument is persuasive and it certainly raises a very significant question of delegation. Opinion which is either personal to an individual or to an Institution sucb as the Central Government prima facie would not appear to be a delegable opinion. Section 5 of the Essential Commodities Act which is challenged in this application provides as follows:

'The Central Government may, by notified order direct that the power to make orders under Section 3 shall, in relation to such matters and subject to such conditions, if any, as may be specified in the direction, be exercisable also by,--

(a) such officer or authority subordinate to the Central Government, or

(b) such State Government or such officer or authority subordinate to a State Government, as may be specified in the direction.'

As a problem in Constitutional Jurisprudence if Parliament as the Supreme Legislature thinks fit that it will enact both Sections 3 and 5 of the Act then the opinion of the Central Government in Section 3 is, therefore, not such an opinion that it can under no circumstances be delegated because Parliament itself says that its own delegate, the Central Government, may further delegate that very power of forming opinion and making the order. The term of the original delegation itself provides for its redelegation which is within the constitutional and legal competence of Parliament. This redelegation is also not unreasonable in the context. This further delegation under Section 5 of the Act is also controlled by a number of factors, namely,

(1) it has to be notified by an order of the Central Government;

(2) the matters and conditions under which such sub-delegation has to be exercised by the Authorities specified in Section 5 are to be observed by the sub-delegate. Parliament's competence to pass such a law is unquestioned. Parliament can select not only the Central Government as a instrument to make the order but also can authorise the Central Government that such instrument may be inter alia a State Government. Besides, this delegation by the Central Government is not abdication of the responsibility under Section 3(1) of the Act because of the word 'also' in Section 5 of the Essential Commodities Act. In other words even where there is a delegation by the Central Government under Section 5 of the Act that delegation is concurrent with the responsibility which still remains with the Central Government under Section 3 of the Act. Therefore, if the sub-delegate in any way acts beyond or in conflict with the Central Government, the Central Government can certainly withdraw the delegation. That again is good enough control of the sub-delegate under Section 5 of the Essential Commodities Act.

13. For these reasons this Rule is discharged and the petition is dismissed. All interim orders and stay are vacated.

14. There will be no order as to costs.


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