1. Misc. Case No. 288 of 1951/ In this case, a Rule was issued on the State of West Bengal and upon the Judges constituting a Special Tribunal hearing criminal charges against the petitioners to show cause why the records of the case should not be transferred to this Court under Article 228 of the Constitution to enable this Court to decide a constitutional point involved in the case, namely, whether the Tribunal hearing the charges had any jurisdiction so to do.
2. The learned Advocate General on behalf of the State appeared to show cause and we have heard full argument on all the points involved by counsel on both sides. The usual practice is on hearing the petitioner to call for the records and then hear both parties. But in order to shorten proceedings both parties have been heard as if the records had been called for and were in this Court. It has been agreed that the decision of this Bench of the Rule will finally dispose of the matter and that it will not be necessary to call for the records and then issue a final, order.
3. The petitioners were prosecuted for altered offences under Section 3 of the West Bengal Black Marketing Act (Act XXXII of 1948), read with Section 7 (.1) on the Essential Supplies (Temporary Powers) Act of 1946 and Sections 22 and 24 of the Cotton Textiles Control Order, 1948 read with Notification No. TX/326/49, dated November 18, 1949.
4. On 5-10-1950 a Sub-Inspector of the Enforcement Branch submitted a charge sheet against the petitioners under Section 3, Black Marketing Act, read with the other Act and Order as already stated, and the case was thereafter allotted by the State Government to a Special Tribunal for trial, this allotment being made by a notification issued under Section 12 (1) of the Black Marketing Act.
5. The trial of the petitioners then commenced before this Tribunal after the Constitution came into operation and is now pending in the said court.
6. An application was made to the Special Tribunal praying that the records of the case be transferred to this Court to enable this Court to decide whether or not the Tribunal had jurisdiction to hear this case, the contention being that Section 12 (1), Black Marketing Act, was ultra vires the Constitution in that it offended against Article 14 of the same.
7. The Tribunal made no order, but adjourned the hearing of the case to enable the petitioners to move this Court which the petitioners consequently did.
8. The question which arises for decision is whether or not Section 12 (1), West Bengal Black Marketing Act is ultra vires the Constitution in that it is discriminatory in its application. To appreciate the points involved, it will be necessary shortly to deal with the provisions of this Act.
9. The Black Marketing Act which was passed by the State Legislature and which came into force on 17-10-1948 is entitled 'An Act to make special provision for checking black marketing' and the preamble reads 'Whereas it is expedient to make special provision for cheeking black marketing'. The Act is made to extend to the whole of West Bengal and was directed to come into force on the day on which the West Bengal Black Marketing Ordinance, 1948 ceased to operate. The Ordinance ceased to operate apparently on or about 17-10-1948.
10. Section 2 of Act defines 'Black Marketing' and in this case we are only concerned with Section 2 (a) which is in these terms:
'Selling or purchasing for purposes of trade any goods at a greater price than the maximum price fixed, by or under any law, notification or order for the time being in force, for the sale of such goods'.
11. Section 3 provides:
'Whoever commits black marketing shall be punishable with imprisonment which may extend to seven years but shall not, except for reasons to be recorded in writing, be less than six months and shall also' be liable to a fine.'
12. Sub-sections (2) of Section 3 provides that no prosecution Shall be instituted without the sanction of the State Government, and sub-section (3) deals with forfeiture of the goods in respect of which the offence is said to have been committed.
13. Section 4 deals with the powers given to prohibit persons or firms carrying on business after three or more convictions, and Section 5 is concerned with vicarious liability. Sections 6 and 7 deal with abetment of offences and Section 8 empowers a court to order in certain cases the execution of a bond. Section 9 empowers certain magistrates to demand security for good behaviour in certain, cases. Section 10 makes any offence punishable under the Act cognizable and nonbailable and Section 11 limits the power of the court to grant bail to persons standing their trial before a tribunal or who have been convicted and sentenced by such tribunal.
14. The most important section of the Act for the purposes of this case is Section 12 and it will be convenient to set out this section in extenso:
'(1) The Provincial Government may, from time to time by notification in the Official Gazette, allot cases for trial to each Special Tribunal, and may also from time to time by like notification transfer any case from one Special Tribunal to another or withdraw any case from the jurisdiction of a Special Tribunal or make such modifications in the description of a case (whether in the name of the accused or in the charges preferred or in any other manner) as may be considered necessary.
(2) The Special Tribunals shall have jurisdiction to try the cases for the time being respectively allotted to them under sub-section (1) in respect of such of the charges as may be preferred against the several accused and any such case which is at the commencement of this Act or at the time of such allotment pending before any Court or another Special Tribunal shall be deemed to be transferred to the Special Tribunal to which it is so allotted.'
15. Section 13 deals with the constitution of these Special Tribunals. Each tribunal is to consist of three persons and the qualifications of such persons are undoubtedly high.
16. Section 14 deals with the procedure and powers of these Special Tribunals and they are directed to take cognizance and hear cases as warrant cases without any preliminary enquiry and commitment for trial.
17. Section 15 deals with the right of appeal to the High Court and the revisional powers of that court and Section 16 prohibits any court directing a transfer of any case from a Special Tribunal. Section 17 deals with the burden of proof and Section 18 permits an accused person to give evidence on his own behalf. Section 19 deals with the procedure to be adopted for the trial of persons in their absence and Sections 20, 21 and 22 deal with the publicity to be given to convictions. Sections 23 and 24 deal with the power to extern persons convicted.
18. Though this Act was passed before the Constitution took place everything which occurred in this ease occurred after the Constitution came into force. The offence was committed after 26-1-1950 and consequently the whole of the proceedings are governed by the Constitution. There is no question therefore in this case of proceedings being validly instituted before the Constitution became binding on the whole of India.
19. As I have already stated, the charge preferred against these two petitioners was under Section 3 of the West Bengal Black Marketing Act read with section 7(1) of the Essential Supplies Act, 1946 read with clauses 22, 23 and 24 of the Cotton Textiles Contrail Order, 1948 which is an Order of the Central Government. That is clear from the challan which was submitted to the Special Tribunal. The facts giving rise to the charge were that the petitioners had sold a quantity of cloth at a price in excess of that permitted by the clauses of the Cotton Textiles Control Order to which I have referred.
20. A prosecution could have been launched for contravention of those clauses of the Cotton Textiles Control Order read with Section 7(1) of the Essential Supplies Act and had the petitioners been found guilty of such charges they would have been convicted and' sentenced to a term of imprisonment not exceeding three years and to a fine, and further an order for confiscation of the goods could have been made.
21. The very same facts however constituted clearly an offence under the Black Marketing Act. Selling goods in the way of trade at a price in excess of that fixed by any lawful order would be black marketing as defined by Section 2 (a) of the Black Marketing Act and would therefore be an offence punishable under Section 3 of the Act. The Act complained of therefore constituted, if established, offences both under the Black Marketing Act and under the Essential Supplies Act and that is conceded in this case.
22. As the alleged offence fell within the definition of 'Black Marketing', Government allotted the case to a Special Tribunal under the powers given to them under Section 12(1) of the Black Marketing Act. It is now contended before us that that section is clearly ultra vires the Article 14 of the Constitution and therefore the Tribunal has no jurisdiction whatsoever to proceed to hear and determine the case.
23. Article 14 of the Constitution provides that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. This Article however does not mean that all persons in the State must be treated alike, because if such was its meaning, little legislation, if any, would be possible. The meaning of a similar provision in the Constitution of the United States has been the subject-matter of such litigation. But the meaning of this Act is now placed beyond all doubt by a series of decisions of the Supreme Court of India. In a very recent case before the Supreme Court 'KATHI RANING RAWAT v. THE STATE OF SAURASHTRA', : 1952CriLJ805 , Mukherjea J. dealt with the scope and meaning of this Article in these words:
'The nature and scope of the guarantee that is implied in the equal protection clause of our Constitution have been explained and discussed in more than one decision of this court and do not require repetition. It is well settled that a legislature for the purpose of dealing with the complex problems that arise out of an infinite variety of human relations, cannot but proceed upon some sort of selection or classification of persons upon whom the. legislation is to operate. The consequence of such classification would undoubtedly be to differentiate the persons belonging to that class from others, but that by itself would not make the legislation obnoxious to the equal protection clause. Equality prescribed by the Constitution would not be violated if the statute operates equally on all' persons who are included in the group, and the classification is not arbitrary or capricious, but bears a reasonable relation to the objective which the legislation has in view. The legislature is given the utmost latitude in making the classification and it is only when there is a palpable abuse of power and the differences made have no rational relation to the objectives of the regulation, that necessity of judicial interference arises.'
24. Mr. Atul Gupta on behfelf of the petitioners concedes that creating a class of black marketing offences or of persons charged with these offences is permissible as in the words of Mukherjea J. 'the classification is not arbitrary or capricious, but bears a reasonable relation to the objective which the legislation has in view'. Black Marketing is undoubtedly a curse and it is common knowledge that it is rampant not only in this State but throughout India. That special provision should be made for dealing with these offences which are anti-social in their nature is admittedly most desirable. That being so a classification of these offences could be made and provisions made for their trial.
25. Though Mr. Atul Gupta on behalf of the petitioners concedes that these offences and persons charged thereunder could form a class in respect of which legislation could be enacted, nevertheless he contends that this statute does allow discrimination of the worst kind. What the equal protection clause means is that all persons similarly situated and circumstanced must be treated alike though their treatment would be different from those not similarly situated and circumstanced. In this statute, a classification is made of people equally situated and circumstanced. But Mr. Gupta urges that the persons in that class are not dealt with similarly. Section 12 he urges allows Government to treat people in the same class or equally circumstanced in a different way. The section, according to him allows in the case of a person charged with the black marketing offence to be tried for black marketing before a Special. Tribunal or before the ordinary courts of the land. A perusal of the Black Marketing Act shows that many of the rights of a person accused before the ordinary courts of the land are taken away if such person is accused and tried before a black marketing tribunal.
26. Unless all persons falling within the class created by the Act are dealt with in the same manner then it must be held that the Act is discriminatory in its application.
27.The allotment of blackmarketing cases to a Special Tribunal is made by Government under the Provisions contained in Section 12 (1) of the Act, which opens with these words:
'The Provincial Government 'may', from time to time by notification in the Official Gazette, allot cases for trial to each Special Tribunal.'
It is to be noted that the word used is 'may' and not 'shall' and therefore the question arises whether allotment to a Special Tribunal is a matter left to the discretion of the State Government. If the sub-section leaves the matter in the discretion of the executive then A and B both charged with similar black marketing offences may be tried in different courts, A's case being allotted to a Special Tribunal and triable by the latter, and B's not being so allotted, triable in consequence by the ordinary courts of the land, and as I have stated B before the ordinary courts of the land would have many rights during the trial which A would not have.
28. The learned Advocate General had to concede that if the word 'may' in the first lines of sub-section (1) meant what it said then the sub section was discriminatory, but he contended that the word ''may' should be read as 'shall'.
29. Normally words must be given their ordinary meaning and the word 'may' involves a discretion. Where the Government 'may' do something it can do an act or need not do that act. But of course if the word was 'shall' then the sub-section would be mandatory.
30. The construction to be given to the word 'may' is dealt with in Maxwell's Interpretation of Statutes, 9th Ed. at page 249 in these words:
'The Court of Appeal, in considering the provision of Section 125 (4), Bankruptcy Act, 1883 (c. 52) that any Court in which proceedings have been commenced 'for the administration of a deceased debtor's estate 'may', on the application of any creditor, and on proof that the estate is insolvent, transfer the administration to the Court exercising jurisdiction in bankruptcy, decided that there was not enough in the statute to show that the power conferred must be exercised whenever the estate is shown to be insolvent, and it was consequently a discretionary power which the Court might refuse to use. Following the decision of the House of Lords in 'JULIUS v. OXFORD (BISHOP)', (1880) 5 AC 214, it was said that from the nature of the English language the word 'may' can never mean 'must', that it is only potential, and when it is employed there is another question to be decided, viz., whether there is anything that makes it the duty of the person on whom the power is conferred to exercise that power. If not, the exercise is discretionary. But when the power is coupled with a duty of the person to whom it is given to exercise it, then it is imperative.'
31. The Advocate General contended that when the provisions of the whole Act are regarded, it is clear that the intention of the legislature was that all black marketing offences should be triable only before Special Tribunals. If such were the case, it is indeed most unfortunate that the legislature should have used the word 'may' and not 'shall' in the opening words of sub-section (1) of Section 12.
32. In the third line of the sub-section the word 'may' appears again for the second time and there it obviously means 'may' and not 'must' or 'shall', because it is used to empower the State Government from time to time to transfer any case from one Special Tribunal to another and obviously in that context 'may' cannot mean 'must' or 'shall'. If the contention of the State be right, then the draftsman of this sub-section used the same word twice in three lines giving it an entirely different meaning when used for the second time and it is difficult to accept that suggestion.
33. Further there appear to be indications in sub-sections (1) and (2) of Section 12 that it was never the intention of the legislature that the State were bound to allot all black marketing cases to a Special Tribunal. Sub-section (1) empowers the Government to withdraw any case from the jurisdiction of a Special Tribunal and if it does so, where is such a case to be tried? The words used in the Sub Sectionare that the 'Government may * * * withdraw any case from the jurisdiction of a Special Tribunal' which presupposes that when the case is withdrawn it was a case which the Special Tribunal had jurisdiction to hear. If such a case is withdrawn from the Special Tribunal then it must inevitably be tried by the ordinary courts of the land. Withdrawing a case from the jurisdiction of a court does not mean withdrawing the charges. It is only taking the case from that court for trial elsewhere. The learned Advocate General realised the difficulty and contended that what that portion of the subsection meant was that the State might withdraw a case from the jurisdiction of a Special Tribunal which had been improperly allotted to it. But that would necessitate reading words into the sub-section which are not there. The sub-section empowers the State Government to withdraw any case from the jurisdiction of a Special Tribunal, and' as I have said, if the case was improperly allotted it would not be within the jurisdiction of the tribunal at all. This power therefore suggests that these black marketing cases could be tried in the ordinary courts of the land.
34. Sub-section (2) of Section 12 also provides for the transfer of cases pending before the ordinary courts of the land to a Special Tribunal when the Act came into force. How a black marketing case which of course is a creation of the Black Marketing Act could strictly be said to be pending before the Act came into force is difficult to understand. But apparently what was meant was that if a prosecution in respect of an offence which was also made a black marketing offence by the Black Marketing Act was pending at the time this latter Act came into force that could be transferred. The transfer is made by allotment of the case to a Special Tribunal and if such an allotment is made the case automatically stood transferred. Apparently, however, if no allotment was made the case would proceed in the ordinary courts of the land, though the offence would amount to a black marketing offence.
35. Sub-sections (2) also provides that if any case is pending before an ordinary court of the land at the date of allotment to a Special Tribunal that also would stand transferred to the Special Tribunal.
36. Allotment to a Special Tribunal could only be made after the Act came into force and therefore the section presupposes that a black marketing offence could be prosecuted in the ordinary courts and if later allotted to a Special Tribunal would stand transferred to that Tribunal. It is to be observed that under sub-section (2) what stands transferred on allotment is 'any such case which is at the commencement of this Act or at the time of such allotment pending before any court or another Special Tribunal'. The words 'any such case' must mean cases of prosecution for black marketing offences and can have no other meaning.
37. For these reasons it appears to me that there is evidence in sub-sections (1) and (2) of Section 12 that cases under the Act could be tried elsewhere and therefore there is nothing to compel the Court to hold that the word 'may' in the opening line of sub-section (1) of Section 12 must be read as 'shall' or 'must'. That being so, sub-section (1) gave the State discretion to allot cases to a Special Tribunal. They might or might not allot such cases in which case persons accused of the same class of offence might be dealt with very differently.
38. In the year 1949, another Act was passed by the State Government, namely, the - West Bengal Criminal Law Amendment (Special Courts) Act, 1949 and by that Act the prosecution of certain offences set out in the Schedule to the Act was dealt with. Section 4 of that Act is in practically the same terms as Section 12 of the Black Marketing Act and by the terms of sub-section (1) the State Government may from time to time by notification in the Official Gazette, allot cases for trial to a Special Judge, which of course corresponds to the Special Tribunal in the Black Marketing Act.
39. Amongst other cases triable by the Special Judge under the West Bengal Criminal Law Amendment (Special Courts) Act, 1949, are all offences punishable under any order made or deemed to be made under the Essential Supplies (Temporary Powers) Act, 1946. If the word 'may' in sub-section (1) of Section 4 of the West Bengal Criminal Law ' Amendment (Special Courts) Act, 1949 is read as 'must', as it is suggested the word 'may' in Section 12 (1) of the Black Marketing Act must be read then a somewhat astounding result follows. If a person is charged with what is an offence under the Essential Supplies Act he must be tried by a Special Judge under the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 and as it might be a black marketing offence he must be tried by the Special Tribunal under the Black Marketing Act.
40. It seems to me that construing the word 'may' in the opening words of sub-section (1) of Section 12 of the Black Marketing Act as meaning shall or must would give rise to serious difficulties, but if the word 'may' is given its ordinary meaning then these difficulties would not arise. It must be remembered that these two Acts were passed before the Constitution came into force and under the Government of India Act discrimination was permissible as there was nothing in the Constitution which forbade it. This is clear from the decision of their Lordships of the Privy Council in 'EMPEROR v. BENOARI LAL SARMA', 72 Ind App 57 (PC). That being so powers of discrimination could have been deliberately given to the then Provincial Government and it could have been left to them to decide whether any particular offence should be triable in the ordinary courts of the land or before a Black Marketing Tribunal or before a Special Judge under the Criminal Law Amendment (Special Courts) Act, 1949.
41. For these reasons I must hold that sub-section (1) of Section 12 does give the State Government a discretion in the matter and does not compel that Government to treat all persons in the class which it has created on the same footing. It permits discrimination between members of the class and that being so the section clearly offends against Article 14 of the Constitution.
42. Mr. Atul Gupta further contended that even if Section 12 (1) of the Black Marketing Act did not permit discrimination as to the forum of trial and that upon its true construction the State Government were bound to send all black marketing offences to a Special Tribunal, nevertheless there could be another serious form of discrimination.
43. Most if not all black marketing offences are clearly offences against the Essential Supplies Act, 1946 and orders made thereunder and the present case is a clear example of it. If the facts are established a black marketing offence is made out and so also is an offence under Section 7(1) of the Essential Supplies Act read with Clauses 22, 23 and 24 of the Cotton Textiles Control Order, 1946. If the petitioners are prosecuted in respect of a black marketing offence, the maximum punishment is seven years and the minimum punishment must be six months unless there are some very special reasons which the Tribunal must state. The maximum punishment under the Essential Supplies Act is three years' rigorous imprisonment. So persons charged in respect of the Black Marketing Act might well receive four years more than the maximum punishment permitted by the Essential Supplies Act.
44. The case could not be allotted to the Black Marketing Tribunal unless a charge under Section 3, Black Marketing Act was preferred and there is nothing in the Black Marketing Act which compels the State to prefer such a charge. It might prefer a charge under the Cotton Textiles Control Order 1948 read with the Essential Supplies Act; in that case the maximum punishment would be three years. It follows therefore that the maximum punishment to which an offender would be liable would depend upon whether the Government charged him under the Black Marketing Act or charged him on exactly the same fact under the Essential Supplies Act. The Government could exercise its discretion and render an accused person liable to a maximum of seven years' rigorous imprisonment or a maximum of three years' rigorous imprisonment at their pleasure. That Mr. Gupta contends is the very worst form of discrimination. In other, words, for like offences different punishments could be imposed depending entirely upon whether the Government charged the accused under the Black Marketing Act or under the Essential Supplies Act.
Reference was made to an observation of Field J. of the American Supreme Court in the case of 'FRANCIS BARBIER v. PATRICK CONNOLLY', (1885) 113 U. S. 27: 28 Law Ed. 923. The learned Judge observed:
'The 14th Amendment, in declaring that no State shall deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws, undoubtedly intended, not only that there should be no arbitrary deprivation of life or liberty or arbitrary spoliation of property but that equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights; that all persons should be equally entitled to pursue their happiness and acquire and enjoy property; that they should have like access to the courts of the country for the protection of their persons and property, the prevention and redress of wrongs, and the enforcement of contracts; that no impediment should be interposed to the pursuits of anyone except as applied to the same pursuits by others under like circumstances; that no greater burdens should be laid upon one than are laid upon others in the same calling and condition, 'and that in the administration of criminal justice no different or higher punishment should be imposed upon one than such as is prescribed to all for like offences'.'
45. As there is nothing which compels Government to prosecute a person under the Black Marketing Act on facts which create not only an offence under the Black Marketing Act but also under the Essential Supplies Act, two punishments are prescribed for like offences and a different or higher punishment can be imposed on one person than upon another guilty on the very same facts. This also appears to me to make Section 12 discriminatory, because there is nothing which compels Government to charge persons under Section 3, Black Marketing Act in all cases falling within that section. It is open to Government to charge them under the Essential Supplies Act on the very same acts with very different results,
46. For these reasons therefore I hold that Section 12(1), West Bengal Black Marketing Act, 1948 is ultra vires the Constitution and therefore the Special Tribunal has no jurisdiction to hear the case pending before it. The Special Tribunal must hold in accordance with this judgment that it has no jurisdiction and direct the persons charged before it to be treated as under-trial prisoners pending a retrial in accordance with law.
47. This judgment will-also cover Misc. Case No. 359 of 1951 (Banshi Ram Shaw v. The State of West Bengal); Misc. Case No. 360 of 1951 (Asharam Shaw & Anr. v. The State of West Bengal); Misc. Case No. 311 of 1951 (Sohanlal Maheswari & three others v. The State of West Bengal); Misc. Case No. 318 of 1951 (Ramlal Chandak v. The State); Misc. Case No. 319 of 1951 (Jaikishan Sharma v. The State); and Misc. Case No. 320 of 1951 (Ananta Hari Gope v. The State).
48. Copies of this judgment should be sent to all the Tribunals dealing with these cases so that the Tribunals may act in accordance with the directions of this Court.
49. In our opinion these cases involve a substantial question of law as to the interpretation of the Constitution and we grant a certificate to that effect under Article 132(1) of the Constitution. We of course express no opinion as to whether the order in question is a final order and therefore appealable.
50. I agree.
S.R. Das Gupta, J.
51. I agree.