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Sarbananda Sarkar and ors. Vs. State Service, Department of Food and Supply and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata High Court
Decided On
Case NumberC.R. Nos. 1006-1007 (W) of 1966
Reported inAIR1969Cal474,1969CriLJ1221
ActsDefence of India Rules, 1962 - Rule 125(2); ;West Bengal Rice and Paddy Control Order, 1966; ;Code of Civil Procedure (CPC) , 1908; ;Constitution of India - Articles 19, 19(1) and 226
AppellantSarbananda Sarkar and ors.
RespondentState Service, Department of Food and Supply and ors.
Appellant AdvocateArun Kumar Dutt and ;Lila Prakas Bhattacharjee, Advs.
Respondent AdvocateB.C. Dutt and ;Archana Sengupta, Advs.
Cases ReferredSupreme Court (Tika Ramji v. State of U. P.
- .....provided that it shall be lawful for a large producer to store any rice or paddy within the free period without a storage licence if he has submitted an application for a storage licence to and obtained a receipt in acknowledgment thereof from the licensing authority.' 7. para. 2 (i) defines a 'licensing authority' as an officer or authority appointed by the government by notification in the official gazette. it appears from the petitioner's own application at annexure h that the block development officer (respondent no. 4) is the licensing authority appointed by the state government, to whom he made an application for licence on 8th march 1966.8. the expression 'free period', referred to in the proviso to para 5 (c) of the order is denned in para 2 (c) as follows-' 'free period'.....

D. Basu, J.

1. This Rule is directed against a criminal proceeding (E. G. R. No. 19/66), which is pending before Respondent 3, under Rule 125 of the Defence of IndiaRules, read with para 5 (c) of the West Bengal Rice and Paddy Control Order, 1966. This case was instituted on thecomplaint of the Inspector of Food and Inspector of Food andSupplies (Respondent No. 5) dated 25th February, 1966, which is at Annexure A. In this complaint it was stated that the Petitioner had stored a large quantity of paddy at his residence, at Bhandijilash within P.S. Tufanganj without obtaining a permit under the said Order and that 67 quintals of paddy were found out from different parts of his premises. Owing to resistance of the inmates of his family to further search, the Petitioner was arrested under the Defence of India Rules. The Petitioner prays for quashing the Criminal Proceedings and restoring the seized paddy to him. upon a declaration that the said Rice and Paddy Control Order is unconstitutional on grounds which will be dealt with by me serially.

2. The primary ground urged is that the Order imposes unreasonable restrictions upon the freedoms of property and business guaranteed by Articles 19(1)(f)(g) and 304 of the Constitution. We must refer to the relevant provisions of the Order in order to appreciate this argument:

3. Rule 125 (2) of the Defence of India Rules, 1962 empowered the Central Government as well as a State Government to make an order providing

'for regulating or prohibiting the production, manufacture, supply and distribution, use and consumption of articles or things and trade and commerce therein or for preventing any corrupt practice respect of any such matter'.

if such Government

'is of opinion that it is necessary or expedient so to do for securing the defence of India and civil defence, the efficient conduct of military operations or the maintenance or increase of supplies and services essential to the life of the community or for securing the equitable distribution and availability of any article or thing at fair prices.'

4. The above power is of the widest plenitude and it has been amplified by making specific enumeration of its particular ingredients, in Sub-rule (3) of the Rule, 'without prejudice to the generality of the powers conferred by Sub-rule (2).'

5. The West Bengal Rice and Paddy Control Order, 1966 (hereinafter referred to as 'the Order') was made in exercise of the said power under Rule 125 of the Defence of India Rules. The object of this order, as recited in its Preamble, is

'the maintenance of supplies and securing the equitable distribution and availability at fair prices, in West Bengal, of rice and paddy'.

which object is, prima facie, covered by Rule 125 (2) (3) of the D. I. Rules.

6. The petitioner is admittedly a 'large producer' as defined in para 2 (g) of the Order, i.e., a producer of paddy on land exceeding 10 acres. Para 5(c) of theorder says-

'No large producer shall-

***** (c) store any rice or paddy except under and in accordance with a storage license granted by the licensing authority: Provided that it shall be lawful for a large producer to store any rice or paddy within the free period without a storage licence if he has submitted an application for a storage licence to and obtained a receipt in acknowledgment thereof from the licensing authority.'

7. Para. 2 (i) defines a 'licensing authority' as an officer or authority appointed by the Government by notification in the Official Gazette. It appears from the petitioner's own application at Annexure H that the Block Development Officer (Respondent No. 4) is the Licensing authority appointed by the State Government, to whom he made an application for licence on 8th March 1966.

8. The expression 'free period', referred to in the Proviso to para 5 (c) of the Order is denned in para 2 (c) as follows-

' 'free period' means a period of 30 days from the date of commencement of this Order or such other period beyond the said period of 30 days as may be specified by the Government by a notification in the Official Gazette'.

9. Since the Order came into force on 15th February, 1966, the initial free period was up to 16th March, 1966 but it is stated in paras 11-12 of the Petition, which statement is not controverted, that by successive notifications, Government has extended the free period upto 30th June, 1966.

The following facts further emerge from the pleadings:

(a) The search and seizure and the complaint against the petitioner all took place on 25th February, 1966, i.e., during the continuance of the free period.

(b) On that date the Petitioner had neither obtained nor applied for a licence under the Order, but he had made an application for the same and obtained receipt after the foregoing Incidents, but still within the 'free period'. In para 5 of the counter affidavit it is admitted that such application has been made by the petitioner for storing paddy at his residence at Bhandijelash and not at Tufanganj, but it is not necessary for me to go into that inasmuch as the complaint at Annexure A complains of storage of paddy at the Petitioner's residence, without permit.

10 The question naturally arises, --what is the last date for making an application for licence in order to get an exemption during the free period referred to in the proviso to para 5 (c). The proviso does not specify any such date.

11. The Order was published in the official Gazette of the 29th January, 1966 and the date of its commencement was fixed on the 15th February, 1966. The respondents took action on the 25th February, 1966.

(a) Presumably, according to the Respondents, the application for licence must be submitted between the 29th January 1966 and the 15th February, 1966, in order to claim the exemption under the proviso to para 5 (c).

(b) The question for my determination is whether the Proviso is capable only of this interpretation, or it may reasonably the construed to mean, in the alternative, that a producer may obtain the exemption only if he has made an application and obtained receipt therefrom at any time during the currency of the free period. The principle upon which any such alternative interpretation may be given to the Proviso is that in view of the fact that the administrative machinery is likely to take some time to grant an application, the producer should be exempted if he has done his part, by making the application within the 'free period.'

12. In my opinion, this second alternative is the proper interpretation to be given to the Proviso, because the Order does not say that all applications must be submitted on the very day when the order comes into force and on no other date within the free period. If so, no prosecution for violation of the order can be taken against anybody until the free period has expired and then it can be launched only against those who have not applied and obtained receipt before the date of expiry of the free period.

13-18. Upon this interpretation, the following conclusions emerge-

(i) Any prosecution brought against a person who has applied and obtained receipt within the free period is ultra vires and without jurisdiction, and the Petitioner is entitled to succeed on this ground alone.

(ii) Since the Proviso does not specify the date within which (a) the producer was under a legal obligation to apply and (b) the licensing authority had a corresponding obligation to entertain an application even before the Order was brought into force on 15th February, 1966, according to para 1 (3) of the Order. But there is nothing in the Act imposing any such obligation upon the producer at a time when the Order itself had not been brought into force. Nor is there anything in the definition clause in 2 (i) or in paras 9-10 or elsewhere in the Order to say thatthe licensing authority shall have the jurisdiction and obligation to entertain applications even before the Order came into force on the 15th February, 1966.

If I am correct in my interpretation that the application is to be submitted at any time after the commencement of the Order and before the free period expires, the Producer would be entitled to the entire currency of the free period to make his application, then para 5 (c), read with the Proviso becomes so vague and uncertain that no criminal proceeding can be instituted for the contravention of any such prohibition.

It is an established principle of criminal jurisprudence that 'a man should, not be put in peril on an ambiguity' (Howell v. Falmouth Boat Construction, Co., (1951) 2 All ER 278 (281) HL). When therefore, a penal statute is uncertain or ambiguous or at least capable of two interpretations, the benefit of the ambiguity should be given to the accused [L. and N. E. Rly. v. Berriman, (1946) 1 All ER 255 (268) (HL); Seksaria Cotton Mills v. State of Bombay, : [1953]4SCR825 .

Where the statute is vague and on a reasonable interpretation it would constitute no offence, that becomes a ground of absence of jurisdiction for issue of prohibition or certiorari against the inferior criminal Court ( R. v. Bolton, (1841) 1 QB 66 (72); Sugauli Sugar Works (Private) Ltd. v. Asst. Registrar, Co-operative Societies Motihari, : AIR1962SC1367 ; J.K. Choudhury v. R.K. Datta Gupta, : [1959]1SCR455 .

The petitioner is entitled to succeed also on this non-constitutional ground.

(iii) In view of the foregoing findings it is not necessary to rest this judgment on the constitutional grounds, nevertheless, as a Court of first instance I should express my opinion on those grounds as follows-

(a) Vagueness of a restrictive statute has been held to be a ground for holding the restriction imposed upon a fundamental right to be unreasonable (State of M.P. v. Baldeo, . There is no doubt that the Order in question imposes unreasonable restriction upon the freedom of property and the freedom of dealing in paddy which belongs to the petitioner under Article 19(1)(f) and (g), and, that accordingly, para 5 (c) of the Order, read with its Proviso, in so far as it relates to the 'free period', must be held to be unconstitutional and invalid and the criminal proceedings, instituted during the free period, must fail on that ground also.

The fact that the Order was made during the Proclamation of an Emergency is not material now, because the Proclamation has been lifted and the bar as to judicial review on the ground of contravention of Article 19 no longer subsists(Makhan Singh v. State of Punjab, : 1964CriLJ217 .

(b) If the same test is to be applied for determining the reasonableness of a law under Article 19 as well as Article 304, as has been held by the Supreme Court (Tika Ramji v. State of U. P., , it must be held that the impugned part of the Order also violates Article 301, read with Article 304(b), being an unreasonable restriction.

19. No other ground has been pressed.

20. This Rule is made absolute, without any order as to costs. Respondent No. 3 is prohibited from proceeding any further with the Criminal case No. E.G.R. 19 of 1966 pending before him against the petitioner and the respondents are restrained from using the provisions of para 5 (c) of the Order in question against the petitioner. The petitioner shall be entitled to get back the paddy seized, from him in exercise of the power conferred by that provision, or, its money equivalent, in case it has already been sold or otherwise disposed of.

C. R. No. 1007

21. The facts of this case are similar, the number of the Criminal Case being No. 15 of 1966.

22. The same order as in the preceding Rule will follow.

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