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Gopal Chandra Pal and ors. Vs. State of West Bengal - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1983CriLJ1540
AppellantGopal Chandra Pal and ors.
RespondentState of West Bengal
Cases ReferredPasuari v. Corporation
Excerpt:
- .....against the order of the collector the petitioners preferred an appeal on 6-9-82 before the district judge, bankura who was the judicial authority under the provisions of section 6-c of the act. the appeal was numbered as misc. appeal no. 35 of 1982. the learned judge, however, by an order dated 25-9-82 directed the memo of appeal to be returned to the petitioners or their lawyer for being presented to the appropriate appellate authority in view of the provisions of the essential commodities (special provisions) act, 1981 which came into force in west bengal on and from 1-9-1982. the order of the learned judge dated 25-9-1982 is the subject-matter of challenge in this rule.4. mr. dilip kumar dutt appearing on behalf of the petitioners has submitted that on the day the order of.....
Judgment:

P.C. Borooah, J.

1. The petitioners are the partners of Sree Lakshmi Oil Mill at Kethardanga within the District of Bankura.

2. On 17-12-81 the police raided the petitioners' firm and seized several quintals of mustard seed, mustard oil and oil cake. Pursuant to the seizure a case was instituted under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 (hereafter referred to as the Act) for violation of the provisions of para 3 (2) of the West Bengal Declaration of Stocks and Prices of Essential Commodities Order 1977 as well as para 3 (1) of the West Bengal Pulses, Edible Oil Seeds and Edible Oils (Dealers Licensing) Order, 1978. Thereafter confiscation proceedings were started before the Magistrate, Bankura, who was the Collector, under the provisions of Section 6~A of the Act, and the Collector by an order dated 30-8-82 directed confiscation of the seized goods and further ordered that the I. O. would arrange the sale of the goods at a fair price and keep the sale proceeds in deposit in the Treasury until further orders.

3. Against the order of the Collector the petitioners preferred an appeal on 6-9-82 before the District Judge, Bankura who was the judicial authority under the provisions of Section 6-C of the Act. The appeal was numbered as Misc. Appeal No. 35 of 1982. The learned Judge, however, by an order dated 25-9-82 directed the memo of appeal to be returned to the petitioners or their lawyer for being presented to the appropriate appellate authority in view of the provisions of the Essential Commodities (Special Provisions) Act, 1981 which came into force in West Bengal on and from 1-9-1982. The order of the learned Judge dated 25-9-1982 is the subject-matter of challenge in this Rule.

4. Mr. Dilip Kumar Dutt appearing on behalf of the petitioners has submitted that on the day the order of confiscation was passed by the Collector an appeal lay to the District Judge under the provisions of Section 6C of the Act, and this right having accrued to the petitioners, the same could not be taken away by the Amendment Act. In support of his argument Mr. Dutt has referred to a decision of the Supreme Court in the case of Garikapati Veeraya v. N. Subbiah Choudhry reported in : [1957]1SCR488 and also to a decision of the Calcutta High Court in the case of Kanhai-yalal Pasuari v. Corporation- of Calcutta reported in (1977) 4 Cal HC (N) 109 : 1977 Cri LJ NOC 177 where the decision of the Supreme Court was also referred to.

5. Mr. Sudipto Moitra appearing on behalf of the State has, however, contended that under the proviso to Section 2 of the Act Ss; 7 to 11 of the Act would not apply to or in relation to any offence under the principal Act committed before the commencement of the Act and the provisions of the principal Act shall apply to and in relation to such an offence as if those amendments have not been made. The proviso, according to Mr. Moitra, makes it clear that if it was the intention of the legislature that the amendment of Section 6C would not apply to pending appeals, such a provision would certainly have been inserted in the Amending Act.

6. The day, namely, on 30-8-82 when the order of confiscation was passed by the Collector, the petitioners had a right of appeal to the District Judge. This right undoubtedly continued till 2-9-82 when the Amending Act came into force and by virtue of Section 5 thereof appeals lay to the State Government concerned from the orders passed by the Collector. The question is whether Section 5 of the Amende ing Act, by virtue of which the appellate authority became the State Government affect the pending appeals or would affect the case of aggrieved persons whose right of appeal had accrued before coming into force of the Amending Act

7. An appeal to the District Judge is certainly more advantageous than an appeal to the State Government because after all a Collector is also an organ of the executive. The petitioners had a right of appeal to the District Judge on the day the order of confiscation was passed and, in our view, this right once having accrued cannot be taken away by the Amending Act unless there was a specific provision to that effect. The Sup reme Court in the case of Garikapati Veeraya : [1957]1SCR488 (supra) observed as follows :-

From the decisions cited above' the following principles clearly emerge:

(i) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding.

(ii) The right of appeal is not a mere matter of procedure but is a substantive right.

(iii) The institution- of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit.

(iv) The right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant and exists as on and from the date the is commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal.

(v) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise,

In the case of Kanhaiyalal Pasuari (supra) the petitioner was convicted on 20-4-74 under Section 16(1)(a)(i) of the Act and during the pendency of the trial the Criminal P.C., 1973 came into force. The petitioner preferred an appeal against the order of conviction and sentence to the City Sessions Court under Section 374 of the new Code but relying on Section 6 of the City Sessions Court Act the learned Judge returned the Memo, of Appeal holding that the Court had no jurisdiction. As against this order the High Court held that as the cognizance of the offence had been taken long before the new Code came into force and the trial was itself pending when the Code came into effect, the petitioner had a substantive right of appeal under Section 411 of the old Code and this right of appeal along with the forum would be preserved in his favour unless there was anything express or by way of n0cessary implication in the new Code to the contrary.

8. Having regard to what we have stated and also having regard to the views expressed by the Supreme Court and the Calcutta High Court, we must hold that inasmuch as the order of confiscation was passed before the Amending Act came into force, the appellate authority would be the District Judge and the order passed by the District Judge on 25-9-82 is erroneous and is accordingly set aside. The Memo, of Appeal be returned to the learned District Judge who will dispose of the same in accordance with law.

9. The Rule is therefore made absolute.

10. Let the records be sent down forthwith by a special messenger at the cost of the petitioners, as prayed for.

Ashamukul Pal, J.

11. I agree.


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