P.C. Borooah, J.
1. On the basis of an information lodged by an Assistant Controller, Telegraph Stores. Hastings on 28-7-73 at the Wargunge Police Station alleging, inter alia, that on 24-7-73 the accused petitioners were apprehended from a timber godown at 12A, Orphan-gunge Road and were found in possession of 33 bundles of copper wire, a case Under Sections 380/411/120B of the IPC was registered at the said police station. On completion of investigation the Police submitted a charge sheet against the petitioners on 12-11-74 Under Section 5 of the Telegraph Wires (Unlawful Possession) Act, LXXIV of 1950 (hereinafter the Act), On receipt of the charge sheet the Sub-divisional Judicial Magistrate, Alipore took cognizance and transferred the case to the file of another Judicial Magistrate for trial. The transferee Magistrate framed a charge against the petitioners Under Section 5 of the Act. An objection was then raised on behalf of the petitioners that the cognizance taken by the learned Magistrate was in violation of the provisions of Section 7 of the Act and as such, the entire proceeding was bad in law.
2. After hearing both the sides the teamed Magistrate by an order dated 22-12-75 discharged the accused petitioners.
3. Against the order of the learned Magistrate the State preferred a revisional application in the court of the learned Sessions Judge, Alipore and by an order dated 29-4-76 Shri D. Banerjee, Additional Sessions Judge, Alipore dismissed the revisional application and upheld the order of the learned Magistrate,
4. Thereafter on 1-6-76 the Officer-in-Charge Watgunge Police Station submitted a fresh challan Under Section 5 of the Act which had then been amended by Section 3 of Act 44 of 1975, and on its basis the Sub-divisional Judicial Magistrate Alipora took cognizance. The same objection was taken and the learned Magistrate again discharged the accused petitioners by an order dated 16-11-76. Against this order the State moved the learned Additional Sessions Judge, Alipore who by an order dated 16-5-77 set aside the order of the learned Magistrate and directed him to try the case in accordance with law and the observations made in the judgment. This order of the learned Additional Sessions Judge is the subject matter of this Rule.
5. Mr. Dillp Dutta, learned Advocate appearing on behalf of the petitioner, has contended that when the first charge sheet was submitted the cognizance had to be taken in accordance with the provisions of Section 7 of the Principal Act. On the date of the submission of the fresh challan on 1-6-76 Section 7 of the Principal Act had been amended by Section 5 of Act 44 of 1975 permitting a court to take cognizance of an offence punishable under the Act on a complaint of a public servant, and the Act along with the amending Act being partly procedural and partly substantive, cannot have retrospective operation. As such, cognizance taken under Under Section 7 as amended by Act 44 of 1975 on a challan submitted by a Police Officer is bad in law.
6. The second line of Mr. Dutta's argument is that when the first charge sheet was submitted the petitioners were liable to the penalty as provided by Section 5 of the Act as amended by Section 2 of Act 15 of 1962. When the fresh challan was submitted the amended Section 5 which laid down a harsher punishment had come into force, and in view of Article 20(1) of the Constitution, the trial of the accused petitioners was barred.
7. The submission of Mr. Biren Mitra, learned Public Prosecutor, was more or less on the same line as the reasonings given by the learned Judge in the impugned order. Mr. Mitra contended that the Act was partly procedural and partly substantive and the procedural part can be given restrospective operation. In other words cognizance can be legally taken Under Section 7 of the Act as amended by the 1975 amendment but the punishment must be in accordance with Section 5 of the Act as was applicable on the date of the commission of the offence, and as such Article 20(1) of the Constitution is not attracted.
8. An Act which is partly procedural and partly substantive must be read as a whole. The Act cannot be dissected giving the procedural part retrospective operation and treating the substantive part prospectively. In the instant case when the offence was allegedly committed by the petitioners, cognizance had to be taken in accordance with Section 7(1) of the Principal Act which debars any court from taking cognizance of any offence punishable under the Act save on a complaint made by or under the authority of the Central Government or by an Officer specially empowered by that Government. Since the Act cannot be given retrospective operation, the fresh charge sheet submitted on 1-6-75 by a Police Officer in accordance with Section 7 of the Act as amended by Act 44 of 1975 and the cognizance taken on the basis thereof, is without jurisdiction and must |be struck down.
9. The petitioners are entitled to the relief as prayed for in the petition on yet another ground. On the date of the alleged commission of the offence the petitioners were liable to be punished in accordance with Section 5 of the Act as amended by S 2 of Act 15 of 1962. On the date of submission of the charge sheet Section 5 had been further amended by Section 3 of Act 44 of 1975.
10. On the date of the alleged commission of the offence Section 5(a) of the Act as amended by the 1962 amendment provided that the penalty for the first offence would be imprisonment for a term which may extend to five years or with fine or with both. By the 1975 amendment Clause (a) of Section 5 underwent a change and the new Clause (a) was in the following terms:
For the first offence, with imprisonment for a term which may extend to five years, or with fine, or with both, and in the absence of special and adequate reasons to be recorded in the judgment of the court, the term of such imprisonment shall not be less than one year and such fine shall not be less than Rupees one Thousand.
11. Therefore, it became incumbent upon the court by virtue of the 1975 amendment of Clause (a) of Section 5 of the Act to. impose a minimum punishment of one year and minimum fine of Rupees One Thousand except for special and adequate reasons which had to be given by the court in the judgment. Therefore, if the Act with the 1975 amendment is given retrospective operation the petitioners will be subjected to a harsher penalty than that which might have been inflicted upon them under the law in force at the time of the commission of the offence. As such the impugned order is also violative of Article 20(1) of the Constitution and on this ground also the said order must go.
12. In the result this application succeeds. The Rule is made absolute. The order dated 16-5-77 passed by Sri C. Haider Additional Sessions Judge, Alipore in Criminal Motion No. 21 of 1977 is hereby set aside,
S.C. Majumdar, J.
13. I agree.