Patna High Court
Hiralal Kezriwal And Anr. vs The State on 9 May, 1957
Equivalent citations: AIR1958PAT247, 1958CRILJ660, AIR 1958 PATNA 247
ORDER N. Imam, J.
1. This is a reference made by the learned Judge recommending that the order of the learned Magistrate dated 15-1-1957, be set aside and the proceeding be quashed and the petitioners be discharged.
2. The case of the prosecution was that the accused in the case had offended the provisions of Section 3 of the Cotton Textiles (Control of Movement) Order 1948 which had been passed under Section 3 of the Essential Supplies (Temperary Powers) Act 1946 (Act XXIV of 1946) and that by virtue of the contravention of the said Section 3 of the Cotton Textiles (Control of Movement) Order, 1948, the accused had committed an offence punishable under Section 7 of the Essential Commodities Act, 1955 (Act X of 1955).
3. The point for consideration is whether the provisions of Section 3 of the Essential Supplies (Temporary Powers) Act, 1946 as well as Section 3 of the Cotton Textiles (Control of Movement) Order 1948 have the force of law in view of the provisions of Section 16 (2) of Act X of 1955 which was repealed by Clause (1) the Essential Commodities Ordinance, 1955 (I of 1955) and any other law in force in any State immediately before the commencement of this Act in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.
If, appears from a decision of this court in Rakshya Singh v. State of Bihar, AIR 1957 Pat 66 (A), that an ordinance known as the Essential Commodities Ordinance 1955, came into existence on 21-1-1955 and thereafter a new Act came into force, namely, Act 10 of 1955, which was the Essential Commodities Act, 1955, on 1-4-1955. It was held in that case that on 25-6-1955, on which date the occurrence in that case was said to have taken place, the Essential Commodities Ordinance, 1955, was not in existence at all and thus there could be no prosecution under S. 8 of the said Ordinance, though this was a technical defect inasmuch as similar provisions were to be found in Act 10 of 1955.
It appears from what I have_ stated above that the Essential Supplies (Temporary Powers) Act, 1946 (Act XXIV of 1946) had expired on 26-1-1955, and, therefore, the Order thereunder, namely, the Order known as the Cotton. Textiles (Control of Movement) Order must also be deemed to have expired. But my attention has been drawn to the saving clause, namely, Section 16 of the Ordinance known as the Essential Commodities Ordinance, 1955 (Ordinance No. 1 of 1955) which provided as follows:
"16. Savings-- Any order made or deemed to be made under the Essential Supplies (Temporary Powers) Act, 1946 (XXIV of 1946), and in force immediately before the commencement of this Ordinance shall, in so far as such order may be made under this Ordinance, be deemed to be made under this Ordinance and continue inforce, and accordingly any appointment made, licence or permit granted or direction issued under any such order and in force immediately before such commencement shall continue in force unless and until it is superseded by any appointment made, licence or permit granted or direction issued under this Ordinance."
It is thus clear that, though Act XXIV of 1946 may have expired, orders made thereunder or deemed to have been made thereunder continue in force in so far as they are concerned with any appointment made, licence or permit granted or direction issued under any such order & in force immediately before such commencement unless & until they are superseded by any appointment made, licence or permit granted or direction Issued under this Ordinance. Mr. Verma, submitted that once there is this savings clause, it means all orders passed under Act XXIV of 194G will be deemed to he saved and, therefore, he submitted that the order known as the Cotton Textiles (Control of Movement) Order, 1943 must be deemed to be intact in spite of the fact that Act XXIV of 1946 has expired.
I do not think that this is a correct interpretation to this section, namely, Section 16 because the following words explain what kind of order is to continue to be in force, namely, orders of appointment, grant of licence or permit or direction issued under any such Order. In other words, under the Cotton Textiles (Control of Movement), Order 1948, such appointment made, licence or permit granted or direction issued shall continue to be in force, but not the Order itself. If the Legislature intended that the entire Order shall itself continue to be in force, then all that the Legislature need have provided was as follows:
"Any order made or deemed to have been made under the Essential Supplies (Temporary Powers Act, 1946 (Act XXIV of 1946) and in force immediately before the commencement of this Ordinance shall, in so far as such order may be made under this Ordinance, be deemed to be made under this Ordinance and continue in force."
There was no need to say "and accordingly any appointment made, etc. etc." The fact that the Legislature goes to direct "and accordingly any appointment made, etc. etc., under any such order shall continue in force" clearly shows that the order itself is dead, but any appointment made, licence or permit granted or direction issued under that order shall continue to be in force. It cannot possibly mean that the entire order shall remain in force when once that order has expired.
So far as Act X of 1955 is concerned, there also similar words have been used in Section 16 (2). Clause (1) (a) repeals the Ordinance, namely, the Essential Commodities Ordinance, 1955 (I of 1955) and Clause (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.
That is to say, the Ordinance, namely, the Essential Commodities Ordinance, 1955, is repealed and any other law that may be in force in any State immediately before the commencement of this Act. In Sub-section (2) exactly the same words Rave been used as in Section 16 of the Ordinance No. 1 of 1955. The same construction must, therefore, be given to Section 16, Clause (2) of Act X of 1955. In other words, the only orders that remain in force are orders of appointment, granting of licence or permit or issue of any direction.
4. So far as the accused in the present case are concerned, no order of this nature was ever passed or direction issued. They can only, therefore, be liable if they are found to have committed an offence under Section 3 of Act X of 1955, for which penalty has been provided in Section 7 of that Act. The complaint does not make out a case of any offence having been committed under Section 3 of Act X of 1955.
Therefore, the entire prosecution is misconceived and the order of the learned Magistrate rejecting the preliminary point is set aside and the trial or proceeding in the court below is quashed and the accused in the case are discharged.
5. The reference is, accordingly, accepted.
There is an application in revision with a prayer that the proceedings in the court below should be quashed against the petitioners. I have al ready dealt with this aspect of the matter while dealing with the letter of reference. This revi sion application is, accordingly, allowed.