Patna High Court
Rakshya Singh And Ors. vs State Of Bihar on 11 May, 1956
Equivalent citations: AIR1957PAT66, 1957CRILJ222, AIR 1957 PATNA 66
ORDER Imam, J.
1. This reference has been made by the learned Additional Sessions Judge at Gaya. The Sub-Divisional Magistrate at Aurangabad by an order dated 14-9-1955, summoned the petitioners to stand their trial under Section 8 of the Essential Commodities Ordinance, 1955. It is alleged that the petitioners were found storing coal in village Jogia and were carrying on sale and storage without any valid authority or proper licence. On a written report submitted by the A. D. S. O. to the Sub-Divisional Magistate, Aurangabad, for prosecution under Section 8 of the Essential Commodities Ordinance, 1955, the petitioners were summoned to stand their trial. The learned Additional Sessions Judge recommended that the order of the Sub-Divisional Magistrate dated 14-9-1955, summoning the petitioners to stand their trial under Section 8 of the Essential Commodities Ordinance, 1955, be set aside as it was without jurisdiction.
2. It appears that the Essential Supplies (Temporary Powers) Act 1946 (Act 24 of 1946) Was an Act by which the essential commodities were controlled in their supply and distribution. ' Under that Act, it appears that, there was the Bihar Coal Control Order passed controlling the supply and storage of coal. The Essential Supplies (Temporary Powers) Act, 1946 (Act 24 of 1946) expired on 26-1-1955. As this Act was to expire On that date, an Ordinance known as the Essential Commodities Ordinance, 1955 came into existence on 21-1-1955. The object of this Ordinance was to control production, supply, sale, storage, distribution etc. of the essential commodities. It is said that thereafter a new Act came into force, namely, Act 10 of 1955, which is the Essential Commodities Act, 1955, on 1-4-1955.
It is said that this Act is precisely on the same line as Act 24 of 1946. It was submitted that on 25-6-1955 the alleged date on which the occurrence is said to have taken place, viz., 25-6-1955, the Essential Commodities Ordinance, 1955, was not in existence at all and thus there could be no prosecution under Section 8 of the said Ordinance. In my opinion, there is considerable force in this point. Mr. Shahi, however, appearing for the state, submitted that this was a technical objection inasmuch as similar provisions are to be found in Act 10 of 1955. In my opinion, even if this be a technical ground, the prosecution cannot be under the said Ordinance.
3. The next point taken by the learned lawyer was that there was no coal control order under the said Ordinance. It is true, it is submitted, that there was Bihar Coal Control Order under Act 24 of 1946 but the Act had expired and with it the Bihar Coal Control Order must be deemed to have expired too. In my opinion, there is some force in this submission. But even it be supposed that there is no merit in this point, the question, that has to be considered is whether the Act 10 of 1955 can govern a case like this. It was submitted in the Court below, and it is not shown to me otherwise, that there is no Bihar Coal Control Order either under the Ordinance or Act 10 of 1955.
It is, therefore, necessary to see whether the said Bihar Coal Control Order can be said to be in existence in spite of the expiry of Act 24 of 1946. In my opinion, in view of the subsequent legislation, even if it be supposed that merely because Act 24 of 1946 had expired the Bihar coal Control Order did not expire on that ground, the provisions of Act 10 make it perfectly clear that the Bihar Coal Control Order under Act 24 of 1946 can have no application whatsoever. Section 16 of Act 10 of 1955 is as follows :
"(1) The following laws are hereby repealed :
(a) the Essential Commodities Ordinance, 1955 (I of 1955);
(b) 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.
(2) Notwithstanding such repeal, any order made or deemed to be made by any authority whatsoever, under any law repealed hereby and in force immediately before the commencement of this Act, shall, in so far as such order may be made under this Act, be deemed to be made under this Act and continue in force, and accordingly any appointment, made, licence or permit granted or direction issued under any such order in force immediately before such commencement shall continue in force until and unless it is superseded by any appointment made, licence, or permit granted or direction issued under this Act."
Clause (3) says :
"The provisions of Sub-section (2) shall be without prejudice to the provisions contained in Section 6 of the General Clauses Act, 1897 (X of 1897), which shall also apply to the repeal of the Ordinance or other law referred to in Sub-section (1) as if such Ordinance or other law had been an enactment."
It is thus clear that Section 16 refers to the Essential Commodities Ordinance, 1955 or any other law in force in the State immediately before the commencement of this Act. It is clear that there was no Bihar Coal Control Order under the Essential Commodities Ordinance of 1955, nor was there any such order under any other law in force in the State immediately before the commencement of this Act. Mr. Shahi, however, referred to me Section 6 of the General Clauses Act which, undoubtedly is as follows:
"Where this Act, or any General Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made. then, unless a different intention appears, the repeal shall not--
(a) revive anything not in force or existing at the time at which the repeal takes effect or
(b) affect the previous opertation of any en-actment so repealed or anything duly done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed;
(d) affect any penalty, forfeiture or punishment, incurred in respect of any offence committed against any enactment so repealed; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid;
and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed."
It is obvious that Clause (a) cannot apply. Clause (b) might apply inasmuch it, I will repeat, is as follows : "affect the previous operation of any, enactment so repealed or anything duly done or suffered thereunder". Act 24 of 1946 was never repealed. It died a natural death. Section 6 re-fers only to cases where the Act has been repealed by an enactment. I would again quote the relevant Act :
'"Where this Act or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention ap-.pears, the repeal shall not."
4. So the Bihar Coal Control Order being under Act 24 of 1946, it cannot be governed by Section 6 of the General Clauses Act, because it was not a law which was repealed. According to Section 16 of Act 10 of 1955, only two laws have been repealed, one, the Essential Commodities Ordinance, 1955, & the other, any other law in force in the State Immediately before the commtencement of this Act. It is obvious that the Bihar Coal Control Order under Act 24 of 1946 cannot be governed by Section 16 of Act 10 of 1955. I have already pointed that General Clauses Act cannot refer to the Bihar Coal Control Order which was under Act 24 of 1946.
In other words, so far as the prosecution of the petitioners is concerned, whether it be under Section 8 of the Essential Commodities Ordinance of 1955, which did not exist at the time of the alleged. occurrence, or under Act 10 of 1955, there being no Coal Control Order under these two laws it cannot be sa,id that on the alleged date of occurrence the petitioners can be said to have committed any offence.
5. For the reasons stated above, therefore, the reference must be accepted and the order of the learned Sub-divisional Magistrate dated 14-9-1955, summoning the petitioners to stand their trial under Section 8 of the Essential Commodities Ordinance, 1955, must be upheld to be without jurisdiction, and must be set aside.