04 October 1951
Supreme Court


Case number: Appeal (crl.) 7 of 1950






DATE OF JUDGMENT: 04/10/1951


CITATION:  1951 AIR  484            1952 SCR  127  CITATOR INFO :  RF         1953 SC  63  (4,7)  RF         1956 SC 269  (42)

ACT:     Essential  Supplies  (Temporary  Powers)  Act  (XXIV  of 1946),  ss.  1  (3),  7--Applicability  to  "excluded  areas "--Duration  of Act extended in British India  by  Governor- General, and by Constituent Assembly after Indian  Independ- ence   Act,  1947--Whether Act continues to be in  force  in excluded  areas--Necessity of fresh  notification-Delegation of legislative powers--Government of India Act, 1935, s.  92 (1).

HEADNOTE:     The  Essential Supplies (Temporary Powers) Act (XXIV  Of 1946) came into force on 19th November, 1946. By a notifica- tion 128 of 14th December, 1946, under s. 92 (1) of the Government of India  Act, 1935, the Governor of Bengal directed  that  the Act  shall apply to the District of Darjeeling which was  an "excluded  area".  Section 1 (3) of the  Essential  Supplies Act  provided  that  it shall cease to have  effect  on  the expiration  of  the period mentioned in s. 4  of  the  India (Central Government and Legislature) Act, 1946.  By a  noti- fication  issued  by  the Governor General under  s.  4  the operation  of the Essential Supplies Act was extended up  to 31st  March,  1948. The Constituent Assembly  in  which  the powers  of the Houses of Parliament under s. 4 of the  above said  India Act of 1946 became vested after the  passing  of the  Indian Independence Act, 1947, passed  resolutions  ex- tending  the operation of the Essential Supplies Act  up  to 31st March, 1950.  The appellant, who was convicted under s. 7  of  the Act in respect of an act committed  on  the  14th October, 1949, within Darjeeling, contended that the Act was not  validly extended to the District of Darjeeling and  was not  therefore  in force there on the date  of  the  alleged offence.  Held, that, as the Governor’s notification extend- ed the Act to the District of Darjeeling without  specifying



any  particular period for its applicability, the Act  would remain  in force in this district as long as it remained  in force  in the rest of India and a fresh notification of  the Governor  under  s. 92 (1) of the Government of  India  Act, 1935,  was not necessary. Under the adaptations  made  under ss.  9  and  19 of the Indian Independence  Act  the  powers conferred  on the Houses of Parliament became vested in  the Constituent  Assembly and the Act was in force in  the  dis- trict of Darjeeling on the date of the alleged contravention of the Act.     Held  further, that there was no question of  delegation of  legislative  power in this case as the  Legislature  had itself  applied its mind and fixed the duration of the  Act, leaving only the machinery to reach the maximum period to be worked out in a particular manner.

JUDGMENT: CRIMINAL APPELLATE  JURISDICTION:  Criminal Appeals No. 7 of 1950 and No. 25 of 1951.     Criminal  Appeal No. 7 of 1950 was an appeal under  Art. 134 (1) (c) from the Judgment and Order of the High Court of Calcutta dated 23rd May, 1950, in Government Appeal No. 2 of 1950  and  Criminal Appeal No. 25 of 1951 was an  appeal  by special leave from the Judgment and Order of the same  Court dated 4th May, 1950, in Criminal Revision No. 132 of 1950.      Ajit  Kumar Datta and S.N. Mukherjee for the  appellant in both the appeals. B.  Sen for the respondent in both appeals. G.N. Joshi for  the Intervener. 129     1951. October 4. The Judgment of the Court was delivered by CHANDRASEKHARA AIYAR J.--These two criminal appeals are from convictions of the appellants by the High Court at Calcutta. In the first case, leave to appeal to this Court was granted by  the High Court under article 134(1)(c) of the  Constitu- tion  of India. In the second case, special leave to  appeal was  granted by this Court under article 136(1) of the  Con- stitution. The appeals were heard together, but as they  are by  different  parties and the facts are  different,  it  is desirable to have two separate judgments. Criminal Appeal No. 7 of 1950.   The  appellant, Joylal Agarwala, who was a salesman  in  a retail shop in Pulbazar in the district of Darjeeling in the State  of West Bengal, was charged with having sold a  piece of  textile  cloth at a price in excess  of  the  controlled price. For this contravention of the provisions of clause 24 (1)  of  the  Cotton Textiles Control Order,  1948,  he  was convicted  by  the Sub-Divisional Magistrate  of  Darjeeling under section 7 of the Essential Supplies (Temporary Powers) Act  (Act  XXIV) of 1946 (herein after referred  to  as  the Essential Supplies Act), and sentenced to six months’ rigor- ous  imprisonment.  On  appeal to the  Sessions  Judge,  the appellant  was acquitted on two grounds, viz., (1)  that  no sanction  was  previously obtained for  the  prosecution  as required by clause 36 of the Cotton Textiles Control  Order, and (2) that the Essential Supplies Act was not in force  in the district of Darjeeling on the date of the occurrence. On appeal  to the High Court by the State of West  Bengal,  the point  about the absence of sanction under clause 36 of  the Control  Order was given up by the present appellant as  its necessity had been abolished by a later Notification of  the Central Government. On the second point, the learned  Judges



of the High Court held that the Act was validly extended  to the district of Darjeeling and was in force in that area  on the date of the occurrence, viz., 14-10-1949. The  acquittal of the appellant 130 was  set  aside,  the  order of  conviction  passed  by  the Magistrate was restored, and the appellant was sentenced  to four months’ rigorous imprisonment.      To understand the main legal argument as to whether the Essential  Supplies Act of 1946 was in force at the time  of the  alleged commission of the offence, it is  necessary  to set out the relevant provisions of a few Acts and Orders and their  dates. The Essential Supplies Act came into force  on 19-11-1946.  Section 92(1) of the Government of  India  Act, 1935, provided as follows :--      "  ......  no Act of the Federal Legislature or of  the Provincial Legislature, shall apply to an excluded area or a partially  excluded  area,  unless the  Governor  by  public notification  so directs, and the Governor in giving such  a direction  with respect to any Act may direct that  the  Act shall  in its application to the area,   ............   have effect  subject  to such exceptions or modifications  as  he thinks fit."      In  exercise  of the powers conferred on  him  by  this section, the Governor of Bengal by a notification  published on  the  14th December, 1946, directed  that  the  Essential Supplies  Act  shall apply to the  district  of  Darjeeling, which was an excluded area.      Section  1(3)  of the Essential Supplies  Act  provides that it shall cease to have effect on the expiration of  the period mentioned in section 4 of the India (Central  Govern- ment  and  Legislature) Act, 1946 (9 & 10 Geo. 6,  Ch.  39). Section 4 of the latter Act provides as follows :--      "The  period  mentioned...is  the period  of  one  year beginning  with the date on which the Proclamation of  Emer- gency in force at the passing of this Act ceases to  operate or,  if the Governor-General by public notification  so  di- rects, the period of two years beginning with that date:      Provided that if and so often as a resolution approving the extension of the said period is passed by both Houses of Parliament, the said period shall be extended for a  further period of twelve months from 131 the  date  on which it would otherwise expire  so,  however, that  it  does not in any case continue for more  than  five years  from the date on which the Proclamation of  Emergency ceases to operate."     The  Proclamation of Emergency referred to in this  sec- tion  ceased  to operate on 31-3-1946. In the absence  of  a notification  by the Governor-General under the second  part of  the section, the Essential Supplies Act remained  opera- tive only till 31-3-1947, under the first part.  The  Gover- nor-General,  however,  issued a  notification  on  3-3-1947 continuing  its force for a period of 2 years from the  date of cessation of emergency.  By virtue of this  notification, therefore, the Essential Supplies Act would remain in  force till  31-3-1948. On 18 7-1947, the Indian  Independence  Act was passed, and India became a Dominion on 15-8-1947.  Under section 9 read with section 19(4) of the Indian Independence Act,  1947,  the GOvernor-General passed an Order  on  14-8- 1947,  which  substituted the words  "Dominion  Legislature" for" both Houses of Parliament" in the proviso to section  4 of  the  India (Central Government  and  Legislature)   Act, 1946, and also introduced a new section 4A by way of adapta- tion, providing that the powers of the Dominion  Legislature



shall  be exercised by the Constituent Assembly.   On  25-2- 1948,  the Constituent Assembly passed its first  resolution extending the operation of the Essential Supplies Act by one year up to 31-3-1949. On 23-3-1949, a second resolution  was passed by the Assembly extending the life of the Act by  one more year up to 31-3-1950.     In  respect of these Acts and notifications three  ques- tions were urged on behalf of the appellant:-firstly, wheth- er  the Governor’s notification of the 14th December,  1946, continued the operation of the Essential Supplies Act in the district of Darjeeling beyond the then period of life of the Act, namely, the period of one year from the date of  cessa- tion of emergency; secondly, whether a fresh notification by the Governor under section 92(1) of the Government of  India Act was not necessary. after the life of the Essential 132 Supplies. Act was extended by the Governor-General’s   noti- fication  of 3-3-1947; and thirdly, whether the  resolutions passed  by the Constituent Assembly could operate to  extend the life of the Essential Supplies Act.      Now, it is clear that under section 1 (3) of the Essen- tial  Supplies  Act, it shall cease to have  effect  on  the expiration of the period mentioned in section 4 of the India (Central Government and Legislature) Act, 1946.  The  period mentioned  in that section is not necessarily one year  from the  date of cessation of emergency.  It can  be 2 years  if the  Governor General by notification so directs, and it may go  up  to a maximum period of 5 years in instalments  of  1 year each, under the proviso.  The fixation of the period of operation of the Essential Supplies Act is thus not left  to any other enactment.  It is provided by the Act itself.   As stated already, the notification of the 14th December, 1946, issued by the Governor applied the Essential Supplies Act to the  Darjeeling  district, and its life was extended  up  to 31-3-1948 by the notification of the Governor-General. It is difficult  to see why a fresh notification under section  92 (1)  of the Government of India Act is required to  continue the  life  of the Act in the district  of  Darjeeling.   The Governor’s  notification  extended  the  Act  to  Darjeeling without specifying any particular period for its applicabil- ity to that district, and it follows therefore that the  Act would remain in force in the district so long as it remained in force in the rest of India. It is only if its effect  had ceased  earlier  than the coming into force  of  the  Indian Independence Act and there was a reenactment by the legisla- ture  which  was sought to be applied to an  excluded  area, that a notification by the Governor under section 92 (1)  of the  Government of India Act might be necessary.  Otherwise, the question of a fresh notification does not arise.      Section  19(4)  of the Indian Independence  Act,  1947, provides as follows:--      "In  this Act, except so far as the  context  otherwise requires-- 133     References to the Government of India Act, 1935, include references  to  any  enactments amending  or   supplementing that  Act, and, in particular, references     to  the  India ’(Central Government and Legislature) Act, 1946;  ......  "     The  adaptations  made by the   Governor-General   under sections 9 and 19 of the Indian Independence Act substituted the words "ConstitUent Assembly" for "both Houses of Parlia- ment"  in  section 4 of the India  (Central  Government  and Legislature) Act, and the Constituent Assembly by two  reso- lutions  of  different dates has extended the  life  of  the Essential Supplies Act till 31-3-1950. As soon as the  adap-



tations  came into force by order of  the  Governor-General, the  Constituent Assembly acquired the powers  conferred  on both  Houses  of  Parliament under section 4  of  the  India (Central  Government and Legislature) Act. The  validity  of the adaptations is beyond question.     The case of Jatindra Nath Gupta v. The Province of Bihar and  Others(1)  has no application here.  In  the  case  now before  us, the Legislature has itself applied its mind  and has fixed the duration of the Act, but has left the  machin- ery to reach the maximum period by instalments to be  worked out  in  a particular manner. There is here no  question  of delegation  at all, much less delegation of any  legislative power. The appeal therefore fails and is dismissed.            Criminal Appeal No. 25 of 1951.     In  this  case,  the appellant Bichan  Chand  Molla  was charged with loading 28 bags of millmade cloth from a  truck into a specially chartered aircraft at the Dum Dum  airport, on  behalf  of his employers,  Messrs.  Amarchand  Pannalal, without a permit, as required under clause 4 (2) of the West Bengal  Cotton Cloth and Yarn Movement Control Order,  1947. He was convicted under section 7 (1) read with section 8  of the Essential Supplies Act and sentenced to 9months’  rigor- ous imprisonment and a fine Of Rs. 1,000 by the (1) [1949] F.C.R. 596.        18 134 1st  Class Magistrate of Barrackpore. The Sessions Judge  of 24-Parganas  dismissed the appeal preferred by the  accused. A revision application filed by him in the High Court shared the same fate.     The legal argument urged in this appeal was the same  as in  the earlier appeal, and has to be repelled as  untenable for  the   reasons   already stated.  A  special  point  was sought  to be argued that the element of mens rea was  want- ing.  But the question was considered by the High Court, and it  was  held that there are two facts from which  mens  tea could be inferred. When questioned, the accused stated  that he  was.loading handloom bales and not millmade  cloth.   He had no permit with him and was not able to produce any  even from  his  employers.  These facts under  the  circumstances warrant the inference of a criminal intent.   This appeal also will therefore stand dismissed.  Agent for the appellant: R.R. Biswas.  Agent  for the respondent: P.K. Bose.  Agent for the intervener: P.A. Mehta. 135