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PETITIONER: T. BARAI

       Vs.

RESPONDENT: HENRY AH HOE AND ANOTHER

DATE OF JUDGMENT07/12/1982

BENCH: SEN, A.P. (J) BENCH: SEN, A.P. (J) VENKATARAMIAH, E.S. (J) MISRA, R.B. (J)

CITATION:  1983 AIR  150            1983 SCR  (1) 905  1983 SCC  (1) 177        1982 SCALE  (2)1133  CITATOR INFO :  F          1983 SC1019  (66)  R          1985 SC1729  (10)  RF         1990 SC1277  (46)  RF         1990 SC2072  (11,46)

ACT:      Interpretation of  Statutes-Central Act on a subject in Concurrent List  amended by  State  Act-State  Act  enhanced punishment-A later Central Amendment Act with respect to the same  matter   reduced  the  punishment-State  amendment  if impliedly repealed-Repeal  followed  by  fresh  legislation- Section 6 of General Clauses Act-If applicable.

HEADNOTE:      For committing an offence under section 16(1)(a) of the Prevention of  Food Adulteration  Act, 1954,  as it stood on March  1,   1972,  the  maximum  punishment  prescribed  was imprisonment for  six years  and fine. Section 21 of the Act provided that  such offences  were triable  by a  Presidency Magistrate or  Magistrate First  Class. By the Prevention of Adulteration of  Food,  Drugs  and  Cosmetics  (West  Bengal Amendment) Act,  1973, enacted  by the  State Legislature of West Bengal,  the maximum  punishment for  an offence  under this section  had been enhanced to imprisonment for life, as a result  of which an offence committed under the section in the State  of West  Bengal became  exclusively triable  by a court of  sessions. The Amendment Act received the assent of the President  and came  into force  from April 29, 1974. In 1976 Parliament  amended the  Food Adulteration  Act and the amendment came  into force  with effect  from April 1, 1976. For offences punishable under section 16(1)(a) the Amendment Act provided  for a  reduced punishment  for a term of three years instead  of six years as before. By the same Amendment Act section  16A was  inserted in the Act providing that all offences under section 16(1) shall be tried in a summary way by a  Judicial Magistrate, First Class, or by a Metropolitan Magistrate.      On September  24, 1975 the appellant lodged a complaint against the  respondent  for  having  committed  an  offence punishable under section 16(1)(a) read with section 7 of the Act. On  the date  of the  commission of the alleged offence

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the law  in force  in the  State of West Bengal was the 1954 Act as amended by the West Bengal Amendment Act.      Purporting to  follow the decision of a single Judge of the Calcutta  High Court  in B.  Manna and  Ors. v. State of West Bengal,  (81 C.W.N. 1075) in which it was held that the Central Amendment  Act was  not intended to be retrospective in operation  because it had not expressly repealed the West Bengal amendment  nor dealt  with the  Act  or  any  of  its provisions in  any manner, the Magistrate held that the case was triable by the Court of Sessions. 906      Disagreeing with  the  view  of  the  single  Judge,  a Division Bench of the High Court held that after the Central Amendment  Act   came  into  force  on  April  1,  1976  all proceedings pending  for trial  of offences punishable under s. 16(1)(a)  as amended by the West Bengal Act which had not been concluded,  would cease  to be  governed  by  the  West Bengal Amendment  Act and  would come  within the purview of the Central  Act as amended by the Central Amendment Act and that  therefore   such  offences   committed  prior  to  the amendment were  triable in  accordance  with  the  procedure under s. 16A as amended by the Central Amendment Act.      On the  question whether  the previous operation of the repealed  West  Bengal  Amendment  Act  in  respect  of  any liability incurred  thereunder is  preserved by  s. 8 of the Bengal General  Clauses Act,  1899 which  is in pari materia with s.  6 of  the General  Clauses Act,  1897  both  as  to procedure for  trial of  such offences  and  the  nature  of punishment liable to be imposed.      Dismissing the appeal, ^      HELD: By  virtue of  the proviso to Art. 254 (2) of the Constitution, Parliament  may repeal  or amend  a  repugnant State law  either directly  or by  itself by  enacting a law repugnant to  the State law with respect to the same matter. Even though  the subsequent  law made by Parliament does not expressly repeal a State law, the State law will become void under Article  254 (1) if it conflicts with a later law made by Parliament creating repugnancy. Such repugnancy may arise where both laws operate in the same field and the two cannot possibly  stand   together:  As   for  example,  where  both prescribe  punishment   for  the   same  offence,  both  the punishments differs  in degree  or kind  or in the procedure prescribed. In  all such  cases the  law made  by Parliament shall prevail  over the  State law under Art. 254(1). In the instant case  when Parliament  stepped in  and  enacted  the Central  Amendment  Act,  which  is  a  later  law  made  by Parliament with  respect to  the same matter the West Bengal Amendment Act  stood impliedly  repealed  with  effect  from April 1, 1976. [915 D-G]      Zaverbhai Amaidas  v. The  State  of  Bombay  [1955]  1 S.C.R. 799, applied.      The applicability  of section  6 of the General Clauses Act, 1897  is not  ruled out  when there  is a  repeal of an enactment followed  by fresh legislation. But the Parliament having reenacted  the law relating to the same offence under s. 16(1)(a)  of the  Act and  provided for altered procedure and also  provided a  reduced sentence,  the accused must be tried according  to the  new procedure provided by s. 16A of the Act  and must  also have  the  benefit  of  the  reduced punishment.                                                    [919 G-H]      Dictum of  Sargant J.  in Re. Hale’s Patent L.R. [1920] Ch. 377, held in applicable.      In so  far as  the Central  Amendment Act  creates  new

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offences or  enhances punishment  for a  particular type  of offence, no  person can  be convicted  by such ex-post facto law nor  can the enhanced punishment prescribed by amendment be applicable;  but insofar as it reduces the punishment for an offence punishable under s. 16(1)(a) of the Act, there is no reason why the accused should not 907 have the  benefit of  such reduced  punishment. The  rule of beneficial construction requires that even ex post facto law of such  a type  should be applied to mitigate the rigour of the law. [919 F-H]      Craies on Statute Law, 7th edn. at pp. 387-388 referred to.      It is  a well-settled  rule of construction that when a later statute  again describes  an  offence  created  by  an earlier statute and imposes a different punishment or varies the  procedure,   the  earlier   statute  is   repealed   by implication.      Michell v. Brown [1959] 120 ER 909, 912, Smit v. Benabo [1937] 1  All ER  523 and Regina v. Youle [1861] 158 ER 311, 315-316 referred to.      The rule is however subject to the limitation contained in Art.  20(1) against  ex post  facto law  providing for  a greater punishment  and has no application where the offence described in the later Act is not the same as in the earlier Act i.e,  when the essential ingredients of the two offences are different.  In the  premises, the  Central Amendment Act having dealt  with the  same offence  as the  one punishable under s.  16(1)(a) of  the Act  and provided  for a  reduced punishment, the accused must have the benefit of the reduced punishment. [921 E-F]

JUDGMENT:      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 40 of 1979.      From the Judgment and Order dated the 5th June, 1978 of the Calcutta  High Court  in Criminal  Revision No.  133  of 1978.      D. Mukherjee,  Pradeep Ghosh and P.K. Mukherjee for the appellant.      N.C. Talukdar and Amlan Ghosh for respondent Nos. 1 and 2.      G.S. Chatterjee for respondent No. 3 (State of Bengal).      The Judgment of the Court was delivered by      SEN, J. This appeal by special leave from a judgment of the Calcutta High Court dated June 5, 1978 raises a question of some  complexity. The question is as to the applicability of s.  16A of  the Prevention of Food Adulteration Act, 1954 ("Act" for  short) as  inserted by  the Prevention  of  Food Adulteration (Amendment)  Act, 1976  (for short "the Central Amendment Act")  with respect to prosecutions launched under s.16(1) (a)  read with  s.7 of  the Act in the State of West Bengal between  the period  from April  29, 1974 to April 1, 1976. Such  offences according to the law then in force i.e. the Act  as amended  by the  Prevention of  Adulteration  of Food, 908 Drugs and  Cosmetics (West  Bengal Amendment) Act, 1973 (for short "the  West Bengal Amendment Act") were punishable with imprisonment for  life and therefore triable by the Court of Sessions.      It is  common ground  that the  offence with  which the respondents are  charged is  alleged to  have been committed

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under s.16(1)(a) at a time when the Act stood amended in its application to the State of West Bengal by the provisions of the West Bengal Amendment Act. If the law continued to stand as it  stood on  the  date  of  the  offence  which  was  so committed, there  would have  been no difficulty because the maximum penalty  would be imprisonment for life and fine and as such  the offences  would be  exclusively triable  by the Court of  Sessions. But  a change  was  brought  about  when Parliament enacted the Central Amendment Act which came into force on  April 1,  1976 by  which the scheme of s.16 of the Act  providing   for  various   punishments  was  materially altered; so  also  the  procedure  for  the  trial  of  such offences. The  effect of  the Central Amendment Act was that the West  Bengal Amendment Act stood impliedly repealed with effect from  April 1,  1976 and  the question is whether the previous operation of the repealed West Bengal Amendment Act in respect of any liability incurred thereunder is preserved by s.8 of the Bengal General Clauses Act, 1899 which is pari materia with s.6 of the General Clauses Act, 1897 both as to procedure for  trial of  such offences  and  the  nature  of punishment liable to be imposed.      First as  to facts. On August 16, 1975 the appellant, a Food Inspector  of the  Corporation of Calcutta, visited the Chungwa Restaurant  run by  the respondents  at Chittaranjan Avenue, Calcutta  and purchased  a  quantity  of  Hyacinth’s ground white  pepper (compound)  with fried  rice powder and sent the  same to  a Public  Analyst for  analysis. On  such analysis, the  sample was  found to  be  adulterated  as  it contained no  rice powder but wheat powder. On September 24, 1975  the   appellant  lodged   a  complaint   against   the respondents for having committed an offence punishable under s.16(1)(a) read  with s.7  of the Act in the Court of Senior Municipal Magistrate,  Calcutta. The  gravamen of the charge was that  the respondents had stored and/or exposed for sale and/or used  Hyacinth’s ground  white pepper (compound) with fried rice  powder for  the  purpose  of  manufacturing  and preparing different  articles of  food which was adulterated and misbranded.      On the  date of  the commission  of the alleged offence i.e. on  August 16,  1975 the  law in  force in the State of West Bengal was 909 the Act  as amended  by the  West Bengal Amendment Act which provided that  such an  offence  would  be  punishable  with imprisonment for  life. The learned Magistrate following the decision of  Anil Kumar  Sen, J. in B. Manna and Ors. v. The State of  West Bengal(1)  sustained a  preliminary objection raised on  behalf of  the Corporation and held that the case was triable  by the  Court of Sessions. Disagreeing with the view of  Anil Kumar  Sen, J.  in B. Manna’s case, (supra), a Division Bench of the High Court held that after the Central Amendment  Act  came  into  force  on  April  1,  1976,  all proceedings pending  for trial  of such  offences punishable under s.16(1)(a)  of the  Act as  amended by the West Bengal Amendment Act  which had  not been concluded, would cease to be governed  by the West Bengal Amendment Act and would come within the  purview of  the Act  as amended  by the  Central Amendment Act and therefore such offences committed prior to such amendment  are triable in accordance with the procedure prescribed by  s.16A of  the Act  as amended  by the Central Amendment Act.  It accordingly  set aside  the order  of the learned Magistrate  and directed  him to  proceed  with  the trial.      Upon   these    facts,   three   questions   fall   for consideration in  the appeal  viz. (1)  whether the  Central

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Amendment Act  impliedly repealed  the West Bengal Amendment Act with effect from April 1, 1976; and if so, the effect of such repeal.  (2) Whether  the High  Court was  justified in holding that  the West  Bengal Amendment Act shall be deemed to have  been obliterated  from the  Statute  Book  for  all intents and  purposes inasmuch  as the Central Amendment Act manifests an  intention to the contrary so as to exclude the operation of  s.8 of  the Bengal  General Clauses Act, 1899. And (3)  Are the  pending proceedings  to be governed by the change of  procedure brought  about by  s.16A of  the Act as introduced by the Central Amendment Act; and further whether the  continued   operation  of   the  repealed  West  Bengal Amendment Act  is preserved with regard to the punishment to be imposed.      For a proper appreciation of the points in controversy, it is  necessary to  deal with the statutory changes brought about. First we may refer to the provisions of the Act as it stood on March 1, 1972, the relevant provisions whereof were as follows: 910 "16(1) If any person- (a)  whether by himself or by any other person on his behalf      imports into India or manufactures for sale, or stores,      sells or distributes any article of food-      (i)  which is  adulterated or misbranded or the sale of           which is prohibited by the Food (Health) authority           in the interest of public health;      (ii) **        **        **           He shall,  in addition  to the penalty to which he      may  be   liable  under   the  provisions  of  s.6,  be      punishable with imprisonment for a term which shall not      be less  than six  months but  which may  extend to six      years, and  with fine  which shall not be less than one      thousand rupees.      Provided that-           (i) if the offence is under sub-cl. (i) of cl. (a)           and is with respect to an article of food which is           adulterated under sub-cl. (i) of cl. (i) of s.2 or           misbranded under  sub-cl. (k)  of cl. (ix) of that           section; or           **        **        **        **      the court  may for  any adequate and special reasons to      be mentioned  in the  judgment, impose  a  sentence  of      imprisonment for  a term  of less than six months or of      fine of  less than  one  thousand  rupees  or  of  both      imprisonment for  a term  of less  than six  months and      fine of less than one thousand rupees." "20(1)    **        **        ** (2)  No court inferior to that of a Presidency Magistrate or      a Magistrate  of the  First Class shall try any offence      under this Act."           **        **        **        ** 21.  Notwithstanding anything  contained in s.32 of the Code      of Criminal Procedure, 1898, it shall be lawful for any      Presidency Magistrate  or any  Magistrate of  the first      class to  pass any  sentence authorized by this Act, in      excess of his powers under s. 32 of the said Code." 911      On these provisions, the maximum punishment which could be imposed  for committing  any offence under s.16(1)(a) was imprisonment for  six years  and fine.  Such an  offence not being under  the Indian  Penal Code,  1860 was  triable  not exclusively by the Court of Sessions under the provisions of s.29(2) of  the Code  of Criminal  Procedure, 1973 read with Schedule II  thereunder. To  overcome the  limit imposed  by

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s.32 of  the Code on sentences which a Presidency Magistrate or a Magistrate of First Class could impose, s.21 of the Act was inserted.  The result  was  that  such  offences  become triable by  a Presidency  Magistrate or  a Magistrate of the First Class. That was the law in force in the whole of India as on March 1, 1972.      On April  29, 1974,  the Prevention  of Adulteration of Food, Drugs  and Cosmetics (West Bengal Amendment) Act, 1973 enacted by  the State Legislature of West Bengal having been assented to  by the  President, became the law applicable to the State  of West Bengal as from that date. It would appear that the  State of West Bengal had taken a step forward with a view  to make anti-social offences such as adulteration of articles of food meant for human consumption, or manufacture or sale of spurious drugs etc. which constituted a menace to the society  and deserved  a  deterrent  punishment,  to  be punishable with  imprisonment for  life.  S.6  of  that  Act inserted the following amendment.      "In the Prevention of Food Adulteration Act, 1954-      **        **        **        **        **      (ii) in section 16-      (a)  in sub-s.(l),  for the  words "a  term which shall           not be  less than  six months but which may extend           to six  years, and  with fine  which shall  not be           less than  one thousand  rupees", the  words "life           and  shall  also  be  liable  to  fine"  shall  be           substituted;" The following  words were substituted in the proviso to sub- s.(1):      "(b) in  the proviso  to sub-s.(1),  for the words "the           Court may  for any adequate and special reasons to           be mentioned in the judgment, impose a sentence of           imprisonment for a term of less than six months or           fine of  less than  one thousand rupees or of both           imprisonment for  a term  of less  than six months           and fine of less than 912           one thousand rupees", the following words shall be           substituted, namely:-           "(ii) if  the Court  thinks that  for any adequate                and special  reasons to  be mentioned  in the                judgment a  lesser sentence  would serve  the                ends of justice,           the Court may impose a sentence which is less than           a sentence of imprisonment for life;"      It will  be seen  that the  West Bengal  Amendment  Act brought about  a radical  change  so  far  as  the  Act  was concerned in  its application  to the  State of West Bengal. The maximum  punishment for an offence under s.16(1)(a) when committed in  the State  was punishment  of imprisonment for life so  that under  the provisions  of the Code of Criminal Procedure, 1973,  such an offence became exclusively triable by a  Court of Sessions and ceased to be triable either by a Presidency Magistrate or a Magistrate of the First Class.      For this  reason, the  provisions  of  s.20  were  also materially altered :      "20(1)    All offences  punishable under this Act shall                be cognizable and non-bailable.           (2)  Any police  officer not  below the  rank of a                Sub Inspector  of Police  may arrest  without                warrant any  person against whom a reasonable                complaint   has   been   made   or   credible                information has  been received  of his having                been  concerned   in  any   of  the  offences                punishable under this Act."

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The Act also introduced s.19A with regard to burden of proof and it read :      "19A. When any article intended for food is seized from      any person  in the  reasonable belief  that the same is      adulterated or  misbranded the  burden of  proving that      such article  intended for  food is  not adulterated or      misbranded shall be on the person from whose possession      such article intended for food was seized."      It was  not long  before Parliament  stepped in to meet the  growing   menace  of   the   anti-social   offence   of adulteration of articles 913 of food  meant for  human consumption  which was a threat to the national  well-being and  it was felt that such offences must be  ruthlessly dealt  with. It was also felt that there should be  a summary trial of these offences. The Prevention of Food  Adulteration (Amendment)  Act, 1976 was accordingly brought into  force with  effect from  April 1, 1976. It not only created  new offences but also enhanced the punishments provided. But  at the  same time it also provided for graded punishment for  various types  of offences. Incidentally, it mollified the  rigour of  the law by providing for a reduced punishment for  an offence  punishable under  s.16(1)(a). We are however  not concerned  with  other  types  of  offences except the  one punishable under s.16(1)(a) and for this the maximum punishment  provided was  for a  term of three years instead of  six years. In s.16 of the Act for sub-s.(1), the following sub-section insofar as relevant was introduced :      "(1) Subject to  the provisions  of sub-s.(1A),  if any           person-      (a)  whether by  himself or  by any other person on his           behalf, imports  into India  or  manufactures  for           sale, or  stores, sells or distributes any article           of food-      (i)  which is  adulterated within  the meaning  of sub-           cl.(m) of  cl.(ia) of s.2 or misbranded within the           meaning of cl. (ix) of that section or the sale of           which is  prohibited under  any provision  of this           Act or  any rule made thereunder or by an order of           the Food (Health) Authority;           *         *         *         *         *      he shall, in addition to the penalty to which he may be      liable under  the provisions of s.6, be punishable with      imprisonment for  a term  which shall  not be less than      six months  but which  may extend  to three  years, and      with fine  which shall  not be  less than  one thousand      rupees."      A new  proviso was  inserted conferring  power  on  the Court for  any adequate  and special reasons to be mentioned in the  judgment to  impose a  reduced punishment for a term which shall  not be less than three months but may extend to two years,  with fine  which shall  not be  less  than  five hundred rupees. 914      As regards  the procedure  for trial  of such offences, the  Act   introduced  s.16A  which  is  important  for  our purposes, and it reads :      "16A. Notwithstanding anything contained in the Code of      Criminal  Procedure,  1973,  all  offences  under  sub-      section (1)  of section  16 shall be tried in a summary      way  by  a  Judicial  Magistrate  of  the  first  class      specially  empowered   in  this  behalf  by  the  State      Government or  by a  Metropolitan  Magistrate  and  the      provisions of  sections 262  to 265 (both inclusive) of      the said  Code shall,  as far  as may be, apply to such

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    trial :           Provided that  in the  case of any conviction in a      summary trial  under this  section, it  shall be lawful      for the  Magistrate to  pass a sentence of imprisonment      for a term not exceeding one year :           Provided further that when at the commencement of,      or in  the  course  of,  a  summary  trial  under  this      section, it  appears to  the Magistrate that the nature      of the case is such that a sentence of imprisonment for      a term exceeding one year may have to be passed or that      it is,  for any  other reason,  undesirable to  try the      case summarily,  the Magistrate shall after hearing the      parties record  an order  to that effect and thereafter      recall any  witness who  may  have  been  examined  and      proceed to  hear or  rehear  the  case  in  the  manner      provided by the said Code."      There were  some corresponding changes brought about in s.20 of the Act. Sub-s.(2) of s.20 provides :      "(2) No  Court  inferior  to  that  of  a  Metropolitan           Magistrate or  a Judicial  Magistrate of the first           class shall try any offence under this Act."      There  is   no  doubt  or  difficulty  as  to  the  law applicable. Art.  254 of  the Constitution  makes  provision firstly, as  to what  would happen  in the  case of conflict between a  Central and State law with regard to the subjects enumerated  in   the  Concurrent  List,  and  secondly,  for resolving such  conflict. Art.  254(1) enunciates the normal rule that  in the  event of a conflict between a Union and a State law  in the concurrent field, the former prevails over the latter. 915 Clause (1)  lays down  that if  a State  law relating  to  a Concurrent subject is ’repugnant’ to a Union law relating to that subject,  then, whether the Union law is prior or later in time, the Union law will prevail and the State law shall, to the  extent of  such repugnancy,  be void. To the general rule laid  down  in  clause  (1),  clause  (2)  engrafts  an exception, viz.,  that if  the President  assents to a State law which  has been  reserved for his consideration, it will prevail notwithstanding  its repugnancy to an earlier law of the Union,  both laws  dealing with a Concurrent subject. In such a  case, the Central Act will give way to the State Act only to  the extent of inconsistency between the two, and no more. In  short, the  result of  obtaining the assent of the President to  a State  Act  which  is  inconsistent  with  a previous Union law relating to a Concurrent subject would be that the  State Act  will prevail in that State and override the provisions  of the Central Act in their applicability to that State  only. The  predominance of  the  State  law  may however be  taken away  if Parliament  legislates under  the Proviso to  clause (2).  The Proviso  to Art.254(2) empowers the Union  Parliament to  repeal or  amend a repugnant State law even  though it  has  become  valid  by  virtue  of  the President’s assent.  Parliament  may  repeal  or  amend  the repugnant State  law, either directly, or by itself enacting a law  repugnant to  the State law with respect to the ’same matter’. Even  though the  subsequent law made by Parliament does not  expressly repeal a State law, even then, the State law will  become void  as soon  as  the  subsequent  law  of Parliament creating repugnancy is made. A State law would be repugnant to  the Union  law when  there is  direct conflict between the  two laws.  Such repugnancy may also arise where both laws  operate in  the same  field and  the  two  cannot possibly  stand   together  e.g.,   where   both   prescribe punishment for  the same  offence but the punishment differs

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in degree  or kind  or in  the procedure  prescribed. In all such cases,  the law  made by  Parliament shall prevail over the  State   law  under  Art.254(1).  That  being  so,  when Parliament stepped in and enacted the Central Amendment Act, it being a later law made by Parliament "with respect to the same matter",  the West Bengal Amendment Act stood impliedly repealed.      The case  of Zaverbai Amaidas v. The State of Bombay(1) illustrates the  application of  the Proviso  to Art.254(2). The Essential  Supplies (Temporary  Powers)  Act,  1946  was enacted by the Central 916 Legislature,  s.7   of  which  provided  for  penalties  for contravention of  orders made  under s.3  of  the  Act.  The provision with  regard to  the penalties  was  that  if  any person contravenes  any order  made under  s.3, he  shall be punishable with  imprisonment for a term which may extend to three years  or with fine or with both. The then Province of Bombay felt  that the  maximum punishment  of  three  years, imprisonment provided by s.7 of the Act was not adequate for offences under  the Act and with the object of enhancing the punishment provided  therein, enacted Act 36 of 1947. By s.2 of that  Act it  was provided  that notwithstanding anything contained in  the Essential Supplies (Temporary Powers) Act, 1946, whoever contravenes an order made under s.3 of the Act shall be  punishable for  a term  which may  extend to seven years but  shall not,  except for  reasons to be recorded in writing, be less than six months and shall also be liable to fine.  The   Bombay  Act  thus  increased  the  sentence  to imprisonment for  seven years and also made it obligatory to impose a  sentence of  fine,  and  further  provided  for  a minimum sentence  of six  months and  the Court was bound to impose a  minimum sentence except for reasons to be recorded in writing.  The Act  having been reserved for the assent of the Governor-General  and received his assent under s.107(2) of the Government of India Act, 1935, came into operation in the  Province  of  Bombay  notwithstanding  the  repugnancy. Subsequently, the Essential Supplies (Temporary Powers) Act, 1946 under-went  substantial  alterations  and  was  finally recast  by   the  Essential   Supplies  (Temporary   Powers) Amendment Act,  1950. The Amendment made in 1950 substituted a new  section in place of s.7 of the Act. The scheme of the new section  was that  for purposes  of punishment, offences under the  Act were  grouped under  three categories and the punishment to  be imposed  in the  several  categories  were separately specified.  S.7 was  thus  a  comprehensive  Code covering the  entire field  of punishment for offences under the Act  graded according  to the commodity and character of the offence.  It was  held by this Court that the Bombay Act was impliedly  repealed by  s.7 of  the  Essential  Supplies (Temporary Powers) Amendment Act, 1950.      It is  strenuously argued  on behalf  of the  appellant that s.16A of the Act is not retrospective in operation, and that it  does not  deal with  procedure alone  but touches a substantive  right.  The  submission  is  that  in  view  of cls.(c), (d)  and (e)  of sub-s.(1)  of s.8  of  the  Bengal General Clauses  Act, 1899  which provide that if any law is repealed then  unless a  different  intention  appears,  the repeal shall  not affect  any liability  incurred under  any enactment so repealed or affect any 917 legal proceeding  or remedy  in respect  of such  liability, penalty or  punishment as  aforesaid. It  is said that there was a  liability incurred  by the  commission of  an offence punishable under  s.16(1)(a) of  the Act  as amended  by the

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West Bengal  Amendment Act  and s.8  of the  Bengal  General Clauses Act’  1899 preserved  the continued operation of the repealed West  Bengal Amendment  Act for  imposition of that punishment.  The   contention  is   that  where  rights  and procedure are  dealt with  together by  the  repealing  Act, then, intention  of the  legislature is  that the old rights are still  to be determined by the old procedure. In support of the contention, reliance is placed on the decision of the Sargant, J.  in re  Hale’s Patent(1).  We  are  afraid,  the contention cannot  prevail. Just  as a person accused of the commission of  an  offence  has  no  right  to  trial  by  a particular  court   or  to   a  particular   procedure,  the prosecutor equally  has no  right to  insist upon  that  the accused be  subjected to  an enhanced  punishment under  the repealed Act.  The dictum  of Sargant.J. in re Hale’s Patent is therefore not applicable.      Whenever  there  is  a  repeal  of  an  enactment,  the consequences laid  down in  s.6 of  the General  Clauses Act though it  has been  specifically mentioned in the repealing Act or not, will follow, unless, as the section itself says, a different  intention appears.  In State of Punjab v. Mohar Singh(1), this  Court has  elaborately dealt with the effect of repeal. In the case of a simple, repeal there is scarcely any room  for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject, the Court  would undoubtedly  have to look to the provisions of the  new Act,  but only  for the  purpose of  determining whether they  indicate a  different intention.  "The line of inquiry would  be, not  whether the  new Act expressly keeps alive  old   rights  and   liabilities",  in  the  words  of Mukherjee,J., "but  whether it  manifests  an  intention  to destroy them."  The Court  held that  it cannot subscribe to the broad proposition that s.6 of the General Clauses Act is ruled out  when there  is repeal of an enactment followed by fresh legislation.  S 6  would be  applicable in  such cases also unless  the  new  legislation  manifests  an  intention incompatible with  or contrary  to  the  provisions  of  the section. Such  incompatibility would  have to be ascertained from a  consideration of  all the relevant provisions of the new Act  and the  mere absence  of a saving clause is not by itself  material.   The  Court   therefore  held   that  the provisions of s.6 of the General Clauses Act will apply to a case 918 of repeal  even if  there is simultaneous enactment unless a contrary intention  can be  gathered from the new enactment. Of course,  the consequences laid down in s.6 of the General Clauses Act  will apply  only when  a statute  or regulation having the  force of  a statute is actually repealed. It has no application when a statute which is of a temporary nature automatically expires by efflux of time. The principles laid down by  the Court  in  Mohar  Singh’s  case  (supra),  have consistently been  followed in  subsequent  cases.  The  old doctrine of  extinguishing or  effacing the repealed law for all purposes and intents except for the acts past and closed has now  given way to the principles enunciated by the Court in Mohar Singh’s case, (supra).      The question that falls for consideration in the appeal is  whether   a  "contrary   intention"  appears   from  the provisions of the Central Amendment Act so as to exclude the applicability of s.8 of the Bengal General Clauses Act. Anil Kumar Sen,J.  in B.  Manna’s case, (supra), mentions several reasons  why  the  Central  Amendment  Act  was  not  really intended to  be retrospective  in operation so that it would not cover cases of offences committed prior to the enactment

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itself. In  the first  place, he  observes that  the Central Amendment Act  had not  expressly repealed  the West  Bengal Amendment  Act  nor  dealt  with  the  Act  or  any  of  its provisions in  any manner. It was enacted with reference and having regard  to the  provisions of  the Act  as  it  stood before the  Central Amendment  Act came  into force. Even if the Central  Amendment Act  had not  expressly repealed  the West Bengal  Amendment Act,  it would  still be  repealed by necessary implication under Art. 254(1) as it conflicts with a later  law with  respect to  the same  matter  enacted  by Parliament.      Secondly, the  learned Judge  refers to the language of the statute  itself. He  observes  that  unlike  many  other statutory provisions creating similar offences and providing punishment therefor,  in the Act the material provisions are not in  terms like  "any person  guilty  of  an  offence  of manufacturing, storing,  selling or distributing any article of food  which is  adulterated shall be punishable with...". On the  other hand,  he points  out that  the  terms  of  s. 16(1)(a) of the Act are "if any person..... manufactures for sale, or  stores, or  sells, or  distributes any  article of food which is adulterated, he shall.....". The learned Judge is of the view that on the words used and on their terms the only  consistent   implication  is  that  such  manufacture, storage, sale  or distribution  must be  after the enactment has come  into force  and not  prior thereto.  In our  view, nothing 919 really turns  on the  language of  s. 16(1)(a)  because  the Central Amendment  Act has not created a new offence thereby but dealt with the same offence as before.      Lastly, the  learned Judge  refers to  the new offences created by the Central Amendment Act, one of them being that under s.  16(1)(b) of  the Act  with regard to manufacturing for sale,  or  storing,  or  selling,  or  distributing  any adulterant which  was not  in the  Act at  any time  before. Accordingly, he  holds that  it  is  not  possible  to  give retrospective effect  to the  other parts  of  the  Act  and observes that  it could never have been the intention of the Legislature nor was it possible to give retrospective effect to the  Act. According to him Art. 20(1) of the Constitution stands in  the way  of giving  retrospective  effect  to  s. 16(1)(b) of  the Act  and thus  renders the  act  which  was otherwise innocent  at the  time when  it was  done to be an offence by  later enactment.  We are  not concerned with new offences created  by  the  Central  Amendment  Act  or  with offences for  which an  enhanced punishment  is provided for and therefore  there is  no question  of Art.  20(1) of  the Constitution being attracted. We are here concerned with the same  offence,   namely,  an  offence  punishable  under  s. 16(1)(a) of  the Act  for  which  a  reduced  punishment  is provided for.      It is  only retroactive  criminal legislation  that  is prohibited under  Art. 20(1).  The prohibition  contained in Art. 20(1)  is that  no person  shall be  convicted  of  any offence except  for violation  of a law in force at the time of the commission of the act charged as an offence prohibits nor shall  he be  subjected to  a penalty  greater than that which might  have been  inflicted under  the law in force at the time of the commission of the offence. It is quite clear that insofar  as  the  Central  Amendment  Act  creates  new offences or  enhances punishment  for a  particular type  of offence no person can be convicted by such ex post facto law nor can  the enhanced punishment prescribed by the amendment be applicable.  But insofar  as the  Central  Amendment  Act

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reduces the  punishment for  an offence  punishable under s. 16(1)(a) of  the Act,  there is  no reason  why the  accused should not  have the benefit of such reduced punishment. The rule of  beneficial construction  requires that even ex post facto law  of such  a type should be applied to mitigate the rigour of  the law.  The principle  is based  both on  sound reason and common- 920 sense. This  finds support  in the  following  passage  from Craies on Statute Law, 7th edn. at pp. 387-88 :           "A retrospective  statute is  different from an ex      post facto  statute. "Every  ex post  facto law ..... "      said Chase J. in the American case of Calder v. Bull(1)      "must   necessarily   be   retrospective,   but   every      retrospective law  is not  an ex  post facto law. Every      law that  takes away or impairs rights vested agreeably      to existing  laws is  retrospective, and  is  generally      unjust and  may be  oppressive ;  it is  a good general      rule that a law should have no retrospect, but in cases      in which the laws may justly and for the benefit of the      community and  also of  individuals relate  to  a  time      antecedent to  their  commencement  :  as  statutes  of      oblivion   or    of   pardon.    They   are   certainly      retrospective, and  literally both concerning and after      the facts  committed. But  I do not consider any law ex      post facto  within the  prohibition that  mollifies the      rigour of  the criminal law, but only those that create      or aggravate  the crime,  or increase the punishment or      change  the  rules  of  evidence  for  the  purpose  of      conviction  .....   There  is   a  great  and  apparent      difference between  making an  unlawful act  lawful and      the making an innocent action criminal and punishing it      as a crime."      To illustrate, if Parliament were to re-enact s. 302 of the Indian  Penal Code, 1860 and provide that the punishment for an  offence of murder shall be sentence for imprisonment for life,  instead of  the  present  sentence  of  death  or imprisonment for  life, then  it cannot  be that  the Courts would still award a sentence of death even in pending cases.      In Rattan  Lal v.  The State of Punjab(2), the question that fell  for consideration  was whether an appellate court can extend  the benefit  of Probation of Offenders Act, 1958 which had  come  into  force  after  the  accused  had  been convicted of  a criminal offence. The court by majority of 2 : 1  answered the question in the affirmative. Subba Rao, J. who  delivered   a  majority   opinion,  concluded  that  in considering   the   question,   the   rule   of   beneficial construction required  that even  ex post  facto law  of the type involved  in that  case should be applied to reduce the punishment. 921      It is settled both on authority and principle that when a later  statute again  describes an  offence created  by an earlier statute  and  imposes  a  different  punishment,  or varies the  procedure, the  earlier statute  is repealed  by implication. In  Michell v.  Brown(1) Lord  Cambell put  the matter thus :           "It is  well settled rule of construction that, if      a later statute again describes an offence created by a      former statute  and  affixes  a  different  punishment,      varying the  procedure, the earlier statute is repealed      by the later statute See also Smith v. Benabo.(2) In Regina  v. Youle,(3)  Martin, B.  said in  the oft-quoted passage :           "If a  statute deals  with a  particular class  of

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    offences, and  a subsequent  Act is  passed which deals      with precisely  the  same  offences,  and  a  different      punishment is  imposed by  the later Act, I think that,      in effect,  the legislature  has declared  that the new      Act shall be substituted for the earlier Act." The rule  is however  subject to the limitation contained in Art. 20(1) against ex post facto law providing for a greater punishment and  has also  no application  where the  offence described in the later Act is not the same as in the earlier Act i.e.  when the essential ingredients of the two offences are different.      In the premises, the Central Amendment Act having dealt with the  same  offence  as  the  one  punishable  under  s. 16(1)(a) and  provided for a reduced punishment, the accused must have  the benefit of the reduced punishment. We wish to make it  clear that  anything that we have said shall not be construed  as   giving  to   the  Central  Amendment  Act  a retrospective operation  insofar as  it creates new offences or provides for an enhanced punishment.      In the result, the appeal must fail and is dismissed. P.B.R.                                     Appeal dismissed. 922