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PETITIONER: THE STATE OF BIHAR

       Vs.

RESPONDENT: HIRALAL KEJRIWAL AND ANOTHER

DATE OF JUDGMENT: 14/09/1959

BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. IMAM, SYED JAFFER

CITATION:  1960 AIR   47            1960 SCR  (1) 726  CITATOR INFO :  R          1961 SC 304  (10)  R          1974 SC 366  (25)  R          1978 SC 933  (18)  D          1980 SC 126  (4)

ACT: Repeal  of  Statute-Saving  clause-Interpretation  of-Cotton Textiles   (Control  of  Movement)  Order,   1948,   whether continues  in  force-Essential Supplies  (Temporary  Powers) Act,  1946  (XXIV  of 1946),  ss.  1(3)  and  3(1)-Essential Commodities  Ordinance, 1955, (Ordinance 1 of 1955), s.  16- Essential Commodities Act, 1955 (X of 1955), s. 16. Appeal  by  special  leave-Interference  in-Constitution  of India, Art. 136.

HEADNOTE: In  exercise  of  the powers under s.  3  of  the  Essential Supplies   (Temporary   Powers)  Act,  1946,   the   Central Government  made  the Cotton Textile (Control  of  Movement) Order,  1948.   The 1946 Act was to expire  on  January  26, 1955,  but before that, on January 21, 1955,  the  Essential Commodities Ordinance was promulgated which conferred on the Central Government a power similar to that conferred by s. 3 of the 1946 Act.  Section 16 of the Ordinance provided  that all Orders made under the 1946 Act in so far as such  Orders could  be made under the Ordinance shall continue  in  force and that accordingly any appointment made, license or permit granted  or  direction  issued under any  such  Order  shall continue  in force.  The Essential Commodities Act, ,955  by s. 16(i)(a) repealed the Ordinance and by s. 16(i)(b) 727 repealed  any other law in force in any State in so  far  as such law controlled the production, supply and  distribution of, and trade, and commerce in any essential commodity.  The savings clause s. 16(2) of the 1955 Act was a repetition  of s.  16 of the Ordinance.  The respondent contended that  the amplitude  of the first part of s. 16 of the  Ordinance  was cut  down by the second part and consequently s. 16 did  not save  the Order but only the acts done under the Order,  and that  even if the Order was saved by s. 16 of the  Ordinance it  was repealed by s. 16(i)(b) of the 1955 Act and was  not continued under that Act.

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Held, that the Cotton Textiles (Control of Movement)  Order, 1948  was saved by s. 16 of the Ordinance and was  continued by s. 16(2) of the Essential Commodities Act, 1955, and  was in force on August 30, 1955, when the offence was committed. The first part of s. 16 of the Ordinance saved the order and the acts done under the Order subsequent to the coming  into force  of the Ordinance and the second part of s.  16  saved past acts done under the Order before the coming into  force of  the  Ordinance.   The  words " any other  law  "  in  s. 16(i)(b)  of  the  1955 Act meant any  law  other  than  the Ordinance  and an order made or deemed to be made under  the Ordinance  was not repealed by s. 16(i)(b).  Such  an  order was saved by s. 16(i)(a) of the Act. Held, further, that this was not a fit case for interference under  Art.  136 of the Constitution with the order  of  the High  Court  discharging the respondent.   The  offence  was committed  more than four years ago; the application by  the appellant to the High Court for a certificate of fitness  to appeal  to  the  Supreme  Court  was  belated  ;  there  was plausible  justification for the belief of the accused  that the Order did not survive the expiry of the 1946 Act in view of  the  varying views expressed by the  Courts;  the  State filed  the  appeal  presumably to  get  the  legal  position clarified  ; in such circumstances public interest  did  not require that the stale matter should be resuscitated.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 36  of 1958. Appeal  by special leave from the judgment and  order  dated May 9, 1957, of the Patna High Court, in Criminal  Reference No.  51  of  1957 and Criminal Revision  No.  323  of  1957, arising out of the judgment and order dated March 20,  1957, of  the First Additional Sessions Judge, Patna  in  Criminal Revision No. 14 of 1957. K.   P. Varma and R. C. Prasad, for the appellant. H.   J. Umrigar and B. P. Maheshwari, for the respondents. 728 1959.   September  14.   The  Judgment  of  the  Court   was delivered by SUBBA RAO J.-This is an appeal by special leave by the State of  Bihar  against  the  judgment  of  the  High  Court   of Judicature  at  Patna  quashing  the  criminal   proceedings launched  against  the respondents in the Court  of  Munsif- Magistrate, Patna. The  two respondents were the proprietors of a  firm  called M/s.  Patna Textiles doing business in cotton at Patna.   On August 30, 1955, they despatched two bales of saries to M/s. Hiralal Basudev Prasad, cloth merchants of Balia, from Patna Ghat without obtaining a permit from the Textile Controller, Bihar.   They  were prosecuted under s. 7 of  the  Essential Commodities  Act, 1955 (X of 1955), hereinafter  called  the Act,  read  with  s. 3 of the Cotton  Textiles  (Control  of Movement) Order, 1948, hereinafter called the Order, in  the Court  of  the Munsif-Magistrate,  Patna.   The  respondents filed  a petition before the said Munsif-Magistrate  praying for  their  discharge  on  the  ground  that  the  Essential Supplies  (Temporary  Powers)  Act,  1946  (XXIV  of  1946), hereinafter  called the 1946 Act, whereunder the said  Order was  made,  had  been repealed, and,  therefore,  the  Order ceased to have any legal force thereafter, and  consequently they  could not be prosecuted under the expired Order.   The Munsif-Magistrate  rejected that petition.   The  Additional

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Sessions   Judge,   Patna,  after   perusing   the   records transmitted  the same to the High Court under s. 438 of  the Code  of Criminal Procedure with his opinion that the  order of the Munsif-Magistrate was wrong and, therefore, it  might be set aside with the direction to the Munsif-Magistrate  to discharge  the  accused.   The  respondents  also  filed   a revision to the High Court against the order of the  Munsif- Magistrate.   The  reference as well as  the  revision  were heard together by Imam, J., of the High Court at Patna,  and the  learned Judge accepting the reference and the  revision set  aside the order of the Munsif-Magistrate  and  directed the accused to be discharged.  Hence the appeal. 729 The  learned Counsel appearing for the state contended  that the  Order made under the 1946 Act was saved under s. 16  of the  Essential  Commodities Ordinance of  1955,  hereinafter called  the  Ordinance,  and  s. 16 (2)  of  the  Act,  and, therefore,  the  accused were validly prosecuted  under  the provisions  of  the  Order.  The  learned  Counsel  for  the respondents argued that the order was not saved under either of the said two sections. To appreciate the contention of the parties, it is necessary to  notice  the  relevant provisions of the  1946  Act,  the Order, the Ordinance and the Act. Essential Supplies (Temporary Powers) Act, 1946. S.   1  (3) : It shall cease to have effect on  the  twenty- sixth  day of January, 1955, except as respects things  done or omitted to be done before that date, and section 6 of the General Clauses Act, 1897 (X of 1897), shall apply upon  the expiry  of  this Act as if it had then been  repealed  by  a Central Act. S.   3 (1): The Central Government, so far as it appears  to it   to  be  necessary  or  expedient  for  maintaining   or increasing  supplies  of  any essential  commodity,  or  for securing  their equitable distribution and  availability  at fair  prices,  may  by  order  provide  for  regulating   or prohibiting the production, supply and distribution  thereof and trade and commerce therein. Cotton Textiles (Control of Movement) Order, 1948. S.   3: No person shall transport or cause to be transported by rail, road, air, sea or inland navigation any cloth, yarn or apparel except under and in accordance with- (i)  a  general permit notified in the Gazette of  India  by the Textile Commissioner; or (ii) a  special  transport  permit  issued  by  the  Textile Commissioner. The Essential Commodities Ordinance, 1955. Preamble: "   Whereas  the  Essential  Supplies   (Temporary Powers)  Act, 1946 (XXIV of 1946), which confers  powers  to control the production, 730 supply  and  distribution  of, and trade  and  commerce  in, certain  commodities,  expires on the 26th day  of  January, 1955;.............................................       the President in pleased to promulgate the following Ordinance:" S.   16:  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  in  force,  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

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granted or direction issued under this Ordinance. This  Ordinance  was published in the Gazette  of  India  on January 21, 1955, and came into force on January 26, 1955. The Essential Commodities Act, 1955. S.   3 (1): If the Central Government is of opinion that  it is  necessary  or  expedient so to  do  for  maintaining  or increasing  supplies  of  any  essential  commodity  or  for securing  their equitable distribution and  availability  at fair  prices,  it may, by order provide  for  regulating  or prohibiting the production, supply and distribution  thereof and trade and commerce therein. S.   7  (1): If any person contravenes any order made  under section 3- (a)  he shall be punishable- (i)  in  the case of an order made with reference to  clause (h)  or clause (i) of sub-section (2) of that section,  with imprisonment  for  a term which may extend to one  year  and shall also be liable to fine, and (ii) in the case of any other order, with imprisonment for a term  which  may  extend to three years and  shall  also  be liable to fine: 731 Provided that if the Court is of opinion that a sentence  of fine only will meet the ends of justice, it may, for reasons to  be  recorded,  refrain  from  imposing  a  sentence   of imprisonment;...... S.   16 (1): The following laws are hereby repealed :- (a)  the Essential Commodities Ordinance, 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  authorizes  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  and  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. (3): 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. The  said provisions may be briefly summarized  thus:  Under the  Act  of 1946, the Central Government had the  power  to make an order for regulating or prohibiting the  production, supply and distribution of essential commodities.  That  Act itself  provided  that  it would cease  to  have  effect  on January 26, 1955.  In exercise of the powers conferred under s. 3 of the said Act, the Central Government made the Cotton Textile  (Control of Movement) Order, 1948, prohibiting  any person 732 from transporting cloth, among others, without the permit of the  Textile  Commissioner.  Before the Act ceased  to  have effect,  i.e.,  on  January  26,  1955,  the  Ordinance  was promulgated  on January 21, 1955, conferring on the  Central Government  a power similar to that conferred upon it  under

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s. 3 of the 1946 Act.  The said Ordinance also provided  for saving  clauses in respect of certain things done under  the 1946 Act.  On April 1, 1955, the Act was passed  practically reenacting  the  same  provisions  of  the  Ordinance,   and thereunder   the  same  power  exercised  by   the   Central Government  under  s.  3 of the 1946 Act and  s.  3  of  the Ordinance was preserved.  The Act also provided for  repeals and  savings.  The question, therefore, is whether,  on  the date of commission of the offence, the Order whereunder  the prosecution was launched was subsisting or whether it ceased to exist.  It is common case that an Order made under an Act ceases to have any legal force after the expiry of the  term for  which  the Act is made.  But it is contended  that  the Order  survived the expiry of the 1946 Act by reason of  the saving  clauses  provided  by the  Ordinance  and  the  Act. Ordinarily,  the  Order should have expired on  January  26, 1955.   Unless  it was saved by s. 16 of the  Ordinance  the saving clause of the Act could not operate on it.  We shall, therefore,  consider  the  question from  two  aspects:  (i) whether  s. 16 of the Ordinance saved the operation  of  the Order; and (ii) if it saved it, whether  s.  16(2)  of   the Act gave it a further lease of life. Section  16  of the Ordinance is in two  parts.   Under  the first part,, "any order made or deemed to be made under  the Essential  Supplies  (Temporary Powers) Act,  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."  The  necessary  condition  for   the operation of this part of s. 16 is admittedly complied with. The Order made under s. 3 of the 1946 Act can be made  under s. 3 of the Ordinance; and, if so, by reason of the  express words  of the section, the Order must be deemed to  be  made under the Ordinance and continue to be in force 733 after its promulgation.  But it is said that the second part of  the  section  cuts  down  the  wide  amplitude  of   the phraseology used in the first part.  After stating that  the said  Order shall continue to be in force, the  second  part proceeds  to state " 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 ". If the Order  continues  in force, the argument proceeds, the second part of the section becomes otiose, for the appointment made, licence or  permit granted  or direction issued under the  Order  automatically continues  in force, and, therefore, there is  no  necessity for  enacting the second part of s. 16. The  anomaly  occurs even  if  the argument be accepted, for, in that  event  the first  part  becomes  unnecessary: The same  result  can  be achieved  by  enacting  only the second part of  s.  16  and omitting  the  first  part  altogether.   To  ascertain  the meaning of a section it is not permissible to omit any  part of  it:  the whole section should be read  together  and  an attempt  should be made to reconcile both the parts.   There is  no ambiguity in the provisions of the first part of  the section.   In  clear  and unambiguous terms  it  posits  the continuation  in  force  of the  Order  notwithstanding  the repeal  of  the Act ; thereafter, it proceeds  to  enumerate certain  past  acts  done  under the  Order,  and  in  force immediately  before  the commencement of the  Ordinance  and says that they will continue in force in consequence of  the continuance  of the Order.  The word " accordingly ",  which

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means consequently, indicates that the enumerated acts  will not  continue in force but for the continuance of the  Order itself: they depend upon the continuation of the Order.   It is  said that this interpretation imputes tautology  to  the legislature,  and,  therefore, should not  be  accepted.   A scrutiny  of the section shows that the second part  is  not really  redundant, as at the first blush it appears  to  be. Under  s. 16 of the Ordinance, the Order made under the  Act of 1946 continues to be 93 734 in force till another Order is made under the Ordinance.  It covers  two  periods: (i) the period up to the date  of  the commencement   of  the  Ordinance;  and  (ii)   the   period thereafter.   The first part gives life to that Order,  and, therefore, the acts authorised under that Order can be  done subsequent to the coming into force of the Ordinance.  But a question may be raised whether the past acts done under that Order are saved by the continuance of the Order, or  whether the  acts  already done are covered by the  words  that  the "Order shall continue in force ". The second part appears to have   been  enacted  for  the  purpose  of  avoiding   this difficulty or, at any rate, to dispel the ambiguity.   Under the  section  both the Order and the  acts  previously  done under the Order are saved.  If so, it follows that the Order was saved and the prosecution authorized by the Order  could legitimately  be  launched  after the  Ordinance  came  into force. Even  so, it is contended that the Order saved by s.  16  of the Ordinance fell with the repeal of that Ordinance and was not  continued under the Act.  This argument is  based  upon the provisions of s. 16(1) and (2) of  the Act.  Section  16 has three sub-sections.  For  the  present  argument we  are concerned only with sub- ss.  (1)  and (2) of s.  16.   Sub- section (2) is a repetition of s.  16 of the Ordinance.  But it  is said that s. 16(1)(b) of the Act indicates  that  the Order was not saved under that section.  Under s.  16(1)(a), the Essential Commodities Ordinance, 1955, is repealed,  and under  s.  16(1)(b)  "any other law in force  in  any  State immediately before the commencement of this Act in so far as such   law  controls  or  authorizes  the  control  of   the production,  supply  and  distribution  of,  and  trade  and commerce  in,  any essential commodity " is  also  repealed. The argument is that the Order is comprehended by the  words "  any other law " in cl. (b) of s., 16(1), and,  therefore, when that Order is repealed under cl. (b) of s. 16(1), it is unreasonable to hold that it is restored under sub-s. (2) of s.  16.   To put it in other words, an intention  cannot  be imputed to the legislature to repeal an order under one sub- section  and restore it by another sub-section.  If  we  may say 735 so, there is a fallacy underlying this argument.  The  words " any other law " in s. 16(1)(b) can only mean any law other than the Essential Commodities Ordinance, 1955, mentioned in s. 16(1)(a).  It is admitted that there are laws other  than the  said Ordinance in force in many States controlling  the production,    supply   and   distribution   of    essential commodities.   An order made or deemed to be made under  the Commodities  Ordinance, 1955, cannot be described as  a  law other than Essential Commodities Ordinance whereunder it  is made.  Such an order is comprehended by cl. (a) of s.  16(1) itself,  and, therefore, cl. (b) thereof has no  application to it.  In this view, ’an interpretation different from that we have put on the provisions of s.     16 of the  Ordinance

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cannot be given to sub-s. (2) of s.     16 of the Act.   For the reasons we have given in interpreting the provisions  of s. 16 of the Ordinance, we hold that under s. 16(2) both the order  and  the  acts enumerated in the second  part  of  it survived the expiry of the Ordinance and continued in  force under  the  Act.  For the above reasons, we  hold  that  the prosecution  was validly launched against the accused  under s. 3 of the Order. Even  so, the learned Counsel for the  respondents  contends that it is not a fit case for this Court to interfere  under Art.  136 of the Constitution.  The offence was  alleged  to have been committed on August 30, 1955, i.e., more than four years  ago.   The  varying views  expressed  by  the  Courts indicate  that  there  was  a  plausible  justification  for reasonable belief on the part of the accused that the  Order did not survive the expiry of the life of the 1946 Act.  The order  of  the High Court dismissing  the  ’application  for leave to appeal to the Supreme Court shows that it was filed in  contravention  of the provisions of r. 28 of  the  Patna High  Court  Rules.  Under the said  Rules  the  application should  have been filed immediately after the  judgment  was delivered.   In  the  affidavit filed  in  support  of  that application the only reason given for not doing so was  that the appellant did not give the necessary instructions.   The learned Judge of the High  Court rightly did not accept that reason as a sufficient 736 ground for permitting the application to be filed at a later stage.   In the application for special leave filed in  this Court,  though it was stated that the application  filed  in the High Court for certificate was rejected, the reason  for the  rejection  was  not  disclosed.   Further,  the  State, presumably,  filed  this appeal to get  the  legal  position clarified.   We also believe that public interest  does  not require  that the stale matter should be  resuscitated.   In the circumstances, we would be justified not to exercise our discretionary  jurisdiction, and we accordingly dismiss  the appeal. Appeal dismissed.