Syed Mustafa Mohamed Ghouse v. State of Mysore — 1962 DIGILAW 137 (KAR)

ORDER These two revision petitions have been, filed by the accused who were charge-sheeted under S. 7 of the Essential Commodities Act in Criminal Cases No. 255 of 1960 and No. 253 of 1960 respectively, on the file of the Judicial Magistrate, First Class Chikodi, for contravention on 9-10-1959 of the Sugar (Movement Control) Order, 1959, dated 27th July 1959 by Importing sugar from Karad in the State of Maharashtra to Nipani in the State of Mysore. The charge-sheets were filed on 5-3-1960. The petitioners contended that the said order having been repealed by a subsequent order dated 6th November 1959, their prosecution under the provisions of a repealed order was untenable in law. The learned Magistrate Upheld this contention and discharged the petitioners in both the cases, under Section 251-A (2) of the Code of Criminal Procedure. The State of Mysore challenged the validity of this order of the learned Magistrate before the Sessions Judge Belgaum. The 1st Addl. Sessions Judge who heard the petitions, came to the conclusion that the liability of the petitioners for prosecution under the order of July 1959 had not been destroyed by the later order, set aside the orders of discharge in both the cases and directed the Magistrate to proceed with the cases. It is the validity of these orders of the learned Additional Sessions Judge that is being questioned in these two revision petitions. 2. It was contended on behalf of the petitioners that the Sugar (Movement Control) order dated 27th July 1959 was unconstitutional as it was in contravention of Art.301 of the Constitution of India, that even if it was held to be constitutional, its repeal by the subsequent order dated 6th November 1959 did not save the liabilities under the repealed order as Section 6 of the General Clauses Act was inapplicable to such cases and that the circumstances of the case were such that it was inexpedient to remand the cases for trial on merits. 3. Before investigating into the question of the constitutional validity of the disputed order, it is essential to refer to the relevant provisions of the Essential Commodities Act, 1955, and of the two orders that fall to be considered in these revision petitions. 3. Before investigating into the question of the constitutional validity of the disputed order, it is essential to refer to the relevant provisions of the Essential Commodities Act, 1955, and of the two orders that fall to be considered in these revision petitions. The two Sugar (Movement Control) Orders in question were issued by the Government of India in the Ministry of Food and Agriculture, in exercise of the powers conferred by S. 3 of the Essential Commodities Act, 1955, as in force in India. That Section empowers the Central Government to regulate or prohibit, to refer only to the relevant portions of the Section, the supply and distribution of any essential commodity or trade or commerce therein for securing equitable distribution, if in its opinion it is necsssary or expedient to do so for maintaining or increasing supplies of any such commodity. What the exact scope of such an order should be has been defined in the different clauses of sub-section (2) of that Section. Clause (d) of sub-sec. (2) which is relevant to the subject matter of the orders in question, lays down that such an order may provide 'for regulating by licences, permit or otherwise the storage, transport, distribution, disposal, x x x x x of any essential commodity". The Act itself was enacted by the Parliament for the control of production, supply and distribution of certain commodities and trade and commerce therein, in the interest of general public. The constitutional validity of this enactment has not been challenged and we have, therefore, to see whether the order issued in exercise of the power under S. 3 is consistent with the provisions of this enactment and their relevant provisions of the Constitution. It is obvious from the provisions of the Act referred to above, that the Central Government is competent to regulate the transport and distribution of any essential commodity by licenses or permits. The petitioners have been charge-sheeted for importing sugar within the State of Mysore without any permit from Karad which is in the State of Maharashtra. The provisions restricting the import are contained in clause 4 of the Sugar (Movement Control) Order, 1959, dated 27th July 1959 and read as follows : "4 Restrictions on import of sugar. The petitioners have been charge-sheeted for importing sugar within the State of Mysore without any permit from Karad which is in the State of Maharashtra. The provisions restricting the import are contained in clause 4 of the Sugar (Movement Control) Order, 1959, dated 27th July 1959 and read as follows : "4 Restrictions on import of sugar. No person shall import or attempt to import or abet the import of sugar except : (i) under and in accordance with a permit issued by the Chief Director, or a Director or a Deputy Director, in the Directorate of Sugar and Vanaspati, Ministry of Food and Agriculture, or by any other Officer of the Central or the State Government empowered by the Central Government in this behalf; or (ii) under the authority of a direction issued under clause 6A of the Sugar (Control) Order, 1955, directing a producer to supply sugar to a person or organisation carrying on business, or an officer of Government with headquarters, at a place outside the State in which the factory is situated." Clause 5 is a saving clause which exempts export or import of sugar by a bona fide traveller as a part of his luggage to the extent 'not exceeding one seer in weight in the aggregate' or on account of Central Government, or under and in accordance with Military Credit Notes. The provisions, obviously, do not impose absolute restriction. Import is, however, permitted into a State from any place outside the other State, if the person importing has obtained a permit from any one of the authorities empowered by the Central Government in that behalf. It is also necessary to note that the order does not prohibit or regulate trade or commerce in that commodity within the limits of the State. 4. We have, therefore, to see whether these provisions which permit import only under a licence, contravene Art. 301 of the Constitution as contended by Sri. Krishnamurthy for the petitioners. Article 301 lays down that : "Subject to the other provisions of this Part, trade, commerce and intercourse throughout the territory of India shall be free." So, the freedom of trade, commerce and intercourse declared by this Article is to ensure the unity of India so as not to affect it by internal barriers for the purpose of commerce and trade. Article 302 provides that : "Parliament may by law impose such restrictions on the freedom of trade, commerce or intercourse between one State and another or within any part of the territory of India as may be required in the public interest." It is, therefore, competent for the Parliament to impose restrictions on the freedom of trade, commerce or intercourse by an enactment if such restrictions are in public interest. Art.19(g) of the Constitution which guarantees to all citizens the right to carry on any trade or business, also permits imposition of restrictions as defined in clause (6) of that Article. The relevant portion of clause (6) provides that nothing in sub-clause (g) of the said Clause shall prevent the State from making any law imposing, in the interest of general public, reasonable restrictions on the exercise of the rights conferred by the said sub-clause. These provisions of the Constitution while affirming that every citizen shall have the right to carry on any trade, business, or commerce, empowers the State to impose restrictions which are (1) in the interest of the general public and (2) are reasonable. So, before an enactment or an order issued by the Central or the State Government can be successfully attacked as infringing the freedom of trade guaranteed to a citizen by the Constitution, it must be shown that the restriction is not in public interest and is unreasonable. Reference has already been made to the provisions of Sec. 3 (2) (d) of the Essential Commodities Act, 1955, by which the Central Government has been empowered to regulate by licences, permits or otherwise the transport or distribution or disposal of any essential commodity. The import of sugar is not absolutely prohibited; it only requires a person importing sugar, to possess a licence. "The concept of freedom of trade, commerce and intercourse postulated by Art. 301 must be understood in the context of an orderly society and as a part of the Constitution which envisages a distribution of powers between the States and the Union and if so understood, the concept must recognise the need and legitimacy of some degree of regulatory control, whether by the Union or the States, x x x x x x x. That which in reality facilitates trade and commerce is not a restriction, and that which in reality hampers or burdens trade and commerce is a restriction. It is the reality or the substance of the matter that has to be determined" (Automobile Transport (Rajasthan) Ltd. v. State of Rajasthan, AIR 1962 SC 1406 ). 5. Mr. V. Krishnamurthi for the petitioners has relied upon the decisions in Atiabari Tea Co. Ltd. v. State of Assam, AIR 1961 SC 232 and Haji Usman Haji Mohammad v. State, AIR 1958 Madh Pra 33. The decision of the Supreme Court has no bearing on the point at issue, since the point for consideration before their Lordships was whether and when a Taxation Law will amount to a restriction on the freedom of trade. The decision in Haji Usman case does not, however, help the petitioners. The petitioners before their Lordships had been convicted for contravening the provisions of Notification No. 7 of 1948 dated 14-8-1948 prohibiting the export of certain commodities including oil seeds and groundnut seed oil. The grievance of the petitioner was that the restrictions imposed by the Notification was unreasonable. In rejecting this contention, their Lordships observed : "In the present case, it is significant to note that there is no general prohibition on export of commodities, but the prohibition is confined to cattle and certain commodities, The petitioner is free to deal in all other commodities and to carry on business of import and export in all of them. He is also free to deal in oil in the territories of Madhya Bharat and to import oil in any quantity he likes and to dispose it of within the State. x x x". "Edible oils were at the material time treated as foodstuff and were listed as essential commodities under the provisions of S. 2 of the Essential Supplies (Temporary Powers) Act, 1946. The State therefore had the right not only to restrict but even to prohibit transactions in oils (See Madhya Bharat Cotton Association Ltd. v. Union of India, AIR 1954 SC 634 )". In arriving at this conclusion, their Lordships referred to the decision of the Supreme Court in AIR 1954 SC 634 . In the present case, the only commodity on which restriction for import is placed is sugar. The import also is not absolutely prohibited. A trader can import, if he obtains a permit. It is not the case of the petitioners that the discretion vested in the authorities issuing the permits was either arbitrary or absolute. In the present case, the only commodity on which restriction for import is placed is sugar. The import also is not absolutely prohibited. A trader can import, if he obtains a permit. It is not the case of the petitioners that the discretion vested in the authorities issuing the permits was either arbitrary or absolute. Their freedom to deal with the commodity within the State is not in any way affected. It is therefore difficult to see how a restriction on import by requiring a person importing sugar from another State to obtain a permit could be held to be unreasonable. The sole object of that order is to regulate the distribution of sugar in the entire country. The provisions of the order also indicate that scarcity in that commodity should not be created by traders in the different States either by unrestricted export or import. 6. The learned Government Pleader relied upon the decision of the Supreme Court in Narendra Kumar v. Union of India, AIR 1960 SC 430 in which the validity of the 'Non-ferrous Metal Control. Order, 1958' was challenged on the ground that it contravened the provisions of Art. 19 of the Constitution as imposing unreasonable restrictions on the petitioners who were dealers in imported copper. The order provided for control of prices and laid down that 'no person shall sell or offer ,to sell any non-ferrous metal at a price which exceeds the amount represented by an addition of 3¼ per cent to its landed cost'. In dealing with the provisions of Art. 19(1) of the Constitution, their Lordships were of the view that the framers of the Constitution intended the word 'restriction' to include cases of 'prohibition' also. The contention that a law prohibiting the exercise of a fundamental right is in no case saved, cannot therefore be accepted. Their Lordships further laid down "In applying the test of reasonableness, the Court has to consider the question in the background of the facts and circumstances under which the order was made, taking into account the nature of the evil that was sought to be remedied by such law, and the ratio of the harm caused to individual citizens by the proposed remedy, to the beneficial effect reasonably expected to result to the general public. It will also be necessary to consider in that connection whether the restraint caused by the law is more than was necessary in the interests of the general public." If the restriction of permit for import or export of sugar imposed by this order is considered in the background of scarcity of sugar during that period, it cannot be said that the provisions of the order were either not in public interest or were unreasonable. I have, therefore, no hesitation in rejecting this contention, of the petitioners. 7. It was further contended for the petitioners that the prosecutions initiated against them would not survive as the order in question had been repealed by Order dated 6-11-1959. It was also urged that as the order was a temporary legislation, its repeal would put an end to all the prosecutions even pending at the date of repeal. The characteristics of a temporary legislation have been dealt with at pages 376 and 377 of 'Craies on Statute Law (1952 Edition)'. The prominent characteristic of such legislation, as observed by Parker, J. in Bowles v. Attorney General, 1912-1 Ch 123, is that it is always 'so drawn as to expire automatically at the end of the period' prescribed in the Act itself. Sometimes, a temporary Act continues to the next session of the next Parliament. "As a general rule, and unless it contains some special provision to the contrary, after a temporary Act has expired no proceedings can be taken upon it, and it ceases to have any further effect. Therefore, offences committed against temporary Acts must be prosecuted and punished before the Act expires, and as soon as the Act expires any proceedings which are being taken against a person will Ipso Facto terminate." 8. The order in dispute cannot be called a temporary law, because, its provisions do not prescribe any date by which it was to expire. There is no indication in the various clauses of this Order that it was intended to lapse automatically. The order in dispute cannot be called a temporary law, because, its provisions do not prescribe any date by which it was to expire. There is no indication in the various clauses of this Order that it was intended to lapse automatically. Section 3(6) of the Essential Commodities Act, 1955 provides that "Every order made under this Section by the Central Government or by any officer or authority of the Central Government shall be laid before both Houses of Parliament, as soon as may be, after it is made." This provision is intended to give legislative sanctity to orders passed by Central Government or authority of Central Government under the provisions of this Act. It cannot be disputed that an order or rule made by virtue of the power conferred on such authority has to be considered as an integral part of such enactment. Therefore, since neither the Essential Commodities Act nor the provisions of the order prescribed any date for expiry, it cannot be said that the provisions of the Order were temporary in character and that the rights and liabilities incurred under such an order would automatically lapse with the repeal of that Order. It is necessary to note that the Sugar (Movement Control) Order, 1959 dated 6th November 1959, was passed in supersession of the Order issued by the Government of India in the Ministry of Food and Agriculture No. G. S. R. 377/ Ess. Com., dated the 27th of July 1959. It appears that in law supersession has not the same effect as repeal. In dealing with the distinction between 'supersession' and 'repeal', Koul, J. observed in Nand Kishore v. Emperor, AIR 1945 Oudh 214 as follows : "While 'repeal' means to revoke by authority, to abrogate, to recall or dismiss; 'supersede' applies to cases where the place of an order or Act is taken by another or when it is replaced by another Order or Act. It is true that as stated by Tindal, C. J. the effect of repealing a statute is to obliterate it as completely from the records of the Parliament as if it had never been passed; and it must be considered as a law that never existed except for the purpose of those actions which were commenced, prosecuted and concluded whilst it was an existing law. X X X". X X X". So, according to the view taken in this decision, proceedings in respect of a breach of a superseded order can be commenced when the Government has effected the purpose of the superseded order by another order. In that case, the accused had been convicted for contravention of Cl. 19 of Cotton Cloth and Yarn (Control) Order, 1943 dated 26th August 1943. This order was superseded by another order dated 31-12-1943. It was contended that the prosecution of the petitioner in respect of an offence committed under the Order dated 26th August 1943, subsequent to the issue of the order dated 31-12-1943, was illegal. The Court rejected this contention and came to the conclusion that there was nothing in law which would justify the contention that after the supersession of the Order of August 1943, no proceedings in respect of its breach could be commenced. This decision is on all fours with the facts of the present case. 9. Mr. Krishnamurthi for the petitioners contended that as the Order dated 6th November, 1959, dealt only with the export of sugar, it should be held that all the provisions relating to import of sugar and restriction thereon had been abrogated and the rights and liabilities accrued or incurred under the repealed Order should be deemed to have come to an end. He drew my attention to the decision of the Supreme Court in Shamrao v. Parulekar, District Magistrate, Thana, Bombay, AIR 1952 SC 324 in which their Lordships had to deal with the effect of an Act amending the Preventive Detention Act. The petitioner was arrested on 15th November, 1951 and an order of detention under the Preventive Detention Act, 1950, was served on him the same day. He was given the grounds of detention on the following day and his case was placed before an Advisory Board. On 8th February, 1952 the Bombay Government confirmed and continued the detention under Section 11(1) of the Preventive Detention Act, 1950. That Act was due to expire on 1st April 1951; But an amending Act was passed prolonging its life upto 1st of April 1952. A fresh Act was passed in 1952, the effect of which was to prolong the life of Act of 1950 till 1st October, 1952. That Act was due to expire on 1st April 1951; But an amending Act was passed prolonging its life upto 1st of April 1952. A fresh Act was passed in 1952, the effect of which was to prolong the life of Act of 1950 till 1st October, 1952. The question raised before their Lordships was whether the Act of 1952 also prolonged the detention and whether the Act was intra vires. It was contended before their Lordships that the mere prolongation of the life of the Act did not prolong the life of detention which was due to expire when the Act under which it was made expired. Their Lordships rejected the contentions and held that the Act was intra vires and that the life of the detention of the petitioner also became extended by the amending Act. The decision in Brihan Maharashtra Sugar Syndicate, Ltd. v. Janardan Ramchandra, AIR 1960 SC 794 dealt with the effect of Section 658 of the Companies Act, 1956, on the rights created by Section 153-C of the Act of 1913. Their Lordships held that there was nothing in either S. 658 or 647 of the Act which indicated that S. 6 of the General Clauses Act did not apply to the repeal and that as the provisions of Section 153-C had been substantially re-enacted in 1956, the enactment indicated no intention to destroy the rights created under the repealed enactment. Reliance was placed on the decision In re E. T. Palaniappa Chettiar and Co., AIR 1957 Mad 660 where the Court had to deal with the effect of prosecution instituted for contravention of the provisions of the Cotton Control Order, 1950. That Order ceased to have operation by efflux of time on 26-1-1955. Their Lordships, therefore, held that when a Statute comes to an end by efflux of time, no prosecution for an act done during the continuance of the expired Act can be commenced after the date of such Act. I have already indicated that the Order in question had not expired, when the new order came to be passed on 6-11-1959. 10. The contention that the Order dated 6th November, 1959 did not intend to keep alive the rights and liabilities under the superseded Order dated 27th July 1959, does not seem to have much force. I have already indicated that the Order in question had not expired, when the new order came to be passed on 6-11-1959. 10. The contention that the Order dated 6th November, 1959 did not intend to keep alive the rights and liabilities under the superseded Order dated 27th July 1959, does not seem to have much force. The subsequent Order of November, 1959 imposed restrictions on the export of sugar and provided that export from a place in that State to a place outside that State without a permit would amount to an offence. The terms 'import' and 'export' are only relative and when these terms are used with reference to different States within a country they lose all sense of distinction since export from a place within one State to a place outside that State would, in relation to the latter State, amount to import in that State. It, therefore, appears to me that the Order of November, 1959 thought it unnecessary to make a separate provision imposing restrictions on import, as the provisions contained in that Order were sufficient to regulate the transport of sugar from one State to another, whether by way of import or export. In this view of the matter, there does not appear to be much substance in the contention that the earlier order of July, 1959 was wholly repealed. In fact, the new Order of November, 1959 is comprehensive enough to cover all the provisions that were contained in the earlier Order of July 1959. This is, therefore, not a case of repeal but merely of supersession by an Order which, in substance, incorporated all the provisions of the superseded Order. 11. Even if it were to be held that this was a case of repeal, the provisions of S. 6 of the General Clauses Act would apply and all rights and liabilities would be saved unless there is a contrary intention disclosed by the new Act. Section 6 of the General Clauses Act provides that unless a different intention appears, the repeal shall not affect the previous operation of any enactment so repealed or any right, privilege, obligation or liability acquired, accrued or incurred under the enactment so repealed. In order to ascertain whether the rights and liabilities under the repealed enactment have been saved and continued or not, it is necessary to determine whether the repealing enactment discloses a different intention. In order to ascertain whether the rights and liabilities under the repealed enactment have been saved and continued or not, it is necessary to determine whether the repealing enactment discloses a different intention. As was observed by their Lordships of the Supreme Court in State of Punjab v. Mohar Singh, (S) AIR 1955 SC 84 : "...when the repeal is followed by fresh legislation on the same subject we 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 enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities, but whether it manifests an intention to destroy them. We cannot therefore 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 a fresh legislation. Section 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. XXX". In the present case, there is no incompatibility. As I have discussed above, the subsequent Order of November, 1959 is comprehensive enough to cover all cases of export and import as were provided for in the earlier Order of July, 1959. The learned Government Pleader has drawn my attention to a decision of the Supreme Court in State of Orissa v. Bhupendra Kumar, AIR 1962 SC 945 where their Lordships dealt with the applicability of S. 6 of the General Clauses Act to a temporary Statute. They observed : ".....the general rule about the effect of the expiration of a temporary Act is not inflexible and admits of exceptions. What the effect of the expiration of a temporary Act would be must depend upon the nature of the right or obligation resulting from the provisions of the temporary Act and upon their character whether the said right and liability are enduring or not. Therefore, in considering the effect of the expiration of a temporary statute, it would be unsafe to lay down any inflexible rule". Therefore, in considering the effect of the expiration of a temporary statute, it would be unsafe to lay down any inflexible rule". Considering the contents of the Order dated November, 1959 and the relevant authorities cited for the petitioners as also for the State, I have absolutely no doubt in holding that there is nothing in the later Order to put an end to the rights and liabilities accrued or incurred under the Order of July, 1959 and that the prosecutions launched against the petitioners can be validly continued before a competent Court. 12. Lastly, it was submitted for the petitioners that it was not expedient to continue the trial as the Orders had lost all their importance in the changed circumstances. In my opinion, the delay is all to be attributed to the petitioners who have been raising a technical contention which was rejected by the Sessions Court and has been found to be wholly unfounded by this Court. In Stephens v. Nosibolla, AIR 1951 SC 196 their Lordships disapproved a direction for the re-trial of a man for the third time for offences which had not been made out prima facie against him. In the present case there is no question of re-trial. The Magistrate of the lower Court had wrongly discharged the petitioners on an erroneous conception of the legal position. I, therefore, see no justification in interfering with the orders passed by the Sessions Judge. The petitions are accordingly dismissed. Petitions dismissed.