Mukundalal Agarwalla v. C. C. S — 1968 DIGILAW 136 (CAL)

JUDGMENT 1. THESE 12 Petitions under article 226 of the Constitution involve common questions as to the applicability of the Sugar (Control) Orders issued under the Essential commodities Act, 1955. 2. THE Petitioners are self consignees for certain bags of "khandsari" sugar despatched from various stations in Uttar Pradesh to the How rah Station by the Eastern Railway. The Railway (Respondents 1-3, 8 have refused to deliver the bags to the petitioners under advice of respondent No. 7, which is at Ann. X to the counter affidavit, dated 5.7.66. Respondent No. 7 the Central Bureau of investigation, has also launched prosecution against the Petitioners before the Sub-Divisional Magistrate, Howrah (Respondent No. 4), and some of the petitioners have also been arrested. The Petitioners' case is that the order withholding delivery as well as the criminal proceedings are all without jurisdiction. 3. AFFIDAVITS in opposition have been filed by (a) the Railway respondents 1-3 and 8 and (b) the superintendent of Police, Central Bureau of investigation, Respondent No. 7. 4. FROM the counter-affidavit of. Respondent No. 7 and the F. I. R. submitted on his behalf, it appears that the withholding of delivery as well as: the prosecution have been ordered for violation of the provisions of the West; bengal Sugar Dealers Licensing Order, 1963, (hereinafter referred to as the west Bengal Order) read with s. 7 (1) (a) (ii) of the Essential commodities Act, 1955. The controversy at the hearing arises on the question whether the West Bengal Order stands repealed by clause 17 of the Sugar (Control) Order, 1966, issued by the central Government on 10.6.66. Sugar is admittedly a commodity to which the Essential commodities Act, 1955 applies. By S. 3 of this act, power was given to the Central government to make Orders to regulate the production, supply and distribution of and trade and commerce in the commodities to which the Act applies. S. 5 of the Act empowered the Central Government to delegate its power to make an Order under S. 5 to the State Government or any authority to the State Government, subject to such conditions as may be specified in that order of delegation. 5. BY G. S. R. 888 of 28.6.61, the central Government delegated its power to make orders under S. 3 (1), in respect of matters specified in cls. 5. BY G. S. R. 888 of 28.6.61, the central Government delegated its power to make orders under S. 3 (1), in respect of matters specified in cls. (a), (b), (d), (e), (f) (h) (i) - (ii) and (j) of sub-section (2) of that section, to the State Government, with the prior concurrence of the central Government. In exercise of the aforesaid delegation and with the concurrence of the Central government, the State of West Bengal promulgated the West Bengal Sugar dealers Licensing Order, 1963. No question has been raised as to the validity of this West Bengal Order, when made. 6. CLAUSE 13 of the West Bengal order provides that no person shall carry on business as a 'dealer' in 'sugar' except under and in accordance with the terms and conditions of a licence issued by the Licensing Authority under this Order. By clause 9 of this Order, the Licensing Authority is given certain powers to prevent a contravention of the Order, and sub-clause (e) of the clause gives him the power to "search, seize and remove stocks of sugar with the packages, coverings and receptacles containing such sugar" and section 102-3 of the Criminal Procedure shall apply to such search and seizure. By an Amendment of the foregoing Order by ESS 534 of 31.1.64, it was provided that separate licences should be obtained for khandsari sugar and sugar other than khandsari. Now, the Central Government itself has exercised its power under section 3 of the Essential Commodities Act, in respect of sugar. The initial Order was in 1955, called the Sugar (Control)Order, 1955, with which we are not concerned. That Order was repealed and replaced by the Sugar (Control)Order of 1966 (hereinafter referred to as the Order of 1966), which extends to the whole of India, excepting jammu and Kashmir. 7. THE Order of 1966 has various provisions regulating the production, sale, movement, supply and fixing of the price of sugar and powers for search and seizure have been conferred on the Chief Director (referred to in clause 2 (a) of the Order) or any officer empowered by the Central government, which may be said to correspond to the powers conferred by clause 9 of the West Bengal Order to which I have referred to earlier. The relevant provisions of the Order of 1966 are as follows : clause 2 (d) defines a "recognised dealer" as meaning-"a person carrying on the business of purchasing, selling or distribution of sugar, and licensed under the Order relating to licensing of sugar dealers for the time being in force in a State. . . . " clause 5 says- "the Central government or the Chief Director' may, from time to time, by general or special order, issue to any producer or recognised dealer. . . . such directions regarding the production, maintenance of stocks, storage, sale, grading, packing, marking, weighment, disposal, delivery and distribution of sugar as it or he may deem fit. " Clause 6 provides- "power to regulate movement of sugar-The Central government or the Chief Director may, by general or special order, direct that no person shall transport or offer or accept for transport whether by road, rail or water all or any specified type of grade of sugar, except under- (a) a general or special permit issued in this behalf. . . . " Clause 17 then provides-"repeal and Saving- (1) The Sugar (Control)Order, 1955 and any order made by the central Government or a State government or any authority regulating or prohibiting the production, supply and distribution of sugar and trade or commerce therein are hereby repealed except as respects things done or omitted to be done under any such order before the commencement of this order. (2) Notwithstanding such repeal, an order made by any authority, which is in force immediately before the commencement of this Order and which is consistent with this Order, shall continue in force and all appointments made, prices fixed, licences and permits granted, and directions issued under any such order and in force immediately before such commencement shall likewise continue in force and be deemed to be made, fixed, granted or issued in pursuance of this order". 8. I. It is argued on behalf of the petitioners that if the West Bengal order falls within the terms of clause 17 (1) of the Order of 1966, just reproduced, it would stand repealed, even though the West Bengal Order is not specifically mentioned, since clause 17 (1) repeals "any order of a State government" existing at the date of the Order of 1966, provided only the state Order answers the description given in clause 17 (1). The question, therefore, is whether the West Bengal Order is an order "regulating or prohibiting the production, supply and distribution of sugar and trade or commerce therein". There is no doubt that the West Bengal order is an order regulating "trade or commerce in sugar", because it provides clause 3 (1) that "no person shall carry on business as a dealer except under and in accordance with the terms and conditions of a license issued" under the succeeding provisions of the Order. Parties being agreed on the point that the khandsari sugar in question is covered by the definition of 'sugar' under both the West Bengal order of 1963 and the Central Order of 1966, because it contains more than 90 per cent of sucrose (vide para 24 of counter-affidavit). It would follow, prima facie, that the West Bengal order would come under clause 17 (1) of the Central Order. 9. BUT it has been rightly argued on behalf of the Respondents that the provision in clause 17 (1) of the Order of 1966 cannot be read dissociated from the rest of the provisions of that Order. I have no doubt that it is the defective drafting of clause 17 that has encouraged the Petitioner to bring the instant proceeding and that its text should be improved ere long by the competent authorities. Nevertheless, whether the central Government, in the exercise of its statutory power to make the Order, intended to repeal the West Bengal order in question, has to be ascertained from the provisions of the Order of 1966, read as a whole. One of the primary canons of interpretation is that all the provisions of a statute or instrument should be read together so as to make it a 'consistent enactment" (1) Canada Sugar Refining Co. v. R., (1898) A. C. 735 (741), and that in case of an apparent conflict between different provisions of the same enactment, they should, be so interpreted that, if possible, effect may be given to both (2) Venkataramana v. State of mysore, AIR 1958 SC 255 (268 ). 10. THE learned Advocate for the respondents relies on the definition of a 'recognised dealer' in clause 2 (d) of the Order of 1966 and the use of this expression in the substantive provisions of the Order, such as clauses 5, 9, 10, 11, 12, 13, 14. 10. THE learned Advocate for the respondents relies on the definition of a 'recognised dealer' in clause 2 (d) of the Order of 1966 and the use of this expression in the substantive provisions of the Order, such as clauses 5, 9, 10, 11, 12, 13, 14. There is no doubt that the Order of 1966 assumes the existence of 'recognised dealers' even after the coming into force of the order of 1966; otherwise, it would not be possible for the prescribed authority to issue orders and directions upon the recognised dealers or to get them punished for non-compliance with such orders or directions. As pointed out earlier, a 'recognised dealer', as defined in clause 2 (d) of the Order of 1966, means a person carrying on the business of purchasing, selling or distributing sugar, and "licensed under an Order relating to licensing of sugar dealers for the time being in force in a State". Undoubtedly, the West Bengal Order is a State Order providing for the licensing of sugar dealers, and the continuance of its provisions is assumed by the foregoing provisions of the Central order. The only harmonious and reasonable construction that can, therefore, be made of clause 17 (1) is that it has repeated all State Orders relating to the regulation of trade and commerce in sugar excepting those which provide for the licensing of dealers in sugar. If the object of clause 17 (1) was to repeal all licensing orders, how could, there still remain in force (for the time being) any licensing Order in a State, as the definition in clause 2 (d) assumes ? 11. MR. Banerjee, on behalf of the petitioners drew my attention to sub-clause (2) to clause 17 and contended that that clause would save only action taken under the State Order prior to the coming into force of the order of 1966 and since in this case the seizure of the Petitioners' goods as well as the prosecution took place sub sequent to that date, both will fail for want of jurisdiction. But sub-clause (2) would apply only to action taken under those State Orders which are repealed by sub-clause (1) of Clause 17 (1). It only means that even though a State Order stands repealed by clause (1), action taken prior to the date of coming into force of the Order of 1966 would be saved. But sub-clause (2) would apply only to action taken under those State Orders which are repealed by sub-clause (1) of Clause 17 (1). It only means that even though a State Order stands repealed by clause (1), action taken prior to the date of coming into force of the Order of 1966 would be saved. Clause (2) cannot have any application to a State Order which has not been repealed by clause (1) at all. If, therefore, my conclusion that no State Order providing for the licensing of dealers in sugar was repealed by sub-clause (1) of clause 17 be correct, the present point raised by Mr. Banerjee must also be rejected. 12. IT would be absurd to suppose that while the West Bengal Licensing order would stand repealed by the order of 1966, so that those who entered into the business of sugar in west Bengal after 10.6.66 would be free to carry on the business without a licence and would be immune from any order or direction issued by the competent authority under the Order of 1966 because such a new entrant would not be a 'recognised dealer' within the purview of clause 2 (d),-but those who had obtained licence under the West Bengal Order prior to 61 10.6.66 would nevertheless be subject to all the directions and restrictions imposed upon recognised dealers by the order of 1966. Such a situation would, apart from anything else, be highly discriminatory and the restrictions imposed by the Order of 1966 would he unreasonable restrictions within the meaning of Article 19 (6) of the constitution. Such an imputation cannot be imputed to the Central government which made the Order and such a construction should be avoided. There is, therefore, no other alternative than to conclude that the west Bengal Licensing Order has not been repealed by the Order of 1966, and therefore, the seizure or the prosecution cannot be held to be without jurisdiction upon this primary ground. 13. II. The next point urged by Mr. Banerjee on behalf of the Petitioners is that the person who ordered the seizure of the goods and filed the First information Report was an Inspector of the central Bureau of Investigation, who had no jurisdiction to take action for any contravention of the West Bengal order. 14. 13. II. The next point urged by Mr. Banerjee on behalf of the Petitioners is that the person who ordered the seizure of the goods and filed the First information Report was an Inspector of the central Bureau of Investigation, who had no jurisdiction to take action for any contravention of the West Bengal order. 14. THE offence with which the petitioners have been charged is an offence under section 7 (1) of the Essential commodities Act, for violation of the provisions of the West Bengal licensing Order. Section 7 penalises any person who contravenes 'any' order issued under section 3 of that Act. It has been stated earlier that the State of West Bengal could make the licensting Order only in exercise of the power conferred by section 3, by delegation under section 5. Hence, the West bengal Order is also an order under section 3 of the Act, Now, section 3 of the Delhi Special Police Establishment act, 1946 empowered the Delhi Special police Establishment to investigate such offences as were specified by the central Government by notification. By the consent of the State government, under section 6 of that Act, the delhi Special Police may investigate into the aforesaid offences and to exercise their powers even within a State. By the order No. 1869-PI/21.4.6, the governor of West Bengal gavii his consent to the Delhi Special Police investigating the offences specified in the central Government notification No. 7/5/55-ADV 6-11-56. The latter notification of the Central Government includes an offence under section 7 of the Essential Commodities Act. Hence, respondent No. 7 who is a member of the Delhi Special Police Establishment has jurisdiction to proceed under section 7 of the Act. It was contended on behal3 of the Petitioner that only an officer authorised by the State Government under section 9 of the West Bengal order can exercise the power of search and seizure under that Order and that a list of persons so authorised as given in ESS. Com/31-1-62/158fs/ 9.1.63 does not include Respondent No. 7. But item (14) of the Notification no. ESS. Com 19-1-63, issued by the state of West Bengal under clause 9 of the West Bengal Order specifies "a police Officer not below the rank of assistant Inspector" as one of the officers who may exercise the powers under clause 9 of that Order. Com/31-1-62/158fs/ 9.1.63 does not include Respondent No. 7. But item (14) of the Notification no. ESS. Com 19-1-63, issued by the state of West Bengal under clause 9 of the West Bengal Order specifies "a police Officer not below the rank of assistant Inspector" as one of the officers who may exercise the powers under clause 9 of that Order. A member of the Delhi Special Police, when empowered to exercise his powers in a state, is to be deemed to be a "police officer" in that area of the State, by virtue of the provisions of section 5 (1) (2) of the Delhi Special Police establishment Act. Hence, by virtue of the notification of 9.1.63, made by the state Government itself, Respondent no. 7 has acquired jurisdiction to proceed under clause 9 of the West Bengal order. 15. IT was also contended that under GSR 921 of 10-66, issued under clause 11 of the Order of 1966, only the controller of Sugar, West Bengal and not Respondent 7 who is competent to act. But, as already stated, respondent No. 7 is not seeking to exercise his powers under the Order of 1966, but under the Essential Commodities Act, read with the West Bengal Licensing order. 16. FOR the same reason, omission of the State of West Bengal either to take steps against the Petitioner or to contest this proceeding does not matter. Respondent No. 7, I hold, has jurisdiction to make the impugned order at annexure 'x' and to initiate the prosecution by his report under section 11 of the Essential Commodities Act. Iii. Mr. Banerjee, on behalf of the petitioners, has then raised certain other points on the merits of the individual cases against the Petitioners, which it is for the Criminal Court and not for this Court to determine, in this proceeding under Article 226 : (a) Firstly: it has been urged that the West Bengal Order conies to operate only when the importer of sugar in West Bengal takes up the business of dealer in sugar in West Bengal, and not at the point of delivery. This involves questions of fact as to the activities of each of the Petitioners individually, with reference to the words "purchase, sale or storage for sale" in the definition of 'dealer' in clause 2 (a)of the West Bengal Order. This involves questions of fact as to the activities of each of the Petitioners individually, with reference to the words "purchase, sale or storage for sale" in the definition of 'dealer' in clause 2 (a)of the West Bengal Order. It would not be proper for this Court to go into these questions in the instant proceed (b) Similar is the alternative argument that there is absence of mens rea on the part of those of the Petitioners who have applied for licence under the west Bengal Order, but have not received the same owing to the latches of the officers of the State. (c) Similarly, it has been argued that even if the importer disposes of the goods by one transaction of sale to a recognised dealer, after taking delivery, that cannot be a 'dealing' within the mischief of the provision in clause 3, read with clause 2 (a) of the West bengal Order. There is no doubt that there must be a business of purchase, sale or storage for sale, in order to attract clause 2 (a). But whether, any particular Petitioner has been carrying on the business of sale or storage for sale of sugar in West Bengal, is a matter for investigation, upon evidence, by the Criminal Court before which the proceedings are pending, and not for this Court. IV. In C. R. 1834, it has been alleged that the Petitioner No. 1, National sugar Candy Works, is the holder of a licence under the West Bengal Order, so that any steps taken against him under the West Bengal Order is without jurisdiction. It appears from the token produced at the hearing that the; petitioner has been the holder of licence No. 3/21h/31-l-63, for the renewal of which up to the end of 1967, he has already applied and obtained the token. 17. THE token, however, appears to relate to a licence for 'sugar' only and not 'khandsari sugar' as contended in the counter-affidavit of Respondent no. 7. This raises a question of law taken on behalf of the Petitioner. When the West Bengal Order of 1963 was passed and when the licence was issued to the Petitioner in 1963, only one licence was contemplated by the Order for all varieties of sugar coming within the definition in clause 2 (e) of the order, including khandsari, sugar. But on 31-1-64, the Order was amended by no. ESS. When the West Bengal Order of 1963 was passed and when the licence was issued to the Petitioner in 1963, only one licence was contemplated by the Order for all varieties of sugar coming within the definition in clause 2 (e) of the order, including khandsari, sugar. But on 31-1-64, the Order was amended by no. ESS. COM/534f. S. Calcutta Gazette extraordinary, dated 31.1.64, by which it was provided that "separate licences shall be necessary for sugar other than khandsari sugar and for khandsari sugar". 18. IT was contended on behalf of the Petitioner that the amendment of "1964 was not retrospective so as to affect those who were carrying on the business under a valid licence from before the amendment. This argument cannot be accepted because the amending Order substitutes clause 3 (2)" of the Original Order. The result is that those who carry on the business of sugar as well as khandsari sugar at any time subsequent to the amendment, must obtain and produce separate licences for ordinary sugar and khandsari sugar. A licence or renewal thereof relating to ordinary sugar will not, therefore, be of any avail in the instant prosecution or seizure. The licence produced by mohanlal, the Petitioner in C. R. 1833 was also taken in 1963 when no separate licence for khandsari sugar was required. This has been renewed up to the end of 11567, but no separate licence for khandsari has been obtained. The renewal of the licence, apparently, is in respect of ordinary sugar only. Since a separate: licence for khandsari sugar is required after the amendment, the Petitioner must show that he applied for a separate licence for khandsari sugar and that the renewal covers that variety as well. Nothing in that direction having been done, this plea of the Petitioner in C. R. 1833 must also fail. I do, however, point out to the Respondents the need for a clarification of the West Bengal Order, particularly, the provision in clause 15, thereof, since it is particularly essential for laws involving criminal sanction that they must be certain and unequivocal. I would very much like the respondents directing a competent person to take the matter of simplification of the various laws and orders relating to the subject-matter of the present Rule, in the light of the various observations made in this judgment. 19. I would very much like the respondents directing a competent person to take the matter of simplification of the various laws and orders relating to the subject-matter of the present Rule, in the light of the various observations made in this judgment. 19. I hold that neither the seizure of the sugar nor the prosecution under section 11 of the Essential commodities Act is without jurisdiction. 20. RESPONDENT 4 will now dispose of the criminal cases as early as possible. Even though I may have made any observations on facts, that will not preclude either party to adduce fresh evidence thereon before the Criminal court, inasmuch as the only function of this Court in a proceeding for prohibition is to determine questions of jurisdiction and the like and not facts. Respondent 4 shall be free to determine questions of facts independently, having regard to section 14 of the Essential commodities Act. The Rules are accordingly discharged, but I make no order as to costs. As prayed for, on behalf of the petitioner, let the operation of this order be stayed for a period of two months from this date.