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2000 DIGILAW 196 (CAL)

Debu Dutt Khetawat v. State

2000-04-19

BASUDEVA PANIGRAHI

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JUDGMENT In this case the petitioners, who are the accused in E.C.G.R. Case No.1 of 2000, have preferred an application for quashing of the proceeding under Section 7 (I) (a) (ii) ,of the Essential Commodities Act, 1955 read with West Bengal Pulses, Edible Oil Seeds and Edible Oil (Dealers Licensing) Order, 1978. The petitioner No.1 is admittedly a dealer carrying on business in pulses under the name and style of Amit Enterprise. The petitioner No.2 has claimed to be the owner of the truck bearing registration No. WB-25-4507. The petitioner No.2 is common carrier of goods on hire charges of the truck of which he is the owner. The petitioner No.1 had obtained licence and has been carrying on business under the provisions of West "Bengal- Pulses, Edible Oil Seeds and Edible Oil (Dealers Licensing) Order, 1978. But, however; the said order stood repealed after promulgation of West Bengal Pulses, Edible Oil Seeds and Edible Oils (Storage Control and Dealers Licensing) Order, ] 997 which came into effect from 11th August; 1999. 2. According to the petitioners that after the Old Control Order of 1978 having been repealed, the prosecution against them could not have been ............ for the violation of the clauses of the said Control Order. Instead of filing prosecution under the Old Order, if the prosecution so pleased, they could have filed a case under the provisions of the New Control Order which came into effect from 11th August, 1999. On perusal of the F.I.R., it appears that the prosecution started a case on the- basis of the violation of the clauses of the 1978 Order which has been admittedly repealed. 3. Mr. Moitra, learned Additional Public Prosecutor has invited my attention that notwithstanding such repeal the provision of the earlier Control Order can be invoked for lodging a prosecution against the petitioners on the basis of Section 6 of the Bengal General Clauses Act. To appreciate the said contention I think it appropriate to quote the said section here :- "6. Effect of repeal. To appreciate the said contention I think it appropriate to quote the said section here :- "6. Effect of repeal. Where this Act, or any (Central Act) or Regulation made after the commencement of this Act, repeals any, enactment hitherto made or hereafter to be made, then, unless it different Intention appears, the repeal shall not- (a) revive anything not in force or existing at the time at .which the repeal takes effect ;or (b) affect the previous operation Of any enactment repealed or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed ; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed." 4. Mr. Banerjee repelling the said contention has invited my attention to sub-section (6) of Section 3 of the Bengal General Clauses Act where the Bengal Act has been defined. Section 6 of the Bengal General Clauses Act also has been ............ lucidely as to in which cases such clauses shall be operative. From reading of the provisions and inevitable position emerges that this is only applicable in so far as the provision of Bengal Act and West Bengal Acts are concerned. 5. Mr. Moitra has next contended that irrespective of the fact that such notification has received the assent of the Governor on 11.8.99 but since it has not been published in the Official Gazette, it shall be deemed that it has not yet come into force. Under Section 3 of the Essential Commodities Act, 1955, the Central Government can delegate its power to promulgate some orders for which violation has been made under Section 7 of the Act. The question shall arise whether such order requires to be published in the Official Gazette. On reading of provisions of Section 3 it is nowhere suggested that an order declared under Section 3 requires to be published in the Gazette. 6. Mr. The question shall arise whether such order requires to be published in the Official Gazette. On reading of provisions of Section 3 it is nowhere suggested that an order declared under Section 3 requires to be published in the Gazette. 6. Mr. Banerjee, the learned Advocate appearing for the petitioners has strongly urged that the order being not 'notified order' within the meaning of Section 2 Clause 2, it does not require to be notified in the Official Gazette. Only in case of notified order under which the Central Government delegates the power to the State Government to promulgate any order to be enforced under Section 7 of the Act, such• orders are deemed to be notified order but not others. Mr. Banerjee has further indicated that the licensing authority has already acted upon the 1999 Order and granted licence to different persons including the petitioner No.1. From the Control Order it has appeared that it is already notified by virtue of notification No. 3126-FS dated 11.8.99. Once it has already been notified by the department, it shall be deemed to have come into effect from the date of notification notwithstanding the fact that it was published in the Gazette or not. 7. Mr. Chatterjee, learned Advocate appearing for the State has contended that irrespective of the provision of the New Control Order since a case has been lodged under the Old Control Order, the action of the prosecution is saved under Clause 16 of the Act. I am not in a position to agree with such contention since it relates to the pending proceeding. This proceeding having been initiated after the New Control Order came into force by the time of which the Old Control Order stood repealed, any action taken under the Old Control Order is, therefore, not survived. Accordingly, I quash the prosecution initiated against the petitioners. But, however, it is open to the prosecution to initiate any other proceeding, if there has been any violation of the Clauses of the 1999 Control Order. With the above observation the application is allowed. Urgent xerox certified copy of the order, if applied for, same be supplied within two weeks from the date of putting requisite for the same.