Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5
PETITIONER:
JOYLAL AGARWALA
Vs.
RESPONDENT:
THE STATEUNION OF INDIA-- Intervener.BICH
DATE OF JUDGMENT:
04/10/1951
BENCH:
AIYAR, N. CHANDRASEKHARA
BENCH:
AIYAR, N. CHANDRASEKHARA
KANIA, HIRALAL J. (CJ)
SASTRI, M. PATANJALI
MUKHERJEA, B.K.
DAS, SUDHI RANJAN
CITATION:
1951 AIR 484 1952 SCR 127
CITATOR INFO :
RF 1953 SC 63 (4,7)
RF 1956 SC 269 (42)
ACT:
Essential Supplies (Temporary Powers) Act (XXIV of
1946), ss. 1 (3), 7--Applicability to "excluded areas
"--Duration of Act extended in British India by Governor-
General, and by Constituent Assembly after Indian Independ-
ence Act, 1947--Whether Act continues to be in force in
excluded areas--Necessity of fresh notification-Delegation
of legislative powers--Government of India Act, 1935, s. 92
(1).
HEADNOTE:
The Essential Supplies (Temporary Powers) Act (XXIV Of
1946) came into force on 19th November, 1946. By a notifica-
tion
128
of 14th December, 1946, under s. 92 (1) of the Government of
India Act, 1935, the Governor of Bengal directed that the
Act shall apply to the District of Darjeeling which was an
"excluded area". Section 1 (3) of the Essential Supplies
Act provided that it shall cease to have effect on the
expiration of the period mentioned in s. 4 of the India
(Central Government and Legislature) Act, 1946. By a noti-
fication issued by the Governor General under s. 4 the
operation of the Essential Supplies Act was extended up to
31st March, 1948. The Constituent Assembly in which the
powers of the Houses of Parliament under s. 4 of the above
said India Act of 1946 became vested after the passing of
the Indian Independence Act, 1947, passed resolutions ex-
tending the operation of the Essential Supplies Act up to
31st March, 1950. The appellant, who was convicted under s.
7 of the Act in respect of an act committed on the 14th
October, 1949, within Darjeeling, contended that the Act was
not validly extended to the District of Darjeeling and was
not therefore in force there on the date of the alleged
offence. Held, that, as the Governor’s notification extend-
ed the Act to the District of Darjeeling without specifying
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5
any particular period for its applicability, the Act would
remain in force in this district as long as it remained in
force in the rest of India and a fresh notification of the
Governor under s. 92 (1) of the Government of India Act,
1935, was not necessary. Under the adaptations made under
ss. 9 and 19 of the Indian Independence Act the powers
conferred on the Houses of Parliament became vested in the
Constituent Assembly and the Act was in force in the dis-
trict of Darjeeling on the date of the alleged contravention
of the Act.
Held further, that there was no question of delegation
of legislative power in this case as the Legislature had
itself applied its mind and fixed the duration of the Act,
leaving only the machinery to reach the maximum period to be
worked out in a particular manner.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeals No. 7 of
1950 and No. 25 of 1951.
Criminal Appeal No. 7 of 1950 was an appeal under Art.
134 (1) (c) from the Judgment and Order of the High Court of
Calcutta dated 23rd May, 1950, in Government Appeal No. 2 of
1950 and Criminal Appeal No. 25 of 1951 was an appeal by
special leave from the Judgment and Order of the same Court
dated 4th May, 1950, in Criminal Revision No. 132 of 1950.
Ajit Kumar Datta and S.N. Mukherjee for the appellant
in both the appeals.
B. Sen for the respondent in both appeals.
G.N. Joshi for the Intervener.
129
1951. October 4. The Judgment of the Court was delivered
by
CHANDRASEKHARA AIYAR J.--These two criminal appeals are from
convictions of the appellants by the High Court at Calcutta.
In the first case, leave to appeal to this Court was granted
by the High Court under article 134(1)(c) of the Constitu-
tion of India. In the second case, special leave to appeal
was granted by this Court under article 136(1) of the Con-
stitution. The appeals were heard together, but as they are
by different parties and the facts are different, it is
desirable to have two separate judgments.
Criminal Appeal No. 7 of 1950.
The appellant, Joylal Agarwala, who was a salesman in a
retail shop in Pulbazar in the district of Darjeeling in the
State of West Bengal, was charged with having sold a piece
of textile cloth at a price in excess of the controlled
price. For this contravention of the provisions of clause 24
(1) of the Cotton Textiles Control Order, 1948, he was
convicted by the Sub-Divisional Magistrate of Darjeeling
under section 7 of the Essential Supplies (Temporary Powers)
Act (Act XXIV) of 1946 (herein after referred to as the
Essential Supplies Act), and sentenced to six months’ rigor-
ous imprisonment. On appeal to the Sessions Judge, the
appellant was acquitted on two grounds, viz., (1) that no
sanction was previously obtained for the prosecution as
required by clause 36 of the Cotton Textiles Control Order,
and (2) that the Essential Supplies Act was not in force in
the district of Darjeeling on the date of the occurrence. On
appeal to the High Court by the State of West Bengal, the
point about the absence of sanction under clause 36 of the
Control Order was given up by the present appellant as its
necessity had been abolished by a later Notification of the
Central Government. On the second point, the learned Judges
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5
of the High Court held that the Act was validly extended to
the district of Darjeeling and was in force in that area on
the date of the occurrence, viz., 14-10-1949. The acquittal
of the appellant
130
was set aside, the order of conviction passed by the
Magistrate was restored, and the appellant was sentenced to
four months’ rigorous imprisonment.
To understand the main legal argument as to whether the
Essential Supplies Act of 1946 was in force at the time of
the alleged commission of the offence, it is necessary to
set out the relevant provisions of a few Acts and Orders and
their dates. The Essential Supplies Act came into force on
19-11-1946. Section 92(1) of the Government of India Act,
1935, provided as follows :--
" ...... no Act of the Federal Legislature or of the
Provincial Legislature, shall apply to an excluded area or a
partially excluded area, unless the Governor by public
notification so directs, and the Governor in giving such a
direction with respect to any Act may direct that the Act
shall in its application to the area, ............ have
effect subject to such exceptions or modifications as he
thinks fit."
In exercise of the powers conferred on him by this
section, the Governor of Bengal by a notification published
on the 14th December, 1946, directed that the Essential
Supplies Act shall apply to the district of Darjeeling,
which was an excluded area.
Section 1(3) of the Essential Supplies Act provides
that it shall cease to have effect on the expiration of the
period mentioned in section 4 of the India (Central Govern-
ment and Legislature) Act, 1946 (9 & 10 Geo. 6, Ch. 39).
Section 4 of the latter Act provides as follows :--
"The period mentioned...is the period of one year
beginning with the date on which the Proclamation of Emer-
gency in force at the passing of this Act ceases to operate
or, if the Governor-General by public notification so di-
rects, the period of two years beginning with that date:
Provided that if and so often as a resolution approving
the extension of the said period is passed by both Houses of
Parliament, the said period shall be extended for a further
period of twelve months from
131
the date on which it would otherwise expire so, however,
that it does not in any case continue for more than five
years from the date on which the Proclamation of Emergency
ceases to operate."
The Proclamation of Emergency referred to in this sec-
tion ceased to operate on 31-3-1946. In the absence of a
notification by the Governor-General under the second part
of the section, the Essential Supplies Act remained opera-
tive only till 31-3-1947, under the first part. The Gover-
nor-General, however, issued a notification on 3-3-1947
continuing its force for a period of 2 years from the date
of cessation of emergency. By virtue of this notification,
therefore, the Essential Supplies Act would remain in force
till 31-3-1948. On 18 7-1947, the Indian Independence Act
was passed, and India became a Dominion on 15-8-1947. Under
section 9 read with section 19(4) of the Indian Independence
Act, 1947, the GOvernor-General passed an Order on 14-8-
1947, which substituted the words "Dominion Legislature"
for" both Houses of Parliament" in the proviso to section 4
of the India (Central Government and Legislature) Act,
1946, and also introduced a new section 4A by way of adapta-
tion, providing that the powers of the Dominion Legislature
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5
shall be exercised by the Constituent Assembly. On 25-2-
1948, the Constituent Assembly passed its first resolution
extending the operation of the Essential Supplies Act by one
year up to 31-3-1949. On 23-3-1949, a second resolution was
passed by the Assembly extending the life of the Act by one
more year up to 31-3-1950.
In respect of these Acts and notifications three ques-
tions were urged on behalf of the appellant:-firstly, wheth-
er the Governor’s notification of the 14th December, 1946,
continued the operation of the Essential Supplies Act in the
district of Darjeeling beyond the then period of life of the
Act, namely, the period of one year from the date of cessa-
tion of emergency; secondly, whether a fresh notification by
the Governor under section 92(1) of the Government of India
Act was not necessary. after the life of the Essential
132
Supplies. Act was extended by the Governor-General’s noti-
fication of 3-3-1947; and thirdly, whether the resolutions
passed by the Constituent Assembly could operate to extend
the life of the Essential Supplies Act.
Now, it is clear that under section 1 (3) of the Essen-
tial Supplies Act, it shall cease to have effect on the
expiration of the period mentioned in section 4 of the India
(Central Government and Legislature) Act, 1946. The period
mentioned in that section is not necessarily one year from
the date of cessation of emergency. It can be 2 years if
the Governor General by notification so directs, and it may
go up to a maximum period of 5 years in instalments of 1
year each, under the proviso. The fixation of the period of
operation of the Essential Supplies Act is thus not left to
any other enactment. It is provided by the Act itself. As
stated already, the notification of the 14th December, 1946,
issued by the Governor applied the Essential Supplies Act to
the Darjeeling district, and its life was extended up to
31-3-1948 by the notification of the Governor-General. It is
difficult to see why a fresh notification under section 92
(1) of the Government of India Act is required to continue
the life of the Act in the district of Darjeeling. The
Governor’s notification extended the Act to Darjeeling
without specifying any particular period for its applicabil-
ity to that district, and it follows therefore that the Act
would remain in force in the district so long as it remained
in force in the rest of India. It is only if its effect had
ceased earlier than the coming into force of the Indian
Independence Act and there was a reenactment by the legisla-
ture which was sought to be applied to an excluded area,
that a notification by the Governor under section 92 (1) of
the Government of India Act might be necessary. Otherwise,
the question of a fresh notification does not arise.
Section 19(4) of the Indian Independence Act, 1947,
provides as follows:--
"In this Act, except so far as the context otherwise
requires--
133
References to the Government of India Act, 1935, include
references to any enactments amending or supplementing
that Act, and, in particular, references to the India
’(Central Government and Legislature) Act, 1946; ...... "
The adaptations made by the Governor-General under
sections 9 and 19 of the Indian Independence Act substituted
the words "ConstitUent Assembly" for "both Houses of Parlia-
ment" in section 4 of the India (Central Government and
Legislature) Act, and the Constituent Assembly by two reso-
lutions of different dates has extended the life of the
Essential Supplies Act till 31-3-1950. As soon as the adap-
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5
tations came into force by order of the Governor-General,
the Constituent Assembly acquired the powers conferred on
both Houses of Parliament under section 4 of the India
(Central Government and Legislature) Act. The validity of
the adaptations is beyond question.
The case of Jatindra Nath Gupta v. The Province of Bihar
and Others(1) has no application here. In the case now
before us, the Legislature has itself applied its mind and
has fixed the duration of the Act, but has left the machin-
ery to reach the maximum period by instalments to be worked
out in a particular manner. There is here no question of
delegation at all, much less delegation of any legislative
power.
The appeal therefore fails and is dismissed.
Criminal Appeal No. 25 of 1951.
In this case, the appellant Bichan Chand Molla was
charged with loading 28 bags of millmade cloth from a truck
into a specially chartered aircraft at the Dum Dum airport,
on behalf of his employers, Messrs. Amarchand Pannalal,
without a permit, as required under clause 4 (2) of the West
Bengal Cotton Cloth and Yarn Movement Control Order, 1947.
He was convicted under section 7 (1) read with section 8 of
the Essential Supplies Act and sentenced to 9months’ rigor-
ous imprisonment and a fine Of Rs. 1,000 by the
(1) [1949] F.C.R. 596.
18
134
1st Class Magistrate of Barrackpore. The Sessions Judge of
24-Parganas dismissed the appeal preferred by the accused.
A revision application filed by him in the High Court shared
the same fate.
The legal argument urged in this appeal was the same as
in the earlier appeal, and has to be repelled as untenable
for the reasons already stated. A special point was
sought to be argued that the element of mens rea was want-
ing. But the question was considered by the High Court, and
it was held that there are two facts from which mens tea
could be inferred. When questioned, the accused stated that
he was.loading handloom bales and not millmade cloth. He
had no permit with him and was not able to produce any even
from his employers. These facts under the circumstances
warrant the inference of a criminal intent.
This appeal also will therefore stand dismissed.
Agent for the appellant: R.R. Biswas.
Agent for the respondent: P.K. Bose.
Agent for the intervener: P.A. Mehta.
135