Full Judgment Text
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PETITIONER:
T. BARAI
Vs.
RESPONDENT:
HENRY AH HOE AND ANOTHER
DATE OF JUDGMENT07/12/1982
BENCH:
SEN, A.P. (J)
BENCH:
SEN, A.P. (J)
VENKATARAMIAH, E.S. (J)
MISRA, R.B. (J)
CITATION:
1983 AIR 150 1983 SCR (1) 905
1983 SCC (1) 177 1982 SCALE (2)1133
CITATOR INFO :
F 1983 SC1019 (66)
R 1985 SC1729 (10)
RF 1990 SC1277 (46)
RF 1990 SC2072 (11,46)
ACT:
Interpretation of Statutes-Central Act on a subject in
Concurrent List amended by State Act-State Act enhanced
punishment-A later Central Amendment Act with respect to the
same matter reduced the punishment-State amendment if
impliedly repealed-Repeal followed by fresh legislation-
Section 6 of General Clauses Act-If applicable.
HEADNOTE:
For committing an offence under section 16(1)(a) of the
Prevention of Food Adulteration Act, 1954, as it stood on
March 1, 1972, the maximum punishment prescribed was
imprisonment for six years and fine. Section 21 of the Act
provided that such offences were triable by a Presidency
Magistrate or Magistrate First Class. By the Prevention of
Adulteration of Food, Drugs and Cosmetics (West Bengal
Amendment) Act, 1973, enacted by the State Legislature of
West Bengal, the maximum punishment for an offence under
this section had been enhanced to imprisonment for life, as
a result of which an offence committed under the section in
the State of West Bengal became exclusively triable by a
court of sessions. The Amendment Act received the assent of
the President and came into force from April 29, 1974. In
1976 Parliament amended the Food Adulteration Act and the
amendment came into force with effect from April 1, 1976.
For offences punishable under section 16(1)(a) the Amendment
Act provided for a reduced punishment for a term of three
years instead of six years as before. By the same Amendment
Act section 16A was inserted in the Act providing that all
offences under section 16(1) shall be tried in a summary way
by a Judicial Magistrate, First Class, or by a Metropolitan
Magistrate.
On September 24, 1975 the appellant lodged a complaint
against the respondent for having committed an offence
punishable under section 16(1)(a) read with section 7 of the
Act. On the date of the commission of the alleged offence
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the law in force in the State of West Bengal was the 1954
Act as amended by the West Bengal Amendment Act.
Purporting to follow the decision of a single Judge of
the Calcutta High Court in B. Manna and Ors. v. State of
West Bengal, (81 C.W.N. 1075) in which it was held that the
Central Amendment Act was not intended to be retrospective
in operation because it had not expressly repealed the West
Bengal amendment nor dealt with the Act or any of its
provisions in any manner, the Magistrate held that the case
was triable by the Court of Sessions.
906
Disagreeing with the view of the single Judge, a
Division Bench of the High Court held that after the Central
Amendment Act came into force on April 1, 1976 all
proceedings pending for trial of offences punishable under
s. 16(1)(a) as amended by the West Bengal Act which had not
been concluded, would cease to be governed by the West
Bengal Amendment Act and would come within the purview of
the Central Act as amended by the Central Amendment Act and
that therefore such offences committed prior to the
amendment were triable in accordance with the procedure
under s. 16A as amended by the Central Amendment Act.
On the question whether the previous operation of the
repealed West Bengal Amendment Act in respect of any
liability incurred thereunder is preserved by s. 8 of the
Bengal General Clauses Act, 1899 which is in pari materia
with s. 6 of the General Clauses Act, 1897 both as to
procedure for trial of such offences and the nature of
punishment liable to be imposed.
Dismissing the appeal,
^
HELD: By virtue of the proviso to Art. 254 (2) of the
Constitution, Parliament may repeal or amend a repugnant
State law either directly or by itself by enacting a law
repugnant to the State law with respect to the same matter.
Even though the subsequent law made by Parliament does not
expressly repeal a State law, the State law will become void
under Article 254 (1) if it conflicts with a later law made
by Parliament creating repugnancy. Such repugnancy may arise
where both laws operate in the same field and the two cannot
possibly stand together: As for example, where both
prescribe punishment for the same offence, both the
punishments differs in degree or kind or in the procedure
prescribed. In all such cases the law made by Parliament
shall prevail over the State law under Art. 254(1). In the
instant case when Parliament stepped in and enacted the
Central Amendment Act, which is a later law made by
Parliament with respect to the same matter the West Bengal
Amendment Act stood impliedly repealed with effect from
April 1, 1976. [915 D-G]
Zaverbhai Amaidas v. The State of Bombay [1955] 1
S.C.R. 799, applied.
The applicability of section 6 of the General Clauses
Act, 1897 is not ruled out when there is a repeal of an
enactment followed by fresh legislation. But the Parliament
having reenacted the law relating to the same offence under
s. 16(1)(a) of the Act and provided for altered procedure
and also provided a reduced sentence, the accused must be
tried according to the new procedure provided by s. 16A of
the Act and must also have the benefit of the reduced
punishment.
[919 G-H]
Dictum of Sargant J. in Re. Hale’s Patent L.R. [1920]
Ch. 377, held in applicable.
In so far as the Central Amendment Act creates new
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offences or enhances punishment for a particular type of
offence, no person can be convicted by such ex-post facto
law nor can the enhanced punishment prescribed by amendment
be applicable; but insofar as it reduces the punishment for
an offence punishable under s. 16(1)(a) of the Act, there is
no reason why the accused should not
907
have the benefit of such reduced punishment. The rule of
beneficial construction requires that even ex post facto law
of such a type should be applied to mitigate the rigour of
the law. [919 F-H]
Craies on Statute Law, 7th edn. at pp. 387-388 referred
to.
It is a well-settled rule of construction that when a
later statute again describes an offence created by an
earlier statute and imposes a different punishment or varies
the procedure, the earlier statute is repealed by
implication.
Michell v. Brown [1959] 120 ER 909, 912, Smit v. Benabo
[1937] 1 All ER 523 and Regina v. Youle [1861] 158 ER 311,
315-316 referred to.
The rule is however subject to the limitation contained
in Art. 20(1) against ex post facto law providing for a
greater punishment and has no application where the offence
described in the later Act is not the same as in the earlier
Act i.e, when the essential ingredients of the two offences
are different. In the premises, the Central Amendment Act
having dealt with the same offence as the one punishable
under s. 16(1)(a) of the Act and provided for a reduced
punishment, the accused must have the benefit of the reduced
punishment. [921 E-F]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 40
of 1979.
From the Judgment and Order dated the 5th June, 1978 of
the Calcutta High Court in Criminal Revision No. 133 of
1978.
D. Mukherjee, Pradeep Ghosh and P.K. Mukherjee for the
appellant.
N.C. Talukdar and Amlan Ghosh for respondent Nos. 1 and
2.
G.S. Chatterjee for respondent No. 3 (State of Bengal).
The Judgment of the Court was delivered by
SEN, J. This appeal by special leave from a judgment of
the Calcutta High Court dated June 5, 1978 raises a question
of some complexity. The question is as to the applicability
of s. 16A of the Prevention of Food Adulteration Act, 1954
("Act" for short) as inserted by the Prevention of Food
Adulteration (Amendment) Act, 1976 (for short "the Central
Amendment Act") with respect to prosecutions launched under
s.16(1) (a) read with s.7 of the Act in the State of West
Bengal between the period from April 29, 1974 to April 1,
1976. Such offences according to the law then in force i.e.
the Act as amended by the Prevention of Adulteration of
Food,
908
Drugs and Cosmetics (West Bengal Amendment) Act, 1973 (for
short "the West Bengal Amendment Act") were punishable with
imprisonment for life and therefore triable by the Court of
Sessions.
It is common ground that the offence with which the
respondents are charged is alleged to have been committed
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under s.16(1)(a) at a time when the Act stood amended in its
application to the State of West Bengal by the provisions of
the West Bengal Amendment Act. If the law continued to stand
as it stood on the date of the offence which was so
committed, there would have been no difficulty because the
maximum penalty would be imprisonment for life and fine and
as such the offences would be exclusively triable by the
Court of Sessions. But a change was brought about when
Parliament enacted the Central Amendment Act which came into
force on April 1, 1976 by which the scheme of s.16 of the
Act providing for various punishments was materially
altered; so also the procedure for the trial of such
offences. The effect of the Central Amendment Act was that
the West Bengal Amendment Act stood impliedly repealed with
effect from April 1, 1976 and the question is whether the
previous operation of the repealed West Bengal Amendment Act
in respect of any liability incurred thereunder is preserved
by s.8 of the Bengal General Clauses Act, 1899 which is pari
materia with s.6 of the General Clauses Act, 1897 both as to
procedure for trial of such offences and the nature of
punishment liable to be imposed.
First as to facts. On August 16, 1975 the appellant, a
Food Inspector of the Corporation of Calcutta, visited the
Chungwa Restaurant run by the respondents at Chittaranjan
Avenue, Calcutta and purchased a quantity of Hyacinth’s
ground white pepper (compound) with fried rice powder and
sent the same to a Public Analyst for analysis. On such
analysis, the sample was found to be adulterated as it
contained no rice powder but wheat powder. On September 24,
1975 the appellant lodged a complaint against the
respondents for having committed an offence punishable under
s.16(1)(a) read with s.7 of the Act in the Court of Senior
Municipal Magistrate, Calcutta. The gravamen of the charge
was that the respondents had stored and/or exposed for sale
and/or used Hyacinth’s ground white pepper (compound) with
fried rice powder for the purpose of manufacturing and
preparing different articles of food which was adulterated
and misbranded.
On the date of the commission of the alleged offence
i.e. on August 16, 1975 the law in force in the State of
West Bengal was
909
the Act as amended by the West Bengal Amendment Act which
provided that such an offence would be punishable with
imprisonment for life. The learned Magistrate following the
decision of Anil Kumar Sen, J. in B. Manna and Ors. v. The
State of West Bengal(1) sustained a preliminary objection
raised on behalf of the Corporation and held that the case
was triable by the Court of Sessions. Disagreeing with the
view of Anil Kumar Sen, J. in B. Manna’s case, (supra), a
Division Bench of the High Court held that after the Central
Amendment Act came into force on April 1, 1976, all
proceedings pending for trial of such offences punishable
under s.16(1)(a) of the Act as amended by the West Bengal
Amendment Act which had not been concluded, would cease to
be governed by the West Bengal Amendment Act and would come
within the purview of the Act as amended by the Central
Amendment Act and therefore such offences committed prior to
such amendment are triable in accordance with the procedure
prescribed by s.16A of the Act as amended by the Central
Amendment Act. It accordingly set aside the order of the
learned Magistrate and directed him to proceed with the
trial.
Upon these facts, three questions fall for
consideration in the appeal viz. (1) whether the Central
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Amendment Act impliedly repealed the West Bengal Amendment
Act with effect from April 1, 1976; and if so, the effect of
such repeal. (2) Whether the High Court was justified in
holding that the West Bengal Amendment Act shall be deemed
to have been obliterated from the Statute Book for all
intents and purposes inasmuch as the Central Amendment Act
manifests an intention to the contrary so as to exclude the
operation of s.8 of the Bengal General Clauses Act, 1899.
And (3) Are the pending proceedings to be governed by the
change of procedure brought about by s.16A of the Act as
introduced by the Central Amendment Act; and further whether
the continued operation of the repealed West Bengal
Amendment Act is preserved with regard to the punishment to
be imposed.
For a proper appreciation of the points in controversy,
it is necessary to deal with the statutory changes brought
about. First we may refer to the provisions of the Act as it
stood on March 1, 1972, the relevant provisions whereof were
as follows:
910
"16(1) If any person-
(a) whether by himself or by any other person on his behalf
imports into India or manufactures for sale, or stores,
sells or distributes any article of food-
(i) which is adulterated or misbranded or the sale of
which is prohibited by the Food (Health) authority
in the interest of public health;
(ii)
He shall, in addition to the penalty to which he
may be liable under the provisions of s.6, be
punishable with imprisonment for a term which shall not
be less than six months but which may extend to six
years, and with fine which shall not be less than one
thousand rupees.
Provided that-
(i) if the offence is under sub-cl. (i) of cl. (a)
and is with respect to an article of food which is
adulterated under sub-cl. (i) of cl. (i) of s.2 or
misbranded under sub-cl. (k) of cl. (ix) of that
section; or
the court may for any adequate and special reasons to
be mentioned in the judgment, impose a sentence of
imprisonment for a term of less than six months or of
fine of less than one thousand rupees or of both
imprisonment for a term of less than six months and
fine of less than one thousand rupees."
"20(1)
(2) No court inferior to that of a Presidency Magistrate or
a Magistrate of the First Class shall try any offence
under this Act."
21. Notwithstanding anything contained in s.32 of the Code
of Criminal Procedure, 1898, it shall be lawful for any
Presidency Magistrate or any Magistrate of the first
class to pass any sentence authorized by this Act, in
excess of his powers under s. 32 of the said Code."
911
On these provisions, the maximum punishment which could
be imposed for committing any offence under s.16(1)(a) was
imprisonment for six years and fine. Such an offence not
being under the Indian Penal Code, 1860 was triable not
exclusively by the Court of Sessions under the provisions of
s.29(2) of the Code of Criminal Procedure, 1973 read with
Schedule II thereunder. To overcome the limit imposed by
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s.32 of the Code on sentences which a Presidency Magistrate
or a Magistrate of First Class could impose, s.21 of the Act
was inserted. The result was that such offences become
triable by a Presidency Magistrate or a Magistrate of the
First Class. That was the law in force in the whole of India
as on March 1, 1972.
On April 29, 1974, the Prevention of Adulteration of
Food, Drugs and Cosmetics (West Bengal Amendment) Act, 1973
enacted by the State Legislature of West Bengal having been
assented to by the President, became the law applicable to
the State of West Bengal as from that date. It would appear
that the State of West Bengal had taken a step forward with
a view to make anti-social offences such as adulteration of
articles of food meant for human consumption, or manufacture
or sale of spurious drugs etc. which constituted a menace to
the society and deserved a deterrent punishment, to be
punishable with imprisonment for life. S.6 of that Act
inserted the following amendment.
"In the Prevention of Food Adulteration Act, 1954-
(ii) in section 16-
(a) in sub-s.(l), for the words "a term which shall
not be less than six months but which may extend
to six years, and with fine which shall not be
less than one thousand rupees", the words "life
and shall also be liable to fine" shall be
substituted;"
The following words were substituted in the proviso to sub-
s.(1):
"(b) in the proviso to sub-s.(1), for the words "the
Court may for any adequate and special reasons to
be mentioned in the judgment, impose a sentence of
imprisonment for a term of less than six months or
fine of less than one thousand rupees or of both
imprisonment for a term of less than six months
and fine of less than
912
one thousand rupees", the following words shall be
substituted, namely:-
"(ii) if the Court thinks that for any adequate
and special reasons to be mentioned in the
judgment a lesser sentence would serve the
ends of justice,
the Court may impose a sentence which is less than
a sentence of imprisonment for life;"
It will be seen that the West Bengal Amendment Act
brought about a radical change so far as the Act was
concerned in its application to the State of West Bengal.
The maximum punishment for an offence under s.16(1)(a) when
committed in the State was punishment of imprisonment for
life so that under the provisions of the Code of Criminal
Procedure, 1973, such an offence became exclusively triable
by a Court of Sessions and ceased to be triable either by a
Presidency Magistrate or a Magistrate of the First Class.
For this reason, the provisions of s.20 were also
materially altered :
"20(1) All offences punishable under this Act shall
be cognizable and non-bailable.
(2) Any police officer not below the rank of a
Sub Inspector of Police may arrest without
warrant any person against whom a reasonable
complaint has been made or credible
information has been received of his having
been concerned in any of the offences
punishable under this Act."
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The Act also introduced s.19A with regard to burden of proof
and it read :
"19A. When any article intended for food is seized from
any person in the reasonable belief that the same is
adulterated or misbranded the burden of proving that
such article intended for food is not adulterated or
misbranded shall be on the person from whose possession
such article intended for food was seized."
It was not long before Parliament stepped in to meet
the growing menace of the anti-social offence of
adulteration of articles
913
of food meant for human consumption which was a threat to
the national well-being and it was felt that such offences
must be ruthlessly dealt with. It was also felt that there
should be a summary trial of these offences. The Prevention
of Food Adulteration (Amendment) Act, 1976 was accordingly
brought into force with effect from April 1, 1976. It not
only created new offences but also enhanced the punishments
provided. But at the same time it also provided for graded
punishment for various types of offences. Incidentally, it
mollified the rigour of the law by providing for a reduced
punishment for an offence punishable under s.16(1)(a). We
are however not concerned with other types of offences
except the one punishable under s.16(1)(a) and for this the
maximum punishment provided was for a term of three years
instead of six years. In s.16 of the Act for sub-s.(1), the
following sub-section insofar as relevant was introduced :
"(1) Subject to the provisions of sub-s.(1A), if any
person-
(a) whether by himself or by any other person on his
behalf, imports into India or manufactures for
sale, or stores, sells or distributes any article
of food-
(i) which is adulterated within the meaning of sub-
cl.(m) of cl.(ia) of s.2 or misbranded within the
meaning of cl. (ix) of that section or the sale of
which is prohibited under any provision of this
Act or any rule made thereunder or by an order of
the Food (Health) Authority;
*
he shall, in addition to the penalty to which he may be
liable under the provisions of s.6, be punishable with
imprisonment for a term which shall not be less than
six months but which may extend to three years, and
with fine which shall not be less than one thousand
rupees."
A new proviso was inserted conferring power on the
Court for any adequate and special reasons to be mentioned
in the judgment to impose a reduced punishment for a term
which shall not be less than three months but may extend to
two years, with fine which shall not be less than five
hundred rupees.
914
As regards the procedure for trial of such offences,
the Act introduced s.16A which is important for our
purposes, and it reads :
"16A. Notwithstanding anything contained in the Code of
Criminal Procedure, 1973, all offences under sub-
section (1) of section 16 shall be tried in a summary
way by a Judicial Magistrate of the first class
specially empowered in this behalf by the State
Government or by a Metropolitan Magistrate and the
provisions of sections 262 to 265 (both inclusive) of
the said Code shall, as far as may be, apply to such
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trial :
Provided that in the case of any conviction in a
summary trial under this section, it shall be lawful
for the Magistrate to pass a sentence of imprisonment
for a term not exceeding one year :
Provided further that when at the commencement of,
or in the course of, a summary trial under this
section, it appears to the Magistrate that the nature
of the case is such that a sentence of imprisonment for
a term exceeding one year may have to be passed or that
it is, for any other reason, undesirable to try the
case summarily, the Magistrate shall after hearing the
parties record an order to that effect and thereafter
recall any witness who may have been examined and
proceed to hear or rehear the case in the manner
provided by the said Code."
There were some corresponding changes brought about in
s.20 of the Act. Sub-s.(2) of s.20 provides :
"(2) No Court inferior to that of a Metropolitan
Magistrate or a Judicial Magistrate of the first
class shall try any offence under this Act."
There is no doubt or difficulty as to the law
applicable. Art. 254 of the Constitution makes provision
firstly, as to what would happen in the case of conflict
between a Central and State law with regard to the subjects
enumerated in the Concurrent List, and secondly, for
resolving such conflict. Art. 254(1) enunciates the normal
rule that in the event of a conflict between a Union and a
State law in the concurrent field, the former prevails over
the latter.
915
Clause (1) lays down that if a State law relating to a
Concurrent subject is ’repugnant’ to a Union law relating to
that subject, then, whether the Union law is prior or later
in time, the Union law will prevail and the State law shall,
to the extent of such repugnancy, be void. To the general
rule laid down in clause (1), clause (2) engrafts an
exception, viz., that if the President assents to a State
law which has been reserved for his consideration, it will
prevail notwithstanding its repugnancy to an earlier law of
the Union, both laws dealing with a Concurrent subject. In
such a case, the Central Act will give way to the State Act
only to the extent of inconsistency between the two, and no
more. In short, the result of obtaining the assent of the
President to a State Act which is inconsistent with a
previous Union law relating to a Concurrent subject would be
that the State Act will prevail in that State and override
the provisions of the Central Act in their applicability to
that State only. The predominance of the State law may
however be taken away if Parliament legislates under the
Proviso to clause (2). The Proviso to Art.254(2) empowers
the Union Parliament to repeal or amend a repugnant State
law even though it has become valid by virtue of the
President’s assent. Parliament may repeal or amend the
repugnant State law, either directly, or by itself enacting
a law repugnant to the State law with respect to the ’same
matter’. Even though the subsequent law made by Parliament
does not expressly repeal a State law, even then, the State
law will become void as soon as the subsequent law of
Parliament creating repugnancy is made. A State law would be
repugnant to the Union law when there is direct conflict
between the two laws. Such repugnancy may also arise where
both laws operate in the same field and the two cannot
possibly stand together e.g., where both prescribe
punishment for the same offence but the punishment differs
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in degree or kind or in the procedure prescribed. In all
such cases, the law made by Parliament shall prevail over
the State law under Art.254(1). That being so, when
Parliament stepped in and enacted the Central Amendment Act,
it being a later law made by Parliament "with respect to the
same matter", the West Bengal Amendment Act stood impliedly
repealed.
The case of Zaverbai Amaidas v. The State of Bombay(1)
illustrates the application of the Proviso to Art.254(2).
The Essential Supplies (Temporary Powers) Act, 1946 was
enacted by the Central
916
Legislature, s.7 of which provided for penalties for
contravention of orders made under s.3 of the Act. The
provision with regard to the penalties was that if any
person contravenes any order made under s.3, he shall be
punishable with imprisonment for a term which may extend to
three years or with fine or with both. The then Province of
Bombay felt that the maximum punishment of three years,
imprisonment provided by s.7 of the Act was not adequate for
offences under the Act and with the object of enhancing the
punishment provided therein, enacted Act 36 of 1947. By s.2
of that Act it was provided that notwithstanding anything
contained in the Essential Supplies (Temporary Powers) Act,
1946, whoever contravenes an order made under s.3 of the Act
shall be punishable for a term which may extend to seven
years but shall not, except for reasons to be recorded in
writing, be less than six months and shall also be liable to
fine. The Bombay Act thus increased the sentence to
imprisonment for seven years and also made it obligatory to
impose a sentence of fine, and further provided for a
minimum sentence of six months and the Court was bound to
impose a minimum sentence except for reasons to be recorded
in writing. The Act having been reserved for the assent of
the Governor-General and received his assent under s.107(2)
of the Government of India Act, 1935, came into operation in
the Province of Bombay notwithstanding the repugnancy.
Subsequently, the Essential Supplies (Temporary Powers) Act,
1946 under-went substantial alterations and was finally
recast by the Essential Supplies (Temporary Powers)
Amendment Act, 1950. The Amendment made in 1950 substituted
a new section in place of s.7 of the Act. The scheme of the
new section was that for purposes of punishment, offences
under the Act were grouped under three categories and the
punishment to be imposed in the several categories were
separately specified. S.7 was thus a comprehensive Code
covering the entire field of punishment for offences under
the Act graded according to the commodity and character of
the offence. It was held by this Court that the Bombay Act
was impliedly repealed by s.7 of the Essential Supplies
(Temporary Powers) Amendment Act, 1950.
It is strenuously argued on behalf of the appellant
that s.16A of the Act is not retrospective in operation, and
that it does not deal with procedure alone but touches a
substantive right. The submission is that in view of
cls.(c), (d) and (e) of sub-s.(1) of s.8 of the Bengal
General Clauses Act, 1899 which provide that if any law is
repealed then unless a different intention appears, the
repeal shall not affect any liability incurred under any
enactment so repealed or affect any
917
legal proceeding or remedy in respect of such liability,
penalty or punishment as aforesaid. It is said that there
was a liability incurred by the commission of an offence
punishable under s.16(1)(a) of the Act as amended by the
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West Bengal Amendment Act and s.8 of the Bengal General
Clauses Act’ 1899 preserved the continued operation of the
repealed West Bengal Amendment Act for imposition of that
punishment. The contention is that where rights and
procedure are dealt with together by the repealing Act,
then, intention of the legislature is that the old rights
are still to be determined by the old procedure. In support
of the contention, reliance is placed on the decision of the
Sargant, J. in re Hale’s Patent(1). We are afraid, the
contention cannot prevail. Just as a person accused of the
commission of an offence has no right to trial by a
particular court or to a particular procedure, the
prosecutor equally has no right to insist upon that the
accused be subjected to an enhanced punishment under the
repealed Act. The dictum of Sargant.J. in re Hale’s Patent
is therefore not applicable.
Whenever there is a repeal of an enactment, the
consequences laid down in s.6 of the General Clauses Act
though it has been specifically mentioned in the repealing
Act or not, will follow, unless, as the section itself says,
a different intention appears. In State of Punjab v. Mohar
Singh(1), this Court has elaborately dealt with the effect
of repeal. In the case of a simple, repeal there is scarcely
any room for expression of a contrary opinion. But when the
repeal is followed by fresh legislation on the same subject,
the Court 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
inquiry would be, not whether the new Act expressly keeps
alive old rights and liabilities", in the words of
Mukherjee,J., "but whether it manifests an intention to
destroy them." The Court held that it cannot 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
fresh legislation. S 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. Such incompatibility would have to be ascertained
from a consideration of all the relevant provisions of the
new Act and the mere absence of a saving clause is not by
itself material. The Court therefore held that the
provisions of s.6 of the General Clauses Act will apply to a
case
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of repeal even if there is simultaneous enactment unless a
contrary intention can be gathered from the new enactment.
Of course, the consequences laid down in s.6 of the General
Clauses Act will apply only when a statute or regulation
having the force of a statute is actually repealed. It has
no application when a statute which is of a temporary nature
automatically expires by efflux of time. The principles laid
down by the Court in Mohar Singh’s case (supra), have
consistently been followed in subsequent cases. The old
doctrine of extinguishing or effacing the repealed law for
all purposes and intents except for the acts past and closed
has now given way to the principles enunciated by the Court
in Mohar Singh’s case, (supra).
The question that falls for consideration in the appeal
is whether a "contrary intention" appears from the
provisions of the Central Amendment Act so as to exclude the
applicability of s.8 of the Bengal General Clauses Act. Anil
Kumar Sen,J. in B. Manna’s case, (supra), mentions several
reasons why the Central Amendment Act was not really
intended to be retrospective in operation so that it would
not cover cases of offences committed prior to the enactment
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itself. In the first place, he observes that the Central
Amendment Act had not expressly repealed the West Bengal
Amendment Act nor dealt with the Act or any of its
provisions in any manner. It was enacted with reference and
having regard to the provisions of the Act as it stood
before the Central Amendment Act came into force. Even if
the Central Amendment Act had not expressly repealed the
West Bengal Amendment Act, it would still be repealed by
necessary implication under Art. 254(1) as it conflicts with
a later law with respect to the same matter enacted by
Parliament.
Secondly, the learned Judge refers to the language of
the statute itself. He observes that unlike many other
statutory provisions creating similar offences and providing
punishment therefor, in the Act the material provisions are
not in terms like "any person guilty of an offence of
manufacturing, storing, selling or distributing any article
of food which is adulterated shall be punishable with...".
On the other hand, he points out that the terms of s.
16(1)(a) of the Act are "if any person..... manufactures for
sale, or stores, or sells, or distributes any article of
food which is adulterated, he shall.....". The learned Judge
is of the view that on the words used and on their terms the
only consistent implication is that such manufacture,
storage, sale or distribution must be after the enactment
has come into force and not prior thereto. In our view,
nothing
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really turns on the language of s. 16(1)(a) because the
Central Amendment Act has not created a new offence thereby
but dealt with the same offence as before.
Lastly, the learned Judge refers to the new offences
created by the Central Amendment Act, one of them being that
under s. 16(1)(b) of the Act with regard to manufacturing
for sale, or storing, or selling, or distributing any
adulterant which was not in the Act at any time before.
Accordingly, he holds that it is not possible to give
retrospective effect to the other parts of the Act and
observes that it could never have been the intention of the
Legislature nor was it possible to give retrospective effect
to the Act. According to him Art. 20(1) of the Constitution
stands in the way of giving retrospective effect to s.
16(1)(b) of the Act and thus renders the act which was
otherwise innocent at the time when it was done to be an
offence by later enactment. We are not concerned with new
offences created by the Central Amendment Act or with
offences for which an enhanced punishment is provided for
and therefore there is no question of Art. 20(1) of the
Constitution being attracted. We are here concerned with the
same offence, namely, an offence punishable under s.
16(1)(a) of the Act for which a reduced punishment is
provided for.
It is only retroactive criminal legislation that is
prohibited under Art. 20(1). The prohibition contained in
Art. 20(1) is that no person shall be convicted of any
offence except for violation of a law in force at the time
of the commission of the act charged as an offence prohibits
nor shall he be subjected to a penalty greater than that
which might have been inflicted under the law in force at
the time of the commission of the offence. It is quite clear
that insofar as the Central Amendment Act creates new
offences or enhances punishment for a particular type of
offence no person can be convicted by such ex post facto law
nor can the enhanced punishment prescribed by the amendment
be applicable. But insofar as the Central Amendment Act
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reduces the punishment for an offence punishable under s.
16(1)(a) of the Act, there is no reason why the accused
should not have the benefit of such reduced punishment. The
rule of beneficial construction requires that even ex post
facto law of such a type should be applied to mitigate the
rigour of the law. The principle is based both on sound
reason and common-
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sense. This finds support in the following passage from
Craies on Statute Law, 7th edn. at pp. 387-88 :
"A retrospective statute is different from an ex
post facto statute. "Every ex post facto law ..... "
said Chase J. in the American case of Calder v. Bull(1)
"must necessarily be retrospective, but every
retrospective law is not an ex post facto law. Every
law that takes away or impairs rights vested agreeably
to existing laws is retrospective, and is generally
unjust and may be oppressive ; it is a good general
rule that a law should have no retrospect, but in cases
in which the laws may justly and for the benefit of the
community and also of individuals relate to a time
antecedent to their commencement : as statutes of
oblivion or of pardon. They are certainly
retrospective, and literally both concerning and after
the facts committed. But I do not consider any law ex
post facto within the prohibition that mollifies the
rigour of the criminal law, but only those that create
or aggravate the crime, or increase the punishment or
change the rules of evidence for the purpose of
conviction ..... There is a great and apparent
difference between making an unlawful act lawful and
the making an innocent action criminal and punishing it
as a crime."
To illustrate, if Parliament were to re-enact s. 302 of
the Indian Penal Code, 1860 and provide that the punishment
for an offence of murder shall be sentence for imprisonment
for life, instead of the present sentence of death or
imprisonment for life, then it cannot be that the Courts
would still award a sentence of death even in pending cases.
In Rattan Lal v. The State of Punjab(2), the question
that fell for consideration was whether an appellate court
can extend the benefit of Probation of Offenders Act, 1958
which had come into force after the accused had been
convicted of a criminal offence. The court by majority of 2
: 1 answered the question in the affirmative. Subba Rao, J.
who delivered a majority opinion, concluded that in
considering the question, the rule of beneficial
construction required that even ex post facto law of the
type involved in that case should be applied to reduce the
punishment.
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It is settled both on authority and principle that when
a later statute again describes an offence created by an
earlier statute and imposes a different punishment, or
varies the procedure, the earlier statute is repealed by
implication. In Michell v. Brown(1) Lord Cambell put the
matter thus :
"It is well settled rule of construction that, if
a later statute again describes an offence created by a
former statute and affixes a different punishment,
varying the procedure, the earlier statute is repealed
by the later statute See also Smith v. Benabo.(2)
In Regina v. Youle,(3) Martin, B. said in the oft-quoted
passage :
"If a statute deals with a particular class of
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offences, and a subsequent Act is passed which deals
with precisely the same offences, and a different
punishment is imposed by the later Act, I think that,
in effect, the legislature has declared that the new
Act shall be substituted for the earlier Act."
The rule is however subject to the limitation contained in
Art. 20(1) against ex post facto law providing for a greater
punishment and has also no application where the offence
described in the later Act is not the same as in the earlier
Act i.e. when the essential ingredients of the two offences
are different.
In the premises, the Central Amendment Act having dealt
with the same offence as the one punishable under s.
16(1)(a) and provided for a reduced punishment, the accused
must have the benefit of the reduced punishment. We wish to
make it clear that anything that we have said shall not be
construed as giving to the Central Amendment Act a
retrospective operation insofar as it creates new offences
or provides for an enhanced punishment.
In the result, the appeal must fail and is dismissed.
P.B.R. Appeal dismissed.
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