riminal Appeals No 7 of 1950 and No 25 of 1951
Criminal Appeal No 7 of 1950 was an appeal under article 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 SN Mukherjee for the appellant in both the appeals
B Sen for the respondent in both appeals
GN 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 1341c of the Constitu tion of India
In the second case special leave to appeal was granted by this Court under article 1361 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 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 921 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 13 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 194 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 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 921 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 194 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 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 vs The Province of Bihar and Others1 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 1000 by the 1 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 wasloading 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 intervener PA Mehta


Summary:
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 section 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 section 4 of the India Central Government and Legislature Act 1946
By a noti fication issued by the Governor General under section 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 section 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 section 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 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 section 92 1 of the Government of India Act 1935 was not necessary
Under the adaptations made under sections 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