Case: Sisir Kumar Dutta Vs. State Of West Bengalunion Of India-Intervener

(1) This is an appeal under Art. 132 (1) of the Constitution. Leave to appeal was granted by the High Court at Calcutta.(2) The appellant was convicted under S. 7 (1), Essential Supplies (Temporary Powers) Act of 1946 for an offence said to have been committed on 24/10/1950. The conviction was on two counts ; (1) for selling cloth above the controlled rate and (2) for not issuing a cash memo. The sentence was rigorous imprisonment for three months and a fine of Rs. 200.00 with another three months in default. The trial was before the 8th Presidency Magistrate at Calcutta who adopted a summary procedure.(3) There was an application for revision before the High Court but it was dismissed. An application for leave to appeal to this Court was then filed. It was granted on a ground which was not taken either in the original Court or in the revision before the High Court, namely that the Essential Supplies Act of 1946 under which the appellant was convicted was not in force on 24th Otctober 1950 and so there could be no conviction under it.

Reasoning:
(9) Now S. 4-A provides that the Constituent Assembly shall have the powers of the Dominion Legislature under the British Act "until other provision is made by or in accordance with a law made by the Constituent Assembly under sub-s. (1) of S. 8, Indian Independence Act,Turning to sub-s. (1) of S. 8 we find that the British Parliament invested the Constituent Assembly with all the powers of the Dominion Legislature "for the purpose of making provision as to the constitution of the Dominion." That power it exercised and drew up the Indian Constitution, but in doing so it decided to bring the Constitution into being in two instalments and it did that by enacting Art. 394 and enacting in it that that Article and certain others. including Art. 379, should come into force "at once"- at once being 26/11/1949- while the remaining Articles were to come into force onis clear that the Constituent Assembly was to continue in existence till "the commencement of the Constitution" which, by Art. 394, is 26/01/1950. Consequently, the power conferred on it as a designated body by the English statute. as adapted by the Governor-General, could be validly exercised on 20/12/1949 and was so exercised when it passed the resolution of that date. The provisional Parliament was not a body authorised to exercise the special power of approving the extension of the period mentioned in S. 4 of the English Statute as that was not one of "the powers conferred by this Constitution on Parliament," nor can bringing the provisional Parliament into existence on 26/11/1949 (assuming that to be the case) be regarded as "other provision" trade by the Constituent Assembly within the meaning of S. 4-A of the English Act. It follows the Constituent Assembly was not deprived of these specially designated powers on the date of theResolution of 20/12/1949 took immediate effect and its effect was to alter the date fixed for the expiration of the period mentioned in S. 4 of the English Statute from 31/03/1950 to 31/03/1951. The Essssential Supplies Act fixed the date for its own expiration as the date fixed for the expiration of the period mentioned in S. 4 above. Accordingly, it was an Act which was alive immediately before 26/01/1950 and which was due, at that time, to expire of its own force not on 31/03/1950 but on 31/03/1951, and as this was a law in force immediately before the commencement of the Constitution it continued in force, because of Art. 372 (1) and Expln. III, until it was due tohold that there was a body in existence at all material times competent to extend the life of the Act up till 31/03/1951 and that it did so extend its life on 20/12/1949. The Act continued in force until after the Constitution and therefore was a living Act at the date of the offences, namely,heard him fully and are of opinion that these remaining points are not ones on which special leave to appeal should be granted. We therefore reject this irregular petition for special leave to appeal on its merits.