Case ID: 44

Judgment:
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 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 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 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 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 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) 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 intervener: P.A. 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.