Case ID: 30

Judgment:
Appeal (Criminal Appeal No. 3 of 1950) from a judgment of the High Court of Judica ture at Patna dismissing a petition to revise an order of the Sessions Judge	 Patna	 convicting the appellant for an offence under section 186	 Indian Penal Code: The facts of the ease appear in the judgment. N.C. Chatterjee (Rameshwar Nath	 with him) for the appellant. S.K. Mitra (K. Dayal	 with him) for the respondent. S.M. Sikri for the Intervener. 305 1951. March 5. The judgment of the Court was delivered by PATANJALI SASTRI J. This is an appeal from a judgment of the High Court of Judicature at Patna dismissing a revi sion petition against the conviction of the appellant for an offence under section 186 of the Indian Penal Code. The appellant was at all material times the General Manager of the Jagdishpur Zamindary Company (hereinafter referred to as the company) who were the lessees of a sugar factory referred to in these proceedings as the Bhita Sugar Factory. He was prosecuted for obstructing the then District Magistrate and the Special Officer incharge of Rationing	 Patna	 in the discharge of their official functions when they went to the factory on 6th December	 1947	 to remove 5	000 maunds of sugar which had been seized out of the stock held by the company pursuant to an order of the Government of Bihar dated 5th December	 1047. The case for the prose cution was as follows: The company had deliberately failed to comply with the orders for supply of sugar issued from time to time under the provisions of the Sugar and Sugar Products Control Order	 1047	 by officers of the Government duly authorised in that behalf. and	 in consequence	 the Government made the following order on 5th December	 1947 : "In exercise of the powers conferred on the Central Government by cl. (1) of sub section (2) of section 3 of the Essential Supplies (Temporary Powers) Act	 1946	 which have been delegated to the Provincial Government in relation to foodstuffs in the notification of the Government of India	 Department of Food	 No. PY 603 (2) 1 dated 21st October	 1946	 the Governor of Bihar is pleased : (1) to authorise the District Magistrate	 Patna	 and/or the Special Officer in charge of Rationing	 Patna	 to search the stock of sugar held by Messrs. Jagdishpur Zamind ary Company	 Bhita	 in the District of Patna	 which is about to commit a contravention of 306 the order of the Chief Controller of Prices and Supplies	 Bihar	 made under cl. 7 (1) (ii) of the Sugar and Sugar Products Control Order	 1947	 and issued in order No. 1613 P.C.R. dated 27th September	 1947	 in so far as the said order relates to the said Company	 and (2) to direct that 5	000 maunds of sugar held in stock by the said Company shall be seized. By order of the Governor of Bihar Sd. T.P. SINGH	 Secretary to Government. " On the 6th December	 1947	 when the officers named went to the factory to carry cut the aforesaid order	 they were told by the appellant that he would do everything possible to obstruct the removal of the sugar	 and accordingly it was found that the sugar godowns had been locked and the road leading to them blocked by heaps of coal	 firewood and tins placed across	 so as to make vehicular traffic impos sible. A railway siding leading to the godowns had also been rendered unserviceable by the removal of some of the rails and fishplates. As a result of such obstruction	 the officers had to seek the aid of armed police to break open the locks	 repair the railway line and clear the road block before the sugar could be removed from the factory. The appellant 's main defence was that on a proper con struction of section 3 of the Essential Supplies (Temporary Powers) Act	 1946	 hereinafter referred to as the Act) it was not competent for the Government to pass the order of 5th December	 1947	 which was consequently illegal and void	 and that obstruction to the execution of that order could not constitute an offence under section 186 of the Indian Penal Code. The contention was rejected and the appellant was convicted and sentenced to simple imprisonment for a term of three weeks. On appeal	 the Sessions Judge	 Patna	 confirmed the conviction and sentence	 agreeing with the findings of the trial court	 and a Revision Petition preferred by the appel lant was rejected by the High Court	 307 which	 however	 granted a certificate under article 134 (1) (c) of the Constitution that the case was a fit one for appeal to this court as it involved a point of "sufficient public importance" as to the interpretation of section 3 of the Act. Section 3	 so far as it is material here	 runs as follows : "3. (1) The Central Government	 so far as it appears to it to be necessary or expedient for maintaining or increas ing supplies of any essential commodity	 or for securing their equitable distribution and availability at fair prices	 may	 by notified order	 provide for regulating or prohibiting the production	 supply and distribution thereof	 and trade and commerce therein. (2) Without prejudice to the generality of the powers conferred by sub section (1)	 an order made thereunder may provide (j) for any incidental and supplementary matters	 in cluding in particular the entering	 and search of premises	 vehicles	 vessels and aircraft	 the seizure by a person authorised to make such search of any articles in respect of which such person has reason to believe that a contravention of the order has been	 is being	 or is about to be commit ted	 the grant or issue of licences	 permits or other docu ments	 and the charging of fees therefor. " It was contended that an order under sub section (1) should be in the nature of a rule or regulation of general application	 like the Sugar and Sugar Products Control Order	 1947	 issued by the Central Government on 4th August	 1947	 as the sub section confers on the Central Government only the power to "provide for regulating or prohibiting" the production	 supply	 distribution	 etc.	 of essential commodities	 and does not authorise the making of ad hoc or special orders with respect to any particular person or thing. We see no reason to place such a restricted con struction on the scope of the power conferred on the Central Government. The term "notified order" which is defined as meaning "an 40 308 order notified in the official Gazette" is wide enough to cover special as well as general orders relating to the matters specified in section 3. The power to provide for regulating or prohibiting production	 distribution and supply conferred on an executive body may well include the power to regulate or prohibit by issuing directions to a particular producer or dealer or by requiring any specific act to be done or forborne in regard to production	 etc.	 and the provisions of section 4 lend support to that view. The Central Government is empowered under the latter section to delegate its power to make orders under section 3	 sub ject to conditions to be specified	 to any officer or subor dinate authority either of the Central or a Provincial Government. It would be strange	 if	 as contended for the appellant	 a subordinate officer in charge	 say	 of a small area	 should	 by delegation	 exercise powers of a legisla tive character in relation to the matters specified in section 3	 but should not have the power of issuing special orders concerning specific individuals or things. We do not think that such a situation could have been contemplated. The power delegated under section 4 must	 in our opinion	 include the power of issuing directions to any producer or dealer in relation to production	 etc.	 of any specified essential commodity. If so	 the delegating authority itself must possess such power under section 3. For instance	 section 7 of the Sugar and Sugar Products Control Order	 1947	 made by the Central Government empowers the" Control ler" "to issue directions to any producer or dealer to supply sugar or sugar products" to specified areas	 persons or organisations. This delegation is expressed to be made "in exercise of the powers conferred by sections 3 and 4" of the Act	 but unless the Central Government itself had the power of issuing such directions under section 3	 it could not delegate that power to the Controller under section 4. This view is reinforced by the language of section 15	 which contemplates orders under section 3 being made against a particular person	 for it speaks of "an order made under section 3 which prohibits him (that 309 is	 the person prosecuted for its contravention) from doing any act or being in possession of a thing without lawful authority etc. " The restricted construction of section 3 contended for by the appellant 's counsel would render the scheme of the Act largely unworkable	 and we have no hesita tion in rejecting it. Even so	 it was argued	 an order for seizure could be made only subject to the conditions and limitations speci fied in clause (j) of sub section (2) of section 3	 that is to say	 only where the person authorised in that behalf "has reason to believe that a contravention of the order [an order made under sub section (1)] has been	 is being	 or is about to be committed ". In the present case	 the order of 5th December	 1947	 directing the seizure of 5	000 maunds of the company 's sugar	 in the execution of which the appellant has been found to have obstructed the officers of the Pro vincial Government	 recited that the company was "about to commit a contravention of the order of the Chief Controller of Prices and Supplies	 Bihar	 made under cl. 7. (1) (ii) of the Sugar and Sugar Products Control Order	 1947	 and issued in order No. 1613 P.C.R. dated 27th September	 1947	 in so far as the said order relates to the said company". The latter 'order	 while it directed the company	 among others	 "to supply sugar at the prices fixed to the approved dealers of certain Districts"	 left it to the District or Sub divi sional Officer to fix quotas for the approved dealers of his District or Sub division from the District or Sub divisional allotment and to inform the company when and where the supplies are to be made. It has been found by the courts below that the total quantity of sugar which the order required to be supplied was varied from time to time	 and no quotas to approved dealers were ever fixed nor information sent to the company as to when and where supplies were to be made. The order of the 27th September	 1947	 having thus remained inchoate and incomplete and so incapable of being carried out or contravened till the 5th December	 1947	 it was submitted that no seizure and removal could be lawfully ordered on the basis of an anticipated contravention 310 of such an order	 and that the officers concerned in the illegal and unauthorised removal of the sugar were not acting in the discharge of their public functions. Reference was made in this connection to the decisions of the Calcutta High Court in Lilla Singh vs Queen Empress(1) and Queen Empress vs Jogendra Nath Mukerjee(2) where it was held that the public function in the discharge of which a public servant was obstructed must be a legal or legitimately authorised function	 in order that the obstruction might constitute an offence under section 186 of the Indian Penal Code. On the other hand	 counsel for the respondent main tained that for an offence under that section it was not necessary that the act which was obstructed must be duly authorised and otherwise lawful if it was being done or was sought to be done by a public servant honestly and in good faith believing that it was part of his public functions	 and reliance was placed in support of this view on the decisions of the Madras High Court in Queen Empress vs Poomalai Udayan(3)	 Public Prosecutor vs Madava Bhonjo Santos(4) and Peer Masthan Rowther vs Emperor(5). We think it is unnecessary for the purpose of this appeal to pro nounce on the true scope of section 186 of the Indian Penal Code as we are of opinion that the appellant 's argument must fail on another ground. It is manifest that sub section (2) of section 3 confers no further or other powers on the Central Government than what are conferred under sub section (1)	 for it is "an order made thereunder" that may provide for one or the other of the matters specifically enumerated in sub section (2) which are only illustrative	 as such enumeration is "without prejudice to the generality of the powers conferred by sub section (1)" Seizure of an article being thus shown to fall within the purview of sub section (1)	 it must be competent for the Central Government or its delegate	 the Provincial Government	 to make an order for seizure under (1) I.L.R. 22. (4) (2) I.L.R. (5) (3) I.L.R. 311 that sub section apart from and irrespective of the antici pated contravention of any other order as contemplated in clause (j) of sub section (2). The order ' of 5th December	 1947	 must	 therefore	 be held to be a valid order	 notwith standing its reference to the order of the 27th September	 1947	 as being about to be contravened. If the latter order was incomplete and inoperative and consequently there could be no question of its contravention	 as contended for the appellant	 the reference to it in the order dated the 5th December	 1947	 would be an immaterial redundancy and could not affect the validity of the latter order. The seizure of the company 's sugar must	 therefore	 be regarded as duly authorised and lawful	 and the appellant by ob structing its removal	 committed an offence under section 186 of the Indian Penal Code even on the stricter construc tion placed on that provision by the Calcutta High Court. The view we have expressed above receives support from the decision of the Privy Council in Sibnath Banerjee 's case(1). Section 2(1) of the Defence of India Act	 1939	 as amended by section 2 of the Defence of India (Amendment) Act	 1940	 empowered the Central Government to make rules for securing the defence of British India	 the public safe ty	 the maintenance of public order	 etc.	 and sub section (2) enacted "without prejudice to the generality of the powers conferred by sub section (1)	 the rules may provide for all or any of the following matters . ". Among such matters was the detention of any person "reasona bly suspected" of having acted etc. in a manner prejudicial to the public safety etc. [clause (x)]. Rule 26 of the Rules made under the section	 however	 authorised the Gov ernment to detain a person "if it is satisfied" that it was necessary to detain him with a view to prevent him from acting prejudicially. ' . .The Federal Court held (2) that this rule was ultra vires as it Went beyond the scope of clause (x) in that it left it to the satisfaction of the Government to decide whether or not it was necessary to detain a (1) ; 72 I. A.241	 248. (2) 312 person	 The decision was reversed and Lord Thankerton	 delivering the judgment of the Board	 observed: "In the opinion of their Lordships	 the function of subsection(2) is merely an illustrative one; the rule making power is con ferred by sub section (1)	 and "the rules" which are re ferred to in the opening sentence of subsection (2) are the rules which are authorised by	 and made under	 sub section (1); the provisions of sub section (2) are not restrictive of sub section(1)	 as	 indeed is expressly stated by the words "without prejudice to the generality of the powers conferred by sub section (1)". "There can be no doubt as the learned Judge himself appears to have thought that the general language of sub section (1) amply justifies the terms of rule 26	 and avoids any of the criticisms which the learned Judge expressed in relation to subsection (2)". This accords with our view of the effect of subsections (1) and (2) of section 3 of the Act. The appeal is dismissed. The appellant 's bail bond is cancelled and he is ordered to surrender. Appeal dismissed. Agent for respondent and Intervener: P.A. Mehta.

Summary:
Section 3 of the Essential Supplies (Temporary Powers) Act	 1946	 provided as follows: (1) The Central Government	 so far as it appears to it to be necessary or expedient for maintaining or increasing supplies of an essential commodity	 or for securing their equitable distribution and availability at fair prices	 may by notified order	 provide for regulating or prohibiting the production	 supply and distribution thereof	 and trade and commerce therein. Without prejudice to the generality of the powers conferred by sub section (1) an order made thereunder may provide . (j) for any incidental and supplementary matters. including in particular the entering	 and search of premises	 vehicles	 vessels and aircraft	 the seizure by a person authorised to make such search of any articles in respect of which such person has reason to believe that a contravention has been	 is being	 or is about to be commit ted. " In exercise of the powers conferred on the Central Government by cl. (j) of sub section (2) of section (3) of the above said Act	 which had been delegated to the Provincial Govern ment in relation to food stuffs	 the Governor of Bihar made an order authorising the District Magistrate	 Patna	 and the Special Officer in charge of rationing	 Patna	 to search the stock of sugar held by a company of which the appellant was the General Manager and directing the seizure of 5	000 maunds of sugar held in stock by the said company	 on the ground that the company was about to commit a contravention of an order of the Chief Controller of Prices and Supplies made under the Sugar and Sugar Products Control 304 Order	 1947. The appellant obstructed the officers who went to search and seize the goods and was convicted under section 186	 Indian Penal Code. Held	 (i) the power "to provide for regulating or prohib iting production	 supply and distribution" conferred by the Act on the Central Government included the power to regu late or prohibit by issuing directions to a particular producer or dealer or by requiring any specific act to be done or foreborne in regard to production etc.	 and the order of the Governor was not therefore invalid on the ground that it was not a rule or regulation of general application but an order concerning a particular company alone; (ii) sub section (2) of section 3 conferred no further or other powers than what were conferred by sub section (1) and the enumeration of certain matters in sub section (2) was merely illustrative	 as such enumeration was "without prejudice to the generality of the powers conferred by sub section (1) "; (iii) seizure of an article being within the purview of sub section (1) of section 3 it was therefore competent to the Cen tral Government	 and its delegate the Provincial Government	 to make an order for seizure under sub section (1) apart from and irrespective of the anticipated contravention of any other order as contemplated in el. (j) of sub section (2); (iv) even assuming that the order of the Chief Control ler of Prices under the Sugar Control Order was incomplete and inoperative and there could be no question of its con travention	 the reference to that order in the order made by the Governor would be a mere redundancy and would not affect the validity of the latter order	 and the appellant was rightly convicted under section 186	 Penal Code. Quaere: Whether for an offence under section 186	 Penal Code	 it is necessary that the act which was obstructed must be duly authorised and otherwise lawful. King Emperor vs Sibnath Banerjee applied.