Joylal Agarwala Vs. The State Union of
India  INSC 43 (4 October 1951)
AIYAR, N. CHANDRASEKHARA KANIA, HIRALAL J.
(CJ) SASTRI, M. PATANJALI MUKHERJEA, B.K.
DAS, SUDHI RANJAN
CITATION: 1951 AIR 484 1952 SCR 127
CITATOR INFO :
RF 1953 SC 63 (4,7) RF 1956 SC 269 (42)
Essential Supplies (Temporary Powers) Act
(XXIV of 1946), ss. 1 (3), 7--Applicability to "excluded areas
"--Duration of Act extended in British India by Governor General, and by
Constituent Assembly after Indian Independence Act, 1947--Whether Act continues
to be in force in excluded areas--Necessity of fresh notification-Delegation of
legislative powers--Government of India Act, 1935, s. 92 (1).
The Essential Supplies (Temporary Powers) Act
(XXIV Of 1946) came into force on 19th November, 1946. By a notification 128 of 14th December, 1946, under s. 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 s. 4 of the India (Central Government and
Legislature) Act, 1946. By a notification issued by the Governor General under
s. 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 s. 4 of the above said India Act of 1946 became vested after the passing
of the Indian Independence Act, 1947, passed resolutions extending the
operation of the Essential Supplies Act up to 31st March, 1950. The appellant,
who was convicted under s. 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
extended 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 s. 92 (1) of the Government of India Act,
1935, was not necessary. Under the adaptations made under ss. 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 district 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.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeals No. 7 of 1950 and No. 25 of 1951.
Criminal Appeal No. 7 of 1950 was an appeal
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 Constitution
of India. In the second case, special leave to appeal was granted by this Court
under article 136(1) of the Constitution. 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' rigorous
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
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 Government 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 Emergency in force at the passing of this
Act ceases to operate or, if the Governor-General by public notification so directs,
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 section 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 operative only till 31-3-1947, under the first part. The Governor-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 14-81947, 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 adaptation, providing that the powers of
the Dominion Legislature shall be exercised by the Constituent Assembly. On
25-21948, 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 questions were urged on behalf of the appellant:-firstly, whether 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 cessation
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 notification
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 Essential 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 installments 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 applicability 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 legislature 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 Parliament" in section 4 of the
India (Central Government and Legislature) Act, and the Constituent Assembly by
two resolutions of different dates has extended the life of the Essential
Supplies Act till 31-3-1950. As soon as the adaptations 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
The case of Jatindra Nath Gupta v. 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 machinery to reach the maximum period by installments 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 mill made 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,
He was convicted under section 7 (1) read
with section 8 of the Essential Supplies Act and sentenced to 9months' rigorous
imprisonment and a fine Of Rs. 1,000 by the (1)  F.C.R. 596.
18 134 1st Class Magistrate of Barrackpore.
The Sessions Judge of 24-Parganas dismissed the appeal preferred by the
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 wanting. 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 mill made 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
Agent for the appellant: R.R. Biswas.
Agent for the respondent: P.K. Bose.
Agent for the intervener: P.A. Mehta.