Santosh Kumar Jain Vs. The State Union of India [1951] INSC 15 (5 March 1951)
SASTRI, M. PATANJALI KANIA, HIRALAL J. (CJ)
DAS, SUDHI RANJAN
CITATION: 1951 AIR 201 1951 SCR 303
CITATOR INFO :
R 1964 SC1781 (17) R 1985 SC 660 (12,13) R
1990 SC1891 (11)
ACT:
Essential Supplies (Temporary Powers) Act
(XXIV of 1946), s. 3--Power to "provide for regulating or prohibiting
production, supply and distribution" of goods-----Whether includes power
to issue directions and orders to particular persons to do specific acts--Order
to search and seize goods held by particular company--Validity-Scope of sub-ss.
(1) & (2) of s. 3--Generality of powers conferred by sub-s. (1)--Obstruction
to officers Carrying out order for seizure-Conviction under s. 186,
I.P.C.--Legality--Indian Penal Code, 1860, s. 186--Offence under, essentials
of.
HEADNOTE:
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-s. (1) an order made there under 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 committed..." In exercise of the powers conferred on the Central
Government by cl. (j) of sub-s. (2) of s. (3) of the above said Act, which had
been delegated to the Provincial Government 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 s. 186, Indian Penal Code.
Held, (i) the power "to provide for
regulating or prohibiting production, supply and distribution" conferred
by the Act on the Central Government included 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 fore borne 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 s. 3 conferred no
further or other powers than what were conferred by sub-s. (1) and the
enumeration of certain matters in sub-s. (2) was merely illustrative, as such
enumeration was "without prejudice to the generality of the powers
conferred by sub-s. (1) ";
(iii) seizure of an article being within the
purview of sub-s. (1) of s. 3 it was therefore competent to the Central
Government, and its delegate the Provincial Government, to make an order for
seizure under sub-s. (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 Controller of Prices under the Sugar Control Order was incomplete and
inoperative and there could be no question of its contravention, 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 s. 186, Penal Code.
Quaere: Whether for an offence under s. 186,
Penal Code, it is necessary that the act which was obstructed must be duly
authorised and otherwise lawful.
King Emperor v. Sibnath Banerjee [1945]
F.C.R. 195 applied.
CRIMINAL APPELLATE JURISDICTION: Appeal
(Criminal Appeal No. 3 of 1950) from a judgment of the High Court of Judicature
at Patna dismissing a petition to revise an order of the Sessions Judge, Patna,
convicting the appellant for an offence under s. 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 revision petition against the
conviction of the appellant for an offence under s. 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 in charge 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 prosecution 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 Zamindary 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. 1613P.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 impossible. 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 construction of s. 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 s. 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 appellant 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 increasing 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 there under 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 of the order has been,
is being, or is about to be committed, the grant or issue of licences, permits
or other documents, and the charging of fees there for." 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 construction 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, subject to
conditions to be specified, to any officer or subordinate 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 legislative 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" Controller" "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
hesitation in rejecting it.
Even so, it was argued, an order for seizure
could be made only subject to the conditions and limitations specified 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 Provincial 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-divisional 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 v.
Queen Empress(1) and Queen Empress v. 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 maintained 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 v.
Poomalai Udayan(3), Public Prosecutor v.
Madava Bhonjo Santos(4) and Peer Masthan Rowther v. Emperor(5). We think it is
unnecessary for the purpose of this appeal to pronounce 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 subsection (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) 31 M.L.J. 505.
(2) I.L.R. 24 Cal. 320. (5) 1938 M. W. N.
418.
(3) I.L.R. 21 Mad. 296.
311 that sub-section apart from and
irrespective of the anticipated 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, notwithstanding 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 obstructing its removal, committed an offence under section
186 of the Indian Penal Code even on the stricter construction 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 safety, the
maintenance of public order, etc., and subsection (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 "reasonably 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 Government 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) [1945] F. C. R.195; 72 I. A.241, 248. (2)
[1944] F.C.R. 1.
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 conferred by sub-section (1), and
"the rules" which are referred 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 the appellant: Rajinder Narain.
Agent for respondent and Intervener: P.A.
Mehta.
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