Amarendra Nath Ghose vs State of West Bengal

Das Gupta, J.—This Rule was directed on the Deputy Commissioner of Darjeeling to show because why proceedings pending against the Petitioner in the court of a Magistrate at Siliguri should not be quashed.

The proceedings were under Sections 6 and 7 of the West Bengal Cement Control Act. After some witnesses were examined a charge has been framed against the Petitioner that he by contravention of an order contained in notification No. 1033D.C.S. of August 18, 1948, committed an offence under Sections 6 and 7 of the Cement Control Act, 1948. Section 6 of the West Bengal Cement Control Act is in these words:

If any person contravenes any order made u/s 3, he shall be punishable with imprisonment for a term which may extend to three years or with fine or with both, and, if the order so provides, any Court, trying such contravention, may direct that any property in respect of which the Court is satisfied that the order has been contravened shall be forfeited to his Majesty.

Section 7 provides:

Any person who attempts to contravene, or abets a contravention of, any order made u/s 3, shall be deemed to have contravened that order.

Section 3 of the West Bengal Cement Control Act under which the order is said to have been made provides that:

The Provineial Government may by order in the Official Gazette provide for regulating or prohibiting the production, supply and distribution of cement and trade and commerce therein within West Bengal.

The important question here is whether any order has been made in respect of the district of Darjeeling within which the offence is said to have been committed.

It is necessary to mention here that the West Bengal Cement Control Act, 1948, was preceded by an Ordinance, West Bengal Cement Control Ordinance, 1948. That Ordinance contained provision for making of orders with regard to production, supply, distribution and trade and commerce in cement similar to what now appears u/s 3 of the Cement Control Act, 1948. Under that Ordinance, on August 18, 1948, was passed the order which is now said to have been contravened. Section 16 of the Cement Control Act provides:

Any order or direction issued or any action taken or anything done or any penalty, forfeiture or punishment incurred or imposed or any proceeding commenced in exercise of any power conferred by the West Bengal Cement Control Ordinance, 1948, shall, on the said Ordinance ceasing to be in operation, be deemed to have been issued, taken, done, incurred, imposed or commenced under the provisions of this Act as if this Act had commenced on the 6th day of August, 1948.

The necessary consequence of Section 16 of the West Bengal Cement Control Act is that if any order had been passed under the Ordinance, that should operate on the expiry of the Ordinance as an order passed under the provisions of the West Bengal Cement Control Act, 1948. There can be no doubt, therefore, that in respect of those parts of West Bengal in which the West Bengal Cement Control Ordinance, 1948, became law on August 6, 1948, the notification that was passed on August 18, 1948, under No. 1033 D.C.S. containing certain orders as regards production, supply, distribution, trade and commerce in cement operated after the expiry of the Ordinance as orders u/s 3 of the West Bengal Cement Control Act, 1948. The question is whether there was any such order at all under the Ordinance in respect of the district of Darjeeling. It is well to remember that the Ordinance when first passed did not automatically become the law for the district of Darjeeling. To make the Ordinance applicable to Darjeeling an order had to be made by the Governor u/s 92 of the Government of India Act, 1935. Such order was passed on August 24, 1948, in the following terms:

In exercise of the power conferred by Sub-section (2) of Section 92 of the Government of India Act, 1935, the Governor is pleased to direct that the West Bengal Cement Control Ordinance, 1948 (West Bengal Ordinance IX of 1948), shall apply to the Darjeeling district.

This notification was published on August 26, 1948. Clearly, therefore, the West Bengal Cement Control Ordinance, 1948, became valid law in Darjeeling only with effect from August 26, 1948. It is important to notice that the Government notification referred only to the Ordinance and did not refer to any notification already passed under the Ordinance. Unless, therefore, there is anything in general law the effect of which is that as soon as an Ordinance was extended to Darjeeling, the notification already passed under the Ordinance also became applicable to Darjeeling, it must be held that the notification of August 18, 1948, did not apply to the district of Darjeeling. I have been unable to find any authority for the view that with the extension of the Ordinance to Darjeeling the notification already passed under the Ordinance also became extended to Darjeeling nor can I find anything in principle to support such a view. It seems to me clear that before any order could be passed under the Ordinance for Darjeeling it was necessary that the Ordinance itself should be law in Darjeeling. The orders passed under the Ordinance before the Ordinance became law in Darjeeling would not have any legal validity in Darjeeling.

I have, therefore, come to the conclusion that the notification of August 18, 1948, did not have any legal validity in Darjeeling. It is not said that there was any later notification for the district of Darjeeling containing any order in the matter. In any case, the present prosecution is for contravention of orders contained in the notification, dated August 18, 1948. As in my judgment that notification had no legal validity in Darjeeling under the Ordinance, it could have no legal validity under the Act for Section 16 of the Act could apply only if there was already an order issued under the Ordinance. When there was no order issued for Darjeeling under the Ordinance, Section 16 of the Act cannot produce the effect that the order passed for other districts of Bengal before the Ordinance became law in Darjeeling would become law in Darjeeling after the expiry of the Ordinance.

My conclusion, therefore, is that the Petitioner cannot be said to have contravened any order u/s 3 of the West Bengal Cement Control Act, 1948, even assuming all the facts mentioned by the prosecution to have been proved.

I would, therefore, quash the proceedings and order that the accused be acquitted.

Debabrata Mookerjee, J.

I agree.