Bimal Kumar Bouri alias Roy vs State

A.M. Bhattacharjee, J.—We accept and allow this revision, but with some amount of reluctance. As a result, the impugned prosecution u/s 7 of the Essential Commodities Act, 1955 for violation of the provisions of the West Bengal Declaration of Stocks and Prices of Essential Commodities Order, 1977 shall stand quashed. The commodity in question in respect of which the impugned prosecution has been launched is Coal and we, for our part, would like to have no doubt that the West Bengal Declaration of Stocks and Prices of Esential Commodities Order, 1977, hereinafter referred to as "the Order", even as it stood on the date of occurrence in this case in 1983, clearly applied to Coal. The expression "essential commodity" has been defined in Clause 2(b) of the Order to mean "any of the commodities mentioned in Schedule I to this Order" and Item 18 of Schedule I of the Order is "Coal including Soft Coke and Charcoal". Therefore, Clause 3 of the Order mandating display of List of the Stock and Price of each essential commoditty held by a dealer would obviously apply to Coal.

Our attention has, however, been drawn to a Division Bench decision of this Court rendered in 1983 in Ashoke Kumar Jain v. State (87 Calcutta Weekly Notes 597), where it was held that the Order, as it stood then, could not apply to Coal, or for that matter of fact to any non-foodstuff. The ratio of. this Division Bench decision, as spelt out in paragraph 5 of the judgment, is as hereunder :-

" This Order was passed by the West Bengal Government in accordance with a Notification issued by the Government of India, Ministry of Agriculture, Department of Food, being Notification No. G.S.R. 316(E) dated 20/6/72, by virtue of which power was delegated to the State Government u/s 5 of Act X of 1955 for passing the aforesaid Order. On a scrutiny of the Notification it appears that the said Notification only empowers the State Government to make orders to provide for matters in relation to foodstuff. Therefore, the West Bengal Declaration of Stocks and Prices of Essential Commodities Order, 1977 could not be passed in relation to Soft Coke and other types of Coal which are surely not foodstuff."

It is true that in the Preamble to the Order of 1977, as it stood till its amendment in 1984, it was stated that "in exercise of the powers conferred by Section 3 of the Essential Commodities Act, 1955 (Act X of 1955), read with the Government of India, Ministry of Agriculture, (Department of Food) Order No. G.S.R. 316(E) dated 2Qth June, 1972, the Governor is pleased hereby to make the following Order "and it is also true that by and under the said Notification being G.S.R. 316(E) of June 1972 issued u/s 5 of the Essential Commodities Act, the State Government was empowered by the Central Government to make orders in relation to foodstuff only. And if the matter rested there, we would have felt no difficulty in appreciating and agreeing with the Division Bench decision in Asoke Kumar Jain (supra) that the Order, though avowedly professing to apply to Coal and various other non-foodstuff in view of Items 18 to 30 of the Schedule I, was ultra vires in respect of non-foodstuff.

But it appears that the attention of the Division Bench was not at all drawn to the fact that at the time when Order of 1977 was made by the State of West Bengal, there was, and still is, another Order issued by the Central Government u/s 5 of the Essential Commodities Act, being Notification dated 20/11/74, Ministry of Industry and Civil Supplies (Department of Civil Supplies and Co-operative) Order No. S. O. 681(E), whereunder the State Government was also authorised to make Order in respect of all Essential Commodities other than Foodstuffs and Fertilisers. It is true that this Notification of 1974 empowering the State Government to make Orders relating to non-foodstuff was not referred to in the Preamble to the Order of 1977 as a source, or another source, of authority till 1984. But the position nevertheless remains that on the date when the Order of 1977 was made by the State of West Bengal, manifestly purporting to govern Coal and various other non-foodstuffs, as obviously demonstrated in Clause 2(b) and Schedule 1 of the Order, the State of West Bengal was duly empowered to make that Order vis-a-vis those commodities also.

The closing words of the Preamble are "the Governor is pleased hereby to make the following Order, namely" and then follows the Order consisting of 6 Clauses and 2 Schedules. Those 6 Clauses and 2 Schedules really constitute the Order and not the Preamble, which precedes the Order and introduces the same. We can look to the Preamble in order to ascertain the scope of a legislation only when the scope of the enacting provisions may admit of doubts or more interpretations than one. As already noted, looking at the provisions of the legislative Order of 1977 as promulgated in its various Clauses and the Schedules, particularly Clause 2(b) and Item 18 of the Schedule I, there is no scope for any doubt or difference that the Order applies to Coal and various other non-foodstuff. Such clear and unambigous manifestation of the legislative intendment can not obviously be cut down by anything or any omission in the Preamble.

But the Division Bench in Asoke Kumar Jain (supra) has not also narrowed the scope of the Order to foodstuff only by any such interpretative process. The Division Bench has only ruled that since the source of power to make the Order referred to in the Preamble, being the Order ''of 1972, related to foodstuff only, the Order was ultra vires so far it purported to cover non-foodstuff. As already indicated, it does not appear that the attention of the Division Bench was drawn to the fact that there was another source of power, being the aforesaid Notification of 1974, which duly and fully empowered the State Government to make this Order of 1977 applicable to non-foodstuff also. Would the Order fail in respect of non-foodstuff simply because this source of power was not referred to in the Preamble?

We would like to think that the tendency of the Courts towards mere technicalities, as pointed out by the Supreme Court in Pratap Singh v. Shri Krishna Gupta (AIR 1956 SC 140 at 141) and in Nani Gopal v. Municipality of Howrah (AIR 1958 SC 141 at 143), must be deprecated for it is the substance that counts and must take precedence over mere form. If the effective portion of any Legislation leaves no doubt as to its ambit or amplitude, the same cannot be circumscribed merely because in the Preamble, the source of the power to do so was not referred to or was wrongly referred to. The unanimous five-Judge Bench decision of the Supreme Court in Hukumchand Mills v. State of Madhya Pradesh (AIR 1964 SC 1329 at 1332) is a clear authority for the view that "it is well-settled that merely a wrong reference to the power under which certain actions are taken by the Government would not per se vitiate the action done, if they can be justified under some other power under which the Government could lawfully do these acts" and that if a legislative provision could validly be made under a lawful source of power, "the mere mistake in the opening part of the Notification in reciting the wrong source of power does not affect the validity" of the provisions in question. To the same effect is a decision of another earlier five-judge unanimous Bench of the Supreme Court in L. Hazari Mal Kuhilala (AIR 1961 SC 200 at 201), where, relying on a decision of the Division Bench of the Bombay High Court in Pitambar Vajirshet v. Dhondu Naylopa (ILR 12 Bombay 486 at 489), it has been ruled that if a power could be validly exercised under a legal authority, the exercise of such power must be ascribed to such actual existing authority, even though the person exercising the power (to borrow from the Bombay decision) "was not quite alive to it at the time". All these decisions have been referred to and relied on by a two-Judge Bench of the Supreme Court in Municipal Corporation, Ahmedabad v. Ben Hiraban Manilal (1932-2 Supreme Court Cases 422 at 427), where it has been ruled that "it is well-settled that exercise of a power, if there is indeed a power, will be referable to a jurisdiction, when the validity of the exercise of that power is in issue, which confers validity on it and not to a jurisdiction under which it would be nugatory, though the Section was not referred, and a different or wrong Section of different provisions was mentioned." We are accordingly of the view that since on the date when the Order of 1977 was made, the State of West Bengal had in view of the aforesaid Notification of 1974, full authority to make the Order in respect of Coal and other, non-foodstuff, the Preamble, so far it related to non-foodstuff, was merely an instance of reference to a wrong source of authority, or even to no source of authority; but the Order cannot fail, if there was a lawful authority to sustain it, simply because that source was not chanted in a ritualistic form. We have no doubt that the earlier Division Bench decision of this Court in Asoke Kumar Jain (supra) was the result of the attention of the Division Bench not at all being drawn to the Notification of 1974 and also the hasty concession made on behalf of the State Counsel in that case to the effect that the Order could not apply to Coal or other non-foodstuff.

We are fully aware that it is, as it can not but be, well-settled that the Courts of co-ordinate jurisdiction should follow the decisions of one another both as a matter of judicial policy and propriety as well as decorum and decency. But there are, as there can not but be, exceptions to this rule and those are also clearly well-settled. If the earlier decision has been rendered per incuriam, having entirely over-looked a relevant statutory provision or a contrary binding decision of the superior Court, a later Bench, even though of co-ordinate jurisdiction, is relieved of its obligation to follow the earlier. We have the very high authority of Sir Ashutosh Mookerjee, speaking for the Division Bench of this Court, in Vijiiba Dass Moolii v. Bisseswar Lal (AIR 1921 Calcutta 169 at 171), endorsed by a Full Bench of the Nagpur High Court in D. P. Bilmoria v. Central Bank of India (AIR 1943 Nagpur 340), to the effect that notwithstanding ail the principles and propriety behind, and the desirability of, the practice of the precedent being followed, and not departed from, by Courts or Benches of co-ordinate jurisdiction, "the position is indefensible on principle that, although a Judge may feel absolutely convinced that the decision produced before him is erroneous in law, he is still bound to decide against his opinion" and that "to hold such a view is to hold that a Judge may be reduced to a automaton by the production of an earlier judgement." Reference may be made to Salmond (Jurisprudence, 10th Edition, page 1S2) where it has been pointed out that "a precedent which would otherwise possess absolute authority loses its authority in three cases" and one such case is "where the precedent decision was arrived at per incurium as where it was in ignorance of the terms of Statute or statutory rule," As we have already indicated,'' the Division Bench decision in Asoke Kumar Jain (supra) was rendered in complete ignorance of the Notification of 974, fully empowering the State Government to make Orders in relation to Coal and other non-foodstuff and, therefore, without any consideration of the question as to whether mere non-recital of the said Notification in the Preamble would at all affect the validity of the Order relating to non-foodstuff, even though the power to make the Order in respect of non-foodstuff was undisputedly vested in the State Government.

If it was not possible for us to dispose of the present revision without deciding finally about the legality of the aforesaid Division Bench decision, then either we would have to dissent therefrom on the ground of its being per incurium or to refer the matter to a larger Bench for final decision. But since we are of opinion that we should, for reasons stated hereunder, allow the application and quash the impugned proceeding on the basis of this Division Bench decision, even though we, with respect, have not been able to accept it to be correct, we need not adopt any such course.

Whatever doubts there might have been on the question as to whether for an offence, which is only mala prohibita and not mala in se, an offender can be penalised without a guilty mind, the decision of the Supreme Court in 1965 in Nathu Lal v. State of Madhya Pradesh (AIR 1966 SC 43), settled it beyond doubt that mens rea was an essential ingredient for an offence thereunder and one could be convicted thereunder without a guilty mind. This decision was, however, out-weighed by a legislative amendment in 1967, by the Amendment Act No. 36 of 1967, and the element of mens rea was ruled out by adding the words "whether knowingly, intentionally or otherwise" in Section 7 of the Essential Commodities Act, 1955. This continued to be the law till 1974, when by the later Amendment Act No. 30 of 1974 Section 7 was again amended and the words "whether knowingly, intentionally or otherwise" introduced by the Amendment Act of 1967, have been omitted, thereby reverting us back to the position obtaining prior to 1967 whereunder, in view of the decision of the Supreme. Court in Nathu Lal (supra), it must again be held that mens rea is an essential element for an offence u/s 7 of the Essential Commodities Act and that the old thesis of acts non facit reum nisi mens sit rea is still running as a golden web in our Criminal Jurisprudence, unless over-thrown by express enunication or irresistible implication. Section 10C of the Essential Commodities Act, inserted by that Amendment Act No. 30 of 1974, may also be taken to be indicative of the fact that the Legislature has also accepted mens rea as an essential ingredient for an offence under the Act. It is true that u/s 10C, the Court has been directed to presume the existence of mens rea, but the very fact that the Section expressly provides that it shall be a defence for the accused to prove the fact that he had no mens rea with respect to the act charged as an offence would go to show that the Legalislature, far from ruling out mens rea, has accepted it as an essential part of the offence, though it has charged the accused with the onus to prove its absence.

One thing is obviously apparent from the earlier Division Bench decision of this Court in Asoke Kumar Jain (supra) that even a Division Bench of this Court could rule that the Order of 1977, as it stood till 1984, could not apply to Coal or other non-foodstuff. If such a conclusion could be arrived at by a Bench of this Court, then it has got to be accepted that such a view could also be entertained by any dealer of essential commodities, whether on legal advice or otherwise. It is true that the decision in Asoke Kumar Jain (supra) was rendered after the date of occurrance in this case. But, as already stated, if two of our learned judges sitting in a Division of this Court could think that to be a reasonable view, the dealers, whether on the advice of their legal advisers or not, could also claim to have come to such conclusion. As already noted, the absence of recital of the Notification of 1974 in the Preamble led the Division Bench of this Court to conclude that the Order of 1977 could not apply to non-foodstuff. If we in this Court could entertain such a view, any one also can also reasonably claim to have the right to entertain such a view quite honestly, even if erroneously. That being so, once we accept the position that because of the non-recital of the Notification of 1974 in the Preamble to the Order of 1977, as it stood at the relevant time, a reasonable man could honestly, even though erroneously, entertain the view that the said Order would not apply to non-foodstuff, as was in fact held by the earlier Division Bench in Asoke Kumar jain (supra), we would have to hold that the accused-petitioner, even if found to have failed to comply with the Order of 1977, cannot be held to have a guilty mind for such non-compliance. As a result, we have to hold the accused to be not guilty, even if it is proved at the trial that he has not complied with the Order of 1977, as in view of the interpretation made by the earlier Division Bench of that Order of 1977, he must be held to have done so without a guilty mind.

It may be noted, however, that in view of the decision in Asoke Kumar Jain (supra), the State of West Bengal has, in 1984, amended the Preamble to the Order of 1977 by expressly inserting therein the reference to the Notification of 1974 relating to non-foodstuff and has sought to provide that such insertion, though made in 1984, shall always be deemed to have been inserted. But, if in view of Asoke Kumar Jain. (supra), non-compliance with the Order of 1977 in respect of non-foodstuff was not an offence till such insertion, it can not be made an offence retroactively by such ex post facto insertion under the law as provided in Article 20 of the Constitution. Such insertion can have only prospective operation since such insertion and as a result, the decision in Asoke Kumar Jain (supra) will have no further relevance hereafter, even if it could be taken to have been correctly decided. That being the position, we would have to allow the revision and quash the proceeding which we hereby do. The revision is accordingly allowed and the impugned proceeding is quashed. The accused petitioner shall stand discharged from the bail bond, if any. A copy of this judgment along with records, if any, to go down at once.

Amulya Kumar Nandi, J.

I agree.