Dwarikadas Arora vs The State

R.N. Dutt, J.—This Rule is against an order of conviction and sentence u/s 7(1) of the Essential Commodities Act, 1955.

The prosecution case is as follows:

The Petitioner is the proprietor of a sweetmeat shop known as Punjab Mistanna Bhandar at 114/1 Cotton Street, Calcutta. He is an ''appointed establishment proprietor'' within the meaning of the West Bengal Rationing Order, 1964. Under Regulation 43(1) of the Calcutta Industrial Area Rationing Regulations, 1964, every ''appointed establishment proprietor'' shall maintain regular, accurate and daily accounts of each rationed article obtained by him in Form Establishments No. 7. On October 13, 1968, at 7-50 P.M. his account registers were verified and it was found that the stock register of flour and atta was not properly kept.

On this allegation the Petitioner was charged u/s 7(1) of the Essential Commodities Act for violation of Regulation 43(1) of the said Regulations. The Petitioner pleaded not guilty. The learned Magistrate convicted him and sentenced him to rigorous imprisonment for three months and a fine of Rs. 50, in default, rigorous imprisonment for 15 days more.

Mr. Chowdhury raises an interesting point. On August 14, 1964, the Central Government made a ''notified order'' u/s 5 of the Essential Commodities Act, 1955, directing that the powers conferred on it to make orders in respect of foodstuffs u/s 3 of the said Act shall be exercisable also by the State Government, and on the basis of this ''notified order'' the State Government made the West Bengal Rationing Order on December 10, 1964. Calcutta Industrial Area Rationing Regulations, 1964, was promulgated on the basis of the powers conferred on the State Government by para. 16 of the West Bengal Rationing Order, 1964. Mr. Chowdhury submits that the Central Government rescinded the said ''notified order'' on June 9, 1966, and argues that since the authority on the basis of which the West Bengal Rationing Order, 1964, and the Calcutta Industrial Area Rationing Regulations, 1964, were made by the State Government, was rescinded thereby-, had ceased to be in operation with effect from the said date, namely, June 9, 1966,. He, there-fore, contends that the instant prosecution must be held to be bad in law. This argument cannot be sustained. This question arose for our consideration in Nitai Pada Roy v. The District Magistrate, Nadia Unreported decision in Cr. Rev. Case No. 502 of 1968. True, the notified order dated August 14, 1964, was rescinded; but the order, which rescinded the said order of August 14, 1964, also made a new ''notified order'' u/s 5 of the Essential Commodities Act directing that the powers conferred on the Central Government by Section 3 of the said Act to make orders in respect of foodstuffs shall be exercisable also by the State Governments. That shows that the power which the State Government previously had under the ''notified order'' dated August 14, 1964, was again given to the State Government under the new ''notified order'' dated June 9, 1966. We have held in the aforesaid unreported case that in such circumstances the Orders made by the State Government on the basis of the substituted or rescinded ''notified order'' remain valid and continue in operation even after such substitution or rescission. That case related to the West Bengal Food-grains (Requisitioning) Order, 1967. That was made by the State Government on the basis of the notified order No. G.S.R. 906, dated June 9.1966, made by the Central Government u/s 5 of the Essential Commodities Act. But that notified order was substituted by a new notified order, namely, Order No. G.S.R. 1111 dated July 24, 1967. We held that though the West Bengal Food grains (Requisitioning) Order, 1967, was made on the basis of the notified order dated June 9, 1966, and though this notified order was superseded and a new notified order was made on July 24,1967, the West Bengal Food grains (Requisitioning) Order, 1967, did not cease to exist but continued to exist and continued to remain valid even after the new notified order was made on July 24, 1967. Mr. Chowdhury. developed his argument in this case saying that the notified order dated August 14, 1964, was rescinded and replaced by the notified order dated June 9, 1966. We drew Mr. Chowdhury''s attention to the subsequent notified order dated July 24, 1967, which was made in supersession of the notified order dated June 9, 1966. But the question involved is the same, whether Order made by the State Government u/s 3 of the Essential Commodities Act on the basis of a ''notified order'', which was subsequently replaced by a similar ''notified order'', continues in operation or ceases to be operative. The learned Advocate-General argues that the notified order dated June 9, 1966, has itself incorporated a proviso stating that notwithstanding such rescission, any Order made by a State Government in pursuance of the ''notified order'' rescinded and in force immediately before the commencement of the new ''notified order'', shall be deemed to have been made in pursuance of the new order and under the relevant provisions of Section 3 of the Act and shall continue in force. Unless some law of the land provides for this contingency, it is doubtful if by incorporating this proviso in the new notified order the previous Orders made by State Government u/s 3 of the Act could be made to continue or could be made to continue to remain effective after the rescission. When we look to the still later notified order, namely, No. G.S.R. 1111 dated July 24, 1967, we notice that no such proviso was added thereto. We have, however, held in the aforesaid unreported case that the previous Orders of the State Government u/s 3 of the Act remained in operation of the rescission because of Section 24 of the General Clauses Act. Mr. Chowdhury argues before us that Section 24 of the General Clauses Act speaks of ''Acts'' only. But Section 24 is attracted not only to ''Acts'' but to ''orders'' and ''notifications'' under the Acts. Moreover, even apart from the strict terms of Section 24 of the General Clauses Act, the principle involved therein is applicable in the instant case. The language of Section 24 clearly shows that it is intended to apply to all rules, regulations or orders made under an Act. Because of Section 24 and the authority of the principles underlying Section 24, it does not seem necessary to specify in the new Act, notification or order that action taken or orders made under the previous Act or order continues to be valid. We hold, therefore, that even after June 9, 1966, or for the matter of that, even after July 24, 1967, the West Bengal Rationing Order, 1964, "and the Calcutta Industrial Area Rationing Regulations, 1964, remain valid and in operation. The instant prosecution is not, therefore, bad in law.

Mr. Chowdhury then raises the question of sentence. It is not disputed that the accounts were duly kept upto October 11, 1968. What was found was that the accounts for October 12, 1968, were not written up. The Petitioner explained that he was illiterate and the employee, who used to write daily account, was on leave. The inspector, who visited the shop, admits this. We also find that the Petitioner has served out a part of the sentence of imprisonment. Under the circumstances, we do not propose to send him back to prison.

In the result, the Rule is discharged subject to this that the sentence is reduced to rigorous imprisonment for the period already undergone and a fine of Rs. 50 (Rupees fifty), in default, rigorous imprisonment for fifteen days more.

A.P. Das, J.

I agree.