Fesu Sheikh and Another vs Emperor

Das, J.—This is an application in revision against an order of the learned Sessions Judge of the Santal Perganas, dated 30-6-1947, by which the learned Judge, while setting aside the conviction and sentence passed against the petitioners, has directed a fresh trial of the petitioners for certain offences alleged to have been committed by them. It is contended on behalf of the petitioners that they had committed no offence, and, therefore, a fresh trial is not warranted by law.

The allegation against the petitioners was that on 18-1-1947, they were taking 18 heads of buffaloes from Bihar to Bengal. It was alleged that they had contrevened the provisions of clause 3 of the Bihar Cattle Fowl, Eggs, Sheep and Goats (Movement) Control Order, 1943 (hereinafter referred to as the Control Order 1943 for the sake of brevity and convenience). That clause of the Control Order 1943 says, inter alia, that no person shall carry or move any cattle from any district in the Province of Bihar to any place outside the Province of Bihar except with the written permission of the Chief Controller of Prices and Supplies, Bihar, etc. The word "cattle" in the Control Order 1943, includes a buffalo. It is the admitted position that the Control Order 1943, expired on 30-9-1946, the date on which the Def. once of India Act, 1939, and the rules made there under expired. Learned Counsel for the Crown does not contest this position.

The offence in this case was alleged to have been committed on 18-1-1947. If there were no other law except the Control Order 1943, which had expired on 30-9-1946, then the petitioners would undoubtedly be not guilty of any offence when they attempted to remove some buffaloes from Bihar to Bengal. The Courts below thought, however, that the petitioners would be liable u/s 5 of the Bihar Essential Articles Control (Temporary Powers) Ordinance, 1946, (hereinafter referred to as the Control Ordinance for the sake of brevity and convenience). Section 5 of the Control Ordinance lays down, among other things, that every order made by the Provincial Government under any of the provisions of the Defence of India Rules in respect of any of the matters specified in Section 3 relating to an essential article, which having been notified in the Official Gazette was in force immediately before the commencement of this Ordinance shall, in so far as it could validly have been made by the Provincial Government under this Ordinance, continue in force as if made by the Provincial Government under the provisions of this Ordinance etc. The expression "essential articles" has been denned in Section 2 of the Control Ordinance. That definition says that "essential article" means any of the articles which is specified in the schedule to the Ordinance. Item 11 of the Schedule is as follows. "Cattle, goats, sheep and fowls" Obviously, there-fore, cattle including buffaloes is an essential article as defined in the Ordinance. Section 5 of the Control Ordinance would, therefore, keep the Control Order 1943, in force provided the latter could have been validly made by the Provincial Government under the Control Ordinance. The preamble to the Control Ordinance shows that it was made as there was necessity of-immediate action to regulate the production, supply, distribution, transport, etc., of essential articles and trade and commerce therein within the province of Bihar. The reference in the preamble is obviously to items 27 and 29 of the Provincial Legislative List. Section 297 of the Constitution Act says that no Provincial Legislature or Government shall, by virtue of the entry in the Provincial Legislative List relating to trade and commerce within the Province, or the entry in that list relating to the production supply, and distribution of commodities, have power to pass any law or to take any excessive action prohibiting or restricting the entry into or export from, the Province of goods of any class or description. It is clear, therefore, that the power of the Provincial Legislature to legislate in respect of items 27 and 29 of the Provincial Legislative List is subject to the restriction contained in Section 297 of the Constitution Act. The Provincial Governor has made the Control Ordinance u/s 88 of the Constitution Act. Sub-section (3) of that section says that if and so far as an ordinance under this section makes any provision. which would not be valid if enacted in an Act of the Provincial Legislature assented to by the Governor, it shall be void If the Provincial Legislature could not ban the export of cattle from Bihar to Bengal, the Governor could not do so by the Control Ordinance made u/s 88 of the Constitution Act. Section 8 of the Control Order, 1943, by which the movement of cattle from Bihar to a place outside Bihar was banned, is clearly a prohibition regarding the export of goods from the province to a place outside it. If the Provincial Legislature could not pass such a law, then the Control Ordinance would not have validly kept alive that provision of the Control Order, 1943, which prohibited the export of cattle from Bihar to Bengal. That being the position, Section 5 of the Control Ordinance is of no help to the Crown in the present case. I may further observe that the expression "transport" occurring in the Control Ordinance'' has been defined as movement from one place to another within the province of Bihar, it has no reference to export from Bihar to a place outside Bihar. The net result of the examination of the relevant provisions of the Control Order, 1943, and the Control Ordinance is, therefore, this; the Control Order of. 1948 had come to an end on 30th September 1946, and the Control Ordinance of 1946 cannot keep the Control Order of 1943, alive in so fare it relates to the export of cattle from Bihar to a place outside Bihar. Some reference has also been made to the Bihar Essential Articles Control (Temporary Powers) Act, 1947. That Act, however, came into force on 16 March 1947, and can not have any operation so far as the present case is concerned where the offence was alleged to have been committed on 18th January 1947. I therefore, do not propose to consider the provisions of that Act which came into force on 16th March 1947. The learned Government Advocate has placed before me a Press Note issued by the provincial Government. The press-note reads as follows.

It is notified for public information that the prohibition of movements of cattle, goats, sheep and fowls-from Bihar to place outside Bihar was automatically rescinded with the lapse of the Defence of India Rules on 30th September 1946, and as such no permits are necessary for such movements.

This press note was issued on 12th May 1947. Obviously, therefore, the Provincial Government have also taken up the same position as indicated by me above, namely, that the Control Order of 1943 had come to an end on 30th September 1946, and no permit was necessary for the movement of cattle from Bihar to places out-aide Bihar under the Control Order of 1943.

Ordinarily, I should have placed this case ''before a Division Bench for decision, as it raised the important question as to whether the Control Order of 1943 was kept alive by the Control Ordinance of 1946. In view, however, of the press note which has been issued by the Provincial Government and of the submissions made by the learned Government Advocate, I consider it unnecessary to place the case before a larger Bench. It seems to me that it is clear that the Control Order of 1948 has not been ''kept alive by the Control Ordinance of 1946, so far as the export of cattle from Bihar to places outside Bihar is concerned. I may, however, mention one other thing as a safeguard against the application of the decision to other commodities. There is a Central Ordinance (Ordinance XVIII of 1946) known as the Essential Supplies (Temporary Powers) Ordinance 1946, the goods or Commodities in respect of which the Central Ordinance applies stand on a different footing. It is sufficient to note that cattle is not one of the commodities hit by that Ordinance. There-fore there is no question of the application of the Ordinance XVIII of 1946 to the present case.

For the reasons given above, the application is allowed and the order of the learned Sessions Judge directing a fresh trial of the petitioners is set aside. The petitioners are clearly entitled to an acquittal. The order of forfeiture passed by the learned Magistrate must also be set aside.