Iswar Chandra Chitalangia vs The State

Chanda, J.—This Rule has been directed against the orders dated 16.1.74 and 21.1.74 passed by. the learned Judicial Magistrate Malda in Case No. G. R. 199/68 rejecting the prayer of the petitioner for an order of discharge and against framing of charge u/s 6 of the West Bengal Cement Control Order, 194. The Material facts leading upto this Rule are as below:

On 11.6.68 H. K. Dey, District Enforcement Officer, Malda lodged a First Information Report with the English Bazar police station, Malda. It was alleged therein that Iswar Chandra Chitlangia-the petitioner before us with his employee Nemai Chand Ghosh was found selling bags of cement to the members of the public although, he had no licence to deal with cement. It was further stated that the petitioner had imported 180 bags of cement through his another employee Sheikh Aziz in a hired truck which was driven by one Panchanan Saha. When challenged by the D.E.O.--Sri Dey, Nemai Ghosh could not produce any licence authorising the firm to deal in cement. It was further recited that the petitioner Iswar Chandra Chitlangia, Nemai and Aziz were liable to be! prosecuted and punished u/s 6 of the West Bengal Cement Control Act, 1948 and Panchanan was liable to be prosecuted and punished u/s 7 of the said Act.

On the basis of the said First Information Report Police took up investigation and on 16.8.68 submitted a charge sheet against Iswar Chandra Chitlangia, Nemai Chand Ghosh and Sheikh Aziz u/s 6 of the West Bengal Cement Control Act, 1948 and against Panchanan Saha u/s 7 of the said Act and the learned Magistrate thereafter took cognizance on the basis of the charge sheet submitted by the police and framed charges.

Section 10 of the West Bengal Cement Control Act, 1948 provides that no Court shall take cognizance of any offence punishable under that Act except on a report in writing of the facts constituting such offence made by a person who is a public servant as defined in section 21 of the Indian Penal Code. The charge sheet is a report by a Police Officer. A report by a Police Officer can properly be regarded as report by a public servant as has been held by a Division Bench of this Court in Kedar Nath Saharia Vs. The State, and by Malay Banerjee Vs. State and Others, . The Punjab and Patna High Courts have also held the same view in the cases reported in AIR 1970 Patna 159 Satyadeo Sah vs. State of Bihar, and AIR 1970 Punjab 502-- State of Hariyana vs. Rugha. In the instant cases the charge sheet contains statements of facts constituting the offence and it can be classed as a report of the facts made by a public servant in accordance with the provisions of Section 10 of the West Bengal Cement Control Act, 1948..

Mr. Deva Prosad Chowdhury., learned Advocate appearing on behalf of the petitioner has contended in support of the Rule that the West Bengal Cement Control Act, 1948 became void under Article 254 (1) of the Constitution or stood impliedly repealed (according to the doctrine of implied repeal) with effect from 1.10.53 i.e. the date on which Section 18G of the Industries (Development and Regulation) Act, 1951 came into force and as such, the learned Magistrate could not take cognizance of the alleged offence and frame charges under the West Bengal Cement Control Act, 1948.

In support of his contention that even, where the Central Act is not, exhaustive, repugnancy may arise if it occupies the same filled as the State Act, Mr. Chowdhury has relied upon the decisions in Tika Ramji vs. The State of U.P. (A.I.R. 1956, S.C. 876), Deep Chand Vs. The State of Uttar Pradesh and Others, and Zaverbhai Amaidas Vs. The State of Bombay, . To appreciate the interesting point of law raised by Mr. Chowdhury it is necessary to briefly narrate the legislative history of the Central Act and orders on the one hand and the West Bengal Cement Control Act, 1948, the relevant provisions of the two Acts and the purpose for their enactment.

The West Bengal Cement Control Act, 1948 was enacted by the West'' Bengal Provincial Legislature in exercise of its powers u/s 100(3) read with Entries 27 and 29, List II, Seventh Schedule, to the Government" of India, Act-1935. The preamble to the West Bengal Cement Control Act, 1948 runs thus :

"Whereas it is expedient to confer powers to control the production, supply and distribution of, and trade and commerce, in cement in West Bengal."

It is hereby enacted as follows;

When our Constitution came, into force on 26.1.50 the West Bengal Cement Control Act, 1948 was adapted by the Adaptation of Laws Orders, 1950 and it became a State law i.e. a Law made by the "Legislature of a State" within the meaning of Article 254(1) of the Constitution.

The Industries (Development and Regulation) Act, 1951 came into force on 31.10.51. Section 2 of the Act lays down that the Union should take over under its control the industries specified in the First Schedule. Development of such industries under the control exercised by the Union does not necessarily mean that the industries are to be carried on under the authority of the Government. In fact, the control over the scheduled industries is exercised through registration of existing industrial undertakings, licensing the manufacture or production of new articles, licensing of industries in special cases, the institution of investigation, the assumption of management and control of industrial undertakings in certain cases and the control of supply, distribution, price etc. of certain articles in such industries. For that purpose, notified order u/s 18A of the Act is necessary. Section 18A in its terms refers to section 15 and section 16 of the Act. These sections make it clear, namely, the purposes for which directions can be given failing which Section 18A would apply, or in other words, if directions are not complied with the Central Government may assume control and/or management.

The onus of showing repugnancy and the extent thereof is on the party who attacks the validity of the Ch. Tika Ramji and Others etc. Vs. The State of Uttar Pradesh and Others, ; State of Assam Vs. Horizon Union and Another, . In Municipal Council vs. T. J. Joseph ( AIR 1963 S.C. 196) the Supreme Court has observed that it is true that the Legislature can exercise the power of repeal by necessary implication. But it is equally settled that there is a presumption against an implied repeal. The presumption will be rebutted if the provision of the new Act is so inconsistent with the old one that the two cannot stand together.

Repugnancy between the two Statutes on a stock taking of the authoritative pronouncements made by the Supreme Court may be ascertained on the basis of the following three principles :

1) Whether there is direct conflict between the two provisions:

2) Whether Parliament intended to lay down an exhaustive code in respect of the subject matter replacing the Act of the State Legislature;

3) Whether the law made by Parliament and law made by the State Legislature occupy the same field. Deep Chand Vs. The State of Uttar Pradesh and Others, .

When.a question of repugnancy arises under Article 254, every effort should be made to reconcile the two enactments and to construe them so as to avoid their being repugnant to each other and care should be taken to see whether the two really operate in different fields without encroachment. In Om Prakash Gupta Vs. State of U.P., and Ukta vs. State of Maharashtra (1964) 1 S.C.A. 56 (76). the Supreme Court has said that there is no repugnancy unless the two acts are wholly incompatible with each other or the two together would lead to absurd result.

To appreciate the contention of Mr. Chowdhury let us advert to section 18G of the Industries (Development and Regulation) Act, 1951. On a plain reading 6f Section 18G it will appear that merely because this Section was incorporated in the Act, the West Bengal Cement Control Act was not repealed expressly or by implication. Before the Central Government can exercise the powers conferred by this Section, there must be a notified order. Section 3(e) of the Act lays down :

(e) "Notified order means an order notified in the official gazette".

Section 18G--sub-section 4 runs thus:

"(4) No order made in exercise of any. power conferred by this Section shall be called in question in any Court".

Following that sub-section 5 lays down;--

"(5) Where an order purports to have been made and signed by an authority in exercise of power conferred by this Section, a Court shall, within the meaning of the Indian Evidence Act, 1872, presume that such order was so made by that authority".

Section 24 of the Act prescribes punishment for contravention or attempt to contravene or for abatement of the contravention of--

"(iii) any order made u/s 18 G".

All these unmistakably indicate that there must be an "order in writing" as contemplated by Section 3(e) for regulating supply and distribution of any article relating to a scheduled industry of which the Central Government may assume control. We are not aware of any "order in writing" made by the Central Government regarding supply and distribution of cement to the consumers as contemplated by the West Bengal Cement Control Act, 1948. The only order relating to cement that has been passed in exercise of the powers conferred by section 18G, we are aware of, is the Cement Control, order, 1961. Can it be said that the West Bengal Cement Control Act, 1948 stood superseded in view of the issue of the Cement Control Order, 1961 ? On a close examination of the Cement Control order, 1961 it appears that this order deals only with the producers of cement and provide for sale by the State Trading Corporation of India Ltd. and it also provides for maintenance and production of books of accounts etc. by such producers and for fixation of the place at which sale by such producers shall be made. Section 3 of the West Bengal Cement Control Act, 1948 with which we are concerned in the present case, inter alia, relates to the licensing of dealers of cement and the storage, transport, movement, possession, distribution, disposal, acquisition, use or consumption of cement by the public. As such, the mere fact that both the West Bengal Cement Control Act, 1948 and the Control Order, 1961 are in force will not necessarily result in the supersession of the West Bengal Cement Control Act, 1948 unless there is anything in the Central order, 1961 which is repugnant to or inconsistent with the West Bengal Cement Control Act, 1948 or deals with an identical matter. As the Control order, 1961 deals only with producers of cement, there can be no question of either any repugnancy between the order of 1961 and the relevant portions of the West Bengal Cement Control Act, 1948 or any identity of the subject matter of the Control order and the State Act, with which we are concerned. In fact, it does not purport to touch the West Bengal Cement Control Act, 1948 in its entirety. After the Cement. Control Order, 1961 the Central Government in exercise of the powers conferred by section 3 of the Essential Commodities Act, 1955 (not u/s 18G of the payment and Regulation Act, 1951) made the Cement (Quality Control) Order, 1962 and in the year 1974 again in exercise of powers conferred by section 3 of the Essential Commodities Act, 1955 made the Cement (Consumption and Regulation of use) Order, 1974. By the Cement Control Order of 1962 the definition of cement was enlarged and it was clarified when cement should be deemed to be of prescribed standard. Prohibition was enforced on manufacture, sale etc. of cement which was not of the prescribed standard. The object of Cement (Conservation and Regulation of use) Order, 1974, as stated in S.O. 492 (E) was that the Central Government was of opinion that it was necessary and expedient so to do for maintaining and increasing supplies of cement and essential commodity and for securing its equitable distribution, the Order was passed. By this order the user of cement in connection with certain construction was regulated and nothing else. It will thus appear that the Central Government was resorting to the Essential Supplies Act in connection with cement though section 18G was there.

The Essential Commodities Ordinance viz. Ordinance of 1955 was replaced by Essential Commodities Act viz. Act 10 of 1955 which came into force on 1st April, 1955. It related to regulating or prohibiting the, production, supply and distribution there of and trade and commerce therein of essential-commodities. Section 16 Subsection (2) of the said Act saved any order made by any authority whatsoever under any law repealed thereby and in force immediately before the commencement of the said Act. It lays down that notwithstanding such repeal, any order made or demed to be made by any authority whatsoever, under any law repealed and in force immediately before the commencement of this Act, shall, in so far as such order may be made under this Act, be deemed to be made under this Act and continue in force, and accordingly any appointment made, licence or permit granted or direction issued under any such order and in force immediately before such commencement shall continue in force until and unless it is superseded by an appointment made, licence or permit.granted or direction issued under the Essential Commodities Act, 1955. Contrary to the view of the Patna and Madras High Courts (Hiralal Kejriwal vs. The State (A.I.R. 1958 Patna 247), In re. E. T. Palaniappa Chettiyar (AIR. 1957 Madras 660), the Supreme Court in State of Bihar vs. Hiralal Kejriwal (A.J.R. 1960 S.C. 47) held that orders of all kinds made under the previous Acts and Ordinance are still in force under the present Act. In this case, the point for consideration was whether the provisions of Section 3 of the Cotton Textiles (Control of Movement) order, 1948 continued in legal force in view of the provisions of section 16(2) of the Essential Commodities Act, 1955. It was held by the Supreme Court that the Cotton Textiles (Control of Movement) order, 1948 continued in operation by virtue of the provisions of section 16 (2). Hence prosecution launched u/s 7 of the Essential Commodities Act, 1955 read with section 3 of the Cotton Textiles (Control of Movement) order, 1948 was held to be valid.

As earlier stated, the only notified order under the Industries (Development and Regulation) Act is the Cement Control Order, 1961. This order does not cover the same field even though the preamble of the West Bengal Cement Control Act, 1948 and the Industries (Development and Regulation) Act coincide. The object of an Act. of Parliament and that of a State Legislature may be similar yet there would be no repugnancy if they supplement each other and can co-exist, as in the present case, if the paramount legislature does not cover the entire field occupied by the State law and is not in consistent with the latter. The West Bengal Cement Control Act, 1948 does not collide with the Control Order of 1961 passed under the Industries (Development and Regulation Act or any other order made there under. We are quite unable to accept the contention of Mr. Chowdhury that the West Bengal Cement Control Act stands superseded only because Section 18G was incorporated in the Industries (Development and Regulation) Act on 1.10.53 or on account of the Control Order of 1961 issued thereunder.

In view of our findings above, this petition in revision must be dismissed. The Rule accordingly stands discharged.

P.C. Borooah, J.

I agree.