Maitra Rahaman and Others vs The State

A.M. Bhattacharjee, J.—The only question raised on behalf of the accused-petitioners in this Criminal Revision in whether or not a Husking-Mill is also a -Rice-Mill within the meaning of the'' provisions of the Rice-Milling Industry (Regulation) Act, 1958. An affirmative answer would result in affirmation of the impugned order of convition passed by the trial Magistrate and confirmed by the Appellate Court, while a negative answer would warrant reversal thereof. It has been contended that there are basic difference between a Rice-Mill and a Rice-Husking Mill in that while a Rice-Mill, as popularly understand, involves the process of boiling and then drying, and then de-husking the paddy for conversion to rice, a Rice-Husking-Mill only de-husks the paddy brought to it after boiling and drying. It has been further contended that a Rice-Mill proper mills rice of its own and sells them, while Rice-Husking Mill only dehusks the paddy of others on payment of husking charges. It has acordingly been urged on behalf of the accused-petitioners that the offending Mill was admittedly found only to be a Husking-Mill "and also was not found to be de-husking paddy of its own, and therefore the same could not and did not come within the operation of the Rice-Milling Industry (Regulation) Act of 1958 to sustain any prosecution thereunder. We are afraid that in this case we are not concerned with as to what the expression "Rice-Mill" or "Husking-Mill" means lexically, etymologicaily or in common parlance, since we find that the concerned Legislation of 1958, under which the prosecution has been launched, has indicated with appreviable clarity as to whether a Rice-Husking-Mili simpliciter would also be a Rice-Mill under Act and we have decided to return an affirmative answer.

"Rice-Mill" has been defined u/s 3(i) of the Act as "the plant and machinery with which, and the premises including the precints- thereof, in which or in any part of which, rice-milling operation is carried on". So, any premises or its precincts, where there is any machinery with which rice-milling operation is carried on, is a Rice-Mill for the purpose of the Act.. "Milling-Rice" has been defined u/s 3(d) as "recovering rice or any product thereof from paddy, polishing rice with the aid of power" and "polishing" has been defined u/s 3(gg) as "removal of bran from the kernel of pice". So any premises where paddy is de-husked with machines and rice is recovered therefrom or brans are removed from the kernel of the rice with the aid of power, would be a Rice-Mill for the purpose of the Act, as defined in Clauses (d), (fcg) and (i) of Section'' 3 thereof. If, as has not been disputed, these were found to have been in the premises of the accused, then it must be regarded to be a Rice-Mill for the purpose of the Act, even though in ordinary or common parlance it might be termed as a "Husking-Mill" only, as the other operations usually associated, with Rice Mills, as popularly understood, like boiling and drying of paddy etc., are not done there.

u/s 3A as inserted by the Amendment Act of 1968, the provisions of the Act have been made applicable even to Rice-Hullers also, even if those are attached to or maintained with other Mills. If Rice-Hullers, whereby the husks or outer coverings of rice are removed and rice is recovered from paddy, are to be treated as Rice Mills, even it those are attached to and found part of some other mills, then it is difficult to understand as to why Husking Mills would cease to be so treated simply because of a different popular nomenclature usually attached to them. '' As would be evident from the Statements of Objects and Reasons accompanying the Bill for the Amendment Act of 1968, the very purpose of introducing Section 3A by that Amendment Act was to rope in the Rice-Hullers also "scattered all over the country-side far away from important markets" which "some times operate clandestinely at night" "without obtaining requisite permission or licence under the Act" "making it difficult to check their activities". We have, therefore, no doubt that a Husking-Mill, where paddy is husked and kernel of the rice is recovrea by removing the husk or hull or bran, is a Rice-Mill within the meaning of the Rice-Milling Industry (Regulation) Act, 1958 and that this will emerge with irresiatable clarity from a scrutiny of the provisions of Clauses (d), (gg) and (i) of Section 3 of the Act, even without the aid of the provisions of Section 3A, inserted in 1968. All that Section 3A has purported to make clear is that a Rice-Husking machine or a Rice-Hulier would nevertheless be regarded as a Rice-Mill for the purpose of the Act, even if the same is attached to, maintained by or forms part of any other Mill like a Flour, Oil or Dal Mill. A Constitution Bench of the Supreme Court, however, in Chandrakanta Saha (AIR 1979 SC 314 at 319) has ruled that Clauses (d) and (gg) Were good enough to rope in the Rice-Hullers within this Act and that Section 3A was inserted ex abundant cautela. It should also be noted that the Supreme Court has also ruled further that the two sub-clauses in Clause (d) of Section 3 defining "Milling-Rice" as -

"(i) Recovering rice or any product thereof from paddy;

(ii) Polishing rice, with the aid of power"

are disjunctive, and not conjunctive and any de-husking of paddy even without polishing the rice is rice-milling. Therefore, since both the Courts below have found the husking machine to be in operation and to husk paddy, we need not wait for any further linding that there was polishing of rice also in order to hold that there was rice-milling operation.

The main, and rather the sole, argument advanced by Mr. Mukherjee on behalf of the petitioners is that the fact that a new and separate Section being Section 6A providing specifically for "Licence for Husking Mill" was inserted in this Parliamentary Act of 1958 by the West Bengal Amendment Act of 1974 and was thereafter deleted by the West Bengal Amendment Act of 1977, must go to show that Husking-Mills were not reauired to take any licence under the Parliamentary Act before the inser-(sic) of Section 6A by the West Bengal Amendment Act of 1974 and are no longer required to take any such licence after the decision of that Section 6A by the West Bengal Amendment Act of 1977 and, therefore, this prosecution launched in 1979 for running a Husking-Mill without a licence is not maintainable. As we have already indicated, even under the Parliamentary Act, because of the Clauses (d), (gg) and (i) of Section 3. a Husking-Mill was and" is a Rice-Mili within the meaning of that Act and liable to take out licence thereunder and, as we would presently show, the insertion and subsequent deletion of Section 6A by the West Bengal Legislations would have no bearing on that question. We reproduce hereinbelow the relevant provisions of Section 6A which was inserted in the Parliamentary Act in 1974 and then deleted in 1977 by the West Bengal Legislations.

"6A. (I) Notwithstanding anything to the contrary contained in this Act, every owner of a Husking-Mill, whether he holds allicence under this Act or not, shall.... make an application to the licensing officer for the grant of a fresh licence for carrying on rice milling operation in that Husking-Mill"

"(5). A licence granted to an owner of a Husking Mill, before the coming into operation" of the West Bengal Amendment Act of 1974 "shall lapse -

(i) if the owner does not apply for a fresh licence.... under Sub-Section(1) --

(ii) on the issue of a fresh licence.... under Sub-Section (1), or

(iii) if a fresh licence under the provisions of this Section is not granted."

"Explanation - (A) "Husking Mill" is Rice Mill which undertakes : rice-milling operation on customer''s account only."

The provisions noted above made it abundantly clear that even though a Husking Mill had a licence u/s 6 of the Parliamentary Act, after coming into operation of Section 6A inserted by the West Bengal Amendment, it was required to have a fresh licence under that Section 6A, if it was a Husking Mill undertaking rice-milling operation on customer''s account only. It was further made clear that on the grant of refusal of such a fresh licence u/s 6A, or if no such fresh licence was applied for, the existing licence u/s 6 of the Parliamentary Act was to lapse. The purpose of such a fresh licence u/s 6A, in superression of any existing licence u/s 6 of the Parliamentary Act, was also evident from sub-section (3) of Section 6A, whereunder a licensee of such a fresh licence was to "recover from every customer 60% of the charges for milling rice in kind, that is, in rice" and was to "deliver "to the State Govenrnent" 5 to 7 tonnes of rice at such price as was to be fixed by the State Government under any law. The West Bengal Legislature must have felt the no such recovery of rice by the Husking Mill owners from the customers and delivery of portions thereof to the State Government were any longer necessary or expedient and accordingly abrogated that Section 6A in 1977, reviving thereby the position prevailing under the provisions of the Parliamentry Act of 1958 de hors that Section 6A. A fresh licence, as was required under that Section 6A. is, therefore, no longer necessary in West Bengal since the deletion of Section 6A in 1977. But, as already indicated, a Husking-Mill is also a Rice-Mill within the meaning of the Parliamentary Act of 1958 in view of Clauses (d), (gg) and (i) of Section 3, and also Section 3A and is accordingly required to take out a licence therefore u/s 6 of the Parliamentary Act and is prohibited u/s 8(2) of that Act from carrying on rice-milling operation except under and in accordance with such a licence and is liable to punishment u/s 13 of the Act for contravention.

A definition of an expression in one legislative provision may not always be a safe guide for construing the same or similar expression in another legislative provision. But even then, we have noted that in the West Bengal Husking Machines (restrictions on Operation by Night) Order, 1967, made under the Essential Commodities Act, 1955, a "Husking-Machine" has been defined in Clause 2(a) as "a Rice-Mill coming within the emaning of Clause (i) of Section 3 of the Rice-Milling Industry (Regulation) Act, 1958 and belonging to that category of Rice-Mills which do not have arrangements for processing of paddy before milling and cleaning of rice after milling, and the owners of which do not purchase paddy for milling rice or sell rice". This at least goes to show that a cognate law also defined and treated a Husking Mill to be a Rice Mill within the meaning of the Parliamentary Act of 1958. But, as already pointed out, we have, on our own scrutiny of Clauses (d), (gg) and (i) of Section 3 and other relevant provisions, found no reason '' to exclude Husking Mills from the operation of the Parliamentary Act of 1958 and, therefore, this question need not detain us any further.

The Division Bench decision of this Court in Manick Sahana v. State of West Bengal (85 CWN 1117), to which our attention has been drawn by the learned Counsel for the petitioners, dealt with a different question. It was urged in that case that Sections 5, 6, 7 and 8 of the Parliamentary Act were repugnant to the provisions of Section 6A, inserted by the West Bengal Legisitation and as the latter was a later Legislation assented to by the President, the said provisions of the Parliamentary Act requiring licences etc. became void or- stood repealed and could not revive with the abrogation of Section 6A by a later West Bengal Legislation and this contention was overruled by the Division Bench. This Division Bench decision, therefore, cannot be of any assistance to us in resolving the question raised in this case. But we are glad to be able to lay our hands on a single-Judge decision of this Court in Sukumar Das v. State (1984-2 Calcutta High Court Notes 234), to which our attention has not been drawn by any of the learned Counsel for the parties, where (at 236), a view similar to the one that we have decided to adopt here, was taken. We are, however, inclined to hold that the order of conviction suffers from a serious infirmity so far it relates to the accused-petitioner no. 2, Jamal Mullick. Section 8(2) of the Parliamentary Act prohibits only an "owner" from carrying on rice-milling operation without a licence u/s 6 and Section 13 penalises ontravention of Section 8(2). Since Section 6 requires only an "owner" to take licence and Section 8(2) also prohibits only an "owner" from carrying on rice-milling operation without such licence, it is only an "owner" who can contravene or attempt to contravene Section 8(2). An "owner" has been defined in Section 3(g) of the Act as one who "has been defined in Section 3(g) of the Act as one who "has the ultimate control over the affairs of the rice-mill" and to include "a Manager, Managing Director or Managing Agent" where it has been found that the accused-petitioner no. 1 Matiar owned the Husking Machine, there has been ho finding that the accused-petitioner no. 2 Jamal was such a manager, managing director or managing agent or such a one to whom the control over the affairs of the Rice-Mill was entrused, and in the absence of such a finding, he cannot be held to have contravened or to have attempted to contravene Section 8(2). Section 13(1) no doubt provides punishment also for one who abets such contravention. But there is no finding that the accused-petitioner no. 2, to borrow from Section 109 of the Penal Code, instigated, intentionally aided or conspired to commit such contravention and was not a mere employee running the machine at the bidding of the owner. We would accordingly, set aside the order of conviction and the sentence so far they relate to that accused Jamal who would thus stand acquitted. But save as aforesaid, we decline to interfere any further and dismiss the revision. The amount of fine, if any, paid by the accused-petitioner no. 2 Jamal shall be refunded and he shall be discharged from his bail bond. The accused-petitioner no. 1 Maitra shall surrender to his bail bond.

A copy of this order along with the records to go down at once.

Pabitra Kumar Banerjee,

I agree.