State of West Bengal vs Prolhad Agarwalla

R.N. Dutt, J.—The Respondent was tried by a Magistrate u/s 7 of the Essential Commodities Act, convicted and sentenced to a fine of Rs. 51, in default to rigorous imprisonment for three weeks. The Respondent, thereafter, made an appeal and the Sessions Judge set aside the conviction and sentence and acquitted the Respondent. Thereafter, the State Government has filed this appeal against this order of acquittal.

The prosecution case was as follows:

The Respondent was employed under Messrs Nandaram Deotram, a firm at Kurseong. The firm was an authorised dealer in iron and steel under the Iron and Steel (Control) Order, 1956. On November 17, 1960, the Respondent sold three bundles of galvanized corrugated sheet to one Beharilal Bahsaria against permit No. 69/60, dated November 10, 1960, granted by the Subdivisional Controller of Food and Supplies. Beharilal paid Rs. 294-52 P. as price and a cash memo, was written and granted to him mentioning the rate at Rs. 880 per ton. The weight was not, however, mentioned in the cash memo. On November 19,1960, Beharilal had certain suspicion about the weight and got the three bundles weighed and found the total weight as 5 cwt. 3 qrs. 6 lbs. whose price at Rs. 880 per ton would be Rs. 255-34 P. The allegation against the Respondent was, therefore, that he sold the G.C. sheets at a rate higher than the controlled rate.

On this allegation the Respondent was charged u/s 7 of the Essential Commodities Act for having contravened paras. 15 and 27(4) of the Iron and Steel (Control) Order, 1956. The learned Magistrate found that the Respondent did not charge a rate in excess of the controlled rate, but he held that the Respondent did not mention the weight of the G.C. sheets in the cash memo, which he was required to do under notification No. S.R.O. 111/ESS Comm./Iron and Steel and on this finding the learned Magistrate convicted the Respondent u/s 7 of the Essential Commodities Act. The learned Sessions Judge set aside this conviction primarily on the ground that there was want of mens rea in what the Respondent did, namely, in not mentioning the weight of the G.C. sheets in the cash memo.

Having heard Mr. Burman and Mr. Dutt we do not think that the order of acquittal should be interfered with in this appeal-It is not necessary for us to consider the grounds for which the learned Sessions Judge set aside the conviction of the Respondent. We think that even otherwise the Respondent cannot be convicted u/s 7 of the Essential Commodities Act on the findings of the learned Magistrate. Section 7 of the Essential Commodities Act makes contravention of any ''Order'' made u/s 3 of the Act punishable. So a person can be convicted u/s 7 only when it is proved that he was contravened any ''Order'' made u/s 9 of the Act. Here, the Iron and Steel (Control) Order, 1956, is an Order made by the Central Government u/s 3 of the Essential Commodities Act. There is no contravention of any provision of this Order as such. Paragraph 14(2) of this Order states as follows:

The Controller, may, by notification in the Official Gazette, direct that every producer, stockholder or other person holding stocks of iron or steel when selling any iron or steel shall give to the purchaser a memorandum containing the particulars specified in such notification.

By virtue of this power the Controller issued notification No. S.R.O. 111/ESS. COMM/Iron and Steel and that notification required a stock-holder, here the Respondent, to issue a memorandum relating to every sale of iron and steel showing certain particulars; weight of the goods sold is one of such particulars. So, what the learned Magistrate has found was that there was a contravention of a direction given under this notification made by the Controller in exercise of the powers given to him under para. 14(2) of the Iron and Steel (Control) Order. The question therefore arises, if contravention of this direction is a contravention of any provision of the Iron and Steel (Control) Order which was made u/s 3 of the Act. This direction is not a direction contained in the Iron and Steel (Control) Order. But this is a direction contained in a notification issued by the Controller in exercise of a power given to him under the Iron and Steel (Control) Order. On the face of it, therefore, a contravention of this direction cannot be said to be a contravention of a provision of the Iron and Steel (Control) Order, 1956.

But Mr. Burman submits that the Central Government may delegate its authority to make an Order u/s 3 of the Essential Commodities Act to an officer or authority subordinate to the Central Government u/s 5 of the Act. So, the Central Government may direct an officer or authority subordinate to it to make Order u/s 3 of the Act and the provision of para. 14(2) of the Iron and Steel (Control) Order is such a direction and notification No. S.R.O. 111/ESS. COMM/Iron and Steel made by the Controller is ah Order u/s 3 of the Act. This contention is not tenable. Firstly, there is no notified Order made by the Central Government u/s 5 of the Act directing the Controller to make an Order u/s 3. If the Central Government is to delegate its power to make an Order u/s 3 of some officer, it has to make a notified Order u/s 5, but here in this case there is no such notified Order. Secondly, the notification itself shows that this was not an Order u/s 3 of the Act, but this was just a direction to the stockholders in exercise of the powers given to the Controller under para. 14(2) of the Iron and Steel (Control) Order. The Controller does not say that he was making this order by virtue of powers u/s 3 of the Act on the basis of a delegation made by the Central Government u/s 5 of the Act.

Mr. Burman, then, argues that since this was a direction made by the Controller in exercise of a power conferred on him by the Iron and Steel (Control) Order, 1956, the direction should be regarded as part of the Order made by the Central Government. This argument again cannot be accepted. An Order u/s 3 can be made by the Central Government. The Central Government made such an Order, i.e. the Iron and Steel (Control) Order, 1956. Paragraph 14(2) of this Order, no doubt, authorised the Controller to make certain directions, but those directions do not relate back to the Order or form part of the Order u/s 3 because that would involve double delegation of legislative power not authorised by the Parliament.

Furthermore, we do not think that contravention of such direction was intended to be made punishable u/s 7 of the Essential Commodities Act. When we compare, say para. 12(1) with para. 14(2), this will be clear. Paragraph 12(1) says that every stockholder shall keep such books, accounts and records relating to the business carried on by him as the Controller may require. Obviously, the requirement to keep books of accounts and records is a part of the Iron and Steel (Control) Order. But what books are to be kept is left to the discretion of the Controller. Here, if a stock-holder does not keep the required books and accounts and records, the act being a contravention of the provisions of the Iron and Steel (Control) Order is punishable u/s 7. But para. 14(2) does not require the stock-holder to do a particular thing. It only empowers the Controller to give directions to the stock-holders to give a memorandum or sale containing some specified particulars. Whatever that may be, we have no doubt that contravention of a direction contained in a notification issued under para. 14(2) of the Iron and Steel (Control) Order is not a contravention of the provisions of the Iron and Steel (Control) Order, 1956 and so is not punishable u/s 7 of the Essential Commodities Act. The Respondent cannot, therefore, be convicted.

In the result, the appeal is dismissed. The Respondent is discharged from his bail bond.

A.P. Das, J.

I agree.