SANTOSH KUMAR JAIN v. The State

On the 6th Decembc;.r, 1947, when the officers named to carry out the aforesaid order, the factory went to they were told by that he would do the appellant everything possible to obstruct that the sugar sugar-, and accordingly it. was found godowns had been locked and the road leading to them blocked by heaps of coal, firewood and tins placed across, so as to make vehicular traffic impossible. A railway siding leading to the godowns had also been rendered unserviceable by the removal of some - of the rails and fishplates. As . a result of such obstruction, the officers had the aid of armed police to break open the locks, repair the railway line and clear the road block .before the sugar. could be removed from the factory. to seek The appellant's main defence was that on a proper construction of s. 3 of the Essential Supplies (Tempor ary Powers) Act, 1946, (hereinafter referred to as the Act) it was not competent for the Government to pass the order of 5th December, 1947, which was con sequently illegal and void, and that obstruction to the exccutien of that order could not constitute an offence under s. 186 of the Indian Penal Code. The conten tion was the appellant was convicte<l and sentenced to simple imprisonment for a term of three weeks. rejected and On appeal, the Sessions Judge, Patna, confirmed the conviction and sentence, agreeing with the findings of the trial court, and a Revision Petition preib; red the High Court, the appellant was rejected by S;C.R. SUPREME COURT REPORTS which, however,. granted a certificate under article 134 (1) ( c) of the Constitution that the case was a fit one for appeal involved a point of the interpretation "sufficient public importance" as to of section 3 of Section 3, so far as it is material here, runs as follows :- this court as the Act. 1951 SantosliKIUIMIT ]Qin v. The State Patanjal; ·SastriJ. "3: (1) The Central Government, so far as appears to it to be necessary or expedient for n-.ain tairiing or increasing supplies of any essential com their equitable distribution modity, or for and availability at fair prices, may, by notified order, provide for regulating or prohibiting the production, supply and distribution thereof; and trade and merce therein. securing (2) Without prejudice powers conferred by sub-section thereunder may provide- the generality of (1), an order made (j) for any incidental and supplementary matters, including in particular the entering. and search of premises, vehicles, vessds and aircraft, the seizure by a person authorised to make such search of any articles in respect of which such person has reason to believe that a contravention of the order · has been, is being, or is about to be committed, the grant or issue of licences, permits or other documents, and the charging of fees therefor." · · It was contended that an order under sub-section (1) should be in the nature of a rule or regulation of general application, like the Sugar and Sugar Products Control Order, 1947, issued by the Central Government on 4th August, 1947. as the suJHection confers on the Central Gl)Vc:rnment only the power to "provide for regulating ar vrohibiting" distributfon, etc., of essential commodities, and d<>es not authorise the making of . ad hoc or · speeial orders with respect to any particular person or thing. We see no reason to place such a restricted construction on the scope of power conferred on the Central Government. The term is defined as meaning "an "notified order" which . .f-0 the production, supply, 1951 Santosla K11ma' Jain v. Th~Stalt! Palanjali Sastri]. 308 SUPREME COURT REPORTS [ 1951] to be specified, It would be strange legislative character in relation order notified in the official Gazette" is wide enough to cover special as well as general orders .relating to the matters specified in section 3. The power to provide for regulating or prohibiting production, distribution and supply conferred on an executive body may well include the power to regulate or prohibit by issuing to a particular producer or dealer or by directions requiring any specific act to be done or forborne regard to production, etc., and the provisions of section 4 lend support to that view. The Central Government is empowered under the latter section to delegate its . power to make order under section 3, subject to con to any officer or subordinate ditions the Central or a Provincial Gov authority either of if, as contended for ernment. the appellant, a subordinate officer in charge, say, of a small area, should, by delegation, exercise powers of a to the matters specified · in section 3, but should not have the power individuals of issuing special orders concerning specific that such a situation could have been contemplated. The power delegated under section 4 must, in our opinion, include the power of issuing directions to any producer or dealer in tion to production, etc., of any specified essential com itself must modity. pos~ess such power under section 3. For instance, ·secl:Ion 7. of the Sugar and Sugar Products Control the Central Government em Order, 1947, made by powers the "Controller" "to issue directions to any producer or dealer to supply sugar or sugar products" to specified areas, persons or organisations. This delegation is expressed .to be made "in exercise of the powers -onferred by section 3 and 4" of the Act, but unless the Central Government itself had the power of issuing such directions under section 3, it could not delegate that power to the Controller under section 4. This view is reinforced by the language of section 15, which. contempla~es orders under section 3 being made _ agamst a part:Icular person, for it speaks of "an order made under section 3 which prohibits him (that the delegating authority things. We do not If so, S.C.R. SUPREME COURT REPORTS 309 is, the person prosecuted for its contravention) from doing any act or being in possession of a thing with out lawful authoritv, etc." The restricted construction of section 3 contended for by the appellant's counsel would render the scheme of the Act largely unwork able, and we have no hesitation in rejecting it. 1951 SantoshKumm Jain v. Th1Stat1 Patanjali SastriJ Even so, it was argued, an order for seizure could be made only subject to the conditions and limitations specified in clause (j) of sub-section (2) of section 3, that is to say, only where the person authorised in behalf "has reason. to believe that a contravention of the order [an order made under sub-section ( 1)] has been, is being, or is about to be committed". In the present case, the order of 5th December 1947, directing. the seizure of 5,000 maunds of the company's sugar J.n the execution of which the appellant has been found to have obstructed the officers of the Provincial Govern ment, recited that the company was "about to commit a contravention of the order of the Chief Controller of Prices and Supplies, Bihar, made under cl. 7(15 (ii) of the Sugar and Sugar Products Control Order, 1947,' and issued in order No. 1613 P.C.~, dated 27th Sep tember, 1947, in so fur as the said order relates to the said company". The latter order, while it dire·cted the company, among others, "to supply sugar at prices fixed the approved dealers of certain Dist ricts'', left it to the District or Sub-divisional Officer to fix quotas for the approved dealers of his District or Sub-division from the District or · Sub-divisional allotment and to inform the company when and where the supplies are to be made. It has been found by the courts below that the total quantity of sugar which the order required to be supplied was varied from .time to time, and no quotas to approved dealers were ever fixed nor information sent to the company as to when and where supplies were to be made. The order of the 27th September, 1947, having thus remained inchoate and incomplete and so incapable of being carried out or contravened till the.5th December, 1947, it was sub mitted that no seizure and removal could be lawfully ordered on the basis of an anticipated contravention . t.o 1951 S•Usi KllMCt ]«in v. TheSe.te Polm!iali SttslriJ. 310 SUPREME COURT REPORTS f195l J in order in this connection to of such an order, and the officers concerned in the illegal and unauthorised removal of the sugar were not acting in the discharge of their public func· tions. Reference was made decisions of the Calcutta High Court in Lilla Singli v. Queen Empress(') and Queen Empress v. Jogendra Nath Mukherjee( 2 ) where it was held that the public in the discharge of which a public servant function was obstructed must . be a legal or legitimately autho rised function, the obstruction might constitute an offence under section 186 of the Indian Penal Code. On the other hand, counsel for the res that for an offence under that pondent maintained section it was not necessary the act which was Obstructed must be duly authorised and otherwise lawful if it was being done or was sought to be done by a public servant honestly and in good faith believing that it was part of his public functions, and reliance was placed in support of this view on the decisions of the Madras High Court in Queen Empress v. Poomatai Udayan( 8 v. Madava Bhonjo Santos(') and Peer Masthan Rowther v. Emperor("). We think it is unnecessary for appeal to pronounce on tbe true scope of section 186 of the Indian Penal Code as we are of opinion that the appellant's argument must fail on another ground. ), Public Prosecutor the purpose of It is manifest that sub-section (2) of section 3 con fers no further or other powers on the Central Government than what are conferred under sub-section (1), for it is "an order made thereunder" that may provide for one or the other of the matters specifically enumerated in sub-section (2) which are only illustra tive, as such enumerarion is "without prejudice to the generality of the powers conferred by sub-section ( l) ". Seizure of an article being thus shown to fall within (1), it must be competent the purview of sub-section for the Central Government or its delegate, the Pro vincial Government, to make an order for seizure under (1) I.L.R. 22 Cal. 286. (2) I.J..R. 24 Cal.'320. (3) I.L.R. 2 I Mad. 296. (4) 31 M.L.J. 505. (5) 1938 M.W.N. 418. 1951 Stm"1SllK11111., Jain v. Tiii Stat• Patanjali Sastri;l. S.C.R. SUPREME COURT REPORTS 311 irrespective of that sub-section apart from and anticipated contravention of any other order as con templated in clause (j) of sub-section (2). The order of 5th December, 1947, must, therefore, be held to be a the order valid order, notwithstanding its reference to to be of the 27th September, 1947, as being about If the latter order was incomplete and contravened. there could be no ques inoperative and consequently tion of contravention, the reference to it in the order dated· the. 5th appellant, December, 1947, would be an immaterial redundancy and could not affect the validity of the latter order. the company's sugar must, therefore, The seizure of be regarded as duly authorised and lawful, and appellant removal, committed an the Indian Penal Code offence under section 186 of that pro even on the stricter construction placed · on vision by the Calcutta High Court. by obstructing contended etc., sub-section the public safety, the generality · of The view we have expressed above receives support the decision of the Privy Council in Sibnath Baneriu's case(1). Section 2(1) of the Defence of India Act, 1939, as amended by section 2 of the Defence of India (Amendment) Act, 1940, empowered the Central Government to make rules for securing the defence of the maintenance of British India, public order, enacted (2) "without prejudice the powers the rules may provide (1), conferred by sub-section for all or any of the following matt.!rs ...... ". Among such matters was the detention of any person "reason in a manner ably suspected" of having acted etc. prejudicial (x) ]. [clause the public safety etc. Rule 26 of the Rules made under the section, however, authorised the Government to detain a person "if it is satisfied" that it was necessary ro detain him with a· view to prevent . him from acting prejudicially ....... . The Federal Court held (9) that this rule was ultr• vires as it went beyond the . scope of clause (x) in that it left it to the satisfaction of :a decide whether or not it was necessary the Government to detain (1) [19+5] F.C.R. 195; 72 I.A. 241, 248. · (2) (19+4] p;c, 1951 Santosh .Kumar Jain ... Th1Stal1 P111anjali SastriJ. 312 SUPREME COURT REPORTS [1951] person. The decision was reversed and Lord Thanker ton, delivering the judgment of the Board, observed : "In the opinion of their Lordships, the function of sub section (2) is merely an illustrative one; the rule-making power is conferred by sub-section (1), and "the rules" which are referred to in the opening sentence of sub section (2) are the rules which are authorised by, and made under, sub-section ( 1) ; the provisions of sub-sec tion (2) are not restrictive of sub-section (1), as, indeed is expressly stated by the words "without prejudice to sub-sec the generality of the powers conferred by learned tion (1)". "There can be no doubt-as the thought-that Judge himself general language of sub-section (1) amply justifies terms of rule 26, and avoids any of the criticisms which the to sub section (2) ". learned Judge expressed in relation to have appears This accords with our view of the effect of sub sections (l) and (2) of section 3 of the Act. The appeal is dismissed. The appellant's bail bond is cancelled and he is ordered to surrender. Agent for the appellant: Rajinder Narain. Agent for respondent and Intervener: P. A. Mehta. Appeal dismissed. R.R. CHARI "· THE STATE OF UTTAR PRADESH [SHIU Rum.AL KANIA C.J, PATANJALI SASTRI and DAS JJ.) (XLV of 1860), SI. 161. 165-Criminal l'rocedure Code, 1898, ss. 190, 197-Preveniion of Corruption Act (II of 1947), ss. 3, 6-0fjence under ss. 161 and 165, l.P.C.-War ra.nt issued by Magistrate during investigation by police-Sanction under s. 197, Cr. P. C., not obtained before iS1uing warrant Le11ality of trial-When Magistrate takes "cognisance" of offence. Indian· Penal Code Un«r •· ~ of the Prevention of Corruption Act, 1947, an offcnc:c pllnishable under •· 161 or s. 165 of the Indian Penal Code 1'51 Muabl9.