GAUTAM JAIN Vs. CENTRAL BUREAU OF INVESTIGATION

JUDGEMENT

(1.) These revision petitions raise common issues, although there are separate orders which are impugned in these petitions. Some of the accused are also common in these petitions. The broad facts are that by different RCs which were all registered on 1/2/1996, the petitioners were accused of having committed offences under Section 120-B read with Sections 420/468/471 IPC and Sections 3/7 of the Essential Commodities Act, 1955. The essential features of the allegations against the petitioners are that they entered into a criminal conspiracy during the period 1992-95 with the object of cheating the Government of India by obtaining Entitlement Certificates on the basis of the false and forged documents with dishonest and fraudulent intentions of importing newsprint which was an essential commodity and thereafter to dispose of the same in the open market at a higher premium and that they actually made such imports of newsprint under the duty free scheme with an actual user's condition and disposed of the same in the open market at a higher premium. It is also pointed out by the learned counsel for the CBI that these Entitlement Certificates were obtained fraudulently in the names of certain newspapers which, according to them, were not in existence. Therefore, it was alleged that the accused committed offences violating various provisions of the EC Act, 1955 inasmuch as they violated the restriction on acquisition, sale and purchase of newsprint in violation of the conditions prescribed under the Act. They were further accused of having committed offences under Sections 420/468/471 IPC for having forged the documents and for having used those forged documents in getting the Entitlement Certificates and for making false representation of the consumption of the newsprint imported by them. By virtue of the impugned orders, which are all orders on charge, it has been directed that charges be framed against the accused persons for the offences under Section 120-B read with Sections 420/468/471 IPC and under Section 7 of the Essential Commodities Act, 1955 read with clauses 3 and 5 of the Newsprint Control Order, 1962. All these orders on charge have been passed by the learned Additional Sessions Judge acting as the Special Judge under Section 12A of the Essential Commodities (Special Provisions) Act, 1981.

(2.) Mr. Mittal, appearing for some of the petitioners, at the outset, pointed out that prosecution relating to the alleged offences under the Essential Commodities Act, 1955 cannot be continued inasmuch as clause 3 of the Newsprint Control Order, 1962 has been omitted by virtue of the Newsprint Control (Amendment) Order, 1996. The latter amendment order came into force on the date of its publication in the official gazette, i.e., on 11/1/1996. Clause 2 of the Newsprint Control (Amendment) Order, 1996 clearly indicates that in the Newsprint Control Order, 1962, clause 3 shall be omitted and Schedule II shall also be omitted.

(3.) Mr Mittal further pointed out that the Newsprint Control Order, 1962 by virtue of clause 3 thereof imposed a restriction on acquisition, sale and consumption of newsprint. By virtue of sub-clause 1 of clause 3 of the Newsprint Control Order, 1962, it was provided that no person other than an importer shall acquire newsprint except under and in accordance with the terms and conditions of an authorisation issued by the Controller under that Order. Sub-clause 4 provides that an authorisation under the said clause would have to be in writing and in the form set out in Schedule II. Now, by virtue of the Newsprint Control (Amendment) Order, 1996, clause 3 and Schedule II in their entirety have been omitted w.e.f. 11.01.1996. The simple case put forth by Mr Mittal is that the prosecution was initiated by the filing of RCs on 01.02.1996, i.e., after the omission of clause 3 and Schedule II of the Newsprint Control Order, 1962. Section 7 of the Essential Commodities Act, 1955 is attracted when a person is said to contravene any order made under Section 3. The Newsprint Control Order, 1962 is one such order made under Section 3. Therefore, Section 7 would come into operation if there is a contravention of the Newsprint Control Order, 1962. The contravention alleged in the present case is with regard to clause 3 of the Newsprint Control Order, 1962 which ceased to be in operation as of 11.01.1996. It is, therefore, the submission of Mr Mittal that the prosecution that was initiated for contravention of clause 3 of the Newsprint Control Order, 1962 on 01.02.1996 was bad inasmuch as on that date clause 3 was not in existence at all. In support of these contentions, he placed reliance on the decision of a learned single Judge of this court in the case of Manohar Lal Batra v. State: 1982 2 FAC 155 wherein it was held that prosecution launched after the expiration of an order under Section 3 of the Essential Commodities Act, 1955 would be illegal and invalid. He then referred to the decision of the Supreme Court in the case of S. Krishnan and Others v. The State of Madras and Another: AIR 1951 SC 301 which, inter alia, related to the interpretation which was to be given to temporary statutes. The ratio of that decision is that proceedings initiated under a temporary statute would terminate ipso facto on the terminal date of the temporary statute. Although, in my view, that decision is not quite apposite to the setting of the present petitions, however, Mr Mittal submitted that the decision would have instructional relevance to show that when a provision goes out of the statute book, prosecution in respect of that provision also does not survive particularly when that provision was contained in a Control Order which, according to him, was inherently temporary. Mr Mittal then referred to the decision of the Supreme Court in the case of The State of Uttar Pradesh v. Seth Jagamander Das and Others: AIR 1954 SC 683. He referred to the head note as well as para 7 of the said decision wherein it has been clearly stated that no prosecution for acts done during the continuance of a repealed or an expired Act can be commenced after the date of its repeal or expiry. To my mind, the situation in the present case is exactly what has been contemplated by the said decision. Clause 3 of the Newsprint Control Order, 1962, the contravention of which, is the subject matter of the present prosecution, stood omitted as of 11.01.1996. So, even though it may be argued that the offence under clause 3 took place during the period when clause 3 was in existence, in view of the aforesaid decision of the Supreme Court, no prosecution in respect thereof can be undertaken after the said clause 3 has been omitted. Mr Mittal also placed reliance on the decision of the Supreme Court in the case of M/s Rayala Corporation (P) Ltd and Another v. The Director of Enforcement, New Delhi: AIR 1970 SC 494. In that case, the Supreme Court was concerned with the initiation of proceedings under Rule 132A of the Defence of India Rules, 1962. These rules were amended by the Defence of India (Amendment) Rules, 1965. Clause 2 of the amended rules provided 'in the Defence of India Rules, 1962, Rule 132A (relating to prohibition of dealing in foreign exchange) shall be omitted except as regards things done or omitted to be done under that rule.' In the context of the original rule and the subsequent amendment, the Supreme Court concluded that the language contained in clause 2 of the Defence of India (Amendment) Rules, 1965 could only afford protection to action already taken while the rule was in force, but could not justify initiation of a new proceeding which would not be a thing done or omitted to be done under the rule but a new act of initiating a proceeding after the rule which would have ceased to have existed. This decision as well as the other decisions mentioned above make it more than clear that the present prosecution against the accused / petitioners under Sections 3/7 of the Essential Commodities Act, 1955 cannot be sustained. The very initiation after the omission of clause 3 of the Newsprint Control Order, 1962 would be bad in law. Therefore, to that extent, the order on charge, in respect of offences under Sections 3/7 of the Essential Commodities Act, 1955 would be bad and would be liable to be set aside to this extent.