STATE OF MAHARASHTRA Vs. ZAVERBHAI AMAIDAS

JUDGEMENT

(1.) CRIMINAL Application for Revision No. 642 of 1952 arises from the admitted transport by the applicant of 7 1/2 Bengali maunds of juwar from his own village of Khanjorili to Mandvi on April 8, 1951. Such a transport without a licence is prohibited by Clause 5 (1) of the Bombay Foodgraius (Regulation of Movement and Sale) Order, 1949. The applicant raised a defence that he was transporting the grain under a permit issued by a Revenue Patel. But it has been found that the Revenue Patel had no power to issue a permit for this transport of the grain. It is not contended before us that that finding is wrong. But the learned advocate, who appears on behalf of the applicant, challenges the conviction of the applicant on two grounds. He says that, in the first instance, in this case the learned Magistrate, who convicted the applicant, was not empowered to take cognizance of the offence, inasmuch as there was no report made by a public officer, as required by Section 11, Essential Supplies (Temporary Powers) Act, 1946. He says that, in the second instance, the conviction in this case was invalid, because the offence of contravening that Clause was punishable with seven years under Bombay Act No. 36 of 1947. Ordinarily, if there was no provision made specially for the trial of this offence, the offence would be triable only by a Court of Session under the Second Schedule of the Code in Criminal Procedure. But under Section 3 of Bombay Act No. 38 of 1947 certain Magistrates of the First Class specially empowered by the Provincial Government are given jurisdiction to try such offences. That has been the view which was taken by this Court in -- 'akbaralli Tayab-alli v. State', AIR 1951 Bom 145 (A), it is contended on behalf of the applicant that in this case, however, the learned Magistrate, who tried the applicant, was not specially empowered under the provisions of Section 3 Of Bombay Act 36 of 1947. Consequently, he had no jurisdiction to try the offence.

(2.) CRIMINAL Application for Revision No. 500 of 1952 arises from an acquittal of the opponent of an offence under Section 7, Essential Supplies (Temporary Powers) Act, 1946. The charge against the opponent was that on April 3, 1950, the opponent was in possession of excess stock of wheat without a licence in contravention of Clause 3 (i) and 3-A (i) of the Bombay Essential Articles Restricted Acquisition and Possession Order, 1943. The opponent was convicted of this offence by the learned Additional Resident Magistrate, First Class, Baroda; but in appeal the learned Additional Sessions Judge held that the trial Magistrate had no jurisdiction to try this offence, inasmuch as he has not been specially empowered under the provisions of Section 3. Bombay Act No. 36 of 1947. The Government of the State of Bombay has applied in revision contending that it was not necessary that the trial Magistrate should have been specially empowered under the provisions of Section 3, Bombay Act No. 36 of 1947. The State contends that Section 2 (1) of Bombay Act No. 35 of 1947, which prescribed an enhanced penalty of seven years for the contravention of an order made or deemed to have been made under Section 3 of the Act, is void on the ground that it is repugnant to the provisions of Section 7, Essential Supplies (Temporary Powers) Act, 1948, as it stood after its amendments from time to time by Acts of 1948, 1949 and 1950, the extent to which it is void being of course limited to the extent of the repugnancy. The grounds upon which it is contended that the repugnancy arises are that originally Section 7, Essential Supplies (Temporary Powers) Act, 1946, prescribed a maximum penalty of only three years for the contravention of an order made or deemed to have been made under Section 3 of the Act. Bombay Act No. 36 of 1947, described as an Act to provide for the enhancement of penalties for contravention of orders made under the Essential Supplies (Temporary Powers) Act, 1946, and the Bombay Essential Commodities and Cattle (Control) Act, 1948, prescribed an enhanced penalty of seven years for the same offence. This the legislature was not in a position to do, unless assent of the Governor General was obtained. Bombay Act No. 36 of 1047 was consequently submitted for the assent of the Governor General, and his assent was obtained. It is contended, however, on behalf of the State that subsequently the Central Legislature amended Section 7 of the Essential Supplies (Temporary Powers) Act, 1946, from time to time. In the year 1948 in the case of orders relating to cotton textiles, it made a sentence of imprisonment obligatory. Under an Act of 1949, for the contravention of orders relating to foodstuffs, it made the sentence of imprisonment obligatory, unless the Court, for reasons to be recorded, was of the opinion that the sentence of fine only would meet the ends of justice. In August 1950, these amendments were incorporated into a new section, which replaced the old Section 7 as amended from time to time by the Acts of 1948 or 1949. Under that section, which is in force at the present moment, in case the contravention, is of an order under Section 3 relating to cotton textiles, the sentence of imprisonment is obligatory. In the case of a contravention of an order relating to foodstuffs, the sentence of imprisonment is obligatory, unless, for reasons to be recorded in writing, the Court is of the ooinion that sentence of fine would only meet the ends of justice and where the contravention is of an order prescribing the maximum quantity Of any foodgrain that may lawfully be possessed by any person or class of persons, and the person contravening the order is found to have been in possession of foodgrain exceeding twice the maximum quantity so prescribed the sentence of imprisonment is obligatory, and the maximum sentence of imprisonment, which is only three years in other cases of contraventions of orders made or deemed to have been made under Section 3, is prescribed as seven years. The State contends that inasmuch as the Central Legislature has, subsequent to the enactment of Bombay Act No. 36 of 1947, dealt again with the question of the imprisonment to be imposed for contraventions of orders and had failed to provide a maximum sentence of seven years for contravention of Section 3-A (i) of the Bombay Essential Articles Restricted Acquisition and Possession Order, 1943, unless he is in possession of foodgrains exceeding twice the maximum quantity prescribed by the order, there is a repugnancy between the Essential Supplies (Temporary Powers) Act, 1946 and Bombay Act 36 of 1947, and to the extent of that repugnancy the Bombay Act is void.

(3.) IT would be convenient to dispose of both the criminal applications by one Judgment, because if this argument in Criminal Application No. 500 of 1952 succeeds, then, in that case, the offence in application No. 642 of 1952 will be punishable only with a maximum term of imprisonment for three years and it would not, therefore, consequently bo necessary that the Magistrate, who tried the applicant in that application, should have been specially empowered under Bombay Act No. 36 of 1947.