JAGARNATH RAM Vs. KING

JUDGEMENT

(1.) This is an application by a licensed kerosene oil dealer, who has been sentenced to pay a fine of RS. 100/- under Section 7, Essential Supplies (Temporary Powers) Act (xxiv [24] of 1946) for violation of Section 11, Bihar Kerosene Oil Control Order, 1948. That section provides: " No dealer shall, unless previously authorized by the District Magistrate, withhold from Bale or refuse to sell kerosene oil to any person." The license held by the petitioner entitled him to a quota of 5 tins of kerosene oil per mensem. On 25th November 1948, he was found to be in possession of 17 1/2 tins. The ground on which the conviction and sentence are challenged is that the Essential Supplies (Temporary Powers) Act, 1946, ceased to operate before this offence was committed. Section 1 (3) of the Act provides that the Act shall cease to have effect on the expiration of the period mentioned in Section 4 of the India (Central Government and Legislature) Act, 1946, except as respects things done or omitted to be done before the expiration thereof, and Section 6, General Clauses Act, 1897, shall apply upon the expiry of this Act as if it had been repealed by a Central Act. the period mentioned in Section 4, India (Central Government and Legislature) Act, 1946, (9 & 10 Geo. VI, C. 89) is one year beginning with the date on which the proclamation of emergency in force at the passing of this Act ceases to operate, or if the Governor-General, by a published notification so directs, the period of two years beginning with that date. There is a proviso which enables the period to be extended for one year at a time by a resolution of "both Houses of Parliament", subject to a maximum of five years. By Notification no. 7-WL (1) 47, published in the Gazette of India of 8th March 1947, P. 296, the Governor-General, in exercise of powers conferred on him by Section 4, extended this Act to the 1st April 1948.

(2.) The period of emergency referred to expired on 1st April 1946, and, but for the Statute 9 & 10 Geo. VI, C. 89, the Act would have spent its force by let April 1947. The Notification of the Governor-General keeping alive 9 & 10 Geo, vr, C. 39 up to 1st April 1948, had the effect of prolonging the operation of the Essential Supplies (Temporary Powers) Act of 1946 also to 1st April 1948, By that time the British Parliament had ceased to have power to legislate within the territory of the Dominion of India, so that it was impossible, by a resolution of both Houses of Parliament, to extend the operation of any existing statute in India. But by India (Provisional Constitutional) Order (XIV [14] of 1947) it was provided by Section 4 of Part II of the Schedule that for ''both Houses of Parliament" there should be substituted "The Dominion Legislature" and para, 4-A was inserted conferring on the Constituent Assembly the powers of the Dominion Legislature. By a resolution of the Constituent Assembly published in the Gazette of India dated 13th March 1948, p. 310, the India (Central Government and Legislature ) Act of 1946 was extended to 1st April 1949. By a further resolution of the Constituent Assembly published in the Gazette of India (Extraordinary) dated 28th March, 1949, its life has been farther extended to 1st April 1950. Therefore, when this offence was committed on 26th April (November?) 1948, the Essential Supplies (Temporary Powers) Act, 1946, was still in operation by reason of the resolution of the Constituent Assembly published in the Gazette of India on 13th March 1948.

(3.) Section 7 of the Essential Supplies (Temporary Powers) Act 1946, penalises the violation of an order made under Section 3, which confers upon the Central Government the power to make rules and orders for maintaining or increasing supplies of any essential commodities or for securing their equitable distribution and avail, ability at fair prices. By Section 4 of the Act the Central Government is empowered by a notified order to direct that its powers under Section 3 shall be exercisable by a Provincial Government or such officer or authority subordinate to a Provincial Government as may be specified in the direction. By Notification No. P 110 (1), dated 12th December 1946, published in the Gazette of India on 21st December 1946, P. 1889, the Central Government delegated its powers in relation to kerosene oil to the Provincial Government. The latter Government, by Notification NO. 18026-K. 0-22/48 P. C., dated 18th October 1948, published in the Bihar Gazette (Extraordinary) of 20th October, 1948, issued the Bihar Kerosene Oil Control Order of 1948, Section 11 of which has been set out above. It has not been contended that the acts in respect of which the petitioner has been convicted do not constitute a contravention of Section 11 of this Order.