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Criminal Miscellaneous No. 189 of 1949, decided on 4th July 1949, under section 561‑A, Cr. P. C. praying that Police investigation be stopped, or further proceedings in Court upon Police report be forbidden.

(a) Essential Supplies (Temporary Powers) Act (XXIV of 1946), S. 7‑Provides punishment not only for an order actually made under S. 3 but also for an order deemed to have been made under the Act Cotton Cloth and Yarn Control Order 1945, Cl. 18‑A

Section 7 of the Act provides punishment not only for an order actually made under section 3 but also for an order deemed to have been made under the Act.

Section 17 subsection (2) places on a par an order made or deemed to be made under the Ordinance with an order made under the Act and since an order made under the Act (so far as it is confined to section 3) is punishable under section 7, an order deemed to have been made under the Act will obviously be punishable. This seems to be the clear inten tion of section 17 subsection 2 which otherwise would be rendered nugatory.

A I R 1948 Bom. 370 F B followed.

(b) Interpretation of Statutes‑Change in language‑Unnecessary and superfluous language in prior legislation deleted from later Statute ‑No presumption can be drawn from the change.

Although in construing a statute the Court is entitled to look at the history of prior legislation and to give effect to a change in language effected by the Legislature on the assumption that the Legislature does not do anything without having some object for doing it, "it is an equally clear cannon of construction that if it is found that the language used in two statutes is different and that the language used in the earlier statute was unnecessary or superfluous and the Legislature deletes the unnecessary and superfluous part from the statutes, no reference or no presumption can be drawn from the change of language."

A I R 1948 Bom. 370 F B ; 11 A C 627 referred to.

(c) Interpretation of Statutes‑Rule of strict construction of penal provision‑Sense which best harmonises with context or effectuates the legislative intent should be adopted.

The rule of strict construction of a Penal Statute is attended with qualifications and other rules no less important and the meaning must be determined by the effect which these qualifications have on the aforesaid restrictions. Among them is the rule that that sense of the words is to be adopted which best harmonises with the context and promotes in the fullest manner the policy and object of the Legislature. The paramount object in construing penal as well as other statutes, is to ascertain the legislative intent, and the rule of strict construction is not violated by permitting the words to have their full meaning, or the more extensive of two meanings, when best effectuating the intention.

Maxwell pp. 240‑241.

(d) Essential Supplies (Temporary Powers) Act (XXIV of 1946) ‑Whether no longer operative‑S. 1 (3).

The Proclamation of Emergency in force at the passing of India (Central Government and Legislature) Act 1946 (9 and 10 Geo. VI, c. 39), was revoked on the 1st April 1946. On the 1st of March 1947 the Governor‑General directed by public notification that the period mentioned in section 4 of the India (Central Government and Legislature) Act 1946 (9 and 10 Geo. VI, c. 39) should be a period of two years beginning with 1st of April 1946. That takes us to the 1st of April 1948 and thereafter the Constituent Assembly passed a resolution extending the period by another 12 months. This resolution was in pursuance of the proviso to section 4 of the India (Central Government and Legislature) Act, 1946, which has been adapted by the Pakistan Provisional Constitution Order, 1947, so that the words "both Houses of Parliament" are now substituted by the words "the Federal Legislature" and the powers of the Federal Legislature. have bean conferred on the Constituent Assembly.

Essential Supplies (Temporary Powers) Act, 1946 was, therefore, in force on the date when the alleged offences were committed.

M. Saleem, Muhammad Amin Khan and Mohsin Shah, for Petitioner,

Muhammad Sharif, Assistant to Advocate‑General for Respondent.

‑These two petitions contest the legality of the investigation which is being made in one case against Abdul Wahid and the other case against Muhammad Rashid and six others pursuant to alleged offence committed under clause 18‑A of the. Cotton Cloth and Yarn (Control) Order, 1945, read with section 7 of the Essential Supplies (Temporary Powers) Act No. XXIV of 1946.

The Cotton Cloth and Yarn (Control) Order, 1945, was issued exercise of powers conferred by sub‑rule (2) of rule 81, Defence of Ind Rules, which lapsed on the expiry of six months from the 1st of App 1946, the date of the termination of Emergency. On the 1st of October 1946, however, there came into force the Essential Supplies (Temporary Powers) Ordinance, No. XVIII of 1946. Section 3 of the Ordinance provided for the exercise of powers similar to those exercised and rule 81 of the Defence of India Rules. Section 5 provided that any order made under sub‑rule (2) of rule 81, Defence of India Rules, respect of any matter specified in section 3 which was in force immediately before the commencement of the Ordinance, shall, notwithstanding the expiration of the said rules, continue in force so far consistent with the Ordinance and be deemed to be an order ma under section 3. Section 8 provided that "if any person contravenes an order made or deemed to be made under section 3, he shall be punishable with imprisonment ". In due course this Ordinance replaced by the Essential Supplies (Temporary Powers) Act No. XXI of 1946, which by section 17 subsection (1) repealed the Ordinance proceeding it and by subsection (2) provided that "any order made deemed to be made under the said Ordinance and in force immediately before the commencement of this Act shall continue in force and be deemed to be an order made under this Act ". The effect of the provision was that the orders made under the Defence of India Rule including the Cotton Cloth and Yarn (Control) Order, 1945, which were continued in force by section 5 of the Ordinance were to deemed to be orders under the Act. So much is conceded. Now the A itself under section 3 empowers the Central Government by notification order to provide for regulating or prohibiting the production, super and distribution of any essential commodity, as did section 3 of the Ordinance, and section 7 provides penalties for the contravertion of " any order made under section 3". The first argument consequently advanced by Mr. Saleem is that since section makes punishable only an order made under section 3, not order deemed to be made under section 3, any contravention of t Cotton Cloth and Yarn (Control) Order, 1945, which is not an order made under section 3 but which by the operation of section 17 st section (2) is "deemed to be an order under this Act" is not an offer under the Essential. Supplies (Temporary Powers) Act. The argument is based on a comparison of the language of section 8 of the Ordinance with section 7 of the Act, for whereas section 8 made punishable not of an order made under section 3 but also an order deemed to be ma under that section, section 7 makes punishable "an order made unc section 3" and says nothing about orders which are deemed to be ma under section 3. Mr. Saleem referred to Maxwell on the Interpretati of Statutes, page 231, where it is stated that "where an enactment m entail penal consequences, no violence must be done to its language bring, people within it, but rather care must be taken that no one brought within it who is not within its express language ...If the Legislature has not used words sufficiently comprehensive to include within its prohibition all the cases which fall within the mischief intended to be prevented, it is not competent to a Court to extend them."

The argument, therefore, turns mostly on whether the words used by the Essential Supplies (Temporary Powers) Act, 1546, in its penal clause have expressed themselves comprehensively. It seems that in the absence of the Ordinance the interpretation of the penal cause of the Act should not have presented any difficulty ; for section 17 subsec tion (2) places on a par an order made or deemed to be made under the Ordinance with an order made under the Act and since an order made under die Act so far as it is confined to section (3) is punish able under section 7, an order deemed to have been made under the Act will obviously be punishable. This seems to be the clear intention of section 17 subsection (2) which would be rendered nugatory with the acceptance of Mr. Saleem's interpretation. The argument, that subsection (2) of section 17 merely provides a counsel of perfection for such of our good citizens as may feel morally bound by a law which provides no penalties need not engage serious attention.

The rule of strict construction of a penal statute is attended with qualifications and other rules no less important and the meaning must be determined by the effect which these qualifications have on the aforesaid restrictions. "Among them", says Maxwell on pages 240‑241. "Is the rule that that sense of the words is to be adopted which best harmonises with the context and promotes in the fullest manner the policy and object of the Legislature. The paramount object in constru ing penal as well as other statutes, is to ascertain the legislative intent, and the rule of strict construction is not violated by permitting the words to have their full meaning, or the more extensive of two meanings, when best effectuating the intention. They are, indeed, frequently taken in the widest sense, sometimes even in a sense more wide than etymologically belongs or is popularly attached to them, in order to carry out effectually the legislative intent, or, to use Lord Coke's words, to suppress the mischief and advance the remedy."

The question raised in this case has been decided by a Full Bench in Emperor v. Ranchhodlal Hirabhai (A. I. R. 1948 Born. 370) against the petitioner. In repudiating the contention advanced against the validity of an order made under the Defence of India Rules, rule 81 sub‑rule (2), Chagla C. J., observed that "the whole object of section 17 of the Act is to put orders deemed to be made on the same footing as orders made under section 3 of the Act, to give those orders the same force arid the same efficacy and to make the contravention of those orders as much penal as the contravention of orders made under section 3." Comparing the language of the Ordinance with that of the Act, hey observed that, although in construing a statute the Court is entitled to look at the history of prior legislation and to give effect to a change in language effected by the Legislature on the assumption that the Legislature does not do anything without having some object for doing it, "it is an equally clear cannon of construction that if it is found that the language used' in two statutes is different, and that the language used in the earlier statute was unnecessary or superfluous and the Legislature deltes the unnecessary and superfluous part from the statute, no inference or no .presumption can be drawn from the change of language." Reference was also made by the learned Chief Justice to a Privy Council ruling, 11 A. C. 627, reported in Craies on Statute Law from which the following extract may be profitably reproduced :‑

"It is, however, a very serious matter to hold that, where the inten tion of a statute is clear, it shall be reduced to a nullity by the drafts man's unskilfulness or ignorance of law. It may be necessary for a Court of Justice to come to such a conclusion, but their Lordships bold that nothing can justify it except necessity, or the absolute intractability of the language used."

pointed‑out in the Full Bench case referred to above that the words "or deemed to be made" had been omitted in the Act not only from section 7 which provided the penal clause but also from sec tions 13, 8, 9, 10, 15, 14(1) and 6(1) and 16(2) which respectively correspond to sections 9, 10, 11, 12, 13, 16(1) and 17(1) and (2) of the Ordinance, thus clearly indicating that they were regarded as superfluous. It was only when the draftsman reached section 17 of the Act that he took cognizance of the existing order: made either under the Ordinance or under the Defence of India Rules and giving them by a legal fiction the status of orders made under section 3, thought, and rightly so, that they were covered by the penal provisions of section 7.

I, therefore, hold that section 7 of the Act provides punishment not only for an order actually made under section 3 but also for an order deemed to have been made under the Act.

The next point taken by Mr. Saleem is that the Essential Supplies (Temporal Powers) Act. 1946, is no longer operative, as by section 1 subsection (3);

"It shall cease to have affect on the expiration of the period men tioned in section 4 of the India (Central Government and Legislature) Act, 1946 (9 and 10 Geo. VI, c. 39)."

The period provided under section 4 of the latter Act is the period of one year beginning with the date on which the Proclamation of Emergency in force of the passing of this Act ceases to operate or, if the Governor‑General by public notification so directs, the period of two years beginning with that date:‑

"Provided that if and so often as a resolution approving the exten sion of the said period is passed by both Houses of Parliament, the said period shall be extended for a further period of twelve months from the date on which it would otherwise expire so, however, it does not in any case continue for more than five years from the date on which the Proclamation of Emergency ceases to operate",

The Proclamation of Emergency was revoked on the 1st April 1946. On the 1st of March 1947 the Governor‑General directed by public notification that the period mentioned in section 4 should be a period of two years beginning with the 1st of April 1946. That takes us to the 1st of‑ April 1943 and thereafter the Constituent Assembly passed al resolution extending the period by another 12 months. This resolution was in pursuance of the proviso to section 4 of the India (Central Government and Legislature) Act, 1946, which has been adapted by the Pakistan Provisional Constitution Order, 1947, so that the words "both Houses of Parliament" are now substituted by the words "the Federal Legislature" and the powers of the Federal Legislature have been con ferred on the Constituent Assembly.

Mr. Saleem objected that the Governor‑General could not "extend" the period of one year prescribed by the Act to a period of two years he could only initially determine it on the date when the Proclamation of Emergency was revoked. Now, although it is true that section 4 does not specifically use any word which could indicate that the Gover nor‑ General "extends" the period of one year to two years, at the same time all that it requires is that there should be a public notification by the Governor‑General directing that the period of one Year mentioned in section 4 shall be two years and there is nothing to ‑indicate that this notification should be made at any particular time: So long, therefore, as the previous operation of the Act, limited by section 4, has not ceased, the period can be extended to two years. In fact the object of section 4 is to enable the Governor General to extend the period. If the Governor‑General were expected to know, about the time when the Proclamation of Emergency ceased to operate, that the period which he would require for extending the operation of the Essential Supplies (Temporary Powers) Act would be a period of two years it is hardly sensible to expect that notwithstanding that knowledge the British Parliament provided a period of one year in the first instance

I am, therefore, of the view that the Essential Supplies (Temporary Powers) Act, 1946 was in force on the date when the alleged offences were committed. Tire two petitions are consequently dismissed.

A. H. Petitions dismissed.

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