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---Respondents
Writ Petition No. 22 of 1958 decided on 31st March, 1958.
Whether life of an Ordinance can be continued by another Ordinance in disregard of provisions of Article (Quarae).
Offences under, whether triable by Special Magistrate appointed under East Pakistan Food (Special Courts) Ordinance (XV of 1956) or East Pakistan Food (Special Courts) Act (X of 1956)‑East Pakistan Food (Special Courts) (Amendment) Ordinance (IV of 1957)‑Retrospective operation‑Effect.
that section 10, East Pakistan Control of Essential Commodities Act (I of 1956), S. 3, East Pakistan Food (Special Courts) Ordinance (XV of 1956) read with East Pakistan Food (Special Courts) Act (X of 1956) show that the Legislature did not wish to have the offences under Act No. 1 of 1956 tried by Special Magistrates appointed either under Ordinance XV of 1956 or Act X of 1956.
Further, that the amendment introduced by East Pakistan Food (Special Courts) (Amendment) Ordinance (IV of 1957) substituting Act I of 1956 for Ordinance (X of 1956) in S. 3 of Act (X of 1956) did not assist the prosecution in this case because neither on the date when cognizance of the offence was taken by the Special Magistrate concerned nor on the date when the trial concluded or the judgment was delivered and order of conviction passed was the Special Magistrate appointed either under Ordinance XV or Act X of 1956 empowered to try any offence under Act I of 1956. The contention, therefore, that between the dates, namely the 9th October, 1956, and the 22nd December, 1956, the Special Magistrate had no jurisdiction to try the offence must prevail, for, the jurisdiction of the Special Magistrate must necessarily be determined upon the state of the law as it then stood.
Does not affect things done before date on which retrospective effect was actually given.
Charge‑Evidence produced establishing offence under law other than the law under which accused was charged ‑Conviction not sustainable‑East Bengal Modified Rationing Order, 1949, S. 10 (c)‑Adulteration of rice with paddy dust-- Charge and conviction under S. 10 (c) for short measure‑Convic tion not sustainable.
Asrarul Hossain with Muhammad Abdur Rab for Petitioner.
B. A. Siddiky, Advocate‑General, with K. A. Sobhan and Kamaluddin Hossain, for Respondents.
In this application under Article 170 of the Constitution of Pakistan, a Rule nisi was issued on the 5th February, 1958, calling upon the respondents to show cause why a writ of certiorari should not issue requiring them to transmit and certify to this Court the records and proceedings relating to the order of conviction of the petitioner passed on the 22nd December, 1956, by the Special Magistrate, Chandpur, and why the said order of conviction and sentence complained of in the petition should not be quashed.
2. The petitioner who is an appointed dealer under the East Bengal Modified Rationing Order, 1949, was charged for having committed a contravention of the said East Bengal Modified Rationing Order by selling rice mixed with paddy dust on the 3rd October, 1956, and thus delivering to the consumers such modified rationed rice without proper measurement in con travention of clause 10 (c) of the said Rationing Order.
3. The prosecution was lodged on the report of an Assistant Platoon Commander of Ansars who, it is alleged, had, on getting a report of a commotion in front of the shop of the petitioner, gone there with the Circle Officer, Hajiganj, and seized from the shop of the said petitioner samples of rice said to contain an excessive quantity of paddy dust in the presence of certain witnesses. In connection with this, the Sub‑divisional Controller of Food, Chandpur, had also submitted a report (Exhibit 4) showing that Burma rice containing paddy dust to the extent of one‑fourth was being sold by the petitioner.
4. The defence of the petitioner was that lie had not sold such Burma rice but that he had in fact received delivery of only white American atap rice and sold such white atap rice in full measure.
5. In support of their respective cases, both sides examined certain witnesses in this case. The prosecution evidence pur ported to establish that the samples of rice produced in Court were actually seized from the shop of the petitioner and that the said samples were of Burma rice consisting of one‑fourth paddy dust. Further that although delivery orders had been given in favour of the petitioner for the delivery of American atap rice actually on the 29th September, 1956, there was a shortage of atap rice in the store and the petitioner was given one hundred maunds boiled Burma rice in 52 bags.
6. The trial of the petitioner was held before the Special Magistrate, Chandpur, Mr. R. A. Khan, who recorded in his order‑sheet on the 9th October, 1956, the following order
" Seen the report of Adjutant of Ansars, Chandpur. Issue W/A against Rajjab Ali Bepari under section 6 of Ordinance XV/56, fixing 20‑JO‑56 for accused."
It thus appears that the learned Magistrate trying this case was acting as a Special Magistrate appointed under the East Pakistan Ordinance XV of 1956, namely, the East Pakistan Food (Special Courts) Ordinance, 1956. Under this Ordinance the Special Magistrate appointed thereunder is authorised to try such cases summarily following the procedure laid down in the Code of Criminal Procedure for summary trials but he is not required to record more than a mere memorandum of the evidence. The petitioner accordingly was tried by the said Magistrate summarily. The trial commenced on the 17th November, 1956. Charge was framed under section 6 (1) of East Pakistan Act I of 1956, namely, the East Pakistan Control of Essential Commodities Act, 1956. The said section 6 (1) of the Act reads as follows :‑
" If any person contravenes any order made under section 3, he shall be punishable with imprisonment for a term which may extend to three years or with fine or with both, and if the order so provides, any Court trying such contravention may direct that any property in respect of which the Court is satisfied that the order has been contravened shall be forfeited to the Provincial Government."
Section 3 of the said Act gives power to the Provincial Government for maintaining, or increasing supplies of any essential commodity or for securing its equitable distribution and availability at fair prices, by notified order, to provide for regulating, or prohibiting the production, treatment, keeping, storage, movement, etc., of such essential commodity. Further more section 16 of the said Act I of 1956 repeals the East Pakistan Control of Essential Commodities Ordinance, 1956, (East Pakistan Ordinance X of 1956) but, notwithstanding such repeal, provides that any order made or deemed to have been made under the said repealed Ordinance X of 1956 and in force immediately before the commencement of Act I of 1956 shall until such time as the Provincial Government or an officer authorised by the Provincial Government issues orders under this Act (presumably under section 3), the order made under Ordinance X of 1956 shall be continued in force and be deemed to be an order made under corresponding provisions of this Act.
7. The petitioner, therefore, was charged under this section for having committed a violation of clause 10 (C) of the East Bengal Modified Rationing Order, 1949, which had been made originally in exercise of powers given under the Essential Supplies Temporary Power Act, 1946, and thereafter continued bye Central Ordinances and from the 25th April, 1956, by, in force, firstly by the East Pakistan (Essential Supplies) Ordinance, 1956 (East Pakistan Ordinances VI of 1956), which in its turn was repealed by the East Pakistan Control of Essential Commodities Ordinance X of 1956 promulgated on the 30th June, 1956.
8. The learned Special Magistrate convicted the petitioner of having committed the offence mentioned above and sentenced him to suffer rigorous imprisonment for one year as also to pay a fine of Rs. 500 or, in default, to suffer rigorous imprisonment for another period of six months.
9. As against the said order of conviction, the petitioner preferred an appeal before the Additional Sessions Judge of Tippera but the said appeal was dismissed as being not main tainable following a decision of this Court in the case of Hari Meah v. The State (10 D L R 123 = PLD 1958 Dacca 1).
10. The petitioner has, therefore, invoked the provisions of Article 170 of the Constitution and obtained this Rule nisi for a certiorari. The order of the Magistrate concerned is challenged before us on a large number of grounds. The first ground taken raises a very interesting question of law which does not appear to be covered by any direct authority. The point raised is that the East Bengal Modified Rationing Order, 1949, being an order made in exercise of the special powers given by the Essential Supplies Temporary Powers Act, 1946, should have lapsed with the repeal of the said Essential Supplies Temporary Powers Act by Central Ordinance IV of 1956. In any event, even if it could be validly continued in force in the Province of, East Pakistan by East Pakistan Ordinance VI of 1956, it lapsed on the 3rd July, 1956, when .the period of six weeks after the meeting of the Provincial Legislature on the 22nd May, 1956, expired. It is contended that by Article 102 (2) of the Constitu tion of Pakistan an Ordinance promulgated by the Governor must be laid before the Provincial Assembly at its next meeting and must cease to operate at the expiration of six weeks from the said meeting, or earlier, if the Assembly passes a resolution disapproving of that Ordinance. The Legislature in the present case met on the 22nd May, 1956, and since it did not adopt the said Ordinance or enact an Act of the Legislature in similar terms, the said Ordinance VI of 1956 promulgated by the Governor of East Pakistan lapsed by operation of the provisions of the said Article 102 (2) on the 3rd July, 1956, and thereafter the Governor of East Pakistan had no power or authority to extend the life of the said Ordinance either directly or indirectly by adopting the device of repealing and re‑enacting the Ordinance in identical terms, even after the Legislature had been prorogued.
11. In support of this contention, strong reliance is placed on a decision of a Division Bench of this Court in the case of Tamizuddin Ahmed v. Province of East Bengal (A I R 1949 Dacca 33 = P L D 1949 Dacca 1). In that case, the Provincial Governor had purported, in exercise of his powers tinder section 88 (l) of the Government of India Act, 1935, as adapted by the Pakistan Provincial Constitutional Order, 1947, to pass an Ordinance containing only three sections, the first giving the name of the Ordinance so purported to be passed by him, the second merely saying that an earlier Ordinance, namely, the East Bengal Preventive Detention Ordinance, 1949, shall continue in operation and shall have the same force and effect as an Act of the Provincial Legislature until the publica tion of the assent of the Governor‑General to certain bills of the said Legislature and the third section continued in force all notifications, directions and orders made under the said earlier Ordinance. In those circumstances, it was argued that the Governor was incompetent to extend the life of an Ordinance and Ellis and Amir‑ud‑din Ahmad, JJ. (as they then were), held that the earlier Ordinance of 1949 ceased to operate at the expiration of six weeks from the meeting of the Provincial Assembly which occurred on the 22nd April, 1949, and the Governor had no power to extend the life of the said Ordinance.
12. It is contended by the learned Counsel appearing in support of this Rule that in this case too the second Ordinance was promulgated clearly for extending the life and continuing the operation of the earlier Ordinance, although the Legislature had met in the meantime, and on a parity of reasoning it would also follow that a Governor should not be allowed to do in directly what he could not do directly. Thus although the device adopted in the present case was to pass a fresh Ordinance repealing the earlier Ordinance and re‑enacting all its terms it was doing nothing more than merely extending the life of the previous Ordinance which should, according to Article 102 (2) of the Constitution, have ceased to operate. Thus this was in effect an enactment for continuing the life of the previous Ordinance in disregard‑ of the letter and the spirit of the Constitution.
13. As we have already observed, this precise question has not been decided in any case as yet but it appears that this question was raised in the case of Begum Zeb‑un‑nissa Hamidullah v. Pakistan (P L D 1958 S C (Pak.) 35) before their Lordships of the Supreme Court, where Mr. Brohi argued that re‑enactment of an expired Ordinance by another Ordinance was unconstitutional as only the Legislature' could convert such an Ordinance into an Act. But their Lordships did not consider it necessary to determine that question and the case was disposed of on another ground.
14. We are also given to understand by learned Counsel appearing for the petitioner that the same question has been raised in some other matters now pending before their Lordships of the Supreme Court. In these circumstances we, for the present, also refrain from expressing any opinion on this question particularly, as there are two other grounds upon which this application must, in our opinion, succeed.
15. The first of these grounds is that in so far as the Special Magistrate in this case purported to take cognizance of the case against the petitioner as a Magistrate appointed under East Pakistan Ordinance XV of 1956, he had no jurisdiction at all to try the offence charged, namely, under section 6 (1) of East Pakistan Act I of 1956. Section 3 of the said Ordinance XV of 1956 provides as follows :‑
" Notwithstanding anything contained in the East Pakistan Control of Essential Commodities Ordinance, 1956 or in any other law for the time being in force, contravention of any notified order in respect of food‑stuffs made or deemed to have been made under the East Pakistan Control of Essential Commodities Ordinance, 1956, shall be tried and punished by Special Magistrates appointed under this Ordinance and no other Court shall have any jurisdiction to take cognizance of any such offence."
This Ordinance XV of 1956 was promulgated on the 12th August, 1956, but under this only contraventions of notified orders in respect of food‑stuffs made or deemed to have been made under East Pakistan Ordinance X of 1956 could be tried by a Special Magistrate appointed under the said Ordinance XV of 1956.
16. The said East Pakistan Act I of 1956 was passed on the 19th September, 1956, received the assent of the Governor on the 22nd September, 1956, and was published in the gazette oil the same date. Under this Act I of 1956, it was provided, inter alia, as follows :‑
" No Court shall take cognizance of any offence punishable under this Act except on a report in writing of the facts con stituting such offence made by a person who is a public servant as defined in section 21 of the Pakistan Penal Code, 1860."
" Any Magistrate or Bench of Magistrates empowered for the time being to try in summary way the offences specified in subsection (1) of section 260 of the Code of Criminal Procedure, 1898, may on application in this behalf being made by the prosecution, try in accordance with the provisions contained in section 262 of the said Code any offence punishable under this Act."
" Notwithstanding anything contained in section 32 of the Code of Criminal Procedure, 1898, it shall be lawful for any Magistrate of the First Class specially empowered by the Provincial Government in this behalf to pass a sentence of fine exceeding one thousand rupees on any person convicted of contravening an order made under section 3."
17. It thus appears that although East Pakistan Act I of 1956 was passed after the promulgation of Ordinance XV of 1956, yet no consequent amendment was made in the said Ordinance XV of 1956, providing for the punishment also of offences under Act I of 1956, but, on the other hand, offences under the said Act I of 1956 were made triable by any Magistrate or Bench of Magistrates empowered for the time being to try in a summary way the offences specified in section 260 (1) of the Code of Criminal Procedure but only on an application in that behalf being made by the prosecution. Further powers were also given to a Magistrate trying such cases to impose a higher punishment than that admissible under the Code of Criminal Procedure. The Magistrate or Bench of Magistrates referred to in the said Act I of 1956 being Magistrates appointed under the Code of Criminal Procedure, their order would have been appealable and revisable under the said Code. The Magistrates ,appointed under Ordinance XV of 1956, however, being not Magistrates under the Code of Criminal Procedure and there being no provision for appeal or revision in the said Ordinance XV of 1956, no appeal or revision, as held by this Court in case of Hari Meah v. The State, would be available to persons aggrieved by orders of such Magistrates. Hence it is argued on behalf of the petitioner that upon the language of these two enactments it is reasonable to assume that the intention of the Legislature when passing Act I of 1956 was not that the offences under the said Act would also be triable by a Special Magistrate appointed under Ordinance XV of 1956 but by a Magistrate appointed under the Code of Criminal Procedure.
18. This argument is further sought to be strengthened by the fact that on the very date that the Legislature passed Act I of 1956, it also passed‑another Act, namely, the East Pakistan Food (Special Courts) Act, 1956 (Act X of 1956). This latter Act repealed and re‑enacted Ordinance XV of 1956 but even then it did not provide that offences under Act I of 1956 would also be triable by the Special Magistrates appointed under the said Act X of 1956, for, section 3 of the said latter Act X of 1956 is identical in terms with section,3 of Ordinance XV of 1956, that is, only contraventions of orders made under the East Pakistan Control of Essential Commodities Ordinance of 1956, (X of 1956), shall be tried by and punished by the Special Magistrates appointed under the said Act. It is urged, therefore, with some force, that since on the same day as the Legislature passed Act I of 1956 it also passed Act X of 1956 repealing and re‑enacting Ordinance XV of 1956, it cannot possibly be contended that the Legislature did not have before it the provisions of Ordinance XV of 1956 Therefore, there can only be one and only one reason for the Legislature omitting to amend section 3 even when passing Act X of 1956, namely, that it did not wish to have the offences under Act I of 1956 tried by Special Magistrates appointed either, under Ordinance XV of 1956 or Act X of 1956.
19. In order to meet this argument, a feeble attempt was made by the learned Advocate‑General to point out that since Act X of 1956 was referred for the assent of the President and that assent was not received until the 30th November 1956, there was no question of Act X of 1956 being applicable as from the date of its enactment by the Provincial Legislature. But immediately after the assent of the President was received, the Provincial Governor promulgated East Pakistan Ordinance IV of 1957 on the 25th January 1957, with retrospective effect from the 13th November 1956, the date of the assent of the President substituting East Pakistan Act I of 1956 for East Pakistan Ordinance X of 1956 in section 3 of Act X of 1956. The first part of the argument of the learned Advocate‑General appears to us to be beside the point. Whether assent of the President was received or not can have no possible bearing on the intention of the Legislature on the date of the enactment of the Act. The intention of the Legislature is to be gathered from the words used by it at that point of time and, since the Legislature used in the present case, on the 19th September 1956, words which did not show any change in section 3 of the Act X of 1956, we think that the argument advanced on behalf of the petitioner is of substance.
20. With regard to the amendments made by the Ordinance IV of 1957, no doubt it is true that when the Legislature by express words gives retrospective effect to a legislation the Courts must hold that the said legislation has been so given retrospective effect but the question here is as to the date from which that retrospective effect itself would begin to have force. East Pakistan Ordinance IV of 1957, as we have pointed out, promulgated on the 25th January 1957, but the trial of the petitioner before us was concluded on the 22nd December 1956. Hence on the date when the trial of the petitioner concluded and he was convicted as aforesaid, there was no amendment at all in existence. In these circumstances, there was no question on that date of Ordinance XV of 1956 or Act X of 1956 having] been amended with retrospective effect. The amendment cannot; in our opinion, even though it purports to give retrospective; effect to a place of legislation, have such effect from even before it is made. Such retrospective effect when given does not, in our opinion, affect things done before the date on which the retrospective effect was actually given. Amendments made in Act X of 1956 will certainly have retrospective effect from the date on which the amendments came to be incorporated but not from any earlier date. Thus in the case of a trial which may be now contemplated or commenced, after the 25th January 1957, the amendment will speak with retrospective effect. This amendment, therefore, by Ordinance 1V of 1957, does not also assist the learned Advocate‑General. It is clear that neither on the date when cognizance of the offence was taken by the Special Magistrate concerned nor on the date when the trial concluded or the judgment was delivered and order of conviction passed was the Special Magistrate appointed either under Ordinance XV or Act X of 1956 empowered to try any offence under Act I of 1956. The contention, therefore, that between the dates, namely the 9th October 1956, and the 22nd December 1956, the Special Magistrate had no jurisdiction to try the offence must, in our opinion, prevail, for, the jurisdiction of the Special Magistrate must necessarily be determined upon the state of the law as it then stood.
21. The next argument of the learned Counsel is that the evidence adduced in the present case, even if fully accepted, does not establish any offence under clause (c) of section 10 of the East Bengal Modified Rationing Order 1949. Relevant portion of clause (c) of section 10 of the said Modified Rationing Order is in these terms
" Every appointed wholesaler or an appointed retailer shall‑
(b) ... ...
"(c) maintain one or more sets of measures, scales and correct weights as necessary and deliver a listed article to the parties after proper measurement."
The offence contemplated by the above provision, therefore, is the selling of commodities short in weight or by false measure and the only evidence in this case is that the petitioner was selling rationed commodities mixed with an unusually excessive quantity of paddy dust. No measures or weights or scales were seized in the present case, nor was there any evidence that any of the weights or measures or scales maintained in the shop were not proper ones. The learned Magistrate took the view that by mixing such excessive quantity of dust the petitioner must necessarily have given less than what the ration card‑holders would have received if such dust had not been mixed.
22. This really was a charge of adulteration and it is significant that there is an Ordinance which expressly provides for punishment of the offence of adulteration. This is East Pakistan Food (Control of Movement and Distribution) Ordinance, 1956, F being Ordinance XII of 1956. In the Schedule appended to the said Ordinance the first offence mentioned is adulteration as defined in Section 272 of the Penal Code. Section 272 provides as follows
" Whoever adulterates any articles of food or drink, so as to make such article noxious as food or drink, intending to sell such article as food or drink, or knowing it to be likely that the same will be sold as food or drink, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both."
In our opinion, therefore, this contention of the learned Counsel must also be accepted, namely, that the evidence adduced, even if accepted, does not establish the offence charged in the present case and the conviction is based on no evidence at all.
23. On these two grounds this application must, in our opinion, succeed and we accordingly make this Rule absolute and quash the proceedings against the petitioner in S. C. Case No. 21 of 1956 before Mr. R. A. Khan, Special Magistrate, Chandpur.
24. The petitioner will be entitled to his costs assessed at twenty Gold Mohurs.
=I agree.
A. H.
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