Lawyers Directory Listing
Chat with us free on WhatsApp — tell us your city and legal matter and our team connects you with the right lawyer. No form, no fee.
Criminal Revision No. 308 of 1958, decided on 24th February 1959.
(a) West Punjab Cotton Control Rules, 1949, R. 24 (4) Expression "any offence under these Rules"‑Includes offence under S. 9 (I), West. Punjab Cotton Control Act (IV of 1949).
Prosecution of the petitioner under section 9 (i) of the Punjab Cotton Control Act, 1949 was ordered by the Chief Cotton Inspector. It was urged on behalf of the petitioner that the authority conferred on the Chief Cotton Inspector under rule 24 (4) of the Punjab Cotton Control Rules, 1949, to sanction prosecution o1 offenders was confined to offences under the Rules and did no extend to offences under the Act itself and consequently the prosecution of the petitioner under section 9 (1) of the Act was illegal.
Held, that the prosecution of the petitioner was not illegal Section 9 (1) of the Punjab Cotton Control Act must be read along with the Rules made under the Act, since it make; punishable the working of a ginning or pressing factory without a licence granted to the occupier thereof in such form, subject tc such conditions and on payment of such fees as may be prescribed by the Rules, consequently the expression "any offence under these Rules" in rule 24 (4) of the Punjab Cotton Control, Rules 1949 is wide enough to include an offence under section 9 (1) o1 the Punjab Cotton Control Act read with the Rules particularly since the relevant portion of the section has beet incorporated in rule 8 (1).
(b) Rules‑Framed so as to fill lacuna in Act‑Rules illegal.
Kamal Mustafa for Petitioner.
S. A. Saeed for the State.
Date of hearing : 17th February 1959.
The facts of this case are as follows :‑
Malik Fateh Muhammad Khan, Petitioner has filed two under‑mentioned revisions against the order of Mr. Nazir Ahmad Special Magistrate Multan :‑
1. Revision No. 33 A. S. J. 1957 ; Malik Fateh Muhammad vs State.
In this case the Petitioner has been convicted on 2011 December 1956, under section 9 (5) (1) read with rules 8 (i) and 10 (i) of the Punjab Cotton Control Act Rules, 1949 and sentenced him to a fine of Rs. 250 with a further rigorous imprisonment for 75 days in default.
2. Revision No. 34 A. S. J. 1957 Malik Fateh Muhammad vs State.
In this case the appellant has been convicted on 21‑12‑1956 under section 9 (5) (i) of the Punjab Cotton Control Act read with 8 (i) of the Punjab ,Cotton Control Rules, 1949 and sentenced to a fine of Rs. 250 in default to further term of rigorous imprisonment for 75 days.
2. (sic) This order will cover both the revision petitions a; they comprise the similar point of law.
3. The Chief Cotton Inspector Montgomery instituted complaint in the Court of Additional District Magistrate, Multan under section 9 (1) read with rule 8 (i) of the Punjab Cotton Control Act and the Rule respectively on the ground that Malik Fateh Muhammad had installed two Single Rollers Gins without working licences and allotment order. Upon this the learned trial Magistrate, after holding the proper inquiry, passed the said order as mentioned‑above in No. 1 on 20th December 1956.
4. Similarly the same Chief Cotton Inspector; Montgomery filed a complaint before the Additional District Magistrate, Multan under section 9 (1), 16 (1) read with rule 8 (1) and 14 (1) of Punjab Control Act and Rules respectively on the ground that Malik Fateh Muhammad Khan accused had installed two Single Rollers Gins without the previous sanction and had worked out it without licence and also had not maintained register and failed to submit the weekly Ginning report. Upon this the learned trial Magistrate had convicted and sentenced the appellant as mentioned above in No. 2.
5. Malik Fateh Muhammad Khan, Petitioner has been convicted under section 9 (5) (i) read with rules 8 (1), 10 (I) of the Cotton Control Act and rules. Section 9 (1) of the said Act prohibits to run factory without licence. The contravention of section 9 (1) is punishable under section 9 (5) (i). Section 21 of the Cotton Control Act, 1949 says that "no prosecution under this Act shall be instituted except by or with the previous sanction of the prescribed authority and no Court inferior to that of Magistrate of the 1st Class shall try an offence under this Act".
6. The word "prescribed" has been defined by this Act itself, in section 2 Clause (r), which runs "prescribed" means "prescribed by or under the rules made by the Government under this Act."
7. Section 30 of this Act further says "The Government may, by notification, make rules consistent with this Act to give effect to the provisions of this Act. Such rules may in particular provide for all or any of the following matters namely :‑
(L) The appointment of authorities for the purpose of sections 9, 10, 11, 12, 13, 16, 17, 18, 20 and 21."
8. The survey of all the above sections clearly shows that the Legislature has given powers to the Government to declare, who shall be the prescribed authority for giving the sanction to institute complaint against any person before the competent Court.
9. It is not proved that under section 30 of this Act the Government had ever prescribed any authority for that purpose.
10. The learned trial Magistrate had considered himself competent to convict and sentence Malik Fateh Muhammad, petitioner under the above section and rules on the ground that under rule 24 (4) of the rules, the Chief Cotton Inspector was the prescribed authority to order Malik Fateh Muhammad's prosecution for the offence committed by him under the above sections of the Act. This is apparently an erroneous view of law, which had been taken by the learned trial Magistrate.
11. The perusal of the rules shows that the Development Department Agricultural on 8‑10‑1949 vide Notification No. 455‑D (A) in exercise of the powers conferred by section 30 and other sections of the Cotton (Control) Act, 1949 made the rules, in which rule 24 (4) says, "no Court shall take cognizance of any offence under these rules without the sanction of the Chief Cotton Inspector of the range in writing for the prosecution of the offender". It is the fundamental Principle of law that rule cannot over‑ride the Act. See Protab Singh v. Krishna Gupta (P L D 1956 S C (Ind.) 240). In these circumstances the Cotton Chief Inspector cannot be deemed to be the prescribed authority," who can give sanction against any person for an offence committed by him under the Act. Thus rule 24 (4) is not applicable to an offence committed under the Act, but is applicable to offences committed under the rules only because in this rule the words "under these rules" are particularly significant. Rule 8 (1) is the reproduction of section 9 (1) of the Act. No punishment could be imposed under the said rule in the presence of section in the Act. Rules 10 (1) says that "no factory shall work unless an identi fication number has been allotted by the Director of Agriculture. The punishment of the rule is provided in rule 24 (1) of the Rules. But the latter one, i.e., rule 24 (1) is also ulra vires because it is not proved that the legislature has delegated any power to the Government to frame rules for punishing any person on the contravention of the rules.
12. In my opinion the conviction and sentence in both the above‑mentioned cases against Malik Fateh Muhammad were clearly illegal as he was prosecuted without the sanction of the prescribed authority as laid down in section 21 of the Act.
13. In these circumstances I recommend to the High Court that the convictions and sentences as mentioned above passed against Malik Fateh Muhammad Petitioner by the learned trial Magistrate may be quashed as they were illegal.
This order will dispose of two connected Criminal Revisions, Nos. 308 and 309 of 1958, based on the recommendation of Syed Tafazzal Husain, Additional Sessions Judge, Multan, from the orders of Mr. Nazir Ahmad, Special Magistrate, Montgomery, dated the 20th of December 1956, convicting and sentencing Fateh Muhammad Petitioner as under:‑
(1) In case No. 5/1, under section 9 (1) of the Punjab Cotton Control Act (hereinafter referred to as the Act) read with rules 8 (1) and 10 (1) of the Rules framed thereunder, to a fine of Rs. 250 or 75 days' rigorous imprisonment in default.
(2) In case No. 27/1, under section 9 (5) (i) of the Act read with rule 8 (1) of the Rules, to the same fine or in default to the same term of imprisonment.
2. The cases in question were instituted on complaints by the Chief Cotton Inspector, Montgomery, to the effect that the petitioner had installed two single roller gins without either working licences or allotment orders and, in respect of one of the factories, had failed to maintain the prescribed register and to submit weekly ginning reports. The learned Additional Sessions Judge has forwarded the proceedings in revision to this Court on the technical ground that no valid sanction had been obtained for the prosecutions.
3. For a proper understanding of the case, the relevant provisions of the Act and the Rules framed thereunder must be scrutinized.
4. Sections 9 (1) and 9 (5) of the Act run as follows :‑
"9 (1) No cotton ginning or cotton pressing factory shall be worked without a licence granted to the occupier thereof by such authority, in such form, subject to such conditions and on payment of such fees as may be prescribed."
(The expression "prescribed is defined in section 2 (r) of the Act as meaning "prescribed by or under the Rules made by the Government under this Act.")
"9 (5) If any person works a factory in respect of which a licence has not been granted or has been suspended or cancelled, he shall be punishable :‑
(i) on a first conviction, with fine which may extend to five hundred rupees and if the offence has continued for more than one day, with an additional fine which may extend to one hundred rupees for each day subsequent to the first day during which the offence has‑continued."
5. Sections 12 (1) and 12 (3) are to the following effect :‑
"12 (1) The occupier of every cotton ginning factory shall submit to the prescribed authority, within such time and in such form as may be prescribed, weekly returns showing the quantity of cotton ginned in the factory during the preceding week and from the commencement of the cotton year to the end of that week."
"12 (3) If default is made in submitting any return as required by subsection (1), the occupier of the factory shall be punishable with fine which may extend to fifty rupees."
6. The rule‑making section of the Act is section 30, which enacts that the Government may, by notification, make Rules consistent with the Act to give effect to its provisions. It is added that such Rules may in particular provide for all or any of a number of matters which the section proceeds to enumerate as (a) to (p). Clause (p) relates to the appointment of authorities for the purpose of sections 9, 10, 11, 12, 13, 16, 17, 18, 20 and 21 of the Act. Of the said sections, the relevant provisions of sections 9 and 12 have already been cited. Section 2.1 lays down that no prosecution under the Act shall be instituted except by or with the previous sanction of the prescribed authority, and, as already pointed out, "prescribed" means prescribed by or under the rules. Sub‑rule (4) of rule 24, the rule prescribing penalties for the contravention of any of the provisions or directions of the Rules, is to the effect that no Court shall take cognizance of any offence under the Rules without the sanction of the Chief Cotton Inspector of the range in writing for the prosecution of the offender.
7. The last rule requiring mention is sub‑rule (1) of rule 24, the relevant portion of which runs :‑
"Any person contravening any of the provisions or directions of these rules, for which no penalty has been provided in these rules, * * * * * * * * * shall be punishable with imprisonment not exceeding three months or fine which may extend to one thousand rupees, or both."
It is to be noted that neither rule 8 nor rule 10 lays down a specific penalty for contravention of their provisions, and both consequently fall in respect of punishment under the residuary rule 24 (I) above cited.
8. The learned Sessions Judge interpreted rule 24 (4) as meaning that the authority conferred on the Chief Cotton Inspector to sanction the prosecution of offenders is confined to offences under the Rules and does not extend to offences under the Act itself. He consequently held that the prosecution of the petitioner in the present cases under sections 9 (1) and 9 (5) (i) of the Act was illegal. I am unable to agree with this contention, though at first sight it may seem to be not entirely devoid of force. The point the learned Sessions Judge has overlooked is that section 9 (1) of the Act must be read along with the Rules, since it makes punishable the working of a ginning or pressing factory without a licence granted to the occupier thereof in such form, subject to such conditions and on payment of such fees as may be prescribed by the Rules. I am consequently of the opinion that the expression "any offence under these Rules" is A wide enough to include an offence under section 9 (1) of the Act read with the Rules, particularly since the relevant portion of the said section has been incorporated in rule 8 (1), while section 9 (5) (i) of the Act does not create any separate offence but only prescribes the punishment to be awarded for a contra vention of the preceding clauses of the section.
9. For the above reasons I hold that the sanction conferred on the Chief Cotton Inspector by rule 24 (4) of the rules covered the prosecution of the petitioner in the present cases. I accordingly decline to accept the recommendation of the learned Additional Sessions Judge and dismiss the petitions.
10. Before concluding, however, I am constrained to point out that the Rules under consideration go in certain respects beyond the provisions of the parent Act, a defect, which if not already rectified in some subsequent amendment that has not been brought to my notice, deserves the attention of Government. For example, although the punishment prescribed by section 9 (5) (i) of the Act for a first offence of contravention of the preceding clauses of the section is a maximum fine of only Rs. 500, with no provision for substantive imprisonment, rule 24 (1) purports to authorise the imposition of a sentence of three months' imprisonment (the nature of the imprisonment is not specified) or a fine of Rs. 1,000 or both, in spite of the fact that one of the offences created by the rule is in substance a contravention of section 9 (1). In the present case, it is fortunate for the prosecution that the learned Magistrate has imposed punishments which are within the limits laid down by section 9 (5) (i). Further, although section 9 (1) of the Act requires a licence only in respect of cotton ginning and cotton pressing factories, rule 8 goes further and makes it incumbent on an occupier to obtain a licence in respect of a cotton‑seed oil factory also. It may well be that the rule is intended to fill a lacuna in the Act without having resort to the procedure of framing fresh legislation, but if so, the method is illegal.
11. The above examples are not to be treated as exhaustive of the defects to be found in the rules, being by way of illustration only.
A copy of this judgment should be sent to Government for information and such action as may be considered necessary.
K. B. A./A. H. Petition dismissed.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer