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Writ Petition No. 10 of 1961, decided on 5th June 1961.
Ss. 3 & 16‑Act chronological substitution of Essential Supplies (Temporary Powers) Act (XXIV of 1946)‑Keeps alive Sugar and Sugar Products Control Order, 1948.
Srish Chundra Deb v. Crown (1953) 5 D L R 536 ref.
A. M. Fazlul Wahab for Petitioner.
T. H. Khan for Respondents.
‑This is an application for the issue of a writ of Certiorari to quash an order, dated the 17th of September 1960, passed by Mr. E. A. Hashmi, Special Magistrate appointed under the provisions of East Pakistan Control of Essential Commodities Act (Act I of 1956), to be hereinafter referred to as the Act convicting the ‑petitioner under section 6 of the said Act and sentencing him to pay a fine of Rs. 50, in default, to suffer rigorous imprisonment for a period of one month.
2. The petitioner claims to be a manufacturer of sugar -candy. On the‑ 24th of July 1959, he received a permit from the Sub‑Divisional Controller of Food, Narayanganj, for one hundred maunds of sugar per month. The said permit is in the following terms Dated the 24th July 1959.
Abdur Rashid Bhuiya and others.
Pro: Narsingdi sugar‑candy.
Address‑Mok & P. O. Narsingdi, District Dacca.
Sub‑Establishment permit for sugar.
On your application dated Nil you have been granted Establishment permit No. N/S 1, dated 24‑7‑59, for 100 mds. of sugar per month for manufacturing sugar‑candy.
Please note that you will have to lift the entire quota of sugar every month, failing which your permit will stand cancelled.
You have to maintain regular accounts of sugar lifted, the quantity of sugar‑candy produced and the quantity of sugar- candy sold every day. The sale must be made against cash memo.
(Sd.) Jaid Ali,
Sub‑Divisional Controller of Food,
Narayangauj.
3. On the 26th of September, one Aminuddin Ahmed, an Assistant Inspector of Police, District Anti‑Corruption Branch, Dacca, lodged a first information report in the Narsingdi police station alleging that the petitioner had illegally sold some quantity of sugar with regard to which he had obtained the aforesaid permit. The petitioner's factory and office were inspected and it was found that the petitioner did not maintain accounts of the sugar used and sugar‑candy sold from day to day, as required by the aforesaid order passed by the Sub‑Divisional Controller of Food, Narayanganj, as set out in the said permit.
4. By virtue of the said first information report there was an investigation into the matter and eventually the petitioner was tried by the aforesaid Special Magistrate under section 6 of the Act for contravening the provisions of clause (5) of the Sugar and Sugar Products Control Order, 1948, hereinafter referred to as the Order.
5. Prosecution examined a number of witnesses who proved that on examination of accounts it was found that the accused did not maintain his accounts as to the consumption of sugar and sale of sugar‑candy ever since the 2 rd of August 1959. It was proved that the petitioner had drawn ten maunds of sugar on the 7th of September 1959, which was not accounted for. Further more, it was found that seven maunds of sugar and twenty‑three thalas of sugar‑candy was found in the house of the petitioner.
6. The defence of the petitioner was a plea of not‑guilty. The petitioner's contention was that he drew ten maunds of sugar on the 7th of September 1959, and manufactured candy measuring three maunds and the balance of seven maunds of sugar was in his stock. His further defence was that his clerk was ill on the 7th of September 1959, and so the stock of sugar could not be entered in the stock‑register which was inspected on the 8th of September 1959; by P. W. 1. It was, therefore, contended on behalf of the petitioner that the violation of the 'aforesaid order passed by the Sub‑Divisional Controller of Food had been accidental. Learned Magistrate, therefore, took a lenient view of the offence and upon conviction of the petitioner sentenced him only to pay a fine of Rs. 50, in default, to undergo rigorous imprisonment for a term of one month.
7. The petitioner thereafter made, an application under section 435, Cr. P. C., before the Additional Sessions Judge, Dacca, who, however, held that the, application was: incompetent and rejected the same.
8. Thereupon the petitioner moved this Court for the issue of a writ as stated above and obtained the present Rule.
9. At the hearing of the Rule the only point that was pressed before us on behalf of the petitioner was that the petitioner could not be convicted under section 6 of the Act for contravening clause 5" of the Order. It has been urged that there is no nexus between the Act and they Order. Various other points that have been set out in the petition relate to the appraisal of the evidence by the 'Special Magistrate and the learned Advocate for the petitioner has very rightly refrained from addressing us on them. Clause 5 of the Order reads as follows:
"Every producer and dealer shall comply with such directions regarding the production, sales, stock and/or distribution of sugar or sugar products as may from time to time be given to him by the Controller."
10. It has not been challenged, either in the trial Court or before us, that the Sub‑Divisional Controller, Food, Narayanganj, is a Controller within the meaning of the said Order. As we have seen, the only point urged before us is that the aforesaid Order has no manner of application, so far as the Act is concerned.
11. The short answer to this is that the Order was enacted by virtue of the powers conferred by sections 3 and 4 of the Essential Supplies (Temporary Powers) Act, 1946 (Act XXIV of 1946) and the Order has been kept alive by subsequent Ordinances and Enactments.
12. The Essential Supplies (Temporary Powers) Act, 1946 was repealed by the Essential Supplies (Continuance of Temporary Powers) Ordinance, 1955, (Ordinance X of 1955), but the latter saved the orders made under the former. Section 17 of the said Ordinance of 1955, inter alia, provides as follows:
"1. The Essential Supplies (Temporary Powers) Act, 1946, is hereby repealed.
(2) Any order made or deemed to be made under the said Act and in force immediately before the commencement of this Ordinance shall continue in force and be deemed to be an order made under this Ordinance; and all appointments made, licenses or permits granted and directions issued under any such order and in force immediately before such commencement likewise continue in force and be deemed to be made, granted or issued in pursuance of this Ordinance.
13. In the case of Srish Chandra Deb v. The Crown ((1953) 5 D L R 536), the judgment pronounced by Ellis, A. C. J., shows how the Essential. Supplies (Temporary Powers) Act, 1946, was continued and kept alive up to the 31st of March 1954. We need not repeat that here.
14. Thereafter the East Pakistan (Essential Supplies) Ordinance 1956 (Ordinance VI of 1956) was promulgated and it kept alive so far as East Pakistan is concerned, the order passed under the provisions of the Essential Supplies (Continuance, of Temporary Powers) Ordinance, 1955. Section 16 of the saa,11 Ordinance runs as follows:
"Any order made or deemed to be made under the Essential Supplies (Continuance of Temporary Powers) Ordinance, 1955, and in force immediately before the commencement of this Ordinance shall in so far as it is not inconsistent with the provisions of this Ordinance and until such time as the Provincial Government or an officer authorised by the Provincial Government issues orders under this Ordinance continue in force and be deemed to be an order made under this Ordinance; and all appointments made, licences or permits granted and directions issued under any such order and in force immediately before such commencement shall likewise continue in force and be deemed to be made, granted or issued in pursuance of this Ordinance."
15. Then comes East Pakistan Control of Essential Com modities Ordinance, 1956 (Ordinance X of 1956) which repealed East Pakistan Ordinance VI of 1956, but saved the orders passed or deemed to be passed there under. Section 16 of this Ordinance reads as follows:
"(1) The‑East Pakistan (Essential Supplies) Ordinance, 1956 (East Pakistan Ordinance VI of 1956), is hereby repealed.
(2) Notwithstanding such repeal, any order made or deemed to be made under the East Pakistan (Essential Supplies) Ordin ance, 1956 (East Pakistan Ordinance VI of 1956), and m force immediately before the commencement of this Ordinance, shall, until such time as the Provincial Government or an officer authorised by the Provincial Government issues orders under this Ordinance, continue in force and be deemed to be an order made under corresponding provision of this Ordinance ; and all appointments made, licences or permits granted and directions issued under any such order and in force immediately before such commencement shall likewise continue in force and be deemed to be made, granted or issued in pursuance of this Ordinance."
16. The next enactment, which continues the aforesaid provisions of the law is the present Act, i.e., the East Pakistan Control of Essential Commodities Act, 1956 (Act I of 1956), section 16 of which runs thus;
"(1) The East Pakistan Control of Essential Commodities Ordinance, 1956 (East Pakistan Ordinance X of 1956), is hereby, repealed.
(2) Notwithstanding such repeal, any order made or deemed to be made under the East Pakistan Essential Commodities Ordinance, 1956, (East Pakistan Ordinance X of 1956) and in force immediately before the commencement of this Act shall, until such time as the Provincial Government or an officer authorised by the Provincial Government issues orders under this Act, continue in force and be deemed to be order made under corresponding provision of this Act; and all appoint ments made, licences or permits granted and directions issued under any such order and in force immediately before such commencement shall likewise continue in force and be deemed to be made, granted or issued in pursuance of this Act as if this Act had come into force on the date of commencement of the said Ordinance."
17. It will thus be seen chronologically that the Order ha been kept alive by the Act and would come under the provisions of section 3 of the Act. Therefore, any breach of the provisions of the Order would be punishable under the provisions of the Act. There is, therefore, no substance in the contention which has been made before us on behalf of the petitioner.
S. B.
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