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PETITIONER: SANTOSH KUMAR JAIN

       Vs.

RESPONDENT: THE STATE.UNION OF INDIA--Intervener.

DATE OF JUDGMENT: 05/03/1951

BENCH: SASTRI, M. PATANJALI BENCH: SASTRI, M. PATANJALI KANIA, HIRALAL J. (CJ) DAS, SUDHI RANJAN

CITATION:  1951 AIR  201            1951 SCR  303  CITATOR INFO :  R          1964 SC1781  (17)  R          1985 SC 660  (12,13)  R          1990 SC1891  (11)

ACT:     Essential  Supplies  (Temporary  Powers)  Act  (XXIV  of 1946), s. 3--Power to "provide for regulating or prohibiting production,  supply and distribution"  of  goods-----Whether includes power to issue directions and orders to  particular persons to do specific acts--Order to search and seize goods held by particular company--Validity-Scope of sub-ss. (1)  & (2)  of  s.  3--Generality of  powers  conferred  by  sub-s. (1)--Obstruction   to  officers  Carrying  out   order   for seizure-Conviction  under s.  186,  I.P.C.--Legality--Indian Penal Code, 1860, s. 186--Offence under, essentials of.

HEADNOTE:   Section  3  of the Essential Supplies  (Temporary  Powers) Act, 1946, provided as follows:   (1)  The Central Government, so far as it appears to  it to  be necessary or expedient for maintaining or  increasing supplies  of an essential commodity, or for  securing  their equitable distribution and availability at fair prices,  may by notified order, provide for regulating or prohibiting the production,  supply and distribution thereof, and trade  and commerce therein.        Without  prejudice  to the generality of  the  powers conferred  by  sub-s.  (1)  an  order  made  thereunder  may provide   ......  (j) for any incidental  and  supplementary matters. including in particular the entering, and search of premises,  vehicles, vessels and aircraft, the seizure by  a person  authorised  to make such search of any  articles  in respect  of which such person has reason to believe  that  a contravention has been, is being, or is about to be  commit- ted..."     In  exercise  of  the powers conferred  on  the  Central Government  by cl. (j) of sub-s. (2) of s. (3) of the  above said Act, which had been delegated to the Provincial Govern- ment in relation to food stuffs, the Governor of Bihar  made an order authorising the District Magistrate, Patna, and the Special Officer in charge of rationing, Patna, to search the

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stock of sugar held by a company of which the appellant  was the  General  Manager  and directing the  seizure  of  5,000 maunds  of sugar held in stock by the said company,  on  the ground that the company was about to commit a  contravention of  an order of the Chief Controller of Prices and  Supplies made under the Sugar and Sugar Products Control 304 Order, 1947.  The appellant obstructed the officers who went to  search  and seize the goods and was convicted  under  s. 186, Indian Penal Code.    Held, (i) the power "to provide for regulating or prohib- iting production, supply and distribution" conferred by  the Act  on the Central Government  included the power to  regu- late  or  prohibit  by issuing directions  to  a  particular producer  or dealer or by requiring any specific act  to  be done  or  foreborne in regard to production  etc.,  and  the order  of  the  Governor was not therefore  invalid  on  the ground  that  it  was not a rule or  regulation  of  general application  but  an order concerning a  particular  company alone;      (ii)  sub-section (2) of s. 3 conferred no  further  or other powers than what were conferred by sub-s. (1) and  the enumeration  of  certain matters in sub-s.  (2)  was  merely illustrative, as such enumeration was "without prejudice  to the generality of the powers conferred by sub-s. (1) ";     (iii) seizure of an article being within the purview  of sub-s.  (1) of s. 3 it was therefore competent  to the  Cen- tral Government, and its delegate the Provincial Government, to make an order for seizure under sub-s. (1) apart from and irrespective  of the anticipated contravention of any  other order as contemplated in el. (j) of sub-section (2);     (iv) even assuming that the order of the Chief  Control- ler  of Prices under the Sugar Control Order was  incomplete and  inoperative and there could be no question of its  con- travention, the reference to that order in the order made by the Governor would be a mere redundancy and would not affect the  validity  of the latter order, and  the  appellant  was rightly convicted under s. 186, Penal Code.     Quaere: Whether for an offence under s. 186, Penal Code, it  is necessary that the act which was obstructed  must  be duly authorised and otherwise lawful. King Emperor v. Sibnath Banerjee [1945] F.C.R. 195 applied.

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Appeal (Criminal Appeal No. 3 of 1950) from a judgment of the High Court of  Judica- ture  at Patna dismissing a petition to revise an  order  of the  Sessions Judge, Patna, convicting the appellant for  an offence  under s. 186, Indian Penal Code: The facts  of  the ease appear in the judgment.     N.C.  Chatterjee  (Rameshwar  Nath, with  him)  for  the appellant.   S.K.  Mitra (K. Dayal, with him) for the respondent.  S.M. Sikri for the Intervener. 305    1951. March 5.  The judgment of the Court was delivered by     PATANJALI  SASTRI J.--This is an appeal from a  judgment of the High Court of Judicature at Patna dismissing a  revi- sion petition against the conviction of the appellant for an offence under s. 186 of the Indian Penal Code.     The  appellant  was at all material  times  the  General Manager  of  the Jagdishpur Zamindary  Company  (hereinafter

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referred to as the company) who were the lessees of a  sugar factory referred to in these proceedings as the Bhita  Sugar Factory. He was prosecuted for obstructing the then District Magistrate  and the Special Officer incharge  of  Rationing, Patna,  in  the discharge of their official  functions  when they  went to the factory on 6th December, 1947,  to  remove 5,000 maunds of sugar which had been seized out of the stock held  by the company pursuant to an order of the  Government of Bihar dated 5th December, 1047.  The case for the  prose- cution was as follows:  The company had deliberately  failed to  comply with the orders for supply of sugar  issued  from time  to  time under the provisions of the Sugar  and  Sugar Products Control Order, 1047, by officers of the  Government duly  authorised  in that behalf. and, in  consequence,  the Government  made the following order on 5th  December,  1947 :--     "In  exercise  of the powers conferred  on  the  Central Government by cl. (1) of sub-section (2) of section 3 of the Essential Supplies (Temporary Powers) Act, 1946, which  have been  delegated to the Provincial Government in relation  to foodstuffs  in the notification of the Government of  India, Department  of  Food, No. PY 603 (2)-1 dated  21st  October, 1946, the Governor of Bihar is pleased :--     (1) to authorise the District Magistrate, Patna,  and/or the  Special   Officer-in-charge of   Rationing,  Patna,  to search the stock of sugar held by Messrs. Jagdishpur Zamind- ary Company, Bhita, in the District of Patna, which is about to commit a contravention of 306 the  order of the Chief Controller of Prices  and  Supplies, Bihar,  made  under cl. 7 (1) (ii) of the  Sugar  and  Sugar Products Control Order, 1947, and issued in order No.  1613- P.C.R.  dated  27th September, 1947, in so far as  the  said order relates to the said Company, and     (2)  to direct that 5,000 maunds of sugar held in  stock by the said Company shall be seized.                 By order of the Governor of Bihar                    Sd. T.P. SINGH,                 Secretary to Government." On  the 6th December, 1947, when the officers named went  to the factory to carry cut the aforesaid order, they were told by  the  appellant that he would do everything  possible  to obstruct  the removal of the sugar, and accordingly  it  was found  that the sugar godowns had been locked and  the  road leading to them blocked by heaps of coal, firewood       and tins placed across, so as to make vehicular traffic   impos- sible.   A  railway  siding leading to  the  godowns     had also  been rendered unserviceable by the removal    of  some of   the  rails  and  fishplates.   As  a  result  of   such obstruction,  the  officers  had to seek the  aid  of  armed police to break open the locks, repair the railway line  and clear the road block before the sugar could be removed  from the factory.     The  appellant’s main defence was that on a proper  con- struction  of  s.  3 of the  Essential  Supplies  (Temporary Powers)  Act, 1946, hereinafter referred to as the  Act)  it was  not competent for the Government to pass the  order  of 5th December, 1947, which was consequently illegal and void, and  that obstruction to the execution of that  order  could not  constitute an offence under s. 186 of the Indian  Penal Code.   The  contention was rejected and the  appellant  was convicted and sentenced to simple imprisonment for a term of three weeks.     On  appeal,  the Sessions Judge,  Patna,  confirmed  the conviction  and sentence, agreeing with the findings of  the

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trial court, and a Revision Petition preferred by the appel- lant was rejected by the High Court, 307 which, however, granted a certificate under article 134  (1) (c)  of  the Constitution that the case was a  fit  one  for appeal  to this court as it involved a point of  "sufficient public importance" as to the interpretation of section 3  of the Act.  Section 3, so far as it is material here, runs  as follows :--     "3. (1) The Central Government, so far as it appears  to it to be necessary or expedient for maintaining or  increas- ing  supplies  of any essential commodity, or  for  securing their  equitable  distribution  and  availability  at   fair prices,  may, by notified order, provide for  regulating  or prohibiting the production, supply and distribution thereof, and trade and commerce therein.     (2)  Without prejudice to the generality of  the  powers conferred  by sub-section (1), an order made thereunder  may provide-     (j)  for any incidental and supplementary  matters,  in- cluding in particular the entering, and search of  premises, vehicles,  vessels  and aircraft, the seizure  by  a  person authorised to make such search of any articles in respect of which such person has reason to believe that a contravention of  the order has been, is being, or is about to be  commit- ted, the grant or issue of licences, permits or other  docu- ments, and the charging of fees therefor."     It  was  contended that an order under  sub-section  (1) should  be in the nature of a rule or regulation of  general application,  like  the  Sugar and  Sugar  Products  Control Order, 1947, issued by the Central Government on 4th August, 1947,  as the sub-section confers on the Central  Government only  the power to "provide for regulating  or  prohibiting" the  production,  supply, distribution, etc.,  of  essential commodities, and does not authorise the making of ad hoc  or special  orders  with respect to any  particular  person  or thing.   We  see no reason to place such a  restricted  con- struction on the scope of the power conferred on the Central Government.  The term "notified order" which is  defined  as meaning "an  40 308 order  notified in the official Gazette" is wide  enough  to cover  special  as well as general orders  relating  to  the matters  specified  in section 3. The power to  provide  for regulating  or  prohibiting  production,  distribution   and supply  conferred on an executive body may well include  the power  to  regulate or prohibit by issuing directions  to  a particular  producer or dealer or by requiring any  specific act  to be done or forborne in regard to  production,  etc., and  the provisions of section 4 lend support to that  view. The Central Government is empowered under the latter section to  delegate its power to make orders under section 3,  sub- ject to conditions to be specified, to any officer or subor- dinate  authority  either  of the Central  or  a  Provincial Government.   It would be strange, if, as contended for  the appellant, a subordinate officer in charge, say, of a  small area,  should, by delegation, exercise powers of a  legisla- tive  character  in  relation to the  matters  specified  in section 3, but should not have the power of issuing  special orders concerning specific individuals or things.  We do not think  that such a situation could have  been  contemplated. The  power delegated under section 4 must, in  our  opinion, include  the power of issuing directions to any producer  or dealer  in  relation to production, etc., of  any  specified

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essential commodity.  If so, the delegating authority itself must  possess  such power under section  3.   For  instance, section  7  of the Sugar and Sugar Products  Control  Order, 1947, made by the Central Government empowers the"  Control- ler"  "to  issue  directions to any producer  or  dealer  to supply sugar or sugar products" to  specified areas, persons or  organisations.  This delegation is expressed to be  made "in exercise of the powers conferred by sections 3 and 4" of the  Act, but unless the Central Government itself  had  the power  of issuing such directions under section 3, it  could not  delegate that power to the Controller under section  4. This view is reinforced by the language of section 15, which contemplates  orders  under section 3 being made  against  a particular  person,  for it speaks of "an order  made  under section 3 which prohibits him (that 309 is, the person prosecuted for its contravention) from  doing any  act  or being in possession of a thing  without  lawful authority  etc."  The restricted construction of  section  3 contended  for by the appellant’s counsel would  render  the scheme of the Act largely unworkable, and we have no hesita- tion in rejecting it.     Even  so, it was argued, an order for seizure  could  be made  only subject to the conditions and limitations  speci- fied in clause (j) of sub-section (2) of section 3, that  is to say, only where the person authorised in that behalf "has reason  to  believe that a contravention of  the  order  [an order made under sub-section (1)] has been, is being, or  is about to be committed ".  In the present case, the order  of 5th December, 1947, directing the seizure of 5,000 maunds of the company’s sugar, in the execution of which the appellant has  been found to have obstructed the officers of the  Pro- vincial  Government, recited that the company was "about  to commit a contravention of the order of the Chief  Controller of Prices and Supplies, Bihar, made under cl. 7. (1) (ii) of the Sugar and Sugar Products Control Order, 1947, and issued in  order No. 1613 P.C.R. dated 27th September, 1947, in  so far  as  the said order relates to the said  company".   The latter ’order, while it directed the company, among  others, "to supply sugar at the prices fixed to the approved dealers of certain Districts", left it to the District or  Sub-divi- sional Officer to fix quotas for the approved dealers of his District or Sub-division from the District or Sub-divisional allotment  and  to  inform the company when  and  where  the supplies  are to be made.  It has been found by  the  courts below  that  the  total quantity of sugar  which  the  order required to be supplied was varied from time to time, and no quotas  to approved dealers were ever fixed nor  information sent to the company as to when and where supplies were to be made.  The  order of the 27th September, 1947,  having  thus remained  inchoate and incomplete and so incapable of  being carried  out or contravened till the 5th December, 1947,  it was submitted that no seizure and removal could be  lawfully ordered on the basis of an anticipated contravention 310 of  such  an order, and that the officers concerned  in  the illegal  and  unauthorised  removal of the  sugar  were  not acting in the discharge of their public functions. Reference was made in this connection to the decisions of the Calcutta High  Court  in Lilla Singh v. Queen  Empress(1)  and  Queen Empress v. Jogendra Nath Mukerjee(2) where it was held  that the  public  function  in the discharge of  which  a  public servant  was  obstructed  must be a  legal  or  legitimately authorised  function,  in order that the  obstruction  might constitute an offence under section 186 of the Indian  Penal

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Code.  On the other hand, counsel for the  respondent  main- tained  that  for an offence under that section it  was  not necessary  that  the act which was obstructed must  be  duly authorised and otherwise lawful if it was being done or  was sought  to be done by a public servant honestly and in  good faith  believing that it was part of his  public  functions, and  reliance  was  placed in support of this  view  on  the decisions  of  the  Madras High Court in  Queen  Empress  v. Poomalai  Udayan(3),  Public Prosecutor  v.  Madava   Bhonjo Santos(4)  and Peer Masthan Rowther v. Emperor(5). We  think it  is  unnecessary for the purpose of this appeal  to  pro- nounce on the true scope of section 186 of the Indian  Penal Code as we are of opinion that the appellant’s argument must fail on another ground.     It is manifest that sub-section (2) of section 3 confers no  further  or other  powers  on  the   Central  Government than what are conferred under sub-section (1), for it is "an order made thereunder" that may provide for one or the other of  the matters specifically enumerated in  sub-section  (2) which are only illustrative, as such enumeration is "without prejudice to the generality of the powers conferred by  sub- section (1)" Seizure of an article being thus shown to  fall within the purview of sub-section (1), it must be  competent for  the Central Government or its delegate, the  Provincial Government, to make an order for seizure under (1) I.L.R. 22.               (4) 31 M.L.J. 505. (2) I.L.R. 24 Cal. 320.      (5) 1938 M. W. N. 418. (3) I.L.R. 21 Mad. 296. 311 that sub-section apart from and irrespective of the  antici- pated  contravention of any other order as  contemplated  in clause  (j) of sub-section (2). The order’ of 5th  December, 1947, must, therefore, be held to be a valid order, notwith- standing  its reference to the order of the 27th  September, 1947, as being about to be contravened.  If the latter order was incomplete and inoperative and consequently there  could be  no question  of  its  contravention,  as  contended  for the  appellant, the reference to it in the order  dated  the 5th  December, 1947, would be an immaterial  redundancy  and could  not  affect  the validity of the  latter  order.  The seizure of the company’s sugar must, therefore, be  regarded as  duly  authorised and lawful, and the  appellant  by  ob- structing  its removal, committed an offence  under  section 186 of the Indian Penal Code even on the stricter  construc- tion placed on that provision by the Calcutta High Court.     The  view we have expressed above receives support  from the  decision  of the Privy Council  in  Sibnath  Banerjee’s case(1). Section 2(1) of the Defence of India Act, 1939,  as amended  by  section 2 of the Defence of  India  (Amendment) Act,  1940, empowered the Central Government to  make  rules for securing the defence of British India, the public  safe- ty,  the  maintenance of public  order,   etc.,   and   sub- section   (2)  enacted "without prejudice to the  generality of  the powers conferred by sub-section (1), the  rules  may provide for all or any of the following matters  ......   ". Among such matters was the detention of any person "reasona- bly suspected" of having acted etc.  in a manner prejudicial to  the  public safety etc.  [clause (x)]. Rule  26  of  the Rules  made under the section, however, authorised the  Gov- ernment to detain a person "if it is satisfied" that it  was necessary  to  detain him with a view to  prevent  him  from acting  prejudicially..’   .....The Federal Court  held  (2) that  this rule was ultra vires as it Went beyond the  scope of clause (x) in that it left it to the satisfaction of  the Government  to  decide whether or not it  was  necessary  to

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detain a (1)  [1945]  F. C. R.195; 72 I. A.241,  248.     (2)  [1944] F.C.R. 1. 312 person,  The  decision  was reversed  and  Lord  Thankerton, delivering  the  judgment of the Board,  observed:  "In  the opinion of their Lordships, the function of subsection(2) is merely  an illustrative one; the rule-making power  is  con- ferred  by  sub-section (1), and "the rules" which  are  re- ferred to in the opening sentence of subsection (2) are  the rules  which are authorised by, and made under,  sub-section (1);  the provisions of sub-section (2) are not  restrictive of  sub-section(1),  as, indeed is expressly stated  by  the words  "without prejudice to the generality  of  the  powers conferred  by sub-section (1)".  "There can be no  doubt--as the learned Judge himself appears to  have thought--that the general  language  of sub-section (1)  amply  justifies  the terms of rule 26, and avoids any of the criticisms which the learned Judge expressed in relation to subsection (2)".     This accords with our view of the effect of  subsections (1) and (2) of section 3 of the Act.     The  appeal is dismissed.  The appellant’s bail bond  is cancelled and he is ordered to surrender.                      Appeal dismissed.      Agent for the appellant: Rajinder Narain.      Agent for respondent and Intervener: P.A. Mehta.