Prithi Singh S/O Late Bhur Singh and anr. Vs. Union of India (Uoi) - Court Judgment

Excerpt:
- - secondly that there wa3 no proof that the said control order order 1956, was laid before the houses of parliament as provided for by sub-section (6) of section 3 of the essential commodities act, 1955. therefore, according to him, the result in either case was, that the control order order 1956 which was made by the central government in exercise of the powers conferred on it by sub-section (1) of section 3 of the essential commodities act, 1955, was ultra vires, and the convictions of the petitioners were bad in law. it was pointed out and with perfect propriety by mr. justice mathews in the well-known american case of yick wo v. it was further observed that if transport of essential commodities by rail or other means of conveyance was left uncontrolled it might well have..... j.n. datta, j.c.1. the petitioners prithi singh, aged about 50, a trader of imphal, and p. komol singh, a truck driver, aged about 22, also of imphal, were convicted by the a.d.m., manipur, under section 7 of the essential commodities act, 1955, read with clause 3 of manipur foodgrains (movement) control order, 1956, (which the a.d.m. has wrongly referred to as the manipur foodgrains act, 1956, in his judgment and charges framed against the accused persons) for attempting to export rice and 'chira' outside manipur state (now the union territory of manipur). prithi singh was sentenced to r. i. for one year, and a fine of rs. 1,000/- while the other petitioner was sentenced to undergo r. i. for nine months. out of the other two persons tried jointly with the petitioners for abetment of the.....

Judgment:

J.N. Datta, J.C.

1. The petitioners Prithi Singh, aged about 50, a trader of Imphal, and P. Komol Singh, a truck driver, aged about 22, also of Imphal, were convicted by the A.D.M., Manipur, under Section 7 of the Essential Commodities Act, 1955, read with Clause 3 of Manipur Foodgrains (Movement) Control Order, 1956, (which the A.D.M. has wrongly referred to as the Manipur Foodgrains Act, 1956, in his judgment and charges framed against the accused persons) for attempting to export rice and 'chira' outside Manipur State (now the Union Territory of Manipur). Prithi Singh was sentenced to R. I. for one year, and a fine of Rs. 1,000/- while the other petitioner was sentenced to undergo R. I. for nine months. Out of the other two persons tried jointly with the petitioners for abetment of the offence, one was acquitted, by the A.D.M. and the other by the Sessions Court on appeal, but the convictions and sentences of the petitioners were maintained by the Sessions Court. They have therefore come up to this Court with this petition in revision. The foodgrains, consisting Order 46 bags of rice and 5 bags of chira were forfeited to the Government.

2. The facts briefly stated, and as far as they are relevant for the purpose of this petition in revision are that Order 5-3-1957 at about 9-30 a.m. petitioner Prithi Singh, the owner of the foodgrains, and Komol Singh, the other petitioner were caught at the Check Post at Mao, which is on the border between Manipur and Assam, but within the territory of Manipur, by the S.D.C. carrying the food-grains in a truck which was being driven by Komol Singh, petitioner. They had no permit to take the grain outside Manipur, as required by the said order Order 1956. The, S.D.C. handed over the matter to the Police, who launched the prosecution after investigation. The grain was also seized.

3. These facts were found proved by the Courts below, and they were also not questioned before me. There was also evidence to prove these facts, and that Komol Singh was also aware of the fact that the bags contained prohibited foodgrains, and were being carried without the necessary permit. Faced with this position the attempts of the learned Counsel for the petitioners were directed towards showing that the Control Order Order 1956, referred to above, was void. His contention was two-fold. The first contention was that its provisions offended the provisions of Article 19(1)(g) of the Constitution, inasmuch as the restrictions imposed were not reasonable within the meaning of Clause (6) of that Article. Secondly that there wa3 no proof that the said Control Order Order 1956, was laid before the Houses of Parliament as provided for by Sub-Section (6) of Section 3 of the Essential Commodities Act, 1955. Therefore, according to him, the result in either case was, that the Control Order Order 1956 which was made by the Central Government in exercise of the powers conferred on it by Sub-Section (1) of Section 3 of the Essential Commodities Act, 1955, was ultra vires, and the convictions of the petitioners were bad in law. He relied strongly on Dwarka Prasad Laxmi Narain v. State of U.P. : [1954]1SCR803 , in support of his first contention, and also on two cases of this Court decided by Brij-narain J. C., and reported in Mohan Singh Thapa v. Inspector General of Police, Manipur, (S) AIR 1956 Maninur 13 and Chunilall Rajendra Kumar v. State of Manipur, (S) AIR 1956 Manipur 25.

4. : [1954]1SCR803 was a case under the Uttar Pradesh Coal Control Order, 1953, which sought to regulate and control the business in coal by the grant of licenses, and Clause 4(3) of that order gave the Licensing Authority unlimited power to grant, refuse to grant, renew or refuse to renew a licence and also to suspend, cancel or revoke or modify a licence granted or any terms thereof. Their Lordships held that sub-clause, as void because it imposed an unreasonable restriction upon the freedom of trade and business guaranteed under Article 19(1)(g) of the Constitution, and not coming within the protection afforded by Clause (6) of the Article. The observations of their Lordships on this point contained in paragraph 8 of the judgment were as follows:

8. The more formidable objection has been taken on behalf of the petitioners against Clause 4(3) of the Control Order which relates to the granting and refusing of licences. The licensing authority has been given absolute power to grant or refuse to grant, renew or refuse to renew, suspend, revoke, cancel or modify any licence under this Order and the only thing he has to do is to record reasons for the action he takes. Not only so, the power could be exercised by any person to whom the State Coal Controller may choose to delegate the same, and the choice can be made in favour of any and every person. It seems to us that such provision cannot be held to be reasonable.

No rules have been framed and no directions given on these matters to regulate or guide the discretion of the Licensing Officer. Practically the Order commits to the unrestrained will of a single individual the power to grant, withhold or cancel licences in any way he chooses and there is nothing in the Order which could ensure a proper execution of the power or operate as a check upon injustice that might result from improper execution of the same. Mr. Umrigar contends that a sufficient safeguard has been provided against any abuse of power by reason of the fact that the licensing authority has got to record reasons for what he does.

This safeguard, in our opinion, is hardly effective; for there is no higher authority prescribed in the Order who could examine the propriety of these reasons and revise or review the decision of the subordinate officer. The reasons., therefore, which are required to be recorded are only for the personal or subjective satisfaction of the licensing authority and not for furnishing any remedy to the aggrieved person.

It was pointed out and with perfect propriety by Mr. Justice Mathews in the well-known American case of Yick Wo v. Hopkins, (1886) 118 US 356 at p. 373, that the action or non-action of officers placed in such position may proceed from enmity or prejudice, from partisan zeal or animosity, from favouritism and other improper influences and motives which are easy of concealment and difficult to be detected and exposed, and consequently the injustice capable of being wrought under cover of such unrestricted power becomes apparent to every man, without the necessity of detailed investigation. In our opinion, the provision of Clause 4 of the U. P. Coal Control Order must be held to be void as imposing an unreasonable restriction upon the freedom of trade and business guaranteed under Article 19(1)(g) of the Constitution and not coming within the protection afforded by Clause (6) of the Article.

5. In that case the facts were that the licence granted to the petitioner was subsequently cancelled by the Licensing Authority. In another case reported in Harishankar Bagla v. State of Madhya Pradesh : 1954CriLJ1322 , which was a case under the Cotton Textiles (Control and Movement) Order, 1948, their Lordships distinguished the case reported at : [1954]1SCR803 , because Clause 3 of that Order, which ran thus:

3. No person shall transport or cause to be transported by rail, road, air, sea, or inland navigation any cloth, yarn or apparel except under and in accordance with --

(i) a general permit notified in the Gazette of India by the Textile Commissioner, or

(ii) a special transport permit issued by the Textile Commissioner,

did not deprive a citizen, of the right to dispose of or transport cotton textiles purchased by him. It required him to take a permit to enable him to transport them, and such a requirement could not be regarded as an unreasonable restriction on the citizen's right under sub-clauses (f) and (g) of Article 19(1) of the Constitution. It was further observed that if transport of essential commodities by rail or other means of conveyance was left uncontrolled it might well have seriously hampered the supply of these commodities to the public, and that the order was to regulate the transport of cotton textiles in a manner that will ensure an even distribution of the commodity in the country and make it available at a fair price to all.

The grant or refusal of a permit was thus to be governed by that policy and the discretion given to the Textile Commissioner was to be exercised in such a way as to effectuate that policy. The conferment of that discretion to the Textile Commissioner under Clause 3 could not therefore be called to be unregulated or arbitrary and was not invalid on that ground. Further if it was abused, the Courts had ample power to undo the mischief.

6. The further remarks of their Lordships were that reference to the decision in : [1954]1SCR803 , was not very apposite and had no bearing on the case before their Lordships, because the Cotton Textiles (Control and Movement) Order, 1948, had no such provision like Clause 4(3) of the U. P. Coal Control Order, 1953, and therefore the provisions of the Control Order Order 1953 bear no analogy to the Order Order 1948.

7. In my opinion those findings of their Lordships set the first point raised in the present case at rest against the petitioners. The distinguishing features present in : 1954CriLJ1322 , are also present in the instant case. Clause 3 (1) of the Manipur Foodgrains (Movement) Control Order, 1956 is in these terms:

3. Restrictions on export and transport of foodgrains--(1) No person shall export or attempt to export or abet the export of any foodgrains from any place in the State to any place outside the State except under and in accordance with a permit issued by the State Government or any officer authorised by the State Government in this behalf.

8. There is no provision similar to that it Clause 4(3) of the U. P. Order in the Manipur Order. In fact the latter Order does not seek to control the business, and provides for the control of transport of foodgrains only, 'foodgrains' being defined as rice, paddy and products thereof including chira, Muri etc. It is common knowledge that the rice situation in Manipur is good, and rice is easily available at a very reasonable rate, but there is scarcity of it in the neighbouring States or areas, and if rice were allowed to be exported without restriction from this area which is a small one, then there would be great scarcity of rice in Manipur in no time, seriously hampering the supply of it to the public of Manipur.

9. In the present case, as in : 1954CriLJ1322 , no application for a permit was made and their Lordships held in that case, that, that omission to apply for a permit, disentitled the appellants to attack the constitutionality of the law. The observations of their Lordships of the Supreme Court in Cooverjee B. Bharucha v. Excise Commr. and the Chief Commr., Ajmer : [1954]1SCR873 ; State of Rajasthan v. Nath Mal : [1954]1SCR982 ; Saghir Ahmad v. State of U.P. : [1955]1SCR707 and Virendra v. State of Punjab, (S) : [1958]1SCR308 , can also be relied upon, in support of the view, that such a restriction cannot be said to be unreasonable, so as not to altract the protection in Article 19(6).

10. Now turning to the cases of this Court in AIR 1956 Manipur 13, was involved quite a different point. In that case the Central Government had withdrawn all the restrictions as regards the carriage of rice from one State to another by a notification under Section 3 of Essential Supplies (Temporary Powers) Act, 1946, and therefore from Manipur to other places outside Manipur.

The Manipur Government had then obviously no power to impose any such restrictions. The other case reported at page 25 (of AIR 1956 Manipur), however arose under the Manipur Foodgrains (Movement) Control Order, 1955, which was made by the Chief Commissioner of Manipur, in the exercise of powers under Section 3 of the Essential Commodities Act, 1955. which were delegated to him by the Central Government. Clause 3, the impugned clause of that order was in the same terms as Clause 3 of the Order Order 1956, made by the Central Government, and by which the Chief Commissioner's Order Order 1955 was repealed.

My learned predecessor found that Clause 3 of the Order Order 1955 infringed with the fundamental rights under Art, 19(1)(g) of the Constitution and did not come within the protection of Article 19(6) because its provisions could not be said to be reasonable. It was therefore urged on behalf of the petitioners, that Clause 3 of the Order Order 1956, should also be struck down for the same reason. The facts in that case were different and the traders had even applied for permission to transport their rice outside Manipur, and the decision of the learned Judge was mainly based on AIR 1954 SC 24.

But as already seen the observations in that case do not apply to a case of the present nature, and their Lordships themselves distinguished that case in the case reported at : 1954CriLJ1322 , which was more similar to the present case. I find it therefore very difficult but with the utmost respect, to agree with the view of my learned pre-**tecessor that Clause (3) of the Order, which was the same as Clause (3) of the Central Government's order was or is void for want of reasonableness within the meaning of Article 19(6) of the Constitution. The result is that the first contention of the petitioners must stand negatived.

11. As regards the other contention I am of the opinion that it is also without substance. Section 3 (6) of the Essential Commodities Act, 1955 runs thus:

3 (6) Every order made under this section by the Central Government or by any officer or authority of the Central Government shall be laid before both Houses of Parliament, as soon as may be, after it is made.

12. It will be thus clear that the Sub-Section does not provide for the result that will follow, if the provisions of that Sub-Section are not complied with. In such a case it cannot be said that the provisions are mandatory, which means that they are only directory. It does not appear that this contention was raised in the trial court, and the presumption would also be, that the duty cast by that Sub-Section, was duly complied with. But in any case it will not have the effect of making the Act void, and of no force.

The question was considered in Krishnan, D. K. v. Secy. Regional Transport Authority Chittoor, (S) AIR 1956 Andhra 129, and I am in respectful agreement with the view taken in that case. The view finds support from the observations in State of U.P v. Manbodhan Lal Srivastava, (S) : (1958)IILLJ273SC , and Pratap Singh v. Shri Krishna Gupta, (S) : [1955]2SCR1029 also. I must therefore with great respect differ from the view taken in AIR 1956 Manipur 25, and find that the order in question cannot be challenged on this ground.

13. The contention that the convictions were vitiated, because the learned A.D.M. misquoted the Central Order Order 1956, as the Manipur Foodgrains Act, 1956, as already stated, does not in my opinion merit any serious consideration. It was due to Inadvertence is more than apparent, and apparently no prejudice was caused thereby to the petitioners, and none was shown. The convictions were primarily under Section 7 of the Essential Commodities Act, 1955, and that Act was correctly referred to.

14. Another point brought to my notice, was that the learned A.D.M. and the learned Sessions Judge, erred in taking the view that the document Ex. D/A, was a got up document, brought into existence later on, and the person who signed it not having been examined it could not be legally accepted, that is, it was inadmissible in evidence. As a matter of fact, nothing turns on that point, because even if it were admitted in evidence, it is of no avail, because the Deputy Commissioner, Naga Hills, Assam, had no authority to issue permits under Clause 3 of the Manipur Order Order 1956.

In fact that permission was as regards the area falling within the jurisdiction of the Deputy Commissioner of the Naga Hills. Since the order was duly numbered, dated, and purported to be signed by the A.D.C for the D.C., and bore the official seal of that Officer, I am of the opinion that the permit part of that document was a public document within the meaning of Section 74 of the Evidence Act. It did not thus require any further proof, and if the prosecution doubted its genuineness then it was for them to have called the Officer whose signature the document purports to bear, and to have led evidence in support of their contention.

There was thus no justification for the remark that the document was manufactured later on and was a bogus one, as it reflects On the Officer whose Eignature it purports to bear, without his having been given a chance to say anything on the matter,

15. The result of my findings is also that the convictions of the two petitioners were right and the last question to be considered is as regards the sentence. It was urged that in any case the sentences were too severe. Taking into consideration all the circumstances, the ages and positions in life of the petitioners, the fact that they are not previous convicts and a substantially heavy fine was imposed on the main petitioner in addition to the forfeiture of the whole of the grain I think that that contention is not without force and the ends of justice would be sufficiently met and would serve as a lesson to the petitioners for future and as an eye-opener to others even if the sentences of Jail are reduced to the period already undergone, which was stated to be about three months.

16. I, therefore, maintain the convictions and sentences passed on the petitioners except that the period of the sentences of imprisonment is modified into one for the period already undergone in the cases of both the petitioners. Except with this modification, the revision petition fails and is dismissed. The order of forfeiture of the grain is also maintained.