Joylal Agarwala vs The State Union of India

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 7 of 1950; Criminal Appeal No. 25 of 1951

Decision Date: 4 October, 1951

Coram: N. Chandrasekhara Aiyar, Hiralal J. Kania, B.K. Mukherjea

In this case the Supreme Court recorded that the matter concerned Joylal Agarwala as petitioner and the State Union of India as respondent, with the State Union also appearing as an intervener. The judgment was delivered on 4 October 1951. The bench was composed of Justice N. Chandrasekhara Aiyar, Chief Justice Hiralal J. Kania and Justice B. K. Mukherjea. The citation for the decision is reported in the 1951 All India Reporter at page 484 and in the 1952 Supreme Court Reports at page 127.

The dispute arose out of the Essential Supplies (Temporary Powers) Act of 1946 (Act XXIV of 1946). This Act had come into force on 19 November 1946. Under section 92(1) of the Government of India Act 1935, the Governor of Bengal issued notification 128 on 14 December 1946, directing that the Act would apply to the District of Darjeeling, which was then classified as an “excluded area”. Section 1(3) of the Essential Supplies Act provided that the Act would cease to operate when the period specified in section 4 of the India (Central Government and Legislature) Act 1946 expired. By a subsequent notification issued by the Governor-General under section 4, the operation of the Essential Supplies Act was extended up to 31 March 1948.

Following Indian independence, the Constituent Assembly, which had acquired the legislative powers vested in the Houses of Parliament by the adaptations made under sections 9 and 19 of the Indian Independence Act, passed resolutions that extended the operation of the Essential Supplies Act further, this time until 31 March 1950. Joylal Agarwala was convicted under section 7 of the Act for conduct that allegedly occurred on 14 October 1949 within the District of Darjeeling. He contended that the Act had not been validly extended to Darjeeling and therefore was not in force there at the time of the alleged offence.

The Court held that the Governor’s notification of 14 December 1946 had extended the Act to the District of Darjeeling without specifying a fixed period for its applicability. Consequently, the Act would continue to be in force in Darjeeling for as long as it remained operative in the remainder of India, and no fresh notification by the Governor under section 92(1) of the Government of India Act 1935 was required. The Court further observed that the legislative powers originally conferred on the Parliament under the India Act 1946 had, by virtue of the adaptations under sections 9 and 19 of the Indian Independence Act, been transferred to the Constituent Assembly. Accordingly, the Essential Supplies Act was deemed to be in force in the District of Darjeeling on the date of the alleged contravention, and the conviction under section 7 of the Act was upheld.

In this case the Court observed that there was no question of an unlawful delegation of legislative power because the Legislature itself had considered the matter and had fixed the period for which the Act would operate, leaving only the administrative machinery to determine the exact maximum term in the manner prescribed. The judgment concerned two criminal appeals, numbered 7 of 1950 and 25 of 1951. Criminal Appeal No. 7 of 1950 was filed under Article 134(1)(c) of the Constitution of India against the judgment and order of the High Court of Calcutta dated 23 May 1950 in Government Appeal No. 2 of 1950. Criminal Appeal No. 25 of 1951 was filed by special leave against the judgment and order of the same High Court dated 4 May 1950 in Criminal Revision No. 132 of 1950. Counsel for the appellant appeared in both appeals, while counsel for the respondent represented the State in both matters, and counsel for the intervener also participated. The judgment was delivered on 4 October 1951 by Justice Chandrasekhara Aiyar. The Court noted that both appeals arose from convictions affirmed by the High Court at Calcutta, but because the appeals were brought by different parties and involved different factual circumstances, it was appropriate to render separate judgments. In Criminal Appeal No. 7 of 1950 the appellant, Joylal Agarwala, was a salesman employed in a retail shop at Pulbazar in the Darjeeling district of West Bengal. He was charged with selling a piece of textile cloth at a price that exceeded the price fixed under the Cotton Textiles Control Order, 1948, specifically clause 24(1). For this alleged violation he was convicted by the Sub-Divisional Magistrate of Darjeeling under section 7 of the Essential Supplies (Temporary Powers) Act, 1946, and sentenced to six months’ rigorous imprisonment. On subsequent appeal to the Sessions Judge, the appellant obtained an acquittal on two grounds: first, that no prior sanction as required by clause 36 of the Cotton Textiles Control Order had been obtained before initiating prosecution; and second, that the Essential Supplies Act was not in force in the Darjeeling district at the time of the alleged offence. The State of West Bengal then appealed to the High Court, abandoning the first ground because a later Central Government notification had removed the necessity of such sanction, and the High Court was called upon to determine whether the Essential Supplies Act was validly extended to Darjeeling and operative on 14 October 1949. The High Court held that the Act had indeed been validly extended and was in force in that district on the relevant date.

The appellate court overturned the earlier acquittal, reinstated the conviction originally entered by the Sub-Divisional Magistrate, and imposed a sentence of four months of rigorous imprisonment on the appellant. In order to appreciate the principal legal issue concerning whether the Essential Supplies Act of 1946 was operative at the time the alleged offence was alleged to have occurred, the Court found it necessary to set out the relevant statutory provisions and the dates on which they became effective. The Essential Supplies Act itself had come into force on 19-11-1946. Section 92(1) of the Government of India Act, 1935, provides that no Act of the Federal Legislature or of a Provincial Legislature shall apply to an excluded area or a partially excluded area unless the Governor, by public notification, directs otherwise, and that the Governor may, in giving such a direction, impose any exceptions or modifications that he deems appropriate. Acting under this authority, the Governor of Bengal issued a public notification on 14-12-1946 directing that the Essential Supplies Act would apply to the district of Darjeeling, which was then classified as an excluded area.

Section 1(3) of the Essential Supplies Act stipulates that the Act shall cease to have effect on the expiry of the period specified in Section 4 of the India (Central Government and Legislature) Act, 1946 (9 & 10 Geo. 6, Chapter 39). Section 4 of that Act provides that the relevant period is one year beginning with the date on which the Proclamation of Emergency, which was in force when the Act was passed, ceases to operate, unless the Governor-General, by public notification, extends the period to two years from that date. Furthermore, the provision states that if a resolution approving an extension of the period is passed by both Houses of Parliament, the period may be extended by an additional twelve months, but the total duration may not exceed five years from the cessation of the emergency. The Proclamation of Emergency referred to in the provision ended on 31-3-1946. Because there was no Governor-General notification invoking the two-year extension, the Essential Supplies Act was, under the one-year rule, deemed to remain in force only until 31-3-1947. However, the Governor-General issued a notification on 3-3-1947 extending the operation of the Act for two years from the date the emergency ceased, thereby extending its validity to 31-3-1948. Subsequently, the Indian Independence Act was enacted on 18-7-1947, and India became a Dominion on 15-8-1947. Pursuant to section 9 read with section 19(4) of the Indian Independence Act, 1947, the Governor-General made an Order on 14-8-1947 that replaced the reference to “both Houses of Parliament” in the proviso to Section 4 of the India (Central Government and Legislature) Act, 1946 with the words “Dominion Legislature,” and introduced a new Section 4A providing that the powers of the Dominion Legislature would be exercised by the Constituent Assembly.

In this matter the Court explained that on 14 August 1947 the Governor-General issued an order which replaced the expression “both Houses of Parliament’’ with “Dominion Legislature’’ in the proviso to section 4 of the India (Central Government and Legislature) Act, 1946, and additionally introduced a new section 4A by way of adaptation, providing that the powers of the Dominion Legislature would be exercised by the Constituent Assembly. Subsequently, on 25 February 1948 the Constituent Assembly adopted its first resolution extending the operation of the Essential Supplies Act by one year to 31 March 1949, and on 23 March 1949 a second resolution was passed extending the Act for a further year to 31 March 1950. On behalf of the appellant three questions were raised: first, whether the Governor’s notification of 14 December 1946 continued the operation of the Essential Supplies Act in the district of Darjeeling beyond the then-existing period of one year from the cessation of the emergency; second, whether a new notification by the Governor under section 92(1) of the Government of India Act was required after the life of the Essential Supplies Act had been extended by the Governor-General’s notification of 3 March 1947; and third, whether the resolutions passed by the Constituent Assembly could validly extend the life of the Essential Supplies Act. The Court observed that, according to section 1(3) of the Essential Supplies Act, the Act ceases to have effect upon the expiry of the period specified in section 4 of the India (Central Government and Legislature) Act, 1946. That period is not limited to a single year from the cessation of emergency; it may be extended to two years if the Governor-General so directs by notification, and it may be prolonged in increments of one year up to a maximum total of five years as provided in the proviso. Consequently, the determination of the period of operation of the Essential Supplies Act is governed by the Act itself and not by any other legislation. The Court further noted that the Governor’s notification of 14 December 1946 applied the Essential Supplies Act to the Darjeeling district, and its life was subsequently extended to 31 March 1948 by the Governor-General’s notification of 3 March 1947. Since the Governor’s notification did not specify a particular duration for the Act’s applicability to Darjeeling, the Act would continue to operate in that district for as long as it remained in force elsewhere in India. Only in a situation where the Act’s effect terminated earlier than the commencement of the Indian Independence Act and a subsequent reenactment by the legislature sought to apply it to an excluded area would a fresh notification under section 92(1) of the Government of India Act be necessary; otherwise, the requirement for a new notification does not arise.

The Court observed that a fresh notification by the Governor under section 92 (1) of the Government of India Act would be required only if the continuance of the Essential Supplies Act in the Darjeeling district could not be demonstrated otherwise; otherwise, the issue of a new notification would not arise. Section 19(4) of the Indian Independence Act, 1947, states that, except where the context requires otherwise, any reference to the Government of India Act, 1935, also includes references to any enactments that amend or supplement that Act, particularly references to the India (Central Government and Legislature) Act, 1946. The Court noted that the adaptations made by the Governor-General under sections 9 and 19 of the Indian Independence Act replaced the words “Constituent Assembly” for “both Houses of Parliament” in section 4 of the India (Central Government and Legislature) Act. By two resolutions of different dates, the Constituent Assembly extended the life of the Essential Supplies Act until 31-3-1950. When those adaptations came into force by order of the Governor-General, the Constituent Assembly acquired the powers that had been vested in both Houses of Parliament under section 4 of the India (Central Government and Legislature) Act. The Court held that the validity of those adaptations was beyond doubt. It further stated that the precedent set in Jatindra Nath Gupta v. The Province of Bihar and Others was not applicable to the present case. In the matter before the Court, the Legislature itself had considered the question and had fixed the duration of the Essential Supplies Act, leaving the mechanism for attaining the maximum period to be worked out in instalments in a prescribed manner. Consequently, the Court found that there was no delegation of legislative power, let alone any delegation of legislative authority. Accordingly, the appeal filed against that determination failed and was dismissed.

The Court then turned to Criminal Appeal No. 25 of 1951. In that case the appellant, Bichan Chand Molla, had been charged with loading twenty-eight bags of mill-made cloth from a truck onto a specially chartered aircraft at Dum Dum airport on behalf of his employers, Messrs Amarchand Pannalal, without obtaining the permit required under clause 4 (2) of the West Bengal Cotton Cloth and Yarn Movement Control Order, 1947. He was convicted under section 7 (1) read with section 8 of the Essential Supplies Act and was sentenced by the First-Class Magistrate of Barrackpore to nine months’ rigorous imprisonment and a fine of Rs 1,000. The Sessions Judge of 24-Parganas dismissed the appeal that the accused had preferred, and a subsequent revision application to the High Court was also dismissed. The legal argument raised in this appeal was identical to that presented in the earlier appeal and, in the Court’s view, had to be rejected as untenable for the reasons previously explained. A special point was raised that the element of mens rea was missing. The High Court had considered that point and held that two material facts allowed an inference of criminal intent. When questioned, the accused admitted that he was loading hand-loom bales rather than mill-made cloth, that he possessed no permit, and that he could not produce any permit from his employers. These circumstances, according to the Court, justified inferring the requisite mens rea, and the appeal was therefore dismissed.

In this case the Court observed that, given the facts that had been proved and the surrounding circumstances, a reasonable inference could be drawn that the accused had acted with a criminal purpose. The Court therefore held that the evidence supported an inference of criminal intent. On that basis the Court concluded that the appeal filed by the appellant could not succeed and ordered that the appeal stand dismissed. By dismissing the appeal, the Court affirmed that the decision of the lower tribunal remained in force and no further relief could be granted on the same ground. The parties to the proceedings were each represented by counsel. The appellant was represented by an agent identified as R.R. Biswas, who acted as the legal representative for the appellant throughout the hearing. The respondent was represented by an agent identified as P.K. Bose, who performed the same role for the respondent. An intervener also participated in the proceedings, and the intervener’s agent was identified as P.A. Mehta, who acted as the legal representative for the intervener. The names of these agents were recorded in the order as the representatives of the respective parties, thereby completing the formal record of counsel for all sides involved.