Darshan Singh vs State Of Punjab

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

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 5 December 1952

Coram: B.K. Mukherjea, Ghulam Hasan, M. Patanjali Sastri, N. Chandrasekhara Aiyar, Vivian Bose

In this matter, the petitioner Darshan Singh challenged the order issued by the Governor of Punjab under the authority delegated by the Essential Supplies (Temporary Powers) Act, 1946. The case was heard by a Bench consisting of B.K. Mukherjea, Ghulam Hasan, M. Patanjali Sastri, N. Chandrasekhara Aiyar and Vivian Bose. The judgment was delivered on 5 December 1952. The relevant statutory framework involved the East Punjab Cotton Cloth and Yarn Control Order of 1947, promulgated under the provisions of the Essential Supplies (Temporary Powers) Act, 1946, which empowered the Central Government, by way of a notified order, to regulate and prohibit the production, supply and distribution of essential commodities as well as the trade and commerce of such commodities. Section 3 of the Act authorised the Central Government to make such regulations, while Section 4 authorised it to delegate its powers to a Provincial Government or any officer thereof. Accordingly, the Governor of Punjab exercised the delegated authority to issue an order prohibiting the export of cotton cloth and yarn to any foreign country unless a permit was obtained, and made the unauthorised export an offence. The petitioner contended that the Governor had exceeded his delegated powers by attempting to control export beyond the provincial limits.

The Court examined the scope of the Essential Supplies Act and the meaning of the words “trade and commerce” used in Section 3. By considering the object of the Act, the Court held that “trade and commerce” could be interpreted to include export of goods outside the Province, even to a neighbouring foreign State, and that the Governor’s order therefore did not exceed the powers delegated to him. The Court further noted that the Central Legislature possessed full competence to legislate on matters of import and export under the Government of India Act, 1935, and could validly prohibit export to a foreign State either directly under the Central legislation or by delegating that power to a Provincial authority. Moreover, the Court observed that even if the legislation were viewed purely as dealing with provincial matters of production, distribution and supply of essential commodities, the restriction on export would be ancillary to those subjects and thus fall within the legislative competence of the Province. The judgment reiterated the principle that the language employed by the legislature is the true repository of legislative intent, and that statutory words must be read in context, giving effect to the purpose and object of the enactment.

The Court explained that the intention of the legislature is expressed through the language of a statute, and therefore the words and phrases used in a law must not be read in isolation or detached from their surrounding context. Instead, they must be read together and interpreted in accordance with the purpose and object of the Act. The matter fell under criminal appellate jurisdiction as Cases 11 and 12 of 1950, which were appeals under article 132(1) of the Constitution of India from the judgment and order dated 5 April 1950 of the High Court of Judicature for the State of Punjab at Simla, delivered by Justice Khosla, in criminal revision numbers 1144 and 1147 of 1949. Counsel for the appellant in Case No. 11 was represented by a lawyer accompanied by another counsel. Counsel for the appellant in Case No. 12 was also present. Counsel for the respondent, the State of Punjab, was assisted by another lawyer. Counsel for the intervener, the Attorney-General for India, was joined by an additional advocate. The judgment of the Court was delivered on 5 December 1952 by Justice Mukherjea. The Court then gave a brief narrative of the facts that gave rise to these two connected appeals. The appellants were Darshan Singh, who was the appellant in Case No. 11, and Attar Singh, who was the appellant in Case No. 12, together with three other persons. All of them had been tried before the Special Magistrate at Ambala in East Punjab on charges under section 120-B of the Indian Penal Code, read with section 3/10 of the East Punjab Cotton Cloth and Yarn (Regulation of Movement) Order, 1947, and section 7 of the Essential Supplies Act, 1946. In addition, a further charge under section 8 of the Essential Supplies Act was framed against three of the accused, including Darshan Singh, who was one of those three.

The substantive allegation against all the accused was that they had conspired to export seventy-six bags of mill-made cloth to Pakistan without obtaining a permit, by smuggling the goods through the customs barrier near Wagha on the morning of 26 May 1948. Wagha is situated about eighteen miles from Amritsar and lies roughly half a mile from the actual Indo-Pakistani border. Between the customs barrier and the border there existed a small police post, and directly opposite this post was a customs office housed in a tent. According to the prosecution, at approximately seven o’clock in the morning on that day a truck laden with a large quantity of mill-made cloth owned by the accused Ram Singh arrived at the customs barrier near Wagha. Rajendra Singh, another accused who was serving as the customs supervisor at the time, permitted the truck to pass, and the vehicle came to a stop near the customs office on the side of the police post. The narrative continued with the truck’s stoppage and the subsequent actions that formed the basis of the charges.

The Court recorded that after Kulraj, the Sub-Inspector in charge, refused the request of Darshan Singh and Attar Singh to allow the lorry to proceed to the border, the two officers returned to the customs tent. Subsequently the lorry was unloaded and the cloth was handed over to a large number of coolies who began carrying the goods toward the border, while both Attar Singh and Ram Singh followed the coolies. A short time later, Kailash Chandra, a Police Sub-Inspector of Amritsar on special duty for the detection of smuggling, arrived at the scene on a motor bicycle. On being informed by Kulraj of the earlier incident, Kailash Chandra and Kulraj set off on his motorcycle toward the border, overtook the coolies, and rounded them up. The coolies, together with Attar Singh, were taken back to the border, but Ram Singh managed to escape. Kailash Chandra reported the occurrence to Inder Singh, the head of the Special Police Establishment at Delhi dealing with smuggling cases. Following a detailed investigation, the five accused were committed to trial. The trying Magistrate convicted all of them under section 120-B of the Indian Penal Code read with sections 3 and 10 of the East Punjab Cotton Cloth and Yarn Order, 1947, imposing a rigorous imprisonment of one year on each. In addition, Attar Singh was convicted under section 7 of the Essential Supplies Act and Darshan Singh under section 8 of the same Act; each of them received a further one-year rigorous imprisonment and a fine of Rs 1,000, the imprisonment to run concurrently with the earlier sentence. The accused appealed to the Sessions Court at Amritsar. The Additional Sessions Judge, hearing the appeal, acquitted two of the accused but upheld the conviction of Attar Singh, Ram Singh and Darshan Singh, albeit with reduced sentences. The three convicted persons then filed separate revision petitions in the High Court of East Punjab at Simla, which were heard by Justice Khosla sitting alone. Justice Khosla dismissed the revisions but issued a certificate under article 132 of the Constitution, holding that the matters raised involved a substantial question of law concerning the interpretation of the Constitution. On the basis of that certificate, two appeals reached this Court: one filed by Darshan Singh and the other by Attar Singh. No appeal was filed by Ram Singh. The constitutional issue was presented before the Court by counsel appearing on behalf of Darshan Singh.

In this matter, the Court noted that the East Punjab Cotton Cloth and Yarn Order of 1947 had been issued by the Governor of East Punjab through a notification dated 15 November 1647. The order formed the basis of the prosecution against the accused. However, the Court held that the Governor had acted beyond his legal authority because the order attempted to regulate matters of export and import across the customs frontier, matters that fall within the exclusive competence of the Central Government. Consequently, the Court observed that the accused could not be convicted of any offence for contravening provisions that were beyond the Governor’s legislative power.

To understand the argument raised by counsel, the Court examined the relevant constitutional provisions. Under the Government of India Act, 1935, entries 27 and 29 of List II designate “trade and commerce within the province” and “production, supply and distribution of goods” as provincial subjects. In contrast, “import and export across the customs frontier” is listed as item 19 in List I and therefore is a central subject. Section 102 of the 1935 Act provides that the Central Legislature may legislate on provincial subjects when a proclamation of emergency is issued by the Governor-General, and such legislation ceases to have effect six months after the proclamation ends, as stipulated in sub-section (4) of that section.

The Court observed that during the last war, an emergency proclamation was in force, and the Central Legislature exercised extraordinary powers, enacting the Defence of India Rules which covered various provincial matters. The emergency proclamation was revoked by the Governor-General under section 102, clause (3) of the Constitution Act on 1 April 1946. As a result, all orders made under the Defence of India Act or the Defence of India Rules lost their effect after 30 September 1946. Nevertheless, the Court noted that the country’s situation remained far from normal, and it was deemed necessary to maintain Central control over the production, supply and distribution of essential goods.

To address this need, the British Parliament enacted a temporary statute, 9 and 10 Geo. VI chapter 39, which conferred on the Indian Legislature the authority to legislate on certain provincial subjects for a limited period. Section 2 of that Act, insofar as it is relevant here, provides that “Notwithstanding anything in the Government of India Act, 1935, the Indian Legislature shall, during the period mentioned in section 4 of this Act, have power to make laws with respect to the following matters: (a) trade and commerce (whether or not within a Province) and the production, supply and distribution of cotton and ….” This provision was cited to illustrate the temporary delegation of powers that allowed the Central Government to regulate essential commodities during the post-war period.

The Act listed woollen textiles, paper, petroleum products, spare parts of mechanically propelled vehicles, coal, iron, steel and mica. Armed with that authority, the Indian Legislature enacted the Essential Supplies (Temporary Powers) Act of 1946. Section 3 of the Act stated that the Central Government, if it deemed it necessary or expedient for maintaining or increasing supplies of any essential commodity or for securing equitable distribution and availability at fair prices, could by a notified order regulate or prohibit the production, supply, distribution, trade and commerce of such commodity. Section 4 authorised the Central Government, by a notified order, to direct that the power to make orders under Section 3, for specified matters and subject to any conditions, could also be exercised by a Provincial Government or by any officer or authority subordinate to a Provincial Government, as may be specified in the direction. By a notification dated 20 December 1946, issued under Section 4, the Central Government delegated to the Governor of Punjab the powers conferred by Section 3 of the Act. On 15 November 1947, the Governor of East Punjab, exercising the delegated powers, issued the East Punjab Cotton Cloth and Yarn (Regulation of Movement) Order, 1947. Three provisions of that Order—Sections 2, 3 and 10—are material for the present consideration. Section 2 defined the term “export” in the Order, stating that, unless something in the subject or context contradicted it, “export” meant taking out of the Province of East Punjab, or the said land, by rail, road or river to any Province or State of the Dominions of India and Pakistan, and that it also included taking out of the Province of East Punjab to any place situated in those lands as well as taking out of those lands to any place situated in East Punjab. Section 3 stipulated that no person could export or attempt to export cotton cloth or yarn except under the authority of a permit issued by a permit-issuing authority, and that the permit must be in Form IV as specified in Schedule A annexed to the Order. Section 10 provided that any person who contravened any provision of the Order would be punishable with imprisonment of up to three years, with fine or both, without prejudice to any other general punishment that a court might impose, and that the court could also direct that any cotton cloth or yarn, together with its covering and packing, which the court was satisfied had been involved in the contravention, be forfeited to His Majesty. The issue before the Court is whether those provisions, which prohibit the export of certain essential commodities to any country outside India and make such violation an offence, were validly made by the Governor in exercise of the powers delegated to him under Section 4 of the Essential Supplies (Temporary Powers) Act, 1946.

In this matter, the Court was asked to consider whether the provisions that prohibited the export of cotton cloth and yarn without a permit, and that classified such violations as offences, had been validly made by the Governor exercising the powers delegated to him under section 4 of the Essential Supplies (Temporary Powers) Act, 1946. The learned counsel for the petitioner did not argue that the Central Government had acted improperly in delegating its powers to the Governor of East Punjab under section 4. Instead, the counsel contended that the Governor, in issuing the order, had exceeded the authority that had been delegated to him by prohibiting the export of cotton cloth and yarn to any place outside India. The counsel maintained that matters of export and import were not within the scope of section 3 of the Essential Supplies Act, and that the delegation under section 4 could only confer on the Governor those powers which the Central Government itself could exercise under section 3. While it was acknowledged that section 3 of the Essential Supplies Act authorised the Central Government to make provisions for regulating and even prohibiting the production, supply and distribution of essential commodities specified in the Act, as well as to regulate trade and commerce in respect of those commodities, the counsel argued that the phrase “trade and commerce” as employed in that provision should be interpreted narrowly. According to that interpretation, “trade and commerce” could refer only to intra-provincial transactions or, at most, inter-provincial trade between provinces, but could not extend to transactions involving the export of goods beyond the territorial limits of India. The counsel presented this restricted view of the statutory language as the appropriate construction of the Act.

The counsel advanced a two-fold argument in support of the restricted interpretation. First, it was submitted that the Essential Supplies Act, as its preamble indicated, had been enacted by the Central Legislature under the authority conferred by the India (Central Government and Legislature) Act, 1946 (9 and 10 Geo. VI, c. 39). That enabling statute had granted the Central Legislature a temporary power to legislate on certain matters that were ordinarily within provincial jurisdiction, a power that was intended to cease with the revocation of the Emergency Proclamation at the end of the war. Accordingly, the counsel argued that the Essential Supplies Act was meant to address only provincial matters, and that matters of import and export, which fell within the exclusive domain of the Central Government, could not reasonably have been brought within the ambit of that Act. The second line of reasoning relied on the legislative history showing that the Central Legislature had dealt separately with import and export matters through distinct enactments that existed alongside the Essential Supplies Act and earlier related statutes. The counsel pointed out that an order made under the Defence of India Rules on 3 November 1945 (Order No. 91 c.w. (1) 45) had imposed prohibitions on the export of various goods, and that the Defence of India Rules were scheduled to expire on 30 September 1946. On 26 September 1946, the Essential Supplies Ordinance was enacted, later replaced by the Essential Supplies Act, and on the same day another ordinance (Ordinance No. XX of 1946) was promulgated to continue the provisions of the Defence of India Rules relating to import and export restrictions. Subsequently, the Imports and Exports (Control) Act was passed on 26 March 1947, providing a comprehensive framework for the control of imports and exports. The counsel argued that it would be unreasonable to suppose that the legislature intended to regulate the same subject matter through two parallel sets of legislation, and therefore concluded that export and import matters were not intended to be covered by the Essential Supplies Act.

In the factual matrix, the Defence of India Rules enumerated prohibitions on the export of a variety of goods, and those Rules were scheduled to cease operation on 30 September 1946. Shortly before that scheduled expiry, on 26 September 1946, the legislature enacted the Essential Supplies Ordinance, which was later subsumed by the Essential Supplies Act. On the very same day that the Essential Supplies Ordinance received assent, the government also promulgated an additional legislative instrument, identified as Ordinance No. XX of 1946, which, among other matters, preserved the provisions of the Defence of India Rules that dealt with the prohibition and restriction of both import and export of goods. A few months thereafter, on 26 March 1947, Parliament passed the Imports and Exports (Control) Act, a comprehensive statute that addressed the entire field of control over imports and exports. It was argued that it would be unreasonable to suppose that the legislature was attempting to regulate the same subject matter through two parallel statutes operating simultaneously, and therefore the argument concluded that the regulation of export and import of goods could not be said to fall within the scope or intention of the Essential Supplies Act. Although those submissions might initially appear plausible, the Court found them unconvincing and not well founded. The Court reiterated the fundamental principle of statutory construction that the true intention of the legislature resides in the language it employed, and that the words of a statute must not be read in isolation but must be interpreted in context, in accordance with the purpose and object of the enactment. The preamble of the Essential Supplies Act disclosed that its purpose was to maintain, for a limited period, the authority to control the production, supply, distribution, and the trade and commerce of essential commodities such as foodstuffs, cotton, woollen textiles, petroleum, iron and other items listed in the Act. Section 3, the core provision of the Act, empowered the Central Government, whenever it deemed it expedient or necessary, to ensure the maintenance or increase of supplies of any essential commodity or to secure their equitable distribution and availability at fair prices; to do so, the Government could, by a notified order, regulate or prohibit the production, supply, distribution or the trade and commerce of such commodities. Reading the expression “trade and commerce” in light of this overarching objective, the Court concluded that the words should be given their ordinary meaning and that there is no reason to exclude from the Act a restriction on the export of goods to destinations outside a province, including a neighboring foreign state. Indeed, to preserve or augment the supply of essential commodities within a province and to guarantee their fair distribution at reasonable prices, it may be necessary to restrict the export of those goods beyond provincial borders. Given that Pakistan lay directly on the frontier of East Punjab, it was entirely logical for the Governor of East Punjab to cite Pakistan as a place to which the export of goods from the province should not be permitted without a proper permit.

In this case, the Court observed that the Governor of East Punjab had listed Pakistan as a place to which the export of goods from the province could not be permitted without a proper licence. The Court explained that the primary purpose of the Essential Supplies legislation was to maintain control over the production, supply and distribution of commodities that were essential to the community. Because these matters fell within provincial jurisdiction, the Central Legislature could legislate on them only by invoking the powers granted to it by the India (Central Government and Legislature) Act, 1946 (9 & 10 Geo. VI, c. 39). The Court noted that the reference to that statute in the second paragraph of the preamble was therefore appropriate. The Court further ruled that this reference did not mean that the Central Legislature acted solely under powers derived from the British Parliament; it could also rely on the authority conferred upon it by the Government of India Act. The Court affirmed that the Central Legislature possessed full competence to enact laws concerning imports and exports, which are matters of central importance, and that it had not acted beyond its authority when it made provisions relating to those subjects. Even if the legislation were viewed as dealing only with the provincial subjects of production, distribution and supply of essential goods, the Court held that restricting exports as an ancillary measure was clearly within the scope of such legislation. In the Court’s view, the legislation therefore dealt principally with provincial matters, and the argument raised by counsel for the petitioner lacked any substantive basis.

The Court then turned to the argument concerning the Imports and Exports Act and the earlier Order and Ordinance cited by counsel. It explained that those statutes were primarily concerned with the regulation of imports and exports in general and covered a wide range of articles far exceeding those listed in the Essential Supplies Act. The Court observed that the purpose of the Imports and Exports legislation was not to control the production or distribution of essential commodities, nor was it intended as a means to achieve that purpose by prohibiting or restricting the export of such goods. Consequently, the Court found that the objectives and scope of the two statutes were entirely different. The Court further noted that there was no indication of any direct overlap between the provisions of the two statutes, and even if some incidental overlap existed, it would not be material because the legislature’s competence to enact both sets of provisions was not in dispute. Accordingly, the Court concluded that the constitutional contentions raised in the appeals were unsupported and could not be accepted. The Court also remarked that the appeals had been brought before it on the basis of a certificate issued under article 132(1) of the Constitution, and therefore the appellants could not challenge the propriety of the decision on any ground other than that specified in the certificate without obtaining leave of the Court.

In this appeal, the Court explained that because a certificate had been issued under article 132(1) of the Constitution, the appellants could not contest the propriety of the impugned decision on any ground other than the one for which the certificate was granted, unless they obtained leave of the Court in accordance with clause (3) of the same article. At the conclusion of the parties’ arguments on the constitutional issue, the Court expressly informed the counsel appearing for the appellants that it would not permit any question that dealt with the merits of the case to be raised, where such a question would depend solely on the trial courts’ appreciation of the evidence. Nevertheless, counsel for the appellant identified as Attar Singh in case number 12 requested permission to bring before the Court a matter that he asserted resulted in a serious miscarriage of justice for his client. He contended that the lower-court judges had based their decisions on an alleged admission by Attar Singh that he had been present at the customs barrier at Wagha on the morning of the incident, claiming he was there to say goodbye to customs staff because he was being transferred from Amritsar to Gurdaspur. According to the counsel, Attar Singh never made such an admission and never offered any explanation for his alleged presence on that date; the claim, he argued, arose from a misunderstanding and was not supported by any record.

The Court noted that both the Additional Sessions Judge and the learned Judge of the High Court had indeed referred to the purported admission in their judgments and had relied upon it to reach their conclusions. The Additional Sessions Judge, in his written decision, stated that the accused “Attar Singh … admits his presence at the barrier on that morning, when he says that he had gone to bid good-bye to the customs staff on his transfer to Gurdaspur. According to the leave obtained by him he had yet to remain at Amritsar till 28th and in view of illness of his wife he need not have been in hurry to go to the barrier for this purpose so soon. I am not convinced with his explanation.” Similarly, the High Court, while referring to the same admission, observed that “Attar Singh admitted that he was present at the barrier on that morning but the explanation he gave was this. His office is at Amritsar but he had received orders of transfer to Gurdaspur. His wife was ill and, therefore, he could not move immediately.” The Court further recorded that during the examination of Attar Singh under section 342 of the Criminal Procedure Code before the trial magistrate, a specific question was posed to him regarding his presence at the scene on 26 May 1948, to which he categorically denied being present. In response to an inquiry about the origin of the alleged admission, the Advocate-General for the State of East Punjab indicated that the admission might have been found in the written statement submitted by Attar Singh.

In the trial proceedings the Court recorded that Attar Singh had stated that he had taken a few days’ leave and that on the morning of 26 May he had gone to the barrier to say goodbye to his colleagues in the Customs Department, and that the incident occurred there without his knowledge. The Court further noted that Attar Singh’s explanation of his presence at the spot did not convince the trial magistrate at all. During the examination of the accused under section 342 of the Criminal Procedure Code, the trial magistrate specifically asked Attar Singh to explain why he was present at the scene of the occurrence on 26 May 1948, even though it was alleged that he was on leave. Attar Singh answered the question categorically that he had not been present as alleged. After receiving these statements, the Court asked the learned Advocate-General, who appeared for the State of East Punjab, when and how the admission referred to above had been made by Attar Singh. The Advocate-General replied that the alleged admission might be found in a written statement which Attar Singh had said he would file when he was interrogated under section 342 of the Criminal Procedure Code. To clarify the matter, the Court adjourned the hearing so that the Advocate-General could produce any written statement, if it existed, that had been filed by Attar Singh in the trial court. The matter was taken up again on 26 November, and the Advocate-General frankly informed the Court that no written statement by Attar Singh was on the record at all. Consequently, the Court concluded that both the lower courts, in reaching their decision on the guilt of the accused, had relied to a considerable extent on the so-called admission of Attar Singh, an admission which, in fact, did not exist.

The Advocate-General argued that even if an error had been made by the lower courts in relying on a non-existent admission, the appeal should nevertheless be dismissed because, in his view, there was sufficient evidence to support the conviction of the accused independently of the alleged admission. He invited the Court to examine the evidence for itself and to reach its own conclusion on the issue. While the Court did not dispute its power to adopt such a course when necessary, it held that, given the circumstances of the present case, the proper order was to direct a rehearing of the appeal by the Sessions Court on the basis of the evidence as it actually stood, after excluding from consideration the alleged admission of Attar Singh. The Court observed that the purported admission was highly damaging and prejudicial to the accused, and that it was problematic to assess the exact effect it had on the minds of the judges in the lower courts. Accordingly, the Court found it difficult to determine how the lower courts would have ruled had the alleged admission been omitted from their consideration.

In this matter, the Court explained that its role was not to re-evaluate the evidence in order to determine the accused’s guilt or innocence, because the Court was not a regular criminal appellate tribunal. Instead, the Court’s function was to ensure that the accused received a fair trial based on proper evidence. The Court noted that counsel for the appellant, Mr Achhru Ram, had correctly argued that if the case involving Attar Singh required a fresh hearing, the same relief should be granted in the case of Darshan Singh. The two matters were closely linked, and the prosecution’s case against Darshan Singh mainly sought to prove his participation in the alleged offence by showing that he was together with Attar Singh when they approached Officer Kulraj, the police station in-charge, and asked him to permit a truck to pass. The Additional Sessions Judge, in his judgment, had observed that Darshan Singh’s only motive appeared to be assisting his colleague Attar Singh, who was about to leave the district. Consequently, the Court held that Darshan Singh’s case also required a rehearing, and that the entire evidence against him should be reconsidered to determine whether he was guilty or innocent. Accordingly, the Court allowed both appeals, set aside the judgments of the High Court and of the Additional Sessions Judge, and ordered that the matters be remitted to the Sessions Court for a fresh hearing on the record, after excluding the alleged admission of Attar Singh from consideration. The Court further directed that, pending the Sessions Court’s decision, the accused would remain on bail on the same terms as previously granted. The appeals were therefore allowed. The appellant in Case No 11 was represented by counsel, as was the appellant in Case No 12, and the respondent and intervener were also represented by counsel.