Zaverbhai Amaidas vs The State Of Bombay

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

Court: supreme-court

Case Number: Criminal Appeal No. 31 of 1953

Decision Date: 8 October 1954

Coram: Mehar Chand Mahajan, B.K. Mukherjea, B. Jagannadhadas, Venkatarama Ayyar

In the matter of Zaverbhai Amaidas versus the State of Bombay, the Supreme Court delivered its judgment on 8 October 1954. The petitioner was Zaverbhai Amaidas and the respondent was the State of Bombay. The bench that heard the appeal consisted of Justice Mehar Chand Mahajan, who acted as chief justice, Justice B.K. Mukherjea and Justice B. Jagannadhadas. The case is reported in the 1954 volume of the All India Reporter at page 752 and also appears in the 1955 Supreme Court Reporter at page 799. Subsequent citations of the decision include references in the 1956, 1957, 1959, 1967, 1979, 1983, 1985, 1987, 1988, 1990 and later law reports, illustrating the continued relevance of the ruling. The judgment discusses several statutes, namely Article 254(2) of the Constitution of India, section 107(2) of the Government of India Act 1935, the Essential Supplies (Temporary Powers) Act 1946 (section 7 as amended by Act LII of 1950) and Bombay Act XXXVI of 1947 (section 2). The headnote explains that Article 254(2) essentially reproduces section 107(2) of the 1935 Act, and that the principle involved is that when both the Centre and a State are competent to legislate on the same subject, the law of the Centre must prevail over the State law.

The Court observed that section 7 of the Essential Supplies (Temporary Powers) Act, originally enacted in 1946, was amended in 1948, 1949 and subsequently by Act LII of 1950. It held that Act LII of 1950 constitutes legislation dealing with the same subject matter as Bombay Act XXXVI of 1947 within the meaning of Article 254(2), and therefore the provisions of section 2 of the Bombay Act cannot override the amended section 7 of the Essential Supplies Act. The Court reiterated a well-settled rule of statutory construction: when a later statute restates an offence previously created by an earlier statute and imposes a different punishment or modifies the procedure, the later statute repeals the earlier one to the extent of the inconsistency. In support of this principle, the Court referred to authorities such as Attorney-General for Ontario v. Attorney-General for the Dominion, Smith v. Benabo and Michell v. Brown. The judgment was issued under criminal appellate jurisdiction in Criminal Appeal No. 31 of 1953, pursuant to article 132(1) of the Constitution, and stemmed from the judgment and order dated 20 January 1953 of the High Court of Judicature at Bombay in Criminal Revision Application No. 642 of 1952. Counsel for the appellant included C. Dalir and P. K. Chatterjee, while counsel for the respondent comprised M. C. Setalvad, Attorney-General of India, assisted by P. A. Mehta and P. G. Gokhale. The judgment was delivered on 8 October 1954 by Justice Venkatram Ayyar, and it constituted an appeal against the decision of the Bombay High Court.

In this case, the Court noted that the appeal challenged the judgment of the High Court of Bombay which had dismissed a revision petition filed by the appellant against his conviction under section 7 of the Essential Supplies (Temporary Powers) Act No. XXIV of 1946. The factual allegation against the appellant was that on 6 April 1951 he had transported fifteen maunds of juwar from his village of Khanjroli to Mandvi without obtaining a permit, thereby violating section 5(1) of the Bombay Food Grains (Regulation of Movement and Sale) Order, 1949. The Resident First Class Magistrate of Bardoli who tried the case found the appellant guilty and sentenced him to imprisonment until the rising of the Court and imposed a fine of five hundred rupees. The conviction and sentence were affirmed by the Sessions Judge of Surat on appeal. The appellant then filed a revision before the High Court of Bombay, and for the first time raised the objection that the Resident First Class Magistrate lacked jurisdiction because, under section 2 of the Bombay Act No. XXXVI of 1947, the offence was punishable by imprisonment of up to seven years and, according to the Second Schedule to the Criminal Procedure Code, only a Sessions Court could try such an offence. The State responded that after the enactment of the Bombay Act No. XXXVI of 1947 the Essential Supplies (Temporary Powers) Act had been substantially altered and finally re-enacted by the Central Act No. LII of 1950, rendering the Bombay Act inoperative. According to the State, the governing statute was now Act No. LII of 1950, which limited the maximum punishment for the offence to three years, thereby giving the Resident First Class Magistrate jurisdiction. The revision petition was heard by a Bench of Judges Bavdekar and Chainani. Judge Bavdekar held that the amendments to the Essential Supplies (Temporary Powers) Act, including the re-enactment of section 7 in Act No. LII of 1950, did not affect the field covered by the Bombay Act No. XXXVI of 1947, which therefore remained operative. Judge Chainani, however, observed that both the Bombay Act and the Central Act dealt with the same subject-matter and that, because the Central legislation was later, it superseded the Bombay Act. The disagreement was referred under section 429 of the Criminal Procedure Code to Chief Justice Chagla, who adopted Judge Chainani’s view, finding that section 7 of Act No. LII of 1950 was repugnant to section 2 of the Bombay Act No. XXXVI of 1947 and, under article 254(2) of the Constitution, the later Central law prevailed. Consequently, the revision petition was dismissed. The appellant subsequently obtained a certificate under article 132(1) and filed the present appeal.

Under article 132 (1), the Court was called upon to decide a single, pivotal question: whether a breach of section 5 (1) of the Bombay Food Grains (Regulation of Movement and Sale) Order, 1949, was punishable under section 2 of the Bombay Act No. XXXVI of 1947, which would render the trial conducted by the Resident First Class Magistrate void for lack of jurisdiction, or whether the same breach was punishable under section 7 of the Essential Supplies (Temporary Powers) Act as it stood after being amended by Act No. LII of 1950, in which circumstance the trial and the conviction of the appellant by that Magistrate would be fully authorized by law. The Court therefore found it necessary to examine, in chronological order, every statute that bore upon the issue, beginning with the original Central legislation and proceeding through the subsequent State enactments that altered the penal regime applicable to offences under the essential supplies framework.

The first relevant statute was the Essential Supplies (Temporary Powers) Act No. XXIV of 1946, which had been enacted by the Central Legislature pursuant to the authority granted under sections 9 and 10 of the Government of India Act, as amended during the reign of George VI, Chapter 39. This Act extended to the entirety of British India. Section 3 of that Act empowered the Central Government to issue orders for the regulation of the production, supply and distribution of essential commodities, while section 4 allowed the Central Government to delegate that power to the Provincial Governments. Section 7 (1) of the same Act prescribed the punishment for any person who contravened an order issued under section 3. The provision read: “If any person contravenes any order made under section 3, he shall be punishable with imprisonment for a term which may extend to three years or with fine or with both, and if the order so provides any Court trying such contravention may direct that any property in respect of which the Court is satisfied that the order has been contravened shall be forfeited to His Majesty: Provided that where the contravention is of an order relating to foodstuffs which contains an express provision in this behalf, the Court shall make such direction, unless for reasons to be recorded in writing it is of opinion that the direction should not be made in respect of the whole or as the case may be, a part of the property.” The State of Bombay regarded the three-year maximum imprisonment prescribed in this section as insufficient for offences under the Act and consequently enacted Act No. XXXVI of 1947 with the purpose of increasing the severity of the punishment. Section 2 of that Bombay Act, while omitting irrelevant portions, stated: “Notwithstanding anything contained in the Essential Supplies (Temporary Powers) Act, 1946, whoever contravenes an order made or deemed to be made under section 3 of the said Act shall be punished with imprisonment which may extend to seven years, but shall not, except for reasons to be recorded in writing, be less than six months, and shall also be liable to fine.” This provision was openly repugnant to section 7 (1) of the Central Act. The Court then turned to section 107 (2) of the Government of India Act, which at that time constituted the Constitution, and which provided that “Where a Provincial law with respect to one of the matters enumerated in the Concurrent Legislative List contains any provision repugnant to the provisions of an earlier Dominion law or an existing law with respect to that matter, then, if the Provincial law having been reserved for the consideration of the Governor-General has received the assent of the Governor-General, the Provincial law shall in that Province prevail, but nevertheless the Dominion Legislature may at any time enact further legislation – with respect to the same matter.” This constitutional provision formed the legal backdrop against which the Court examined the interaction between the Bombay legislation of 1947 and the Central legislation of 1946, as subsequently amended.

Section 107(2) of the Government of India Act provided that when a provincial law dealing with a matter placed in the Concurrent Legislative List contained a provision that conflicted with an earlier Dominion law or with an existing law on the same subject, the provincial legislation would prevail in that province once it had been reserved for the Governor-General’s consideration and had received his assent. However, the provision also allowed the Dominion Legislature to enact additional legislation on the same subject at any later time. Acting on this constitutional principle, the Bombay Government submitted Act No XXXVI of 1947, which pertained to a matter enumerated in the Concurrent List, to the Governor-General. The Governor-General assented to the Act, and it consequently came into force on 25 November 1947. By virtue of section 107(2), the Bombay Act therefore superseded section 7 of the Essential Supplies (Temporary Powers) Act within the province. At the same time, the Bombay legislation remained subject to any subsequent central legislation that might be enacted concerning the same matter, as expressly allowed by the constitutional provision. The State of Bombay argued that the Central Legislature exercised this power in the years 1948, 1949 and 1950, and that the later statutes effectively rendered section 2 of the Bombay Act No XXXVI of 1947 inoperative.

In 1948 the Essential Supplies (Temporary Powers) Act was amended. The amendment repealed the proviso to section 7(1) and introduced a new proviso which provided, inter alia, that where a person contravened an order relating to foodstuffs that contained an express provision, the Court was required to direct that any property affected by the order be forfeited to His Majesty, unless the Court recorded in writing reasons for deciding that the forfeiture should apply only to part of the property or not at all. The Act was again amended in 1949. This second amendment also repealed the proviso to section 7(1) and substituted a fresh clause. Under the new clause, when a contravention involved an order relating to foodstuffs, the Court was mandated to (i) sentence the convicted person to imprisonment for a term that could extend to three years and, if appropriate, impose a fine, unless the Court recorded reasons that a fine alone would satisfy the ends of justice; and (ii) direct that any property, or any part of it, which had been the subject of the contravention be forfeited to His Majesty, unless the Court recorded reasons why such forfeiture was unnecessary with respect to the whole property or a portion thereof. Following these amendments, Central Act No LII of 1950 was enacted, further modifying the regime governing contraventions of orders under the Essential Supplies legislation.

The Court observed that the former provision identified as section 7 was formally repealed and replaced by a newly drafted section containing four distinct clauses. Clause (1) provided that any person who violated an order issued under section 3 concerning cotton textiles would be liable to imprisonment for a term not exceeding three years, would also be subject to a fine, and that any property connected with the contravention, or any portion of it the Court deemed appropriate, would be forfeited to the Government. Clause (2) dealt with violations of orders under section 3 relating to foodstuffs and set out two sub-parts. Sub-clause (a) stipulated that the offender would face imprisonment for up to three years and a fine, unless the Court, after recording its reasons, decided that a fine alone would satisfy the ends of justice. Sub-clause (b) authorized the forfeiture of property associated with the breach, or any part of it the Court considered fit, to the Government, unless the Court recorded reasons for refraining from ordering forfeiture of the whole or a portion of the property. However, where the contravention involved an order prescribing the maximum quantity of any foodgrain lawfully possessed by a person or class, and the person was found to possess foodgrain exceeding twice that maximum, the Court was mandated to impose imprisonment of up to seven years, a fine not less than twenty times the value of the excess grain, and to order forfeiture of the entire surplus grain to the Government. An explanatory note clarified that a person possessing foodgrain not exceeding five maunds above the prescribed limit would not be deemed guilty of an offence under the proviso to this sub-clause. Clause (3) provided that any person who violated an order under section 3 concerning any essential commodity other than cotton textiles or foodstuffs would be punishable by imprisonment for a term up to three years, or by a fine, or by both, and that, where the order so provided, any property the Court was satisfied had been contravened could be forfeited to the Government. Clause (4) stated that any person to whom a direction was issued under sub-section (4) of section 3 who failed to comply with that direction would be liable to imprisonment for a term not exceeding three years, or to a fine, or to both. The Court further noted that the amendments made in 1948 and 1949 had been effected while section 107(2) of the Government of India Act was operative, but that the Constitution of India Act had come into force by the time Act No. LII of 1950, which introduced the new provisions, was enacted.

The Court set out the text of article 254(2) of the Constitution, which provides that where a law made by a State Legislature listed in Part A or Part B of the First Schedule deals with a matter placed in the Concurrent List, and that State law contains any provision that is inconsistent with an earlier law made by Parliament or with an existing law on the same subject, the State law shall, if it has been reserved for the President’s consideration and has received his assent, prevail within that State; however, the provision also states that nothing in the clause shall prevent Parliament, at any time, from enacting a law on the same matter, including a law that adds to, amends, varies or repeals the State law. The Court observed that the substantive content of this provision reproduces section 107(2) of the Government of India Act, the latter’s concluding portion being incorporated into the constitutional text as a proviso with additional words. In discussing the comparative powers of the Dominion Legislature of Canada and the Provincial Legislature, the Court quoted the judgment of Lord Wason in Attorney-General for Ontario v. Attorney-General for the Dominion, noting that although a law passed by the Canadian Parliament within its competence would override a provincial law covering the same field, the Dominion Parliament did not possess constitutional authority to directly repeal a provincial statute. The Court explained that this limitation reflected the position that existed under section 107(2) of the Government of India Act with respect to subjects in the Concurrent List. By contrast, the Court held that the proviso to article 254(2) expands the powers of the Indian Parliament, permitting it to do what the Central Legislature could not do under the earlier Act; namely, Parliament may now enact legislation that adds to, amends, varies or repeals a State law on a Concurrent List matter. Consequently, under the Constitution, Parliament may, by reliance on the proviso to article 254(2), repeal a State law. The Court further explained that even where Parliament does not expressly repeal a State law, such a law becomes void to the extent that it conflicts with a later “law with respect to the same matter” enacted by Parliament. Applying this principle to the facts, the Court noted that there was no express repeal of the Bombay Act by Act No. LII of 1950 pursuant to the proviso to article 254(2). Accordingly, the remaining question was whether the amendments made by the Central Legislature to the Essential Supplies (Temporary Powers) Act in 1948, 1949 and 1950 constitute legislation that falls within the scope of section 107(2) of the Government of India Act, i.e., “further legislation,” or whether they constitute a “law with respect to the same matter” falling under article 254(2). The Court emphasized that this distinction was the pivotal issue to be resolved in the present case.

The reference to the provision required an inquiry into whether the later law dealt with “the same matter.” If the subsequent legislation addressed matters that were different from those forming the subject of the earlier statute, even though those matters might be related or allied in character, then article 254(2) of the Constitution would not apply. Both section 107(2) of the Government of India Act and article 254(2) embody the principle that when the Centre and a Province are both competent to legislate on a particular field and both enact statutes covering the same ground, the Central law must prevail over the State law. Applying this principle, the first issue to be examined was the subject-matter of the Bombay Act No. XXXVI of 1947. Its preamble stated that the purpose of the Act was “to provide for the enhancement of penalties for contravention of orders made under the Essential Supplies (Temporary Powers) Act, 1946.” The next issue was to determine the scope of the legislation enacted in 1948, 1949 and 1950. Because the offence for which the appellant was convicted occurred on 6 April 1951, it was sufficient for the appeal to consider the effect of Act No. LII of 1950, which was operative on that date. Act LII of 1950 repealed section 7(1) of the Essential Supplies (Temporary Powers) Act, as originally passed in 1946 and as amended in 1948 and 1949, and substituted a new provision. The new section arranged offences under the Act into three distinct categories: those relating to cotton textiles, those relating to foodstuffs, and those relating to essential commodities other than textiles or foodstuffs. The punishments applicable to each category were specified separately. With respect to foodstuffs, the provision prescribed imprisonment of up to seven years when the offence involved possession of foodgrains exceeding twice the maximum quantity prescribed, together with possible fines and forfeiture of the commodities. In all other cases, the maximum imprisonment was three years. Thus, section 7 constituted a comprehensive code that covered the entire field of punishment for offences under the Act, grading the penalty according to the commodity involved and the nature of the offence. The enhanced-penalty matter dealt with in Act XXXVI of 1947 was also encompassed by Act LII of 1950, the latter limiting its application to the hoarding of foodgrains. Consequently, the Court fully agreed with the views of Chief Justice Chagla and Justice Chainani that Act LII of 1950 was legislation concerning the same matter as Act XXXVI of 1947. Justice Bavdekar, who reached a contrary conclusion, correctly observed that to establish a repugnancy under section 107(2) of the Government of India Act it was not necessary for one statute to use the exact language “do” that the other statute employed.

The learned judge observed that a conflict may arise when two statutes address the same field, even if one does not expressly command what the other does. He concluded, however, that the question of an enhanced penalty provided by Act No XXXVI of 1947 was distinct from the ordinary punishment under the Essential Supplies (Temporary Powers) Act, because the enhanced penalty applied only when a person possessed foodstuffs in excess of twice the prescribed quantity. Accordingly, he held that the subject-matter of Act No XXXVI of 1947 remained untouched by the later Act No LII of 1950 in respect of all other matters. In other words, he treated the enhanced punishment in the 1947 Act as a different issue from the mere punishment for contravening orders under the Essential Supplies (Temporary Powers) Act and its amendments. The Court found this view to be erroneous. It held that the punishment for violating orders under the Essential Supplies (Temporary Powers) Act, whether imposed by the 1947 Act or by the 1950 amendment, constitutes a single subject matter that cannot be divided as the judge suggested. The Court then referred to the rule of construction that when the degree of punishment is altered but not its nature, the later provision supersedes the earlier one, as explained in Maxwell on Interpretation of Statutes, tenth edition, pages 187-188. The Court also cited Goddard J’s observation in Smith v. Benabo that a later statute describing an offence created by an earlier statute and imposing a different punishment or procedure repeals the earlier statute, a principle supported by the decision in Michell v. Brown, per Lord Campbell. Although article 254(1) of the Constitution deals with whether a Parliamentary Act prevails over a State law and does not raise a question of repeal, the Court explained that the principle underlying implied repeal—namely that if the later legislation covers the identical subject-matter as the earlier, the two cannot coexist and the earlier is displaced—applies equally to article 254(2), which concerns whether subsequent Parliamentary legislation relates to the same matter as a State law. Consequently, the Court held that section 2 of Bombay Act No XXXVI of 1947 could not prevail over section 7 of the Essential Supplies (Temporary Powers) Act No XXIV of 1946 as amended by Act No LII of 1950. The appellant also contended that the subject-matter of the 1947 Act lay exclusively in the Provincial List, and therefore sections 107(2) of the Government of India Act and article 254(2) of the Constitution, which apply only to matters in the Concurrent List, should not be relevant. The appellant relied on the 1947 Act itself to support this argument.

The judgment reiterated, as previously noted, that the matter under consideration fell within the Concurrent List. The appellant had earlier contested this issue before the learned Judges of the Bombay High Court, and those judges had dismissed the contention. Subsequently, the appellant filed an application for leave to appeal, referencing the authorities (1) [1937] 1 K.B. 518 and (2) 1 El. and El. 267, 274, and the appeal was presented under article 132(1) of the Constitution. In that application, the sole ground advanced as raising a substantial question of constitutional interpretation concerned whether the Bombay Act No. XXXVI of 1947 was repugnant to and consequently void under article 254 of the Constitution. No additional question or ground was raised in the petition. Accordingly, the Court found that it could not allow the appellant to introduce any new issue outside those expressly pleaded. For that reason, the Court declined to permit the appellant to raise the point concerning the alleged repugnancy. In the final assessment, the Court concluded that the appeal could not succeed and therefore ordered that the appeal be dismissed. The order expressly stated that the appeal fails and is dismissed, and the judgment concluded with the declaration that the appeal was dismissed.