SANTOSH KUMAR JAIN v. THE STATE
Citation: [1951] 1 S.C.R. 303; 1951 INSC 16
Court: Supreme Court of India
Bench: HARILAL JEKISUNDAS KANIA , M. PATANJALI SASTRI, SUDHI RANJAN DAS
Judgment date:
Case summary
1951 INSC 16. Supreme Court of India judgment dated 1951-03-05. SANTOSH KUMAR JAIN v. THE STATE. Read the judgment and case details on LawSphereX.
Judgment text
S. C. R. SUPREME COURT REPORTS 303 SANTOSH KUMAR JAIN ~iuch ~. "· THE STATE. UNION OF INDIA-Intervener. [SHRI HARILAL KANIA C. J. , PATANJALI SASTRI, and DAs JJ. ] Emntial Supplies (TemP es not authorise the making of . ad hoc or · speeial orders with respect to any particular person or thing. We see no reason to place such a restricted construction on the scope of the power conferred on the Central Government. The term "notified order" which is defined as meaning "an . . f-0 order notified in the official Gazette" is wide enough to cover special as well as general orders . relating to the matters specified in section 3. The power to provide for regulating or prohibiting production, distribution and supply conferred on an executive body may well include the power to regulate or prohibit by issuing directions to a particular producer or dealer or by requiring any specific act to be done or forborne in regard to production, etc.
, and the provisions of section 4 lend support to that view. The Central Government is empowered under the latter section to delegate its . power to make order under section 3, subject to conditions to be specified, to any officer or subordinate authority either of the Central or a Provincial Government. It would be strange if, as contended for the appellant, a subordinate officer in charge, say, of a small area, should, by delegation, exercise powers of a legislative character in relation to the matters specified · in section 3, but should not have the power of issuing special orders concerning specific individuals or things. We do not think that such a situation could have been contemplated. The power delegated under section 4 must, in our opinion, include the power of issuing directions to any producer or dealer in relation to production, etc. , of any specified essential commodity. If so, the delegating authority itself must pos~ess such power under section 3.
For instance, ·secl:Ion 7. of the Sugar and Sugar Products Control Order, 1947, made by the Central Government em-powers the "Controller" "to issue directions to any producer or dealer to supply sugar or sugar products" to specified areas, persons or organisations. This delegation is expressed . to be made "in exercise of the powers -onferred by section 3 and 4" of the Act, but unless the Central Government itself had the power of issuing such directions under section 3, it could not delegate that power to the Controller under section 4. This view is reinforced by the language of section 15, which. contempla~es orders under section 3 being made _agamst a part:Icular person, for it speaks of "an order made under section 3 which prohibits him (that is, the person prosecuted for its contravention) from doing any act or being in possession of a thing without lawful authoritv, etc.
" The restricted construction of section 3 contended for by the appellant's counsel would render the scheme of the Act largely unwork-able, and we have no hesitation in rejecting it. Even so, it was argued, an order for seizure could be made only subject to the conditions and limitations specified in clause (j) of sub-section (2) of section 3, that is to say, only where the person authorised in that behalf "has reason. to believe that a contravention of the order [an order made under sub-section ( 1)] has been, is being, or is about to be committed". In the present case, the order of 5th December 1947, directing. the seizure of 5,000 maunds of the company's sugar J. n the execution of which the appellant has been found to have obstructed the officers of the Provincial Government, recited that the company was "about to commit a contravention of the order of the Chief Controller of Prices and Supplies, Bihar, made under cl.
7(15 (ii) of the Sugar and Sugar Products Control Order, 1947,' and issued in order No. 1613 P. C. ~, dated 27th September, 1947, in so fur as the said order relates to the said company". The latter order, while it dire·cted the company, among others, "to supply sugar at the prices fixed t. o the approved dealers of certain Dist-ricts'', left it to the District or Sub-divisional Officer to fix quotas for the approved dealers of his District or Sub-division from the District or · Sub-divisional allotment and to inform the company when and where the supplies are to be made. It has been found by the courts below that the total quantity of sugar which the order required to be supplied was varied from . time to time, and no quotas to approved dealers were ever fixed nor information sent to the company as to when and where supplies were to be made.
The order of the 27th September, 1947, having thus remained inchoate and incomplete and so incapable of being carried out or contravened till the. 5th December, 1947, it was sub-mitted that no seizure and removal could be lawfully ordered on the basis of an anticipated contravention . of such an order, and that the officers concerned in the illegal and unauthorised removal of the sugar were not acting in the discharge of their public func· tions. Reference was made in this connection to the decisions of the Calcutta High Court in Lilla Singli v. Queen Empress(') and Queen Empress v. Jogendra 2 Nath Mukherjee( ) where it was held that the public function in the discharge of which a public servant was obstructed must . be a legal or legitimately authorised function, in order that the obstruction might constitute an offence under section 186 of the Indian Penal Code.
On the other hand, counsel for the respondent maintained that for an offence under that section it was not necessary that the act which was Obstructed must be duly authorised and otherwise lawful if it was being done or was sought to be done by a public servant honestly and in good faith believing that it was part of his public functions, and reliance was placed in support of this view on the decisions of the Madras High Court in Queen Empress v. Poomatai 8 Udayan( ), Public Prosecutor v. Madava Bhonjo Santos(') and Peer Masthan Rowther v. Emperor("). We think it is unnecessary for the purpose of this appeal to pronounce on tbe true scope of section 186 of the Indian Penal Code as we are of opinion that the appellant's argument must fail on another ground.
It is manifest that sub-section (2) of section 3 confers no further or other powers on the Central Government than what are conferred under sub-section (1), for it is "an order made thereunder" that may provide for one or the other of the matters specifically enumerated in sub-section (2) which are only illustrative, as such enumerarion is "without prejudice to the generality of the powers conferred by sub-section ( l) ". Seizure of an article being thus shown to fall within the purview of sub-section (1), it must be competent for the Central Government or its delegate, the Provincial Government, to make an order for seizure under (1) I. L. R. 22 Cal. 286. (4) 31 M. L. J. 505. (2) I. J.. R. 24 Cal. '320. (5) 1938 M. W. N. 418. (3) I. L. R. 2 I Mad. 296. that sub-section apart from and irrespective of the anticipated contravention of any other order as contemplated in clause (j) of sub-section (2).
The order of 5th December, 1947, must, therefore, be held to be a valid order, notwithstanding its reference to the order of the 27th September, 1947, as being about to be contravened. If the latter order was incomplete and inoperative and consequently there could be no question of its contravention, as contended for the appellant, the reference to it in the order dated· the. 5th December, 1947, would be an immaterial redundancy and could not affect the validity of the latter order. The seizure of the company's sugar must, therefore, be regarded as duly authorised and lawful, and the appellant by obstructing its removal, committed an offence under section 186 of the Indian Penal Code even on the stricter construction placed · on that pro-vision by the Calcutta High Court. The view we have expressed above receives support from the decision of the Privy Council in Sibnath Baneriu's case(1).
Section 2(1) of the Defence of India Act, 1939, as amended by section 2 of the Defence of India (Amendment) Act, 1940, empowered the Central Government to make rules for securing the defence of British India, the public safety, the maintenance of public order, etc. , and sub-section (2) enacted "without prejudice to the generality · of the powers conferred by sub-section (1), the rules may provide for all or any of the following matt.! rs ...... ". Among such matters was the detention of any person "reason-ably suspected" of having acted etc. in a manner prejudicial to the public safety etc. [clause (x) ]. Rule 26 of the Rules made under the section, however, authorised the Government to detain a person "if it is satisfied" that it was necessary ro detain him with a· view to prevent . him from acting prejudicially ....... . The Federal Court held (9) that this rule was ultr• vires as it went beyond the .
scope of clause (x) in that it left it to the satisfaction of the Government to decide whether or not it was necessary to detain :a (1) [19+5] F. C. R. 195; 72 I. A. 241, 248. · (2) (19+4] p;c, person. The decision was reversed and Lord Thanker-ton, delivering the judgment of the Board, observed : "In the opinion of their Lordships, the function of sub-section (2) is merely an illustrative one; the rule-making power is conferred by sub-section (1), and "the rules" which are referred to in the opening sentence of sub-section (2) are the rules which are authorised by, and made under, sub-section ( 1) ; the provisions of sub-section (2) are not restrictive of sub-section (1), as, indeed is expressly stated by the words "without prejudice to the generality of the powers conferred by sub-section (1)".
"There can be no doubt-as the learned Judge himself appears to have thought-that the general language of sub-section (1) amply justifies the terms of rule 26, and avoids any of the criticisms which the learned Judge expressed in relation to sub-section (2) ". This accords with our view of the effect of sub-sections (l) and (2) of section 3 of the Act. The appeal is dismissed. The appellant's bail bond is cancelled and he is ordered to surrender. Appeal dismissed. Agent for the appellant: Rajinder Narain. Agent for respondent and Intervener: P. A. Mehta. R. R. CHARI "· THE STATE OF UTTAR PRADESH [SHIU Rum. AL KANIA C. J, PATANJALI SASTRI and DAS JJ. ) Indian· Penal Code (XLV of 1860), SI. 161. 165-Criminal l'rocedure Code, 1898, ss. 190, 197-Preveniion of Corruption Act (II of 1947), ss. 3, 6-0fjence under ss. 161 and 165, l. P. C. -War-ra. nt issued by Magistrate during investigation by police-Sanction under s. 197, Cr. P. C.
, not obtained before iS1uing warrant- Le11ality of trial-When Magistrate takes "cognisance" of offence. Un«r •· ~ of the Prevention of Corruption Act, 1947, an offcnc:c pllnishable under •· 161 or s. 165 of the Indian Penal Code
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