T. BARAI v. HENRY AH HOE AND ANOTHER (2)

Citation: [1983] 1 S.C.R. 905

Court: Supreme Court of India

Bench: A.P. SEN, E.S. VENKATARAMIAH, R.B. MISRA

Case summary

This appeal by special leave from a judgment of the Calcutta High Court dated June 5, 1978 raises a question of some complexity. 1075) in which it was held that the Central Amendment Act was not intended to be retrospective in operation because it had not expressly repealed...

Judgment text

-T. BARAi V, HENRY AH HOB AND ANOTHER December 7, 1982 [A. P. SEN, B. S. VENltTARAMIAH AND R. B. MISRA, ff] interpretation of Statutes-Central Act on a Jubject i'n Concurrent List amended by State Act-State Act enhanced punishment--A later Central Amendment Act with respect to the same matter reduced the punjshment-State . amendmint ifimpliedly repealed-Repeal followed by fresh legislation-Section 6 of General Clauses Act-If applicable. For'committing an offence under section 16(1)(a) of the Prevention of Food Adulter8. tion Act, 1954, as it stood on March 1, 1972,'the maximum punish- •' ment prescribed was imprisonment for six years and fine. Section 2l of the Act provided that such offences were triable by a Presidency Magistrate or Magistrate 'First Class. By the Prevention of Adu1~eration of Food, Drugs and Cosmetics· (West Bengal Amendment) Act.

1973, enacted by the State Legislature of West Bengal,· the maximum punishment for an offence under this section had been enhanced to iolprisonment for life, as a result of which an offence committed under the section in the State of West Bengal became exclusively triable by court of sessions. The Amendment Act r~ccived the assent of the President and came into force from April 29, 1974. In 1976 Parliament amended the Food Adulteration Act and the amendment came into force with eff'"'ct from April 1, 1976. For offences punishable under section 16(1)(a) the Amendment Act provided for. a reduced punishment for a term of three years instead of six years as before. By the same Amendment Act section J6A was inserted in the Act · providing that all offences under section 16(1) shall be tried in a summary way by a Judicial Magistrate, First Class, or by a Metropolitan Magistrate.

On September 24, I975 the appellant lodged a complaint against the respondent for having committed an offence punishable u·nder section l6{1)(a) read with section 7 of the Act. On the date ·qf the commission of the alleged offence the Jaw in force in the State of West Beiigal was the 1954 Act as amended by the West Bengal Amendment ·Act. .. Purporting to follow the decisio~ of a single Judge of the Calcutta High Court in B. Manna and Ors. . v. State of West Bengal, (81 C. W. N. 1075) in which it was held that the Central Amendment Act was not intended to be retrospective in operation because it had not expressly repealed the West Bengal amendment nor dealt with the Act or any of its provisions in any manner.

the Magistrate held that the case was triable by the Court 9f $essiop3, DiSagreeing with the view of the single JuUge, a Divsion Bench of the High Court held that after the Central Amendment Act came into rOrce on April 1, 1976 all proceedings pending for trial of offences punishable under' s. J6(1)(a) as amended by tbe West Bengal Act which had not been. concluded, would cease to be governed by the West Bengal Amendment Act and would come within the purview of the Central. Act as amended by. the Central Amendment Act and that therefore such offences committed prior to the amendment were triable ·in aCcordance with the procedure under s. ,16A as amended by the Central Amendment Act. On the question whether the previous operation of the repealed West Bengal Amendment Act in respect of any liability incurred thereunder is preserved bys. 8 of the Bengal General Clauses Act, 1899 which is in pari materia withs. 6 of',lhe General.

Clauses'Act, 1897 both as to procedure for trial of such offences and the nature of punishment liable to be imposed. Di'smissing the appeal, HELD : By virtue of the proviso to Art. 254 (2) of the Constitution, Parliament may repeal or amend a repugnant State Jaw either directly or by itself 'by enacting ala\v repugnant to the State law with respect to the ~ame m8. tter. Even though the subsequent law inade by Parliament does not expressly repeal a State law, the State Jaw will become void under Article 254 (I) if it conflicts with a later law made by Parliament creating repugnancy. Such repugnancy may arise where both laws operate in the same field and the two cannot possibly stand together: As for example, where both prescribe punishment for the same offence,· both the·punishments differs in degree of kind . or in the procedure prescribed. In all Such cases the law made by Parliament shall prevail over the State law under Art. 254(1).

In the instant case when ParliameOt stepped in and enacted the Central Amendment Act, whicll is a later law made by Parliament with reipect to the same matter the West Bengal A. mendment Act stood impliedly repealed with effect from April 1, 1976. [915 D-G] Zaverbhai Amaidas v. The State ofBombay [1955] l S. C. R. 799, applied. The applicability of section 6 of the General Clauses Act, 1897 is ·not ruled out when there is a repeal of an enactment followed by fresh legislation. But the Parliament having reenacted the Jaw relating to the same offence under s. l6(l)(a) of ihe Act and provided for altered procedure and also provided a reduced sentencr. the accused must be tried according to the new procedure provided by 8• l6A. of lhe Act and inust al~o hav.. : t:li. :: ben-! fit Jfthc reduced punishment. [919 G-H] Dictum of Sargant J. in Re: Hale's Patent L. R. (1920] Ch. 377, held in applicable. Inso/ar as the Central Amendment Act creatl!

s new offenCes or enhances punishment for a panicular t}pe of offence, no person can be convicted by such rex-post facto law nor can Cthe . 'enhanced punishment prescribed by amendment be applicable; but insofar as it reduces the punishment for an offence punishable unde'r s. l6(1)(a) of the Act, there is no re~son why the a"ccused sQould: not T. BARAi v. HBNRY AN HOE (Sen, J. } 907 have the benefit of such reduced punishment. The rule of beneficial construction requires that even ex post factO law of such a type should be applied to- mitigate the rigour of the law. [919 F-Hl Crai~s on'Statute Law, 7th edn. at pp. 387-388 referred to. It is a we11-setiled rule of construction that when a later statute again describes an offence created by an ea. flier statute and imposes a ~ifferent punishment or varies the procedure, the tarlier statute is repealed by implication. Michell v; Brown [1959] 120 ER 909, 912, Smit v. Benabo [1937] 1 All ER 523 and Regjna v.

Youle [1861] 158 ER 311, 315·316 referred to. The rule is however subject to the limitation contained in Art. 20(1) against ex post facto law providing for a greater punishment and has Do application where ·the offence described in the later Act is not the sam~ as in the earlier Act i. e, . when the essential ingredients of the two ·offences are ·different. · In the · premises, the Central Amendment Act having dealt with the same offence as the one punishable under s. 16(1)(a) of the Act and provided for a reduced punish~ ment, the accused must have the benefit of the reduced punishment. [921 E-F] o. CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 40 of 1979. From the Judgment and Order dated the 5th June, 1978 of the Calcuita High Court in Criminal Revision No. 133 of 1978. . E D. Mukherjee, Pradeep Ghosh and P. K. Mukhtrjee for the appellant. N. C. Ta/ukdar and Am/an Ghosh. for respondent Nos. 1 and 2. G. S. Chatterjee foue. spondent No. 3 (State of Bengal).

The Judgment of the Court was delivered· by SEN, J. This appeal by special leave from a judgment of the Calcutta High Court dated June 5, 1978 raises a question of some complexity. The question is as to the applicability of s. 16A of the - Prevention· of Food Adulteration Act, 1954 ("Act" for short) as inserted by the Prevention·of Food Adulteration (Amendment) Act, 1976 (for short "the Central Amendment Act") with respect to prosecutions 1. aunched under s. 16(1) (a) read with s. 7 of the Act in the· State of West Bengal between the period from April 29. ·19H to April l, 1976. Such offences according to the law then in force i. e. the·Act as amend~d ·by the Preve11ti01'.! of A,duller>1tio11 of Food, (1983) 1 S. C. R. Drugs and Cosmetics (West Bengal Amendment) Act, 1973 (for short "the West Bengal Amendment Act") were punishable with imprisonment for life and therefore triable by the Court of Sessions.

It is common ground that the offence with which the respon· · dents are charged is alleged to have been committed under s. 16(l)(a) at a time when the Act stood amended in its application to the State of West Bengal by the provisions of the West Bengal Amendment Act. If the law continued to stand as it stood on the date of the offence which was so committed, there would have been no difficulty . because the maximum penalty would be imprisonment for life and fine and as "such the offences would be exclusively triable by the . Court of Sessions. But a change was brought about when Parliament enacted the Central·Amendment Act which came into force on April 1, 1976 ·by which the scheme of s. 16 of the Act providing for various punishments was materially altered; so also the procedure for the trial of such offences.

The effect of the Central Amendment Act was that the West Bengal Amendment Act stood impliedly repealed with effect from April 1, 1976 and the question is whether the previous operation of the repealed West Bengal Amendment Act in respect of . any liability incurred thereunder is preserved by s. 8 of . the Bengal General Clauses Act, 1899 which is pari materia with s. 6 of the General Clauses Act, 1897 both as to procedure for trial jof such offences and the nature of punishment liable to be imposed. First as to facts. On August 16, 1975 the appellant, a Food Inspector of the Corporation of Calcutta, visited the· Chungwa Res· taurant run by the respondents at Chittaranjan Avenue, Calcutta and purchased a quantity of Hyacinth's ground white pepper (compound) with fried rice powder and sent the same to a Public Analyst for ana· lysis. On such analysis, the sample was found to be adulterated as it contained no rice powder but wheat powder.

On September 24, 1975 the appellant lodged a complaint against the respondents for having committed an offence punishab. le under s. 16(J)(a) rea~ with s. 7 of the Act in the Court of Senior Municipal Magistrate, Calcutta. The gravamen of the charge was that the respondents had stored and/or exposed for sale and/or used Hyacinth's ground white pepper (compound) with fried rice powJer for the purpose of manufacturing and . p. reparing different articles of food which was adulterated and misbranded. On the date of the. commission of the alleged offence i. e. ori August 16,;1975 the law jp force in the· State o! West Bengal was • t. BARAi v. HENRY Aii HOE (Sen, J,) 9o9 the Act as amended by the West Bengal Amendment Act which provided that such an offence would be punishable with imprisonment for life. The learned Magistrate following the decision of Anil Kumar Sen,J. in B. Manna and Ors. v.

The State'of West Bengal(') sustain~ ed a preliminary objection raised· on behalf of the Corporation and held that the case was triable by the Court of Sessions. Disagreeing with the 'view of Anil Kumar Sen, J. in B. Manna's case, (supra). a ·Divisio~ Bench of the High Couri held that after the Central Amendment Act came into force on April 1, 1976, all proceedings pending for trial of such offences punishable under s. 16( I)(a) of the Act as amended by the West Bengal Amendment Act which had not been concluded, would cease to be governed by the West Bengal Amendment Act and would come within the purview of the Act as . amended by the Central Amendment. Act and therefore such offences committed prior to such amendment are triable in accordance with the procedure prescribed by s. 16A of the Act as amended by-the Central Amendment Act. It accordingly set aside the order of the learned Magistrate and directed him to proceed with the trial.

Upon these facts, three questions fall for consideration in the appeal viz. (I) whether the Central Amendment Act impliedly repealed· the· West Bengal Amendment Act with effect from April 1, 1976; and if so, the effect of such repeal. (2) Whether the High Court was justified in holding that the West Bengal Amendment Act shall be deemed to have been obliterated from the Statute Book for all intents and purposes inasmuch as the Central Amendment Act manifests an intention to the contrary so as _to excludethe operation . of· s. 8 of the Bengal General Clauses Act, 1899. And (3) Are the pending proceedings to be governed by the change of procedure brought about by s. I6A of the. Act as introduced by the Central Amendment Act; and further whether the continued operation of the repealed West Bengal Amendment Act is preserved with regard to the punishment to be imposed. For a proper appreciation of· the points in controversy, it is necessary to deal with the statutory changes brought about.

First we may refer to the provisions of the Act as it stood on March I, I972, the relevant provisions whereof were as-follows : , • (1) 81 C. W. N. 107S. • "16(1) If any person - (a) whether by himself or by any oiher person on his behalf imports into India or manufactures for sale, or stores, sells or distributes any article of food- • (i) which is adulterated or misbranded or the sale of which is prohibited by the Food (Health) authority in the interest of public health; (") ... ... II . "* He shall, in addition to the penalty to which he may be liable under the provisions of s. 6, be punishable with imprisonment for a term which shall not be less than six months but which may extend to six years, and with fine which shall not be less than one thousand rupees. 0 Provided that- (i) if the offence is under sub-cl. (i) of cl. (a) and is with respect to an article of food which is adulterated under sub-cl. (i) of cl. (i) of s. 2 or misbranded under sub-cl. (k) of cl.

(ix) of that section ; ·or .... .... ... ** the court may for any adequate and special reasons to · be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months or of fine of less than one thousand rupees or of both imprisonment for a term of less than six months and fine of less than one thousand rupees. " "20(1) ** "" (2) No court inferior to that of a Presidency Magistrate or a Magistrate of the First Class shall try any of(ence under this Act. " .... .... "" *" 21. Notwithstanding rnything contained in s. 32 of the Code of Criminal Procedure, 1898, it shall be lawful for any Presidency Magistrate or any Magistrate of the first class to pass any sentence aut. horized by this Act, in excess of bis powers under s. 32 of the said Code. " T. BARAi v. HENRY AH HOE (Sen, J. ) ! ill On these provisions, the maximum punishment which could be . . imposed for committing any offence under s. 16(1 )(a) was imprisonment for six years and fine.

Such an offence not being under the Indian Penal Code, 1860 was triable not exclusively by the Court of Sessions under the provisions of s. 29(2) of the Cod; of Criminal Procedure, 1973 read with Schedule II thereunder. To overcome the limit imposed by s. 32 of the Code on sentences which a Presidency Magistrate or a Magistrate of First Class could impose, s. 21 of the Act was inserted .. The result was that such offences become triable by a Presidency Magistrate or a Magistrate of the First Class. That was the law in force in the whole of India as on March I, 1972• .. ~--· On April 29, 1974, the Prevention of Adulteration of Food, i Drugs and Cosmetics (West Bengal Amendment) Act, . 1973 enacted by the State Legislature of Wesi Bengal having been assented to by the President, became the Jaw applicable to the State of West Bengal as from that date. It would appear that the State of West Bengal had taken a step forward with a view to. make anti-social offences .

D such as adulteration of articles of food meant for human consumption' ormanufacture or sale of spurious drugs etc. which consdtuted a menace to the society 3 ~-~ In Regina v. Youle,( ) Martin, B. said in the oft-quoted passage: "If a statute. deals with a particular class of offences, and a subsequent Act is passed which deals with precisely the same offences, and a·. different punishment is impo_sed ' by the later Act, I think . that, in effect, the legislature has 0 declared that the new Act shall be substituted for the e1. rlier Act. " The rule is however subject to the limitation contained in Art. 20(1) against ex post facto law providing for a greater punishment and has also no application where the offence described in the later Act is not the same as in the earlier Act i. e. when the essential ingredients of the two offences are different. In the premises, the Central Amendment Act having dealt with the same offence as the one punishable under s.

16(1)(a) and provided for a reduced punishment, the accused must have the benefit of the reduced punishment. We wish to make it clear that anything that we have said ·shall not be constroed as giving to the Central Amendment Aci a retrospective operation insofar as it . ' creates new offences or provides for an enhanced punishment. • In the result, the appeal must fail and is dismissed. P. BR. Appeal dismissed. ... f <I' [1959] 120E. R. 909, 912. •2) [1937] I All. E. R. 523. (3) [1861) 158 E. R. 311, 315-16. ,