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TMI Blog1982 (12) TMI 186X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 respondents are charged is alleged to have been committed under s.16(1)(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 The effect of the Central Amendment Act was that the West Bengal Amendment Act stood impliedly repealed with effect from April 1, 1976 and the question is whether the previous operation of the repealed West Bengal Amendment Act in respect of any liability incurred thereunder is preserved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... directed him to proceed with the trial. Upon these facts, three questions fall for consideration in the appeal viz. (1) whether the Central Amendment Act impliedly repealed the West Bengal Amendment Act with effect from April 1, 1976; and if so, the effect of such repeal.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 exclude the 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by s.16A of the Act as introduced by the Central Amendment Act; and further whether the continued operation of the repealed West Bengal Amendment Act is preserved with regard to the punishment to be imposed.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 1, 1972, the relevant provisions whereof were as follows: "16(1) If any person- (a) whether by h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the State Legislature of West Bengal having been assented to by the President, became the law 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 such as adulteration of articles of food meant for human consumption, or manufacture or sale of spurious drugs etc. which constituted a menace to the society and deserved a deterrent punishment, to be punishable with imprisonment for life. S.6 of that Act inserted the following amendment. "In the Prevention of Food Adulteration Act, 1954- ** ** ** ** ** (ii) in section 16- (a) in sub-s.(l), for the words "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", the words "life and shall also be liable to fine" shall be substituted;" The following words were substituted in the proviso to subs.(1): "(b) in the proviso to sub-s.(1), for the words "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 fine of less than one thousand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tally, it mollified the rigour of the law by providing for a reduced punishment for an offence punishable under s.16(1)(a). We are however not concerned with other types of offences except the one punishable under s.16(1)(a) and for this the maximum punishment provided was for a term of three years instead of six years. In s.16 of the Act for sub-s.(1), the following sub-section insofar as relevant was introduced : "(1) Subject to the provisions of sub-s.(1A), if any person- (a) whether by himself or by any other person on his behalf, imports into India or manufactures for sale, or stores, sells or distributes any article of food- (i) which is adulterated within the meaning of subcl.(m) of cl.(ia) of s.2 or misbranded within the meaning of cl. (ix) of that section or the sale of which is prohibited under any provision of this Act or any rule made thereunder or by an order of the Food (Health) Authority; * * * * * 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 three years, and with fine which shall not be less than one thousand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gnant' to a Union law relating to that subject, then, whether the Union law is prior or later in time, the Union law will prevail and the State law shall, to the extent of such repugnancy, be void. To the general rule laid down in clause (1), clause (2) engrafts an exception, viz., that if the President assents to a State law which has been reserved for his consideration, it will prevail notwithstanding its repugnancy to an earlier law of the Union, both laws dealing with a Concurrent subject. In such a case, the Central Act will give way to the State Act only to the extent of inconsistency between the two, and no more. In short, the result of obtaining the assent of the President to a State Act which is inconsistent with a previous Union law relating to a Concurrent subject would be that the State Act will prevail in that State and override the provisions of the Central Act in their applicability to that State only. The predominance of the State law may however be taken away if Parliament legislates under the Proviso to clause (2). The Proviso to Art.254(2) empowers the Union Parliament to repeal or amend a repugnant State law even though it has become valid by virtue of the Presi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minimum sentence except for reasons to be recorded in writing. The Act having been reserved for the assent of the Governor-General and received his assent under s.107(2) of the Government of India Act, 1935, came into operation in the Province of Bombay notwithstanding the repugnancy. Subsequently, the Essential Supplies (Temporary Powers) Act, 1946 under-went substantial alterations and was finally recast by the Essential Supplies (Temporary Powers) Amendment Act, 1950. The Amendment made in 1950 substituted a new section in place of s.7 of the Act. The scheme of the new section was that for purposes of punishment, offences under the Act were grouped under three categories and the punishment to be imposed in the several categories were separately specified. S.7 was thus a comprehensive Code covering the entire field of punishment for offences under the Act graded according to the commodity and character of the offence. It was held by this Court that the Bombay Act was impliedly repealed by s.7 of the Essential Supplies (Temporary Powers) Amendment Act, 1950. It is strenuously argued on behalf of the appellant that s.16A of the Act is not retrospective in operation, and that it d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad proposition that s.6 of the General Clauses Act is ruled out when there is repeal of an enactment followed by fresh legislation. S 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section. Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new Act and the mere absence of a saving clause is not by itself material. The Court therefore held that the provisions of s.6 of the General Clauses Act will apply to a case of repeal even if there is simultaneous enactment unless a contrary intention can be gathered from the new enactment. Of course, the consequences laid down in s.6 of the General Clauses Act will apply only when a statute or regulation having the force of a statute is actually repealed. It has no application when a statute which is of a temporary nature automatically expires by efflux of time. The principles laid down by the Court in Mohar Singh's case (supra), have consistently been followed in subsequent cases. The old doctrine of extinguishing or effacing the repealed law for all purposes and intents except for the ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ributing any adulterant which was not in the Act at any time before. Accordingly, he holds that it is not possible to give retrospective effect to the other parts of the Act and observes that it could never have been the intention of the Legislature nor was it possible to give retrospective effect to the Act. According to him Art. 20(1) of the Constitution stands in the way of giving retrospective effect to s. 16(1)(b) of the Act and thus renders the act which was otherwise innocent at the time when it was done to be an offence by later enactment. We are not concerned with new offences created by the Central Amendment Act or with offences for which an enhanced punishment is provided for and therefore there is no question of Art. 20(1) of the Constitution being attracted. We are here concerned with the same offence, namely, an offence punishable under s. 16(1)(a) of the Act for which a reduced punishment is provided for. It is only retroactive criminal legislation that is prohibited under Art. 20(1). The prohibition contained in Art. 20(1) is that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would still award a sentence of death even in pending cases. In Rattan Lal v. The State of Punjab(2), the question that fell for consideration was whether an appellate court can extend the benefit of Probation of Offenders Act, 1958 which had come into force after the accused had been convicted of a criminal offence. The court by majority of 2 : 1 answered the question in the affirmative. Subba Rao, J.who delivered a majority opinion, concluded that in considering the question, the rule of beneficial construction required that even ex post facto law of the type involved in that case should be applied to reduce the punishment. It is settled both on authority and principle that when a later statute again describes an offence created by an earlier statute and imposes a different punishment, or varies the procedure, the earlier statute is repealed by implication. In Michell v. Brown(1) Lord Cambell put the matter thus : "It is well settled rule of construction that, if a later statute again describes an offence created by a former statute and affixes a different punishment, varying the procedure, the earlier statute is repealed by the later statute See also Smith v. Benabo.(2) In R ..... X X X X Extracts X X X X X X X X Extracts X X X X
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