TMI Blog1954 (10) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... ct No. XXIV of 1946. The charge against the appellant was that on 6th April, 1951, he had transported 15 maunds of juwar from his village of Khanjroli to Mandvi without a permit, and had thereby contravened 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 him guilty, and sentenced him to imprisonment till the rising of the Court and a fine of Rs. 500. The conviction and sentence were both affirmed by the Sessions Judge, Surat, on appeal. The appellant thereafter took up the matter in revision to the High Court of Bombay, and there for the first time, took the objection that the Resident First Class Magistrate had no jurisdiction to try the case, because under section 2 of the Bombay Act No. XXXVI of 1947 the offence was punishable with imprisonment, which might extend to seven years, and under the Second Schedule to the Criminal Procedure Code, it was only the Sessions Court that had jurisdiction to try such offence. The answer of the State to this contention was that subsequent to the enactment of the Bombay Act No. XXXVI of 1947, the Essential Supplies (Temporary Powers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t conferred power on the Central Government to issue orders for regulating the production, supply and distribution of essential commodities, and under section 4, this power could be delegated to the Provincial Government. Section 7(1) provided for punishment for contravention of orders issued under the Act, and ran as follows: 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 considered that the maximum punishment of three years' imprisonment provided in the above section was not adequate fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that, Where the contravention is of an order relating to foodstuffs which contains an express provision in this behalf, the Court shall direct that any property in respect of which the order has been contravened shall be forfeited to His Majesty, unless for reasons to be recorded in writing it is of opinion that the direction should be made not in respect of the whole, or as the case may be, a part of the property. The Essential Supplies (Temporary Powers) Act was again amended in 1949. Under this amendment, the proviso to section 7(i) was repealed, and a new clause substituted in the following terms: (b) Where the contravention is of an order relating to foodstuffs, the Court shall (i) sentence any person convicted of such contravention to imprisonment for a term which may extend to three years and may, in addition, impose a sentence of fine, unless for reasons to be recorded, it is of opinion that a sentence of fine only will meet the ends of justice; and (ii)direct that any property in respect of which the order has been contravened or a part thereof shall be forfeited to His Majesty, unless for reasons to be recorded it is of opinion that such directio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... both, and if the order so provides, any property in respect of which the Court is satisfied that the order has been contravened may be forfeited to the Government. (4)If any person to whom a direction is given under sub- section (4) of section 3 fails to comply with the direction, he shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both. It must be mentioned that while the amendments of 1948 and 1949 were made when section 107(2) of the Government of India Act was in force, the Constitution of India Act had come into operation, when Act No. LII of 1950 was enacted. Article 254(2) of the Constitution is as follows: Where a law made by the Legislature of a State specified in Part A or Part B of the First Schedule with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall,, if it has been reserved for the consideration of - the President and has received his assent, prevail in that State : Provided that nothing in thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in respect of the same matter. If the later legislation deals not with the matters which formed the subject of the earlier legislation but with other and distinct matters though of a cognate and allied character, then article 254(2) will have no application. The principle embodied in section 107(2) and article 254(2) is that when there is legislation covering the same ground both by the Centre and by the Province, both of them being competent to enact the same, the law of the Centre should prevail over that of the State. Considering the matter from this standpoint, the first question to be asked is, what is the subject-matter of the Bombay Act No. XXXVI of 1947? The preamble recites that it was to provide for the enhancement of penalties for contravention of orders made under the Essential Supplies (Temporary Powers) Act, 1946. Then the next question is, what is the scope of the subsequent legislation in 1948, 1949 and 1950 ? As the offence for which the appellant has been convicted was committed on 6th April, 1951, it would be sufficient for the purpose of the present appeal to consider the effect of Act No. LII of 1950, which was in force on that date. By that Act, secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of mere punishment under the Essential Supplies (Temporary Powers) Act and its amendments; and in this, with respect, he fell into an error. The question of punishment for contravention of orders under the Essential Supplies (Temporary Powers) Act both under Act No. XXXVI of 1947 and under Act No. LII of 1950 constitutes a single subject. matter and cannot be split up in the manner suggested by the learned Judge. On this principle rests the rule of construction relating to statutes that when the punishment or penalty is altered in degree but not in kind, the later provision would be considered as superseding the earlier one. (Maxwell on Interpretation of Statutes, 10th Edition, pages 187 and 188). It is a well settled rule of construction , observed Goddard J. in Smith v. Benabo(1), that if a later statute again describes an offence created by a previous one, and imposes a different punishment, or varies the procedure, the earlier statute is repealed by the later statute: see Michell v.Brown(2), per Lord Campbell. It is true, as already pointed out, that on a question under article 254(1) whether an Act of Parliament prevails against a law of the State, no question of repeal a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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