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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 ..... mendment Act a retrospective operation insofar as it creates new offences or provides for an enhanced punishment. Appeal dismissed. - CRL. A. 40 OF 1979 - - - Dated:- 7-12-1982 - SEN A.P., VENKATARAMIAH E.S, MISRA R.B., JJ. For the Appellant : D. Mukherjee, Pradeep Ghosh and P.K. Mukherjee For the Respondent : N.C. Talukdar, G.S. Chatterjee and Amlan Ghosh JUDGMENT 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 launched under s.16(1) (a) read with s.7 of the Act in the State of West Bengal between the period from April 29, 1974 to April 1, 1976. Such offences according to the law then in force i.e. the Act as amended by the Prevention of Adulteration of Food, Drugs and Cosmetics (West Bengal Amendment) Act, 1973 (for short "the West Bengal Amendment Act") were punishable with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he law in force in the State of West Bengal was 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(1) sustained 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 Division Bench of the High Court 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(1)(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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he First Class shall try any offence under this Act." ** ** ** ** 21. Notwithstanding anything 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 authorized by this Act, in excess of his powers under s. 32 of the said Code." 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 Code 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 1, 1972. On April 29, 1974, the Prevention of Adulteration of Food, Drugs and Cosmetics (West Bengal Amendment) Act, 1973 enacted by the Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hom a reasonable complaint has been made or credible information has been received of his having been concerned in any of the offences punishable under this Act." The Act also introduced s.19A with regard to burden of proof and it read : "19A. When any article intended for food is seized from any person in the reasonable belief that the same is adulterated or misbranded the burden of proving that such article intended for food is not adulterated or misbranded shall be on the person from whose possession such article intended for food was seized." It was not long before Parliament stepped in to meet the growing menace of the anti-social offence of adulteration of articles of food meant for human consumption which was a threat to the national well-being and it was felt that such offences must be ruthlessly dealt with. It was also felt that there should be a summary trial of these offences. The Prevention of Food Adulteration (Amendment) Act, 1976 was accordingly brought into force with effect from April 1, 1976. It not only created new offences but also enhanced the punishments provided. But at the same time it also provided for graded punishment for various types of offences. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code." There were some corresponding changes brought about in s.20 of the Act. Sub-s.(2) of s.20 provides : "(2) No Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence under this Act." There is no doubt or difficulty as to the law applicable. Art. 254 of the Constitution makes provision firstly, as to what would happen in the case of conflict between a Central and State law with regard to the subjects enumerated in the Concurrent List, and secondly, for resolving such conflict. Art. 254(1) enunciates the normal rule that in the event of a conflict between a Union and a State law in the concurrent field, the former prevails over the latter. Clause (1) lays down that if a State law relating to a Concurr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Temporary Powers) Act, 1946 was enacted by the Central Legislature, s.7 of which provided for penalties for contravention of orders made under s.3 of the Act. The provision with regard to the penalties was that if any person contravenes any order made under s.3, he shall be punishable with imprisonment for a term which may extend to three years or with fine or with both. The then Province of Bombay felt that the maximum punishment of three years, imprisonment provided by s.7 of the Act was not adequate for offences under the Act and with the object of enhancing the punishment provided therein, enacted Act 36 of 1947. By s.2 of that Act it was provided that notwithstanding anything contained in the Essential Supplies (Temporary Powers) Act, 1946, whoever contravenes an order made under s.3 of the Act shall be punishable for a term 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. The Bombay Act thus increased the sentence to imprisonment for seven years and also made it obligatory to impose a sentence of fine, and further provided for a minimum sentence of six months and the Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of an offence has no right to trial by a particular court or to a particular procedure, the prosecutor equally has no right to insist upon that the accused be subjected to an enhanced punishment under the repealed Act. The dictum of Sargant.J. in re Hale s Patent is therefore not applicable. Whenever there is a repeal of an enactment, the consequences laid down in s.6 of the General Clauses Act though it has been specifically mentioned in the repealing Act or not, will follow, unless, as the section itself says, a different intention appears. In State of Punjab v. Mohar Singh(1), this Court has elaborately dealt with the effect of repeal. In the case of a simple, repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject, the Court would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention. "The line of inquiry would be, not whether the new Act expressly keeps alive old rights and liabilities", in the words of Mukherjee,J., "but whether it manifests an intention to destroy them." The Court held that it cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judge refers to the language of the statute itself. He observes that unlike many other statutory provisions creating similar offences and providing punishment therefor, in the Act the material provisions are not in terms like "any person guilty of an offence of manufacturing, storing, selling or distributing any article of food which is adulterated shall be punishable with...". On the other hand, he points out that the terms of s. 16(1)(a) of the Act are "if any person..... manufactures for sale, or stores, or sells, or distributes any article of food which is adulterated, he shall.....". The learned Judge is of the view that on the words used and on their terms the only consistent implication is that such manufacture, storage, sale or distribution must be after the enactment has come into force and not prior thereto. In our view, nothing really turns on the language of s. 16(1)(a) because the Central Amendment Act has not created a new offence thereby but dealt with the same offence as before. Lastly, the learned Judge refers to the new offences created by the Central Amendment Act, one of them being that under s. 16(1)(b) of the Act with regard to manufacturing for sale, or st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law is not an ex post facto law. Every law that takes away or impairs rights vested agreeably to existing laws is retrospective, and is generally unjust and may be oppressive ; it is a good general rule that a law should have no retrospect, but in cases in which the laws may justly and for the benefit of the community and also of individuals relate to a time antecedent to their commencement : as statutes of oblivion or of pardon. They are certainly retrospective, and literally both concerning and after the facts committed. But I do not consider any law ex post facto within the prohibition that mollifies the rigour of the criminal law, but only those that create or aggravate the crime, or increase the punishment or change the rules of evidence for the purpose of conviction ..... There is a great and apparent difference between making an unlawful act lawful and the making an innocent action criminal and punishing it as a crime." To illustrate, if Parliament were to re-enact s. 302 of the Indian Penal Code, 1860 and provide that the punishment for an offence of murder shall be sentence for imprisonment for life, instead of the present sentence of death or imprisonment for life, then ..... X X X X Extracts X X X X X X X X Extracts X X X X
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