Gum Bahadur vs State

P.N. Mookerjee, J.—The Petitioner in this case was placed on trial before Sri C.L. Choudhury, Magistrate, First Class, Asansole, on a charge of violating the provisions of Sub-section (3) of Section 6 of the West Bengal Security Act, 1950, on the ground that he did not comply with the order, dated August 24, 1953, of the Works Manager Mr. H.H. Drake, for regulating the conduct of the permit holders in a protected place, namely, the Indian Iron and Steel Company''s Works at Burnpur, declared to be a protected place under Notification No. 5306 P., dated August 22, 1953. He was convicted by the learned trying Magistrate and sentenced to pay a fine of Rs. 200; in default, to suffer rigorous imprisonment for six weeks. His appeal to the Sessions Judge was dismissed. Thereafter, he obtained the present Rule.

It appears that the Indian Iron and Steel Company''s Works at Burnpur was declared a protected place under Notification No. 5306P., dated August 22, 1953, by the State Government. In the said Notification the Works Manager of the said company, along with certain other persons, named therein, was authorised to grant permission under Sub-section (2) of Section 6 of the West Bengal Security Act, 1950. On the submissions, made before me, this delegation appears to have been made u/s 38 of the Act. On August 24, 1953, the Works Manager purported to issue a notice (Ex. 3) under Sub-section (3) of the said Section 6 for regulating the conduct of persons who were granted permission under Sub-section (2) in regard to the protected place, namely, the Indian Iron and Steel Company''s Works at Burnpur. This was obviously done on the strength of the delegated authority, referred to above. The Petitioner was an employee of the aforesaid company and the charge against him is that he contravened the above notice of the Works Manager, issued under Sub-section (3) of Section 6.

The principal point which requires discussion in this Rule is whether the said notice, issued by the Works Manager, was valid in law so as to justify a prosecution and conviction for contravention of the same. Mr. Roy, appearing on behalf of the Petitioner, has drawn my attention to two cases of this Court. Khagendra Nath De Vs. District Magistrate of West Dinajpur, , and Jatish Chandra Ghosh Vs. B.K. Sinha, , where it was held that

Section 38 of the West Bengal Security Act, 1950, under which the State Government is empowered to delegate its power or duty, conferred or imposed upon it by any provision of the Act, is ultra vires the Constitution.

That was also the view which appears to have been taken by another Division Bench of this Court in the case of Janab Tozammal Khundel Sahaji Vs. Joint Secretary to the Government of West Bengal, . In spite of these decisions, no action appears to have been taken by the authorities concerned-at least none is shown to me,-to counteract their adverse effect. The Bench decisions are binding upon me and I must, therefore, proceed on the footing that the State Government has no such power of delegation in law as was attempted to be conferred upon it by Section 38.

The delegation in the present case to issue the order (notice) under Sub-section (3) of Section 6 for regulating the conduct of persons, holding permits under Sub-section (2), was obviously made u/s 38, because no other provision was or could be pointed out to me in support of the said delegation. The result at once follows that the notice (order), issued by the Works Manager on August 24, 1953, which is Ex. 3 in the case and for contravention of which the Petitioner was placed on trial, is bad in law. There cannot, therefore, be any prosecution or conviction for such contravention, if any.

On behalf of the State, an attempt was made to distinguish the cases cited and to limit the scope of their authority but the argument is unconvincing and I do not feel impressed by it. It is idle to contend that those decisions are distinguishable as the acts, there complained of, were of a different nature, namely subversive acts under another section (Section 21) of the Act. The basic reason, underlying the decision on this point (vide Khagendra Nath De v. District Magistrate of West Dinajpur (supra) at p. 59 per Harries, C.J.), is wide enough to cover the present case. I do not also agree with the learned Sessions Judge that the defect of Section 38, as pointed out by this Court, is cured by naming specifically the delegates in the order of delegation. As I read the decisions cited, they pronounced Section 38 to be ultra vires and invalid while considering delegations in favour of persons (delegates) as much specifically named as in the present case and in spite of such naming and specification. I hold, therefore, on the authority of those decisions, that Section 38 of the Act is ultra vires and delegation under that section is invalid and, that being so, the notice (Ex. 3) has no force in law and the Petitioner''s conviction and sentence for contravention of the same cannot stand.

In the above view of the matter it is perfectly clear that the Petitioner was wrongly convicted and sentenced by the learned trying Magistrate and his appeal also was wrongly dismissed by the learned Sessions Judge. The said conviction and sentence must, therefore, be set aside. I order accordingly.

In the circumstances of this case, I do not think that interests of justice require that the Petitioner should be re-tried on any amended charge.

I, accordingly, make this Rule absolute and acquit the Petitioner.

The fine, if paid, may be refunded.