AI Structured Summary
Not yet generated for this judgment
Judgment
Krishnaswamy Reddy, J.—This petition has been filed by the accused to quash the proceedings pending in C.C. No. 627 of 1969 on the
file of the Sub Divisional Magistrate, Poonamallee on the ground that the prosecution under the following two charges was not maintainable. The
charges framed against the Petitioner are as follows:
That you on or about the 30th day of May. 1963 at Adavalampattu sold 4500 bricks through invoice No. 86 and 76.000 bricks through invoice
No. 88 to M/s. Modern Housing Construction, Royapettah at the price of Rs. 75 per thousand bricks, a price in excess of the prices specified in
Sch. II of the Madras Bricks (Control of Price and Supply) Order 1963 and thereby committed an offence punishable under R. 125 (a) (A) of the
Defence of India Act, 1962, r/w. R. 5 (b) of Madras Bricks (Control of Price and Supply) Order 1963 and within my cognizance.
Or in the alternative on or about the 30th day of May, 1963 at Advalampattu sold 4500 bricks through invoice No. 86 and 75000 bricks
through invoice No. 88 to Messrs. Modern Housing Construction, Royapettah at the price of Rs. 75 per thousand bricks a price in excess of the
prices specified in schedule II of the Madras Bricks (Control of Price and Supply) Order, 1963, and thereby committed an offence punishable
under Rule 7(1)(a) (ii) of the Essential Commodities Act, r.w. R. 5(b) of Madras Bricks (Control of Price and Supply) Order 1963 and within my
cognizance.
Before these charge were framed on the charge sheet filed by Maduraivoyal Police, the Petitioner raised a preliminary objection before the Sub
Divisional Magistrate that the prosecution under R. 5 (b) of the Madras Bricks (Control of Price and Supply) Order 1963 was barred, in view of
the fact that this order was subsequently cancelled by another order in 1965 and that the Essential Commodities Act made applicable to bricks as
essential commodity in 1966 had not saved the prosecution which had already become barred by virtue of the notification of cancellation of the
earlier order in 1965. The Sub Divisional Magistrate framed charges making a note that this objection could be considered later. Hence this
petition for quashing the charges in the proceedings has been filed.
The above two charges were framed alternatively for contravention of R. 5 (b) of the Madras Bricks (Control of Price and Supply) Order,
1963. In the first charge, Rule 125(9)(a) of the Defence of India Rules, 1962 was invoked for punishment and for the second charge, S. 7 (1) (a)
(ii) of the Essential Commodities Act was invoked for punishment. The learned Sub Divisional Magistrate appears to have a doubt in his mind
whether violation of Cl. 5 (b) of the Madras Bricks (Control of Price and Supply) Order, 1963, could be made punishable either under Defence of
India Rules or under the Essential Commodities Act.
The learned Counsel for the Petitioner contended that the offence alleged to have been committed by the Petitioner under Cl. 5 (b) of the
Madras Bricks (Control of Price and Supply) Order, 1963 was cancelled by the subsequent order in 1965 and that no savings of the act done or
omitted to be done under the earlier Orders were provided and therefore the prosecution either under Defence of India Rules or under the
Essential Commodities Act in respect of an act done, which was not saved was barred. Thiru K. V. Sankaran, Advocate of this Court has been
appointed as amicus curiae to assist the court.
It is, therefore, necessary to note the relevant orders and the provisions of the Act to consider the contentions raised by the Petitioner.
In exercise of the powers conferred under Rule 125 of the Defence of India Rules, 1962, a notification was made in G.O. Ms. 2264, Industries,
Labour and Co-operation dated 16th April, 1963 which is called the Madras Bricks (Control of Price and Supply) Order 1963 and by Clause 5
(b) of the said notification, a person was prohibited from selling or attempting to sell or abet in the sale of bricks to any person at a price in excess
of the price specified under Schedule II to the notification. According to the charge framed by the learned Sub Divisional Magistrate, the offence
was alleged to have been committed by the Petitioner by selling bricks at a rate in excess of the price specified in Schedule II on 30th May, 1963
after the notification G. O. Ms. No. 2264, Industries, Labour and Co-operation dated 16th April, 1963 came into effect. The offence under this
notification was made punishable u/s 125(9)(a) of the Defence of India Rules, 1962.
Another notification G. O. Ms. No. 1698, Industries, Labour and Co-operation dated 26th March 1965 cancelled the previous notification.
This notification has not provided any savings clause. This notification was also made under Rule 125 of the Defence of India Rules, 1962.
Defence of India Rules, 1962 was only a temporary measure and it is well settled that the General Clauses Act will not apply to temporary Acts. If
this present prosecution was instituted subsequent to the notification of cancellation without savings after the date of the said notification, it would
certainly not be maintainable. But, what happened further is this. The Government by its notification, G.O. Ms. 5349, Industries, Labour and Co-
operation, dated 15th November, 1965 made under Rule 125 of the Defence of India Rules, 1962, again re-introduced the same provisions
contained in Madras Bricks (Control of Price and Supply) Order 1963. It may be relevant to note here itself, that subsequent to the cancellation of
1963 Order which was on 26th March, 1965, till the re-introduction of the order of 1965 which was on 15th November, 1965, no order
restricting or regulating the manufacture, sale, etc. of bricks was in force during that period. Thus there was a gap for about eight months. It is
significant to note that no savings provision has been made in this order. It is obvious that such a provision was not made as the previous order was
not in force at the time when this order was introduced. Therefore, the acts done or omitted to be done under the previous Order which was
cancelled by subsequent order G. O. Ms. 1698 Industries, Labour and cooperation dated 26th March, 1965 came to an end and nothing
remained to be saved. The notification in G.O. Ms. No. 5349, Industries, Labour and co-operation is a fresh order and this order is not made
either in continuation or repeal of the previous order which came to an end in Mach, 1965.
G. O. Ms. No. 5349, Industries, Labour and Co-operation dated 15th November, 1965 which was notified under Rule 125 of the Defence of
India Rules, 1962 was cancelled again on 30th June, 1966 and on the same day in exercise of powers conferred by Section 3 of the Madras
Essential Articles Control and Requisitioning (Temporary Powers) Act, 1949 a notification was made by the Government of Madras in G. O. Ms.
2775, Industries, Labour and Housing by which the violations of the rules made thereunder were made punishable u/s 7(i)(a)(ii) of the Essential
Commodities Act. This notification provided savings in the following terms:
Anything done or any action taken under the provisions of the Madras Bricks (Control of Price and Supply) Order, 1965 shall be deemed to have
been done or taken under the corresponding provisions of the order.
This provision has saved only those things done or actions taken under the Madras Bricks (Control of Price and Supply) Order, 1965 which
was made on 15th November, 1965. What was saved was only those things done under Madras Bricks (Control of Price and Supply) Order,
1965. As already noted, the previous order under which prosecution was instituted, namely, Madras Bricks (Control of Price and Supply) Order
1963 came to an end in March, 1965, and acts done or omitted to be done under that order were not saved by the cancellation order of March
1965 or the re-introduction order in November, 1965. It is, therefore, clear that the present prosecution instituted for the violation of clauses under
Madras Bricks (Control of Price and Supply) Order, 1963 is not maintainable.
In the result, the proceedings pending in C.C. No. 627 of 1969 on the file of the Sub Divisional Magistrate, Poonamallee are quashed. The
valuable assistance rendered by Mr. K. V. Sankaran, amicus curiae is appreciated and recorded.