Kashi Nath Pal vs State

N.C. Talukdar, J.—This Rule is at the instance of the three accused Petitioners, Kashi Nath Pal, Rabindra Nath Samanta and Gobinda Chandra Dey and is directed against two charges framed against the accused Petitioner No. 1 u/s 7(l)(a)(ii) of Act X of 1955 and against the other two accused persons u/s 8 of the said Act and for quashing the resultant proceedings being D.E.B.G.R./T. 550/73 Case No. 178 of 1972 pending before Sri B. Kundu, Subdivisional Judicial Magistrate, Midnapore.

A short point of law is involved in this case and the facts need not be set out in details except to the extent as is necessary for a proper consideration of the point involved. The First Information was lodged by one Sri Satya Ranjan Banerjee, Inspector of the Enforcement Branch, Calcutta, at Debra P.S, in the district of Midnapore on November 7, 1972. On November 3 and 4, 1972, the said Inspector of Police along with two other officers checked the godown of the Petitioner No. 1, Kashi Nath Pal, at the Harimati Rice Mill compound in Debra. On checking the register and upon physical verification of stock certain discrepancies were found as mentioned in the relevant list prepared at the time. Accordingly, the First Information was filed and on completing the investigation a charge-sheet was submitted on April 27, 1973, under s; 7(l)(a)(ii) of 1955 against the three accused persons. Ultimately on July 17, 1973, the learned Judicial Magistrate framed two charges against the three accused persons, as mentioned above, u/s 7(l)(a)(ii) of the Essential Commodities Act (X of 1955). The first charge against the accused Petitioner No. 1 Kashi Nath Pal is that on or about. November 3, 1972, at Debra P.S. he being the sole distributor of fertiliser over the entire district of Midnapore failed" to maintain correct account of fertiliser of different variety in violation of Article 21 of the Fertiliser (Control) Order, 1957, and thereby committed an offence punishable u/s 7(l)(a)(ii) of Act X of 1955, The second charge against the other two accused'' persons is to the effect that on or about the same day and on the same place they being the manager and salesman of Messrs. Kashi Nath Pal, sole distributors of fertiliser, aided and abated the aforesaid firm Kashi Nath Pal who failed to maintain correct account of fertiliser of the said firm and thus violated the provisions of Section 8 of Act X of 1955 committing an offence u/s 7(l)(a)(ii) of Act X of 1955. The said charges were impugned as also the proceedings pending before the learned Judicial Magistrate, and the present Rule was obtained on July 30, 1973, At the time when the Rule was issued an ad interim stay as prayed for was granted.

Mr. Balai Chandra Roy, Advocate/with Mr. K.D. Jaiswal, Advocate, appearing in support of the Rule raised a short point relating to the retrospective operation of a statute or an order having the force of a statute as passed thereunder. He contended that under Article 21 of the Fertiliser (Control) Order, 1957, relating to the maintenance of record and submission of returns etc. the Controller may by an order in writing direct the manufacturers, dealers or importers of fertilisers of any class thereof to maintain such books of account and records etc. or to submit to such authorities etc. as provided for u/s (a) and (b) thereunder. Mr. Roy contended that Clause (4) of Article 21 of the Fertiliser (Control) Order, 1957, was issued on March 19, 1973, but the date of the offence, as mentioned in the charges, is on or about November 3, 1972, which is much before the date of issue of the aforesaid order. There cannot be any offence, therefore, on a purported violation of Article 21 because a relative order thereunder was not even issued on the date of the offence. Mr. Narayan Ranjan Mukherjee, Advocate, joined issue and submitted that it was rather premature at this stage to quash the proceeding or set aside the charges because the points raised would be triable'' on relative evidence to be adduced.

Having heard the learned Advocates appearing on behalf of the respective parties and on going through the materials on record, I find that there is considerable force behind the submission of Mr. Roy. The point at issue on ultimate analysis is a point of law and the same sticks out for miles. The point ultimately is whether the provisions of Article 21 of the Fertiliser (Control) Order, 1957, can have any retrospective operation to validate the proceedings in the Court below started on the footing of a purported violation taking place on or about November 3, 1972, much before the date when the order under relative clause was issued. As to the retrospective operation of the statute it has been observed in Maxwell''s Interpretation of Statutes (12th ed.) that upon the presumption that the Legislature does not intend what is unjust rests the leaning against giving certain statutes a retrospective operation.

The underlying principle is based on the well-known maxim ''Nova Constitution futuris formam imponere debet non praerrtis'' (A few law ought to affect the future and not the past). One of the most well-known observations on the point is by Lord Writ in Re Athlumney: Ex parte Wilson (1898) 2 Q.B. 547 (551-2) that perhaps no rule of construction is more firmly established than this that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment.

I respectfully agree and hold that a statute is not to be construed to have greater retrospective operation than its language renders necessary, and giving my anxious consideration to the provisions of Article 21 of the Fertiliser (Control) Order, 1957, I find that there is no such retrospective operation given thereto either specifically or by necessary intendment. It is pertinent in this connection to refer to the observations of Lord Macnaughten in the case of The Colonial Sugar Refining Co. Ltd. v. Irving (1905) A.C. 369 (372) wherein an interference with existing rights contrary to the well-known general principle that statutes are not to be held- to act retrospectively unless a clear intention to that effect is manifested is deprecated. I agree with the said observation and I hold that the provisions of Article 21 of the Fertiliser (Control) Order, 1957, should not be given a retrospective operation to include an incident taking place on or about November.3, 1972, purporting to attract the penalty u/s 7(l)(a)(ii) of Act X of 1955 because of such contravention. The point is one of law and the contentions raised by Mr. Roy, accordingly, succeed.

In the result, I make the Rule absolute; set aside the two charges framed by Sri B. Kundu, the learned Judicial Magistrate, Midnapore; and quash the proceedings, being D.E.B.G.R. Case No. 178 of 1972 pending before the learned Subdivisional Judicial Magistrate u/s 7(l)(a)(ii) of Act X of 1955.