P L D 1957 Supreme Court (Pak (PLP)

CORNELIUS, J.‑

This judgment will dispose of Constitutional Criminal Appeals Nos. 1 and 2 of 1956 each of which has been brought before this Court upon a certificate granted by the High Court under Article 157(1) of the Constitution. The appellant in each case is the Chief Secretary to the Government of East Pakistan. The respondents in the first case are Moslem‑ud‑Din Sikdar and Abdul Barek Sikdar. In the second case, the respondents are Muhammad Gulzar Hussain and Muhammad Fakir‑ud‑Din Biswas. The facts of the first case are as follows. Abdul Barek Sikdar was tried and convicted under section 6 of the East Pakistan Food (Control of Movement 'and Distribution) Ordinance 1956 by Lt. Muhammad Afzal Khan, Special Additional Magistrate (Food) and Special Magistrate at Pabna, and was sentenced to undergo 2, years rigorous imprisonment and to pay a fine of Rs.

400. Moslem‑ud- Din Sikdar, who is brother to Abdul Barek Sikdar, moved a petition in the Dacca High Court for a writ of habeas corpus, to secure the release of Abdul Barek Sikdar, on the grounds that the Ordinance in question was "illegal and ultra vires as it offended against Article 110 of the Constitution" and further that the trial was illegal because it offended against Article 7 (i) of the Constitu tion, inasmuch as the accused person had been denied "the right to consult and be defended by a legal practitioner of his choice". In the second case, Fakir‑ud‑Din Biswas had been tried and convicted under section 6 of the said Ordinance and sentenced to undergo rigorous imprisonment for one year and to suffer two stripes, by the same Magistrate. The other respondent Muhammad Gulzar Hussain is nephew to Fakir‑ud‑Din Biswas, and moved a petition for a writ of habeas corpus on his behalf before the Dacca High Court, on grounds similar to those in the first case. The findings of the High Court in the first case may be summarised as follows :‑ (1) the provision in section 20 of the Ordinance to the effect that no order made in exercise of power conferred‑by the Ordinance should be called in question to any Court was not a bar to the exercise of the jurisdiction of the High Court to issue writs under Article 170 of the Constitution, (2) the accused Abdul Barek Sikdar had been denied his constitutional right to consult and be defended by a lawyer at the trial, and therefore the trial and the resulting conviction were illegal, and (3) the Ordinance which purported by its preamble "to provide for the control of movement and distribution of food‑stuffs and for setting up of Courts for speedy trial of offences In relation thereto" contained provisions relating to the subject of "price control" ; that the subject dealt with in the Ordinance as a whole did not fall within any item in the Provincial List includ ed in the Fifth Schedule to the Constitution ; consequently, the penal and procedural provisions contained in the Ordinance could only be made under entries Nos. 1 and 19 of the Concurrent List, and since assent of the President had not been taken, those of the provisions relating to penal law and procedure contained in the Ordinance which were inconsistent with the Code of Criminal Procedure, 1898, must "gave way" to the provisions of the said Code ; consequently, sections 11, 12, subsection (2), 13, 14 and 18 were held to be void and Inoperative, and in consequence "the pretended trial of the prisoner was vitiated with illegality." In the second case, the High Court did not decide questions of fact affecting the legality of the trial, although they discussed one such matter without reaching a decision, but proceeded to hold for the reasons they had already given in the other case that the trial was held "in breach of the mandatory provisions of the Code of Criminal Procedure" and consequently the conviction and sentence were void and illegal. In both cases the rules issued were made absolute, and the prisoners were directed to be set at liberty. The present appeals have been brought on behalf of the East Pakistan Government with the express object of obtaining a decision from this Court regarding the legality of the Ordinance in question. We are informed that this Ordinance has since been repealed and replaced by another Ordinance, which however expressly validates convictions recorded under the repealed Ordinance. A number of motions are said to be pending In the High Court, calling in question the validating of convictions of this kind, and the decision of these cases will turn upon the finding given by this Court. The view taken by the High Court that section 20 of the Ordinance does not oust the High Court's jurisdiction under Article 170 of the Constitution is not challenged before us. Nor does the learned Attorney‑General of Pakistan, who appeared for the appellant‑Government, seek to challenge the finding that a fundamental right secured by Article 7, clause (1) of the Constitu tion had been denied to Abdul Barek Sikdar. Upon that ground alone, Abdul Barek Sikdar was entitled to the order he had obtained from the High Court, and it follows that, irrespective of the result of the Crown appeal in his case, he is entitled to his full costs. In the second case, the only question decided by the High Court being as to the vires of the Ordinance, and there being questions of fact which were raised in the petition before the High Court but were left undecided, it might have been necessary to provide for decision of these questions in the event of the Provincial Government's appeal being successful. This necessity has however been avoided by reason of an undertaking given by the learned Attorney‑General of Pakistan, who appears for the appellant‑Government, that even if the appeal be successful, no further action under the Ordinance will be taken against Fakiruddin Biswas. Accordingly, we are left to consider a single question in the present case, namely, whether the provisions of the impugned Ordinance or any of them, are void, by reason of anything con tained in the Constitution. A resume of the principal features of the Ordinance is contained in the elaborate judgment delivered by the High Court in the first case, which may conveniently be quoted in extenso, as it appears to us to be fully adequate for the purposes of this judgment :‑-- "In the preamble it sets out that this Ordinance was enacted with a view to provide for powers to control the movement and distribution of food‑stuffs in East Pakistan and for setting up of Courts for speedy trial of offences in relation thereto. The Ordin ance casts a duty on the Provincial Government to appoint a Chief Food Administrator who will be responsible for overall control and distribution of food‑stuffs in the Province and it further provides that the Provincial Government may on the recommendation of the Chief Food Administrator appoint Additional District Magistrates (Food) and Additional Sub Divisional Magistrates (Food) and that such Magistrates shall have the powers of a Magistrate of the First Class under the Code of Criminal Procedure, 1898. Such Magis trates called Special Magistrates, were to try and punish offences under the Ordinance and offences specified in the Schedule in relation to food‑stuffs committed within their territorial jurisdiction. By section 4 of the Ordinance, the Pro vincial Government was empowered in consultation with the Chief Food Administrator to notify orders for controlling the prices of and for regulating the storage, movement, inspection and distribution of food‑stuffs. The Ordinance confers upon the Special Magistrates jurisdiction to try offences which came with in the mischief of the said Ordinance and ousts the jurisdiction of all other Courts to try such offences. It also confers on the Special Magistrates the power to punish offences in respect of the Ordinance with imprisonment for a term which may extend to 2 years or with fine or with whipping not exceeding 10 stripes or with any two of them or with all of them, as to the Special Magistrates, trying cases for contravention of the Ordinance, may seem fit and proper. This Ordinance makes a substantial and wide‑spread encroachment into the provisions of the Code of Criminal Procedure, 1898. It lays down that the offences under the Ordinance will be tried summarily within the frame work of the Code of Criminal Procedure although the said Code provides for such trials warrant procedure as specified in the Code. The Ordinance also ousts the jurisdiction of all Courts to hear appeals and revisional applications in respect of such trials, notwithstanding the provisions of the Code of Criminal Procedure. It also provides that such provisions of the Code of Criminal Procedure as are inconsistent with the Ordinance will not apply to trials conducted thereunder. It makes offences punishable under the Ordinance cognizable and non‑bailable. It also provides that no order made in exercise of any power conferred by or under the Ordinance shall be called in question in any Court." The case for the Provincial Government was that the vires of this Ordinance were derived from the following items contained in the Provincial List, namely :‑ (1) Item No. 43.‑"Production, manufacture, supply and distribution of goods," (2) Item No. 2.‑"Administration of justice ; constitution and organization of all Courts except the Supreme Court . . . . ." (3) Item No. 91.

"Offences against laws with respect to any of the matters in this List" ; and (4) Item No. 92.‑"Jurisdiction and powers of all Courts, except the Supreme Court, with respect to any of the matters in this List." The learned Judges of the High Court rejected this argument, and held as follows :‑ "It is difficult to understand how this Ordinance comes within entry No. 43, namely, "Production manufacture, supply and distribution of goods." Far less one can under stand how it comes within entry No. 51, namely, "Adultera tion of food‑stuffs and other goods." It is difficult to con ceive of food‑stuffs, far less rice and paddy to come within the definition of "goods", That every material substance is not "goods" within the meaning of entry No. 43 is also evident from the language of entry No. 46 which reads as follows: Manufacture, supply and distribution of salt". It is clear that salt is not goods within the meaning of entry No. 43, otherwise there was no occasion to provide for entry No. 46, which, we have seen, reads as "Manufacture, supply and distribution of salt". If the Ordinance could not come under entry No. 43 of the Provincial List, the learned Advocate‑General frankly conceded that it could not come within any other entry of the said List. Entries Nos. 91 and 92 will not be attracted unless there is some entry in the provincial List which is the basis of the legislation." As to the particular provisions of the Ordinance, the learned Judges refer to section 4 which provides for control and storage, movement and distribution of food‑stuffs with the object of "maintaining or increasing supplies of food‑stuffs or for securing its equitable distribution anal availability at fair price" and also enables, the Provincial Government to make orders for "controlling the prices at which any food‑stuffs may be bought or sold." They then refer to section 6 which makes contravention of orders under section 4 an offence punishable with imprisonment or fine or whipping or any two or all of these punishments. Upon this basis, the learned Judges concluded that the Ordinance was "also a legis lation in the field of price control" which is a subject in the Con current List, and consequently the penal provision in section 6, and the provisions relating to jurisdiction and procedure in section 11, 12(2), 13, 14 and 18 could only be made under entries and 19 of the Concurrent List. They held that to this extent the Ordinance was legislation in the concurrent field. As has been seen, their final conclusion was that these penal and procedural provisions "must give way to the Code of Criminal Procedure 1898", since the assent of the President had not been taken to the Act. After hearing learned counsel on the two sides at length, we find ourselves entirely unable to agree with the conclusion of the learned Judges that food‑stuffs do not fall within the meaning of the expression "goods" as used in Item 43 in the Provincial List. The grounds advanced for that conclusion in the judgment appear to us‑we say so with all deference‑to be plainly unconvincing. The reference to the special entry relating to "salt" appears to us to be scarcely relevant. Salt cannot be regarded as in itself food, but is, indeed, a seasoning to go with food. The distinct item in the Provincial List relating to salt is to be regarded as having been added rather to indicate the special place it occupies in the fields of administration and taxation, than to distinguish it, as a commodity, from things described as "goods." By the word "food" can only be understood things eaten for the preservation of life. A comprehensive definition is contained in the Oxford English Dictionary, and seems to us to be appli cable in its entirety to the circumstances of the present case. It is reproduced below:

"What is taken into the system to maintain life and growth, and to supply the waste of tissue, aliment, nourishment, provisions and victuals. The ordinary sense of the expression `goods" is of material things, of a movable nature, which are beneficial to humanity." Referring again to the Oxford English Dictionary, we reproduce three differential meanings of the word "goods" used as a sub stantive:-- (1) "Something, whether material, or immaterial, which it is an advantage to attain or possess ; a desirable end or object." (2) "Property or possession ; now in more restricted sense, movable property." (3) "Saleable commodities, merchandise, wares (now chiefly applied to manufactured articles)." In our opinion, these definitions lack nothing either of compre hensiveness or of precision fn relation to the subject here under discussion. It seems to us that food‑stuffs, which are the stuff of life, should occupy a place of primary importance among "material things which it is an advantage to possess." They are a form of pro perty of the most essential kind, so much so that for the continua tion of life, the possession of food‑stuffs may be placed among the prime necessities. That food‑stuffs are "saleable commodities", "articles of merchandise", and "wares" in every accepted sense of these terms also goes without saying. In these circumstances, we must unhesitatingly reverse the conclusion of the learned Judges in the High Court on this point, and hold that food‑stuffs fall within the expression "goods" used in entry No. 43 of the Provin cial List. It follows that the Provincial Legislature was within its powers in legislating for the control of movement and distribution of food‑stuffs. By virtue of entries 91 and 92 in the Provincial List, offences arising out of matters relating to the movement and distribution of food‑stuffs, and the jurisdiction and powers of all Courts except the Supreme Court in relation to these matters were fully within the competence of the Provincial Legislature. As for the aspect of price control", which the learned Judges in the High Court have considered as falling exclusively within the item so described in the Concurrent List it is, in our opinion, possible to regard it as an instrumentality in the furtherance of anequitable dis tribution of food‑stuffs. It is evident that where the prices of food stuffs are kept at a level within the reach of every section of the population, the distribution of such materials among the popula tion will be more equitable and also more nearly in accordance with the requirements of the people generally, then if, through absence of control, prices should be allowed to rise to an extent which places food‑stuffs out of the reach of those sections of the population who are compelled by their circumstances to live close to the margin of subsistence. We observe at the same time that the convictions before the Court were not for violation of any order fixing prices but were for such possession of food‑stuffs, as in the opinion of the trying Court violated the provisions of the Ordinance, Moreover, our attention has not been drawn to any other law relating to fixation of prices of food‑stuffs whose provisions could perhaps be seen to be repugnant to those contained in any order made by the Provincial Government under the Ordinance. As a reference to subsection (2) of Article 110 of the Constitution will show, an Act of the Provincial Legislature in the concurrent field is hit to the extent that the subject in question is already covered by legislation. It is not void merely by reason of being an enactment in the concurrent field. It is only void, for lack of assent, to the extent of repugnancy. The learned Judges in the High Court have found such repug nancy in relation to those sections of the Ordinance which purport to set up Courts and provide procedures which vary from the provisions contained in the Code of Criminal Procedure relatable to offences punishable in manner provided by section 6 of the Ordi nance. It seems regrettable that the attention of the learned Judges was not drawn to the clear provisions of subsection (2) of section 1, and subsection (2) of section 5 of the Code of Criminal Procedure. The wording of these two subsections makes it clear that nothing in the Code of Criminal Procedure can be deemed to be repugnant to any law providing for jurisdiction and powers of Courts, and for the procedure in the trial of offences, where such law relates to a special subject, which in this case is the control of movement and distribution of food‑stuffs. We are satisfied that the provi sions of sections 11, 12 (2), 13 14 and 18 of the Ordinance to which: particular reference has been made by the learned Judges constitute special law relating to a special subject, and as such, there is no, question of these provisions having "to give way to the Code of C Criminal Procedure" for the simple reason that that Code itself provides that its provisions shall not apply to such a case. It is, in our opinion, quite clear that the decision of the learned Judges of the High Court regarding the vires of the Ordinance in question cannot be sustained, and we hereby reverse it. This is without effect in regard to the order made by the High Court in favour of Abdul Barek Sikdar, and the appeal of the Provincial Government in that case is accordingly dismissed. For the reason already given, we allow Abdul Barek Sikdar his costs of the appeal. In the case of Fakiruddin Biswas, as a result of the finding given above, we allow the appeal but, in view of the undertaking. given by the learned Attorney‑General to which reference has already been made above, we make no consequential order, with the result that so far as any liability imposed by or under the Ordinance in question is concerned, Fakiruddin Biswas is immune from further action of every kind. In his case also, it appears that the purpose which the Provincial Government intended to achieve as a result of the appeal was unconnected with any effect which the appeal might have produced in relation to him personally and consequently, he too is entitled to full costs in the appeal, and we make a direction accordingly. A. H. Appeal accepted.