P L D 1958 Dacca 552 (PLP)

11. In support of this contention, strong reliance is placed on a decision of a Division Bench of this Court in the case of Tamizuddin Ahmed v. Province of East Bengal (A I R 1949 Dacca 33 = P L D 1949 Dacca 1). In that case, the Provincial Governor had purported, in exercise of his powers tinder section 88 (l) of the Government of India Act, 1935, as adapted by the Pakistan Provincial Constitutional Order, 1947, to pass an Ordinance containing only three sections, the first giving the name of the Ordinance so purported to be passed by him, the second merely saying that an earlier Ordinance, namely, the East Bengal Preventive Detention Ordinance, 1949, shall continue in operation and shall have the same force and effect as an Act of the Provincial Legislature until the publica tion of the assent of the Governor‑General to certain bills of the said Legislature and the third section continued in force all notifications, directions and orders made under the said earlier Ordinance. In those circumstances, it was argued that the Governor was incompetent to extend the life of an Ordinance and Ellis and Amir‑ud‑din Ahmad, JJ. (as they then were), held that the earlier Ordinance of 1949 ceased to operate at the expiration of six weeks from the meeting of the Provincial Assembly which occurred on the 22nd April, 1949, and the Governor had no power to extend the life of the said Ordinance.

12. It is contended by the learned Counsel appearing in support of this Rule that in this case too the second Ordinance was promulgated clearly for extending the life and continuing the operation of the earlier Ordinance, although the Legislature had met in the meantime, and on a parity of reasoning it would also follow that a Governor should not be allowed to do in directly what he could not do directly. Thus although the device adopted in the present case was to pass a fresh Ordinance repealing the earlier Ordinance and re‑enacting all its terms it was doing nothing more than merely extending the life of the previous Ordinance which should, according to Article 102 (2) of the Constitution, have ceased to operate. Thus this was in effect an enactment for continuing the life of the previous Ordinance in disregard‑ of the letter and the spirit of the Constitution.

13. As we have already observed, this precise question has not been decided in any case as yet but it appears that this question was raised in the case of Begum Zeb‑un‑nissa Hamidullah v. Pakistan (P L D 1958 S C (Pak.) 35) before their Lordships of the Supreme Court, where Mr. Brohi argued that re‑enactment of an expired Ordinance by another Ordinance was unconstitutional as only the Legislature' could convert such an Ordinance into an Act. But their Lordships did not consider it necessary to determine that question and the case was disposed of on another ground.

14. We are also given to understand by learned Counsel appearing for the petitioner that the same question has been raised in some other matters now pending before their Lordships of the Supreme Court. In these circumstances we, for the present, also refrain from expressing any opinion on this question particularly, as there are two other grounds upon which this application must, in our opinion, succeed.

15. The first of these grounds is that in so far as the Special Magistrate in this case purported to take cognizance of the case against the petitioner as a Magistrate appointed under East Pakistan Ordinance XV of 1956, he had no jurisdiction at all to try the offence charged, namely, under section 6 (1) of East Pakistan Act I of 1956. Section 3 of the said Ordinance XV of 1956 provides as follows :‑ " Notwithstanding anything contained in the East Pakistan Control of Essential Commodities Ordinance, 1956 or in any other law for the time being in force, contravention of any notified order in respect of food‑stuffs made or deemed to have been made under the East Pakistan Control of Essential Commodities Ordinance, 1956, shall be tried and punished by Special Magistrates appointed under this Ordinance and no other Court shall have any jurisdiction to take cognizance of any such offence." This Ordinance XV of 1956 was promulgated on the 12th August, 1956, but under this only contraventions of notified orders in respect of food‑stuffs made or deemed to have been made under East Pakistan Ordinance X of 1956 could be tried by a Special Magistrate appointed under the said Ordinance XV of 1956.

16. The said East Pakistan Act I of 1956 was passed on the 19th September, 1956, received the assent of the Governor on the 22nd September, 1956, and was published in the gazette oil the same date. Under this Act I of 1956, it was provided, inter alia, as follows :‑ " No Court shall take cognizance of any offence punishable under this Act except on a report in writing of the facts con stituting such offence made by a person who is a public servant as defined in section 21 of the Pakistan Penal Code, 1860." " Any Magistrate or Bench of Magistrates empowered for the time being to try in summary way the offences specified in subsection (1) of section 260 of the Code of Criminal Procedure, 1898, may on application in this behalf being made by the prosecution, try in accordance with the provisions contained in section 262 of the said Code any offence punishable under this Act." " Notwithstanding anything contained in section 32 of the Code of Criminal Procedure, 1898, it shall be lawful for any Magistrate of the First Class specially empowered by the Provincial Government in this behalf to pass a sentence of fine exceeding one thousand rupees on any person convicted of contravening an order made under section 3."

17. It thus appears that although East Pakistan Act I of 1956 was passed after the promulgation of Ordinance XV of 1956, yet no consequent amendment was made in the said Ordinance XV of 1956, providing for the punishment also of offences under Act I of 1956, but, on the other hand, offences under the said Act I of 1956 were made triable by any Magistrate or Bench of Magistrates empowered for the time being to try in a summary way the offences specified in section 260 (1) of the Code of Criminal Procedure but only on an application in that behalf being made by the prosecution. Further powers were also given to a Magistrate trying such cases to impose a higher punishment than that admissible under the Code of Criminal Procedure. The Magistrate or Bench of Magistrates referred to in the said Act I of 1956 being Magistrates appointed under the Code of Criminal Procedure, their order would have been appealable and revisable under the said Code. The Magistrates ,appointed under Ordinance XV of 1956, however, being not Magistrates under the Code of Criminal Procedure and there being no provision for appeal or revision in the said Ordinance XV of 1956, no appeal or revision, as held by this Court in case of Hari Meah v. The State, would be available to persons aggrieved by orders of such Magistrates. Hence it is argued on behalf of the petitioner that upon the language of these two enactments it is reasonable to assume that the intention of the Legislature when passing Act I of 1956 was not that the offences under the said Act would also be triable by a Special Magistrate appointed under Ordinance XV of 1956 but by a Magistrate appointed under the Code of Criminal Procedure.

18. This argument is further sought to be strengthened by the fact that on the very date that the Legislature passed Act I of 1956, it also passed‑another Act, namely, the East Pakistan Food (Special Courts) Act, 1956 (Act X of 1956). This latter Act repealed and re‑enacted Ordinance XV of 1956 but even then it did not provide that offences under Act I of 1956 would also be triable by the Special Magistrates appointed under the said Act X of 1956, for, section 3 of the said latter Act X of 1956 is identical in terms with section,3 of Ordinance XV of 1956, that is, only contraventions of orders made under the East Pakistan Control of Essential Commodities Ordinance of 1956, (X of 1956), shall be tried by and punished by the Special Magistrates appointed under the said Act. It is urged, therefore, with some force, that since on the same day as the Legislature passed Act I of 1956 it also passed Act X of 1956 repealing and re‑enacting Ordinance XV of 1956, it cannot possibly be contended that the Legislature did not have before it the provisions of Ordinance XV of 1956 Therefore, there can only be one and only one reason for the Legislature omitting to amend section 3 even when passing Act X of 1956, namely, that it did not wish to have the offences under Act I of 1956 tried by Special Magistrates appointed either, under Ordinance XV of 1956 or Act X of 1956.

19. In order to meet this argument, a feeble attempt was made by the learned Advocate‑General to point out that since Act X of 1956 was referred for the assent of the President and that assent was not received until the 30th November 1956, there was no question of Act X of 1956 being applicable as from the date of its enactment by the Provincial Legislature. But immediately after the assent of the President was received, the Provincial Governor promulgated East Pakistan Ordinance IV of 1957 on the 25th January 1957, with retrospective effect from the 13th November 1956, the date of the assent of the President substituting East Pakistan Act I of 1956 for East Pakistan Ordinance X of 1956 in section 3 of Act X of 1956. The first part of the argument of the learned Advocate‑General appears to us to be beside the point. Whether assent of the President was received or not can have no possible bearing on the intention of the Legislature on the date of the enactment of the Act. The intention of the Legislature is to be gathered from the words used by it at that point of time and, since the Legislature used in the present case, on the 19th September 1956, words which did not show any change in section 3 of the Act X of 1956, we think that the argument advanced on behalf of the petitioner is of substance.

20. With regard to the amendments made by the Ordinance IV of 1957, no doubt it is true that when the Legislature by express words gives retrospective effect to a legislation the Courts must hold that the said legislation has been so given retrospective effect but the question here is as to the date from which that retrospective effect itself would begin to have force. East Pakistan Ordinance IV of 1957, as we have pointed out, promulgated on the 25th January 1957, but the trial of the petitioner before us was concluded on the 22nd December 1956. Hence on the date when the trial of the petitioner concluded and he was convicted as aforesaid, there was no amendment at all in existence. In these circumstances, there was no question on that date of Ordinance XV of 1956 or Act X of 1956 having] been amended with retrospective effect. The amendment cannot; in our opinion, even though it purports to give retrospective; effect to a place of legislation, have such effect from even before it is made. Such retrospective effect when given does not, in our opinion, affect things done before the date on which the retrospective effect was actually given. Amendments made in Act X of 1956 will certainly have retrospective effect from the date on which the amendments came to be incorporated but not from any earlier date. Thus in the case of a trial which may be now contemplated or commenced, after the 25th January 1957, the amendment will speak with retrospective effect. This amendment, therefore, by Ordinance 1V of 1957, does not also assist the learned Advocate‑General. It is clear that neither on the date when cognizance of the offence was taken by the Special Magistrate concerned nor on the date when the trial concluded or the judgment was delivered and order of conviction passed was the Special Magistrate appointed either under Ordinance XV or Act X of 1956 empowered to try any offence under Act I of 1956. The contention, therefore, that between the dates, namely the 9th October 1956, and the 22nd December 1956, the Special Magistrate had no jurisdiction to try the offence must, in our opinion, prevail, for, the jurisdiction of the Special Magistrate must necessarily be determined upon the state of the law as it then stood.

21. The next argument of the learned Counsel is that the evidence adduced in the present case, even if fully accepted, does not establish any offence under clause (c) of section 10 of the East Bengal Modified Rationing Order 1949. Relevant portion of clause (c) of section 10 of the said Modified Rationing Order is in these terms " Every appointed wholesaler or an appointed retailer shall‑ (b) ... ... "(c) maintain one or more sets of measures, scales and correct weights as necessary and deliver a listed article to the parties after proper measurement." The offence contemplated by the above provision, therefore, is the selling of commodities short in weight or by false measure and the only evidence in this case is that the petitioner was selling rationed commodities mixed with an unusually excessive quantity of paddy dust. No measures or weights or scales were seized in the present case, nor was there any evidence that any of the weights or measures or scales maintained in the shop were not proper ones. The learned Magistrate took the view that by mixing such excessive quantity of dust the petitioner must necessarily have given less than what the ration card‑holders would have received if such dust had not been mixed.

22. This really was a charge of adulteration and it is significant that there is an Ordinance which expressly provides for punishment of the offence of adulteration. This is East Pakistan Food (Control of Movement and Distribution) Ordinance, 1956, F being Ordinance XII of 1956. In the Schedule appended to the said Ordinance the first offence mentioned is adulteration as defined in Section 272 of the Penal Code. Section 272 provides as follows " Whoever adulterates any articles of food or drink, so as to make such article noxious as food or drink, intending to sell such article as food or drink, or knowing it to be likely that the same will be sold as food or drink, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both." In our opinion, therefore, this contention of the learned Counsel must also be accepted, namely, that the evidence adduced, even if accepted, does not establish the offence charged in the present case and the conviction is based on no evidence at all.

23. On these two grounds this application must, in our opinion, succeed and we accordingly make this Rule absolute and quash the proceedings against the petitioner in S. C. Case No. 21 of 1956 before Mr. R. A. Khan, Special Magistrate, Chandpur.

24. The petitioner will be entitled to his costs assessed at twenty Gold Mohurs. MURSHED, J,=I agree. A. H. Petition accepted.