P L D 1959 (W (PLP)

In exercise of the powers conferred by the newly‑added clause 21‑A of the Essential Commodities Distribution Order, 1953, the following notification was issued on the 26th February 1958 :‑ "No. PC‑6(1)/58.‑In exercise of the powers conferred by clause 21‑A of the Essential Commodities Distribution Order, 1953, 1, M. Yasin, Controller General of Prices and Supplies, hereby exempt the following scheduled articles from the operation of clauses 4, 5 (2), 7 to 14 and 17 to 19 of the said Order, namely :‑ (1) Paper excluding newsprint, photographic paper, paper board, pulp‑board, wall‑board, fire‑board, straw‑board, cellulose wadding, cellulose‑film and other similar materials, which are manufactured wholly or mainly either from vegetable fibres or a pulp thereof or both from such fibres and such pulp. (2) Cycles'and spare parts, tyres and tubes for the same. (3) Drugs and medicines including those administered by injection and infant and patient foods and allied articles. (4) Imported chemical dyes. (5) Industrial chemical and gases, (e.g, Caustic Soda, Ammonia and Soda Ash). (6) Spare parts, and tyres and tubes for mechanically propelled vehicles. (7) Glass plates and glass sheets. (8) Electrical and radio goods and appliances, including wires and cables. (9) Timber. (10) Sanitary and water‑supply fittings, including glazed tiles. (11) Cigarettes. (12) Ammunition, including gun and rifle cartridges". As stated above, the Essential Commodities Distribution Order, 1953, which had repealed the Essential Commodities (Control of Distribution) Order, 1953, was made in exercise of the powers conferred by the Essential Supplies (Temporary Powers) Act, 1946, which had been enacted by the Central Legislature in exercise of the powers conferred by section 2 of the India (Central Government and Legislature) Act, 1946, an Act of the British Parliament. This Act had a limited life and was kept alive by virtue of the resolution passed from time to time, by the Constituent Assembly of Pakistan, in accordance with the provisions of section 4 of the Act. The last of these resolutions was passed on the 30th March 1954. The Act was to come to an end on the 1st April 1955, but before it could expire the Essential Supplies (Continuance of Temporary Power) Ordinance, 1955, was promulgated, by virtue of the Proclamation of Emergency issued under section 102 of the Government of India Act, 1935. That Proclamation came to an end with effect from the Constitution Day and, with it, ended the power of the Central Legislature to enact laws in respect of matters enumerated in the Provincial List of the Fifth Schedule to the late Constitution, except with regard to the Federal Capital. The Essential Supplies (Continuance of Temporary Powers) Ordinance, 1955, was, therefore, replaced by the Control of Essential Commodities Ordinance, 1956, which came into force with effect from the 25th April 1956. This Ordinance, in its turn, was replaced by another Ordinance of the same name (No. V of 1956), which came into force with effect from the 10th May 1956. The last‑mentioned Ordinance was replaced by the Essential Supplies Ordinance, 1956, which came into force with effect from the 17th November 1956 and this was replaced by the Essential Supplies Act, 1957, which was the governing law at the time when the offence complained of was committed. In the Ordinance of the year 1955, and in each of the three Ordinances of the year 1956, referred to above, there was a saving clause, which provided that any order made under the repealed enactments, if not inconsistent with the provisions of the new Ordinance, shall be deemed to be an order made under the said Ordinance. No such savings clause was however, inserted in the Essential Supplies Act, 1957, which repealed the Essential Supplies Ordinance, 1956, but by virtue of the provisions of sections 24 and 30 of the General Clauses Act, 1897, read with the relevant saving clauses in the Ordinance of the year 1955 and in all the three Ordinances of the year 1956, any order passed under the Act of 1946 and the four repealed Ordinances could be deemed to be an order made under the Act of 1957 and its contravention was punishable under section 6 of the Act.

9. In view of the past history of this legislation, as given above, the learned counsel for the petitioner conceded that though the order dated the 18th July 1953 (Exh. P. F.) and the Essential Commodities Distribution Order, 1953, had not been made in pursuance of the powers conferred by the Essential Supplies Act, 1957, the contravention of any such order was punishable under section 6 of the Essential Supplies Act, 1957, but he contended that the Order dated the 18th July 1953, (Exh. P. F.) having been withdrawn on the 26th February 1958, by means of a notification issued under clause 21‑A of the Essential Commodities Distribution Order, 1953, the petitioner could not be convicted for the contravention of that Order, subsequent to the date of the notification, and hence the petitioner's conviction on the :2nd March 1958, was illegal. He contended further that the Essential Commodities Distri bution Order, 1953, not being an "enactment" within the meaning of the General Clauses Act, 1897, the provisions of section 6 of the said Act could not be availed of for saving the pending proceedings. The relevant provisions of that section are worded as follows :‑ "

6. Where this Act, or any Central Act, or Regulation made after the commencement of this Act, repeals any enactment' hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not‑ (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder ; or (c) * * * * * * * * * * (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed ; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid ; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed". The definition of "enactment" which is given in section 3 of the General Clauses Act, 1897, is not exhaustive and is in the following words :‑ " `Enactment' shall include a Regulation (as hereinafter defined) and any Regulation of the Bengal, or Bombay Code, and shall also include any provision contained in any Act or in any such Regulation as aforesaid".

10. In my opinion, the contentions raised by the learned counsel for the petitioner have considerable force in them. After the notification dated the 26th of February 1958, was issued the provisions of the Essential Commodities Distribution Order, 1953, so far as the fixation of the maximum selling prices of cigarettes was concerned, came to an end and after the abovementioned date no one who sold cigarettes, in excess of the maximum prices fixed by the notification dated the 18th of July 1953, could be held guilty for contravention of the said Order, so as to render him liable under section 6 of the Essential. Supplies Act, 1957. The notification dated the 26th of February 1958 did not make any provision for the pending proceedings, as was done by clause 23 of the Essential Commodities Distribution Order, 1953, which repealed the Essential Commodities (Control of Distribution Order), 1953. If such a provision had been made the question would have arisen whether it had any legal effect, because it is a debatable question whether this power could be exercised by the Legislature, or whether the executive also could exercise it. However, as no such provision was made in the notification dated the 26th of February 1958, the question is whether the provisions of section 6 of the General Clauses Act, 1897, could be availed of for the purpose of keeping alive the pending legal proceedings. As the Essential Commodities Distribution Order, 1953, was not an "enactment" within the meaning of the General Clauses Act, 1897, I am of opinion that section 6 of that Act could not be' used for the purpose of keeping alive the proceedings which were pending at the time when the notification dated the 26th of February 1958, was issued. . No direct authority, covering this point, was cited before me, but a somewhat similar question was raised in Muhammad Bashir v. The Province of West Pakistan (P L D 1958. hah. 853) decided by a Full Bench, and in which the following observations were made at pages 869 and 870 :‑ "The learned Assistant Advocate‑General also referred to the provisions of Section 6 of the General Clauses Act, 1897, and contended that the proceedings which were pending against the petitioner at the time of the coming into force of the Consti tution were saved as well as the orders which were passed in these proceedings after the said date. Though this is not the case of the repeal of a statute to which the provisions of section 6 of the General Clauses Act, if strictly construed, would be held applicable it may have to be treated in the same way as a case of a repeal of a statute and decided on the basis of the rules laid down in section 6 of that Act, which is based substantially on section 38 (2) of the Interpretation Act, 1889. Before the last‑mentioned Act came into force, the practice in England was to insert in most of the repealing statutes a clause to save actions taken, liabilities incurred and rights accrued under the repealed enactments. In the absence of such a savings clause however, the position in the words of a well known Judge, as given at page 131 of Kishavan Madhava Menon's case was as follows: `The object of repealing a statute is to obliterate it com pletely from the records of Parliament as .if it had never passed and it must be considered as a law that never existed, except for the purpose of those actions which were commenced, pro secuted and concluded whilst it was an existing law'. If this strict rule of interpretation is applied, it would follow that only the proceedings which had been taken under the Regulation and had been completed before the Constitution Day were saved, but if something had still to be done, no further action could be taken after the Constitution Day under those provisions of the Regulation which became void. If, however, it be held that the provisions of section 6 of the General Clauses Act, 1897, would be applicable to this case, the question would arise whether all the proceedings taken under the Regulation would be saved, or only those which came within the purview of clause (b) or (e), on which reliance was placed by the learned Assistant Advocate‑General. The proceedings which were taken after the Constitution Day would not, however, be saved by the application of clause (b). As to the application of clause (e) the petitioner had, no doubt, incurred the liability of being tried for the offence of murder before the Constitution Day and that liability still. attaches to him. The State, however, had not acquired any `right' to have the petitioner tried under any particular law, or by any particular procedure and, therefore, no such `right' could be considered to have been saved by the implied repeal of section 12 of the Regulation".

12. The case which the Full Bench had to deal with was not that of the repeal of a law, but was of a law which became void after the Constitution Day. The views expressed in that case would, however, be applicable to the present case, which, strictly speaking, is also not the case of a repeal of an enactment, but is a case where certain provisions of a statutory Order were! withdrawn when proceedings for the contravention of that Order were still pending against the petitioner. If those proceedings had terminated before the 26th February 1958, on general principles and without applying the provisions of section 6 of the General Clauses Act, 1897, whatever had been done before could be saved, but as the Court in which those proceedings were pending had still to do something before the case could be finally disposed of, after the withdrawal of the Order, which formed the basis of the prosecution, the Court could not take further action in the matter. As section 6 of the General Clauses Act, 1897, for reasons given above, did not apply to this case, that provision of law could not be availed of for taking further proceedings in the matter. From whatever point of view the case is looked at, I am of opinion‑ that the proceedings pending against the petitioner could not be continued after the 26th of February 1958. 13: Though the learned counsel, who appeared for the State, was given sufficient notice of the precise nature of the contentions raised by the learned counsel for the petitioner, he was unable to render any assistance to the Court. The only argument advanced by him was that as by means of the notification dated the 26th of February 1958, the Essential Commodities Distribution Order, 1953, had not been repealed and only an exemption had been granted in certain cases, the proceedings pending. Against the petitioner could continue after the above‑mentioned date. This argument, in my opinion, is of no avail to the State, because it is obvious that after this notification was issued, no prosecution could be launched against anyone for contravention of the Order issued in the year 1953 by means of which the maximum selling prices of cigarettes were fixed and as the pending proceedings were not saved by this notification, or by any other law, the Court was not competent to proceed on with the case and to convict the petitioner for an offence which had been committed long before that date, but which was no longer an offence punishable under the law. The Court could not, therefore, convict the petitioner on the 22nd of March 1958, under section 6 of the Essential Supplies Act, 1957, for contravention of the order dated the 18th of July 1953.

14. For reasons given above, I accept this revision petition set aside the conviction and sentence of the petitioner and, hereby, acquit him. The fine, if paid, shall be refunded to him. The carton of cigarettes shall also be returned to him. K. B. A Petition accepted.