S. S. Kulshrestha, J. - (1.) Heard the learned Counsel for the petitioners and the learned A. G. A. and also perused the materials on record.
(2.) THIS petition under Article 226 of the Constitution of India has been brought for quashing the order dated 13-2-2006 passed by the Sessions Judge, Moradabad in Criminal Appeal No. 1 of 2006, Munna v. State of U. P. , whereby holding that in view of the arrangement made in Section 6-C of the Essential Commodities Act, 1955 (hereafter referred to as 'the Act of 1955') Sessions Judge has not been notified to be the judicial authority having jurisdiction to hear this appeal. Simultaneously order of the District Collector making forfeiture of the seized goods in exercise of the powers under Section 6-A of the Act of 1955' in the Case No. 892 of 2005 under Section 3/7 Essential Commodities Act and Sections 420, 467, 468 I. P. C. police station Chhaijlet District Moradabad has also been challenged. It is said that the learned District Collector had not correctly appreciated the materials and evidence on record while proceeding to make forfeiture of the tanker No. U. P. 14-D-8493 containing 12000 liters of petroleum substance seized by the police Chhaijlet District Moradabad. Further the Sessions Judge erred in observing that the provisions of Essential Commodities (Special Provisions) Act, (Special Act) 1981 have lapsed by efflux of time and the Sessions Judge has not been notified to be the judicial authority and so he has no jurisdiction to proceed to make the disposal of the appeal. It is urged by the learned Counsel for the petitioner that the learned Sessions Judge had omitted to take into consideration the State Government's Notification No. 9158/xxix-A-V-2, dated 7th October, 1974 published in U. P. Gazette, Extra-ordinary, dated 7th October, 1974 conferring the powers to all the Sessions Judges other than the Districts excluded from that notification. It is further said that after the expiry of the term of the Special Act, whatever notifications were issued under the Act of 1955 would automatically be revived. In order to facilitate the disposal of this petition, a brief reference of the special provisions time to time made in the Act of 1955 for ensuring the availability of the essential commodities at fair prices and for curbing, hoarding and blackmarketing of the profiteering in, such commodities and for dealing more effectively with persons indulged in anti-social activities like hoarding and blackmarketing and the evil of vicious inflationary prices may be made. The special Act which provided for special Courts under Section 12-A came into force from 1-9-1982. The said Act was enforced initially for a period of 5 years and was extended for a further period of 5 years i. e. 1987 to 1992 and thereafter from 1992 to 1997. The Act was in force till 31-8-1997. Thereafter the Essential commodities (Special Provisions) Ordinance, 1997 (Central Ordinance 21 of 1997) was promulgated. As there was no enactment the Essential Commodities Amendment Ordinance, 1998 (Central Ordinance 13 of 1998) was promulgated by the President. The above two Ordinances lapsed since they were not replaced by enactments, as a result of which the special Courts established for trial of EC Act cases ceased to function.
(3.) THE question which falls for determination in this case is whether the provisions of the Act with regard to the seizure and disposal of the appeal would stand revived and further what would be the effect of the aforesaid notification issued under the Act and which became dormant after enforcement of the Special Act. On fair reading of the provisions of the Special Act, it is clear that the arrangements made for the disposal of the appeal by the State Government would come to an end after the Special Act lapsed by efflux of time. The provisions of the Special Act were introduced for temporary period. In order to expedite the process of the prosecutions under the Act of 1955 it was proposed to provide: (i) for the trial, a summary way, of all offences under that Act; and (ii) for the constitution, for the purpose of such trial, of Special Courts, consisting of a single Judge who shall be appointed by a High Court and who shall be a person who is qualified to be a Judge of the High Court or who is or has been a Sessions Judge or an Additional Sessions Judge, for not less than one year. (b) to strengthen the penal provisions of the principal Act with a view of deterring persons indulging in hoarding and blackmarketing in essential commodities from contravening the provisions of the principal Act, it is proposed to provided for: (i) minimum mandatory imprisonment for a period of not less than three months for all offences under the principal Act except an offence of abetment in regard to procuring of foodstuffs or drugs by them for their own use or for the use of any member of their family, and not for the purpose of carrying on any, business or trade which is proposed to be punishable with fine only; (ii) enhancement of the term of imprisonment awardable in case of conviction in a summary trial from one year to two years; (iii) making of all offences under the principal Act to be non-bailable; (iv) granting of bail by the trial Court after giving the prosecution an opportunity to oppose the application and only in the exceptional cases specified in the new Section 12-AA proposed to be inserted, to a person accused or suspected of the commission of an offence under the principal Act if there appears reasonable grounds for believing that he is guilty of the offence concerned; and (c) In order to ensure availability of essential commodities to the consumers provision is being made: (i) for sale of all seized essential commodities, the retail sale prices whereof have been fixed by the Central Government or the State Government as the case may be, through the public distribution system by enlarging the scope of Section 6-A (2 ). The existing provision covers only foodgrains to be sold through fair price shops; and (ii) for preferring appeal against the order of confiscation passed by the Collector of a district to the State Government instead of to a judicial authority. As mentioned, above the Special Act was introduced for a period of 15 years. It was also clarified in Section 1 (3) of the Special Act that it would remain available only to the cases which were covered under this Act and after the expiry of the period, the provision of the Act of 1955 would automatically stand revived. Since the provisions of the Special Act have come to an end by efflux of time and so the provision of the Act of 1955 would stand revived. A similar question came up for consideration before the Apex Court in State of Orissa v. Bhupendra Kumar Bose, 1962 Supp (2) SCR 380 : AIR 1962 SC 945. In that case an ordinance had been promulgated whereby the elections to the Cuttack Municipality which had been set aside by the Orissa High Court and the electoral rolls prepared in respect of the other Municipalities in the State of Orissa, which would have otherwise been irregular and invalid in accordance with the judgment of the Orissa High Court, were validated. The Bill which contained substantially similar provisions as those of the ordinance was introduced in the Orissa Legislative Assembly but was defeated by majority of votes and as a result the Ordinance lapsed after the expiration of the prescribed period. It was contended that the ordinance was a temporary statute which was bound to lapse after the expiration of the prescribed period and that as soon as it lapsed the invalidity in the Cuttack Municipal elections which had been cured by it revived. Rejecting the said contention, Supreme Court has laid down: "in our opinion, what the effect of expiration of a temporary Act must depend upon the nature of the right or obligation resulting from the provisions of the temporary Act and upon their character whether the said right and liability are enduring or not. " "therefore, considering the effect of the expiration of a temporary statute it would be unsafe to lay down any inflexible rule. If the right created by the statute is of an enduring character and has vested in the person, that right cannot be taken away because the statute by which it was created has expired. If a penalty had been incurred under the statute and had been imposed upon a person, the imposition of the penalty would survive the expiration of the statute. That appears to be the true legal position in the matter. ";