Bapna, J - (1.) THIS is a reference by the learned Sessions Judge of Udaipur.
(2.) THE petitioner, Bapu Lal, was challaned for an offence under sec. 13, read with sec. 6, of the Mewar Hoarding and Profiteering Prevention Act, 1944 (Act No. I of 1944 ). THE allegations were that the petitioner was the manager of the Bhandari Iron and Steel Company, Udaipur, which dealt in diesel oil, besides certain other commodities. He sold diesel oil on various dates to the Maharana Bhupal Electric Supply Company, and in particular on the 20th of July, 1948, for Rs. 5703/12/ at the rate of Rs. 1/9/-per gallon. This rate was stated to be 28% higher than the landed cost of the oil and was 'unreasonable consideration' within the meaning of sec. 6 of the aforesaid Mewar Act No. I of 1944- Sanction was accorded by the Government for the prosecution of the petitioner on the 4th of April, 1949, and the challan was presented on the 21st of February, 1950. Three cases of a similar nature were challaned to the Court of City Magistrate, Udaipur, and have been consolidated. On the 6th of April, 1950, an application was presented by the accused that the Mewar Act No. I of 1944 had expired or had been repealed prior to the date on which the offence was alleged to have been committed, and the accused should, therefore, be discharged. The learned City Magistrate dismissed the petition on the nth of May, 1950, against which order a revision was filed by the petitioner in the Court of the Sessions Judge, Udaipur. The learned Sessions Judge came to the conclusion that Act No. I of 1944 had neither expired nor had been repealed. He, however, held that only the dealer was liable to prosecution for contravention of the provisions of sec. 6, and that the accused who was only a manager was not the 'dealer' within the meaning of the Act. He also held that there was no provision in the Act for prosecution for abetment of the offence, and, therefore, the petitioner could not be held to have committed any offence, assuming that the allegations of fact made against him were correct. He, therefore, recommended that the accused should be discharged, and has made a reference accordingly under sec. 438 of the Code of Criminal Procedure. In order to appreciate the points raised in this petition, it is necessary to refer to the various enactments promulgated in Mewar, which have a bearing on the subject. The Essential Articles Supply Act, 1943 (Act No. II of 1943) was promulgated by His Highness the Maharana of Mewar on the 26th of January, 1943, and by sec. 5 thereof, the Controlling Authority was authorized to fix prices of the essential articles. These were mentioned in a schedule, and Government was empowered to add any article to the schedule. A contravention of the order of the Controlling Authority was punishable under sec. 9 of the Act. In 1944 the Hoarding and Profiteering Prevention Act (Act No. I of 1944) was promulgated. This Act was applicable to every article, except food-grains, or such other article for which the Government declared by notification that the Act did not apply. Sec. 3 (1) (c) empowered the Government to fix by notification a maximum price or rate which may be charged by the dealer or producer in respect of any article, and sec. 4 (c) prohibited the dealer or producer to sell or offer for sale to any person any article for a price or at the rate exceeding the maximum fixed by the aforesaid notification under sec. 3 (1) (c ). Section 13 provided punishment for acting in contravention of any of the provisions of the Act. It is conceded that diesel oil or crude oil had not been excluded by any Government notification under this Act. Sec. 17 of the Act declared that the provisions of Act No. I of 1944 were in addition to, and not in derogation of, any other law for the time being in force regulating the keeping, storage, distribution, disposal or price of articles. This Act accordingly was a legislation supplementing the Essential Articles Supply Act, 1943, which was applicable to only 15 articles mentioned in the Schedule. They were: 1 to 7. Various food-grains 8. Salt 9. Sugar 10. Kerosene Oil 11. Diesel Oil and Crude Oil 12. Matches 13. Cement 14. Standard cloth and other cloth and yarn 15. Paper. Act No. I of 1944, as stated above, related to all articles, except food-grains or such others as may be excluded by the Government by notification. In 1947, the Control of Supplies Act (Act No. VII of 1947) was promulgated with the object of providing for continuance of powers to control the production, prices and distribution of and trade and commerce in certain essential commodities. In the preamble of the Act it was mentioned that whereas the Defence of Mewar Act, 1939, would expire on 31st May, 1947, and whereas circumstances existed which rendered it expedient to provide for the continuance of powers to control the production, price and distribution of trade and commerce in certain essential commodities, His Highness the Maharana Sahib Bahadur was pleased to promulgate the enactment. The articles to which the Act applied were stated in the Schedule to be 1. Food-grains, pulses, oil seeds and edible oils 2. Cotton and wollen cloth 3. Cotton yarn 4. Paper 5. Iron and Steel 6. Cycles 7. Copper and brass (plates and utensils) 8. Petrol 9. Sugar and 10. Kerosene Oil. and Government was authorized to add any article to the Schedule. Sec. 3 of the Control of Supplies Act, 1947, empowered the Government to regulate or prohibit the production, supply and distribution of essential commodities and trade and commerce therein by a notified order. Under sec. 5, any order made by the competent authority under sub-rule 2 of Rule 81 of the Defence of Mewar Rules, in respect of any matter specified in sec. 3, which was in force immediately before the commencement of the Act, was declared to continue as order notified under sec. 3 of the Act. A contravention of the order was declared to be an offence under s. 7 of the Act. It may be pointed out that the Control of Suplies Act, 1947, did not make any reference to the Essential Articles Supply Act (Act No. 11 of 1943), which, incidentally, was one promulgated independently of the Defence of Mewar Rules. On the formation of the former Rajasthan, the Essential Commodities Control Ordinance, 1948, (Ordinance No. XIV of 1948) was promulgated by the Rajpramukh on the 24th of June, 1948, and was virtually a repetition of the Mewar Control of Supplies Act, 1947. The articles in the Schedule were also the ! same, though sec. 5 was omitted. None of the two Acts, i. e. , the Mewar Control of Supplies Act, 1947, or the Essential Commodities Control (Ordinance, 1948, of the former Rajasthan containes any provision for repeal of any of the earlier Acts in force in Mewar or other parts of Rajasthan. With the formation of the Greater Rajasthan, an Ordinance known as the Rajasthan Essential Su|ppliei (Temporary Powers) Ordinance, 1949 (No. XIII of 1949) was promulgated. The essential commodities were mentioned in clause (a) of sec. 2, which included petroleum and petroleum products. All the articles mentioned as 'essential' in Mewar Act VII of 1947, of the former Rajasthan Ordinance XIV of 1948, among others, were declared 'essential' under this Ordinance. This Ordinance was on the lines of the old Rajasthan Ordinance XIV of 1948. It, however, contains a repeal and saving clause under sec. 20 by which the former Rajasthan Ordinance XIV of 1948 was repealed; but the orders made or deemed to have been made under that Ordinance were declared to continue in force as orders made under Ordinance XIII of 1949 of the Greater Rajasthan. The contention of learned counsel for the petitioner is that Act No. 1 of 1944, though not expressly repealed by any subsequent legislation, must be deemed to have been impliedly repealed by Act VII of I947, or by the former Rajasthan Ordinance No. XIV of 1948. In none of these two enactments, diesel oil or crude oil Was declared to be an 'essential commodity', and, therefore, the accused had committed no offence by selling diesel oil or crude oil at the rates which he did. Learned counsel for the petitioner relied on 'maxwell on the Interpretation of Statutes', 9th] Edition, page 172, where the learned jurist has observed that ""the inconvenience or incongruity of keeping two enactments in force had justified the conclusion that one impliedly repealed the other". It was also contended that at no place in Rajasthan, except Mewar, did any Act of the nature of the (Mewar) Hearding and Profiteering Prevention Act, 1944 exist or had remained in force. At all places only a temporary Act, as in Indian Provinces, had been promulgated, and had expired after a certain period of time, and it would be a great calamity if that Act was permitted to restrict the business activities of the people in Mewar which was only a portion of the Union of Rajasthan. It was also contended that the Mewar Hoarding and profiteering Prevention Act was enacted on the existence of an emergency as mentioned in the preamble, and that emergency after so many years of the cessation of the war must be presumed to have disappeared, and the very basis of the Act was, thus, non-existent. It is true that the legislation on the lines of the Mewar Hoarding and Profiteering Prevention Act, 1944, in the various Provinces of the former British India and other States was of a temporary nature and expired after the expiry of a certain period mentioned in the Act itself; but the enactment in Mewar was enacted not as a temporary piece of legislation, but as a permanent Act, and unless repealed, whether expressly or impliedly, will continue to remain in force. It is immaterial that the emergency, which prompted His Highness the Maharana of Mewar to enact the legislation does or does not exist, and while such legislation is no doubt hard on business-men, it cannot be said that it is of no benefit to any body, since the consumers are certainly benefited by the prices being controlled within a certain limit. The subsequent legislation, the Control of Supplies Act, I947, and the Essential Commodities Control Ordinance, 1948, do not cover the entire ground of the Mewar Hoarding and Profiteering Prevention Act. In order that the theory of implied repeal may come into play, it is essential that the two Acts cannot stand side by side. As observed in Craines on Statute Law,fourth Edition, at page 311, "to determine whether a latter statute repeals by implication an earlier, it is necessary to scrutinise the terms and consider the true meaning and effect of the earlier Act, and the court must be satisfied that the two enactments are so inconsistent or repugnant that they cannot stand together before they can, from the language of the later, imply the repeal of an express prior enactment. " The two Acts, viz. , the Mewar Act No. II of 1943 and Mewar Act No. 1 of 1944, as already observed, supplement one another, and there does not appear to be any inconsistency between the impugned Act 1 of 1944, and the Mewar Act VII of 1947 or the old Rajas-than Ordinance XIV of 1948, or the Greater Rajasthan Ordinance XIII 1949. The Greater Rajasthan Ordinance XIII of 1948 has repealed Ordinance XIV of 1948 of the former Rajasthan. It may perhaps be said that Ordinance XIV of 1948 covered the same ground as Mewar Act VII of 1947 or Mewar Act II of 1943. But the Mewar Act VII of 1947 or the old Rajasthan Ordinance XIV of 1948 did not mention diesel oil or crude oil as an essential article, and the case would only be covered by the Hoarding and Profiteering Prevention Act. Act II of 1943, no doubt declared diesel oil and crude oil as essential articles, and there was a further provision that the controlling authority could fix the rates of these articles; but it has not been brought to our notice whether any prices were fixed under that Act. Act No. I of 1944, which was a legislation subsequent to Act II of 1943, contains a general provision in respect of articles whereof no maximum prices had been notified under sec. 6 of the Act, and gives a certain margin of profit to traders, and a sale in excess of the margin reserved becomes an offence under the Act. On the formation of the former Rajasthan, the United State of Rajasthan Administration Ordinance No. I of 1948, promulgated on the 28th of April, 1948j provided for continuance of existing laws in the covenanting States until repealed or amended by a competent authority, or unless otherwise provided in that Ordinance. Similarly, on the formation of the Greater Rajasthan, the Rajasthan Administration Ordinance No. I of 1949 provided for continuance of existing laws which were in force immediately before the commencement of the Ordinance until altered, repealed or amended by competent authority. The Mewar Law, therefore, continues to be in force in that area, and it is for the legislative authority in Rajasthan to repeal or amend it. So far as the courts are concerned, they have to apply the laws as they exist. We, therefore, agree with the learned Sessions Judge, Udaipur, that the Mewar Hoarding and Profiteering Prevention Act was in force on the date on which the alleged contravention of its provisions by the petitioner took place, and has not expired, and has not been repealed so far. On the next question, it was argued by learned counsel for the petitioner that the reference was correct, viz. , that under the provisions of the Act, the petitioner as an employee of the proprietor of the Bhandari Iron and Steel Company was not a 'dealer' within the meaning of sec. 4 of the Act, and was consequently not liable to prosecution. The Argument arises in this way. Under sec. 4, a dealer or producer has been prohibited to sell at a price exceeding the price maximum fixed by the Act. 'dealer' had been defined in sec. 2 of the Act as 'a person carrying on the business of selling any article, whether wholesale or retail. ' It is contended that the person who carried on the business of selling was the proprietor, and not his employee. It has been held in Mangat Ram vs. Emperor (A. I. R. 1945 Lahore 281 F. B.) that "a servant, whatever position he may occupy, cannot be said to carry on the business of selling any article whether wholesale or retail. This can only be predicated of an owner of the business, and of none else. A servant no doubt conducts sales on behalf of an owner, but by merely discharging this function he does not convert himself into a dealer. Therefore a servant, be he a salesman or a manager, is not covered by the term 'dealer' as defined in s. 2 (b) of the Hoarding and Profiteering Prevention Ordinance (35 of 1943 ). " It may be observed that the Mewar Act is on the lines of the Indian Ordinance (35 of 1943), and the same definition finds place in both the enactments. In Harish Chandra vs. Emperor (A. I. R. 1945 All. 90), which was a case under Cotton Cloth and Yarn (Control) Order (1943), Malik J. , as he then was, held that the dealer must be the person carrying on the business of selling cloth and the person punishable was the dealer and that his Munim or servant, who could not be considered to be the 'dealer', was not punishable. In Sheokaran Lal vs. Emperor (A. I. R. 1947 Patna I91) it was held that a servant in a shop could not be said to be carrying on the business of selling any article within the meaning of sec. 2 (b) of the Indian Ordinance 35 of 1943. The person who was really carrying on the business of selling was the proprietor. In Emperor vs. Abdul Hussain (A. I. R. 1946 Nagpur 305), it was held that "a Munim cannot be considered to be a dealer within the meaning of sec. 6 of the Hoarding and Profiteering Prevention Ordinance. " A contrary view was taken in Miss A. Heape and another vs. Emperor (A. I. R. 1945 Calcutta 319), which was also a case under Ordinance 35 of 1943. It was field that the definition of dealer in sec. 2 (b), namely, 'a person carrying on the business of selling any article, whether wholesale or retail', was sufficiently wide to include a salesman or a manager in charge of sales. Our attention was also drawn to a decision of the High Court of the covenanting State of Jaipur in Ganga Singh vs. Ganpat Lal (1947 J. L. R. 147); but the point involved in that case was under the Sugar Control Order, 1942, in which the word 'dealer' was not defined, as it happens to be done in the Hoarding and Profiteering Prevention Ordinance. With great respect we agree with the view taken in the Full Bench case of Lahore. This, however, does not end the matter. It has been observed in several cases that although it is the master who is liable to punishment as a dealer for contravention of provisions of the Hoarding and Profiteering Prevention Ordinance, a servant can be held guilty for abetment of that offence. Reference may be made to Ram Kishore vs. Emperor (A. I. R. 1948 Allahabad 79 ). In the Lahore case, cited above, the question as to whether a servant was in any circumstances liable for any contra-vention which could be attributed to him personally, was left open as it had not been referred to the Full Bench. 1n the Nagpur case, the learned Advocate General suggested that the Munim could be punished for the abetment of the offence. Pollock J. observed that it would depend on whether he intentionally aided the commission of the offence. The present case is still at the initial stage, and it cannot be said that the offence of abetment can in no circumstances be made out against the petitioner. It was urged by learned counsel for the petitioner that the prosecution had not given facts which might show that the petitioner was guilty of abetment of the offence. This is so because according to the prosecution, the petitioner himself was liable to be dealt with as a dealer. The criminal court is, however, not bound to throw out a case if an offence different from the one shown in the challan is made out at the trial. It will be for the court to find out what charges can be framed against the petitioner after the prosecution evidence has been recorded. The view of the learned Sessions Judge that an abetment having not been specifically declared punishable under the Act, it should be considered that the legislature did not intend to punish persons for abetment, is fallacious, since under sec. 109 of the Penal Code provision already exists for punishment of the abetment of any offence for which no express provision is made by the Code. The offence in this section is not restricted to an offence under the Penal Code as is clear by reference to sections 40 and 41 of the same Code. In the circumstances, since it cannot be said that no offence whatever can be made out on the facts, no interference in the proceedings of the trial court are called for at this stage. The reference is, therefore, not accepted. The case will go back for enquiry and trial according to law. . ;