ZAVERBHAI AMAIDAS Vs. STATE OF BOMBAY

JUDGEMENT

(1.) This is an appeal against the Judgment of the High Court of Bombay dismissing a revision petition field by the appellant against his conviction under S. 7 of the Essential Supplies (Temporary Powers) Act (24 of 1946).

(2.) The charge against the appellant was that on 6-4-1951 he had transported 15 maunds of juwar from his village of Khanjroli to Mandvi without a permit, and had thereby contravened S. 5(1) of the Bombay Food Grains (Regulation of Movement and Sale) Order, 1949. The Resident First Class Magistrate of Bardoli who tried the case, found him guilty, and sentenced him to imprisonment till the rising of the Court and a fine of Rs. 500. The conviction and sentence were both affirmed by the Session Judge, Surat, on appeal. The appellant thereafter took up the matter in revision to the High Court of Bombay, and there for the first time, took the objection that the Resident First Class Magistrate had no jurisdiction to try the case, because under S.2 of the Bombay Act No. 36 of 1947 the offence was punishable with imprisonment, which might extend to seven years, and under the Second Scheduled to the Criminal Procedure Code, it was only the Sessions Court that had jurisdiction to try such offence. The answer of the State to this contention was that subsequent to the enactment of the Bombay Act No. 36 and 1947, the Essential Supplies (Temporary Powers) Act had undergone substantial alterations, and was finally re-cast by the Central Act No. 52 of 1950; that the effect of these amendments was that Act No. 36 of 1947 had become inoperative, that the governing Act was Act No. 52 of 1950, and that as the under that Act, the maximum sentence for the offence in question was three years, the Resident First Class Magistrate had jurisdiction over the offence.

(3.) The revision petition was heard by a Bench consisting of Bavdekar, and Chainani. JJ. Bavdekar, J. was of the opinion that the amendments to the Essential Supplier (Temporary Power) Act including the re-enactment of S. 7 in Act No. 52 of 1950 did not trench on the field covered by the Bombay Act No. 36 of 1947, which accordingly remained unaffected by them. Chainani, J., on the other hand, held that both Act No. 36 of 1947 and Act No. 52 of 1950 related to the same subject-matter, and that as Act No. 52 of 1950 was Central legislation of a later date, it prevailed over the Bombay Act No. 36 of 1947. On this difference of opinion, the matter came up under S. 429, Criminal Procedure Code for hearing before Chagla C. J., who agreed with Chainani, J. that there was repugnancy between S. 7 of Act No. 52 of 1950 and S. 2 of the Bombay Act No 36 1947, and that under Art. 254 (2), the former prevailed; and the revision petition was accordingly dismissed. Against this Judgment, the present appeal has been preferred on a certificate under Art. 132 (1), and the point for determination is whether contravention of S. 5(1) of the Bombay Food Grains (Regulation of Movement and Sale) Order, 1949 is punishable under S. 2 of the Bombay Act No. 36 of 1947, in which case the trial by the Residents First Class Magistrate would be without jurisdiction or whether it is punishable under S. 7 of the Essential Supplies (Temporary Powers) Act, as amended by Act No. 52 of 1950, in which case, the trial and conviction of the appellant by that Magistrate would be perfectly legal.