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PETITIONER:

T. BARAI

Vs.

RESPONDENT:

HENRY AH HOE AND ANOTHER

DATE OF JUDGMENT07/12/1982

BENCH:

SEN, A.P. (J)

BENCH:

SEN, A.P. (J)

VENKATARAMIAH, E.S. (J)

MISRA, R.B. (J)

CITATION:

1983 AIR 150 1983 SCR (1) 905

1983 SCC (1) 177 1982 SCALE (2)1133

CITATOR INFO :

F 1983 SC1019 (66)

R 1985 SC1729 (10)

RF 1990 SC1277 (46)

RF 1990 SC2072 (11,46)

ACT:

Interpretation of Statutes-Central Act on a subject in

Concurrent List amended by State Act-State Act enhanced

punishment-A later Central Amendment Act with respect to the

same matter reduced the punishment-State amendment if

impliedly repealed-Repeal followed by fresh legislation-

Section 6 of General Clauses Act-If applicable.

HEADNOTE:

For committing an offence under section 16(1)(a) of the

Prevention of Food Adulteration Act, 1954, as it stood on

March 1, 1972, the maximum punishment prescribed was

imprisonment for six years and fine. Section 21 of the Act

provided that such offences were triable by a Presidency

Magistrate or Magistrate First Class. By the Prevention of

Adulteration of Food, Drugs and Cosmetics (West Bengal

Amendment) Act, 1973, enacted by the State Legislature of

West Bengal, the maximum punishment for an offence under

this section had been enhanced to imprisonment for life, as

a result of which an offence committed under the section in

the State of West Bengal became exclusively triable by a

court of sessions. The Amendment Act received the assent of

the President and came into force from April 29, 1974. In

1976 Parliament amended the Food Adulteration Act and the

amendment came into force with effect from April 1, 1976.

For offences punishable under section 16(1)(a) the Amendment

Act provided for a reduced punishment for a term of three

years instead of six years as before. By the same Amendment

Act section 16A was inserted in the Act providing that all

offences under section 16(1) shall be tried in a summary way

by a Judicial Magistrate, First Class, or by a Metropolitan

Magistrate.

On September 24, 1975 the appellant lodged a complaint

against the respondent for having committed an offence

punishable under section 16(1)(a) read with section 7 of the

Act. On the date of the commission of the alleged offence

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the law in force in the State of West Bengal was the 1954

Act as amended by the West Bengal Amendment Act.

Purporting to follow the decision of a single Judge of

the Calcutta High Court in B. Manna and Ors. v. State of

West Bengal, (81 C.W.N. 1075) in which it was held that the

Central Amendment Act was not intended to be retrospective

in operation because it had not expressly repealed the West

Bengal amendment nor dealt with the Act or any of its

provisions in any manner, the Magistrate held that the case

was triable by the Court of Sessions.

906

Disagreeing with the view of the single Judge, a

Division Bench of the High Court held that after the Central

Amendment Act came into force on April 1, 1976 all

proceedings pending for trial of offences punishable under

s. 16(1)(a) as amended by the West Bengal Act which had not

been concluded, would cease to be governed by the West

Bengal Amendment Act and would come within the purview of

the Central Act as amended by the Central Amendment Act and

that therefore such offences committed prior to the

amendment were triable in accordance with the procedure

under s. 16A as amended by the Central Amendment Act.

On the question whether the previous operation of the

repealed West Bengal Amendment Act in respect of any

liability incurred thereunder is preserved by s. 8 of the

Bengal General Clauses Act, 1899 which is in pari materia

with s. 6 of the General Clauses Act, 1897 both as to

procedure for trial of such offences and the nature of

punishment liable to be imposed.

Dismissing the appeal,

^

HELD: By virtue of the proviso to Art. 254 (2) of the

Constitution, Parliament may repeal or amend a repugnant

State law either directly or by itself by enacting a law

repugnant to the State law with respect to the same matter.

Even though the subsequent law made by Parliament does not

expressly repeal a State law, the State law will become void

under Article 254 (1) if it conflicts with a later law made

by Parliament creating repugnancy. Such repugnancy may arise

where both laws operate in the same field and the two cannot

possibly stand together: As for example, where both

prescribe punishment for the same offence, both the

punishments differs in degree or kind or in the procedure

prescribed. In all such cases the law made by Parliament

shall prevail over the State law under Art. 254(1). In the

instant case when Parliament stepped in and enacted the

Central Amendment Act, which is a later law made by

Parliament with respect to the same matter the West Bengal

Amendment Act stood impliedly repealed with effect from

April 1, 1976. [915 D-G]

Zaverbhai Amaidas v. The State of Bombay [1955] 1

S.C.R. 799, applied.

The applicability of section 6 of the General Clauses

Act, 1897 is not ruled out when there is a repeal of an

enactment followed by fresh legislation. But the Parliament

having reenacted the law relating to the same offence under

s. 16(1)(a) of the Act and provided for altered procedure

and also provided a reduced sentence, the accused must be

tried according to the new procedure provided by s. 16A of

the Act and must also have the benefit of the reduced

punishment.

[919 G-H]

Dictum of Sargant J. in Re. Hale's Patent L.R. [1920]

Ch. 377, held in applicable.

In so far as the Central Amendment Act creates new

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offences or enhances punishment for a particular type of

offence, no person can be convicted by such ex-post facto

law nor can the enhanced punishment prescribed by amendment

be applicable; but insofar as it reduces the punishment for

an offence punishable under s. 16(1)(a) of the Act, there is

no reason why the accused should not

907

have the benefit of such reduced punishment. The rule of

beneficial construction requires that even ex post facto law

of such a type should be applied to mitigate the rigour of

the law. [919 F-H]

Craies on Statute Law, 7th edn. at pp. 387-388 referred

to.

It is a well-settled rule of construction that when a

later statute again describes an offence created by an

earlier statute and imposes a different punishment or varies

the procedure, the earlier statute is repealed by

implication.

Michell v. Brown [1959] 120 ER 909, 912, Smit v. Benabo

[1937] 1 All ER 523 and Regina v. Youle [1861] 158 ER 311,

315-316 referred to.

The rule is however subject to the limitation contained

in Art. 20(1) against ex post facto law providing for a

greater punishment and has no application where the offence

described in the later Act is not the same as in the earlier

Act i.e, when the essential ingredients of the two offences

are different. In the premises, the Central Amendment Act

having dealt with the same offence as the one punishable

under s. 16(1)(a) of the Act and provided for a reduced

punishment, the accused must have the benefit of the reduced

punishment. [921 E-F]

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 40

of 1979.

From the Judgment and Order dated the 5th June, 1978 of

the Calcutta High Court in Criminal Revision No. 133 of

1978.

D. Mukherjee, Pradeep Ghosh and P.K. Mukherjee for the

appellant.

N.C. Talukdar and Amlan Ghosh for respondent Nos. 1 and

2.

G.S. Chatterjee for respondent No. 3 (State of Bengal).

The Judgment of the Court was delivered by

SEN, J. This appeal by special leave from a judgment of

the Calcutta High Court dated June 5, 1978 raises a question

of some complexity. The question is as to the applicability

of s. 16A of the Prevention of Food Adulteration Act, 1954

("Act" for short) as inserted by the Prevention of Food

Adulteration (Amendment) Act, 1976 (for short "the Central

Amendment Act") with respect to prosecutions launched under

s.16(1) (a) read with s.7 of the Act in the State of West

Bengal between the period from April 29, 1974 to April 1,

1976. Such offences according to the law then in force i.e.

the Act as amended by the Prevention of Adulteration of

Food,

908

Drugs and Cosmetics (West Bengal Amendment) Act, 1973 (for

short "the West Bengal Amendment Act") were punishable with

imprisonment for life and therefore triable by the Court of

Sessions.

It is common ground that the offence with which the

respondents are charged is alleged to have been committed

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under s.16(1)(a) at a time when the Act stood amended in its

application to the State of West Bengal by the provisions of

the West Bengal Amendment Act. If the law continued to stand

as it stood on the date of the offence which was so

committed, there would have been no difficulty because the

maximum penalty would be imprisonment for life and fine and

as such the offences would be exclusively triable by the

Court of Sessions. But a change was brought about when

Parliament enacted the Central Amendment Act which came into

force on April 1, 1976 by which the scheme of s.16 of the

Act providing for various punishments was materially

altered; so also the procedure for the trial of such

offences. The effect of the Central Amendment Act was that

the West Bengal Amendment Act stood impliedly repealed with

effect from April 1, 1976 and the question is whether the

previous operation of the repealed West Bengal Amendment Act

in respect of any liability incurred thereunder is preserved

by s.8 of the Bengal General Clauses Act, 1899 which is pari

materia with s.6 of the General Clauses Act, 1897 both as to

procedure for trial of such offences and the nature of

punishment liable to be imposed.

First as to facts. On August 16, 1975 the appellant, a

Food Inspector of the Corporation of Calcutta, visited the

Chungwa Restaurant run by the respondents at Chittaranjan

Avenue, Calcutta and purchased a quantity of Hyacinth's

ground white pepper (compound) with fried rice powder and

sent the same to a Public Analyst for analysis. On such

analysis, the sample was found to be adulterated as it

contained no rice powder but wheat powder. On September 24,

1975 the appellant lodged a complaint against the

respondents for having committed an offence punishable under

s.16(1)(a) read with s.7 of the Act in the Court of Senior

Municipal Magistrate, Calcutta. The gravamen of the charge

was that the respondents had stored and/or exposed for sale

and/or used Hyacinth's ground white pepper (compound) with

fried rice powder for the purpose of manufacturing and

preparing different articles of food which was adulterated

and misbranded.

On the date of the commission of the alleged offence

i.e. on August 16, 1975 the law in force in the State of

West Bengal was

909

the Act as amended by the West Bengal Amendment Act which

provided that such an offence would be punishable with

imprisonment for life. The learned Magistrate following the

decision of Anil Kumar Sen, J. in B. Manna and Ors. v. The

State of West Bengal(1) sustained a preliminary objection

raised on behalf of the Corporation and held that the case

was triable by the Court of Sessions. Disagreeing with the

view of Anil Kumar Sen, J. in B. Manna's case, (supra), a

Division Bench of the High Court held that after the Central

Amendment Act came into force on April 1, 1976, all

proceedings pending for trial of such offences punishable

under s.16(1)(a) of the Act as amended by the West Bengal

Amendment Act which had not been concluded, would cease to

be governed by the West Bengal Amendment Act and would come

within the purview of the Act as amended by the Central

Amendment Act and therefore such offences committed prior to

such amendment are triable in accordance with the procedure

prescribed by s.16A of the Act as amended by the Central

Amendment Act. It accordingly set aside the order of the

learned Magistrate and directed him to proceed with the

trial.

Upon these facts, three questions fall for

consideration in the appeal viz. (1) whether the Central

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Amendment Act impliedly repealed the West Bengal Amendment

Act with effect from April 1, 1976; and if so, the effect of

such repeal. (2) Whether the High Court was justified in

holding that the West Bengal Amendment Act shall be deemed

to have been obliterated from the Statute Book for all

intents and purposes inasmuch as the Central Amendment Act

manifests an intention to the contrary so as to exclude the

operation of s.8 of the Bengal General Clauses Act, 1899.

And (3) Are the pending proceedings to be governed by the

change of procedure brought about by s.16A of the Act as

introduced by the Central Amendment Act; and further whether

the continued operation of the repealed West Bengal

Amendment Act is preserved with regard to the punishment to

be imposed.

For a proper appreciation of the points in controversy,

it is necessary to deal with the statutory changes brought

about. First we may refer to the provisions of the Act as it

stood on March 1, 1972, the relevant provisions whereof were

as follows:

910

"16(1) If any person-

(a) whether by himself or by any other person on his behalf

imports into India or manufactures for sale, or stores,

sells or distributes any article of food-

(i) which is adulterated or misbranded or the sale of

which is prohibited by the Food (Health) authority

in the interest of public health;

(ii) ** ** **

He shall, in addition to the penalty to which he

may be liable under the provisions of s.6, be

punishable with imprisonment for a term which shall not

be less than six months but which may extend to six

years, and with fine which shall not be less than one

thousand rupees.

Provided that-

(i) if the offence is under sub-cl. (i) of cl. (a)

and is with respect to an article of food which is

adulterated under sub-cl. (i) of cl. (i) of s.2 or

misbranded under sub-cl. (k) of cl. (ix) of that

section; or

** ** ** **

the court may for any adequate and special reasons to

be mentioned in the judgment, impose a sentence of

imprisonment for a term of less than six months or of

fine of less than one thousand rupees or of both

imprisonment for a term of less than six months and

fine of less than one thousand rupees."

"20(1) ** ** **

(2) No court inferior to that of a Presidency Magistrate or

a Magistrate of the First Class shall try any offence

under this Act."

** ** ** **

21. Notwithstanding anything contained in s.32 of the Code

of Criminal Procedure, 1898, it shall be lawful for any

Presidency Magistrate or any Magistrate of the first

class to pass any sentence authorized by this Act, in

excess of his powers under s. 32 of the said Code."

911

On these provisions, the maximum punishment which could

be imposed for committing any offence under s.16(1)(a) was

imprisonment for six years and fine. Such an offence not

being under the Indian Penal Code, 1860 was triable not

exclusively by the Court of Sessions under the provisions of

s.29(2) of the Code of Criminal Procedure, 1973 read with

Schedule II thereunder. To overcome the limit imposed by

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s.32 of the Code on sentences which a Presidency Magistrate

or a Magistrate of First Class could impose, s.21 of the Act

was inserted. The result was that such offences become

triable by a Presidency Magistrate or a Magistrate of the

First Class. That was the law in force in the whole of India

as on March 1, 1972.

On April 29, 1974, the Prevention of Adulteration of

Food, Drugs and Cosmetics (West Bengal Amendment) Act, 1973

enacted by the State Legislature of West Bengal having been

assented to by the President, became the law applicable to

the State of West Bengal as from that date. It would appear

that the State of West Bengal had taken a step forward with

a view to make anti-social offences such as adulteration of

articles of food meant for human consumption, or manufacture

or sale of spurious drugs etc. which constituted a menace to

the society and deserved a deterrent punishment, to be

punishable with imprisonment for life. S.6 of that Act

inserted the following amendment.

"In the Prevention of Food Adulteration Act, 1954-

** ** ** ** **

(ii) in section 16-

(a) in sub-s.(l), for the words "a term which shall

not be less than six months but which may extend

to six years, and with fine which shall not be

less than one thousand rupees", the words "life

and shall also be liable to fine" shall be

substituted;"

The following words were substituted in the proviso to sub-

s.(1):

"(b) in the proviso to sub-s.(1), for the words "the

Court may for any adequate and special reasons to

be mentioned in the judgment, impose a sentence of

imprisonment for a term of less than six months or

fine of less than one thousand rupees or of both

imprisonment for a term of less than six months

and fine of less than

912

one thousand rupees", the following words shall be

substituted, namely:-

"(ii) if the Court thinks that for any adequate

and special reasons to be mentioned in the

judgment a lesser sentence would serve the

ends of justice,

the Court may impose a sentence which is less than

a sentence of imprisonment for life;"

It will be seen that the West Bengal Amendment Act

brought about a radical change so far as the Act was

concerned in its application to the State of West Bengal.

The maximum punishment for an offence under s.16(1)(a) when

committed in the State was punishment of imprisonment for

life so that under the provisions of the Code of Criminal

Procedure, 1973, such an offence became exclusively triable

by a Court of Sessions and ceased to be triable either by a

Presidency Magistrate or a Magistrate of the First Class.

For this reason, the provisions of s.20 were also

materially altered :

"20(1) All offences punishable under this Act shall

be cognizable and non-bailable.

(2) Any police officer not below the rank of a

Sub Inspector of Police may arrest without

warrant any person against whom a reasonable

complaint has been made or credible

information has been received of his having

been concerned in any of the offences

punishable under this Act."

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The Act also introduced s.19A with regard to burden of proof

and it read :

"19A. When any article intended for food is seized from

any person in the reasonable belief that the same is

adulterated or misbranded the burden of proving that

such article intended for food is not adulterated or

misbranded shall be on the person from whose possession

such article intended for food was seized."

It was not long before Parliament stepped in to meet

the growing menace of the anti-social offence of

adulteration of articles

913

of food meant for human consumption which was a threat to

the national well-being and it was felt that such offences

must be ruthlessly dealt with. It was also felt that there

should be a summary trial of these offences. The Prevention

of Food Adulteration (Amendment) Act, 1976 was accordingly

brought into force with effect from April 1, 1976. It not

only created new offences but also enhanced the punishments

provided. But at the same time it also provided for graded

punishment for various types of offences. Incidentally, it

mollified the rigour of the law by providing for a reduced

punishment for an offence punishable under s.16(1)(a). We

are however not concerned with other types of offences

except the one punishable under s.16(1)(a) and for this the

maximum punishment provided was for a term of three years

instead of six years. In s.16 of the Act for sub-s.(1), the

following sub-section insofar as relevant was introduced :

"(1) Subject to the provisions of sub-s.(1A), if any

person-

(a) whether by himself or by any other person on his

behalf, imports into India or manufactures for

sale, or stores, sells or distributes any article

of food-

(i) which is adulterated within the meaning of sub-

cl.(m) of cl.(ia) of s.2 or misbranded within the

meaning of cl. (ix) of that section or the sale of

which is prohibited under any provision of this

Act or any rule made thereunder or by an order of

the Food (Health) Authority;

* * * * *

he shall, in addition to the penalty to which he may be

liable under the provisions of s.6, be punishable with

imprisonment for a term which shall not be less than

six months but which may extend to three years, and

with fine which shall not be less than one thousand

rupees."

A new proviso was inserted conferring power on the

Court for any adequate and special reasons to be mentioned

in the judgment to impose a reduced punishment for a term

which shall not be less than three months but may extend to

two years, with fine which shall not be less than five

hundred rupees.

914

As regards the procedure for trial of such offences,

the Act introduced s.16A which is important for our

purposes, and it reads :

"16A. Notwithstanding anything contained in the Code of

Criminal Procedure, 1973, all offences under sub-

section (1) of section 16 shall be tried in a summary

way by a Judicial Magistrate of the first class

specially empowered in this behalf by the State

Government or by a Metropolitan Magistrate and the

provisions of sections 262 to 265 (both inclusive) of

the said Code shall, as far as may be, apply to such

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trial :

Provided that in the case of any conviction in a

summary trial under this section, it shall be lawful

for the Magistrate to pass a sentence of imprisonment

for a term not exceeding one year :

Provided further that when at the commencement of,

or in the course of, a summary trial under this

section, it appears to the Magistrate that the nature

of the case is such that a sentence of imprisonment for

a term exceeding one year may have to be passed or that

it is, for any other reason, undesirable to try the

case summarily, the Magistrate shall after hearing the

parties record an order to that effect and thereafter

recall any witness who may have been examined and

proceed to hear or rehear the case in the manner

provided by the said Code."

There were some corresponding changes brought about in

s.20 of the Act. Sub-s.(2) of s.20 provides :

"(2) No Court inferior to that of a Metropolitan

Magistrate or a Judicial Magistrate of the first

class shall try any offence under this Act."

There is no doubt or difficulty as to the law

applicable. Art. 254 of the Constitution makes provision

firstly, as to what would happen in the case of conflict

between a Central and State law with regard to the subjects

enumerated in the Concurrent List, and secondly, for

resolving such conflict. Art. 254(1) enunciates the normal

rule that in the event of a conflict between a Union and a

State law in the concurrent field, the former prevails over

the latter.

915

Clause (1) lays down that if a State law relating to a

Concurrent subject is 'repugnant' to a Union law relating to

that subject, then, whether the Union law is prior or later

in time, the Union law will prevail and the State law shall,

to the extent of such repugnancy, be void. To the general

rule laid down in clause (1), clause (2) engrafts an

exception, viz., that if the President assents to a State

law which has been reserved for his consideration, it will

prevail notwithstanding its repugnancy to an earlier law of

the Union, both laws dealing with a Concurrent subject. In

such a case, the Central Act will give way to the State Act

only to the extent of inconsistency between the two, and no

more. In short, the result of obtaining the assent of the

President to a State Act which is inconsistent with a

previous Union law relating to a Concurrent subject would be

that the State Act will prevail in that State and override

the provisions of the Central Act in their applicability to

that State only. The predominance of the State law may

however be taken away if Parliament legislates under the

Proviso to clause (2). The Proviso to Art.254(2) empowers

the Union Parliament to repeal or amend a repugnant State

law even though it has become valid by virtue of the

President's assent. Parliament may repeal or amend the

repugnant State law, either directly, or by itself enacting

a law repugnant to the State law with respect to the 'same

matter'. Even though the subsequent law made by Parliament

does not expressly repeal a State law, even then, the State

law will become void as soon as the subsequent law of

Parliament creating repugnancy is made. A State law would be

repugnant to the Union law when there is direct conflict

between the two laws. Such repugnancy may also arise where

both laws operate in the same field and the two cannot

possibly stand together e.g., where both prescribe

punishment for the same offence but the punishment differs

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in degree or kind or in the procedure prescribed. In all

such cases, the law made by Parliament shall prevail over

the State law under Art.254(1). That being so, when

Parliament stepped in and enacted the Central Amendment Act,

it being a later law made by Parliament "with respect to the

same matter", the West Bengal Amendment Act stood impliedly

repealed.

The case of Zaverbai Amaidas v. The State of Bombay(1)

illustrates the application of the Proviso to Art.254(2).

The Essential Supplies (Temporary Powers) Act, 1946 was

enacted by the Central

916

Legislature, s.7 of which provided for penalties for

contravention of orders made under s.3 of the Act. The

provision with regard to the penalties was that if any

person contravenes any order made under s.3, he shall be

punishable with imprisonment for a term which may extend to

three years or with fine or with both. The then Province of

Bombay felt that the maximum punishment of three years,

imprisonment provided by s.7 of the Act was not adequate for

offences under the Act and with the object of enhancing the

punishment provided therein, enacted Act 36 of 1947. By s.2

of that Act it was provided that notwithstanding anything

contained in the Essential Supplies (Temporary Powers) Act,

1946, whoever contravenes an order made under s.3 of the Act

shall be punishable for a term which may extend to seven

years but shall not, except for reasons to be recorded in

writing, be less than six months and shall also be liable to

fine. The Bombay Act thus increased the sentence to

imprisonment for seven years and also made it obligatory to

impose a sentence of fine, and further provided for a

minimum sentence of six months and the Court was bound to

impose a minimum sentence except for reasons to be recorded

in writing. The Act having been reserved for the assent of

the Governor-General and received his assent under s.107(2)

of the Government of India Act, 1935, came into operation in

the Province of Bombay notwithstanding the repugnancy.

Subsequently, the Essential Supplies (Temporary Powers) Act,

1946 under-went substantial alterations and was finally

recast by the Essential Supplies (Temporary Powers)

Amendment Act, 1950. The Amendment made in 1950 substituted

a new section in place of s.7 of the Act. The scheme of the

new section was that for purposes of punishment, offences

under the Act were grouped under three categories and the

punishment to be imposed in the several categories were

separately specified. S.7 was thus a comprehensive Code

covering the entire field of punishment for offences under

the Act graded according to the commodity and character of

the offence. It was held by this Court that the Bombay Act

was impliedly repealed by s.7 of the Essential Supplies

(Temporary Powers) Amendment Act, 1950.

It is strenuously argued on behalf of the appellant

that s.16A of the Act is not retrospective in operation, and

that it does not deal with procedure alone but touches a

substantive right. The submission is that in view of

cls.(c), (d) and (e) of sub-s.(1) of s.8 of the Bengal

General Clauses Act, 1899 which provide that if any law is

repealed then unless a different intention appears, the

repeal shall not affect any liability incurred under any

enactment so repealed or affect any

917

legal proceeding or remedy in respect of such liability,

penalty or punishment as aforesaid. It is said that there

was a liability incurred by the commission of an offence

punishable under s.16(1)(a) of the Act as amended by the

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West Bengal Amendment Act and s.8 of the Bengal General

Clauses Act' 1899 preserved the continued operation of the

repealed West Bengal Amendment Act for imposition of that

punishment. The contention is that where rights and

procedure are dealt with together by the repealing Act,

then, intention of the legislature is that the old rights

are still to be determined by the old procedure. In support

of the contention, reliance is placed on the decision of the

Sargant, J. in re Hale's Patent(1). We are afraid, the

contention cannot prevail. Just as a person accused of the

commission of an offence has no right to trial by a

particular court or to a particular procedure, the

prosecutor equally has no right to insist upon that the

accused be subjected to an enhanced punishment under the

repealed Act. The dictum of Sargant.J. in re Hale's Patent

is therefore not applicable.

Whenever there is a repeal of an enactment, the

consequences laid down in s.6 of the General Clauses Act

though it has been specifically mentioned in the repealing

Act or not, will follow, unless, as the section itself says,

a different intention appears. In State of Punjab v. Mohar

Singh(1), this Court has elaborately dealt with the effect

of repeal. In the case of a simple, repeal there is scarcely

any room for expression of a contrary opinion. But when the

repeal is followed by fresh legislation on the same subject,

the Court would undoubtedly have to look to the provisions

of the new Act, but only for the purpose of determining

whether they indicate a different intention. "The line of

inquiry would be, not whether the new Act expressly keeps

alive old rights and liabilities", in the words of

Mukherjee,J., "but whether it manifests an intention to

destroy them." The Court held that it cannot subscribe to

the broad proposition that s.6 of the General Clauses Act is

ruled out when there is repeal of an enactment followed by

fresh legislation. S 6 would be applicable in such cases

also unless the new legislation manifests an intention

incompatible with or contrary to the provisions of the

section. Such incompatibility would have to be ascertained

from a consideration of all the relevant provisions of the

new Act and the mere absence of a saving clause is not by

itself material. The Court therefore held that the

provisions of s.6 of the General Clauses Act will apply to a

case

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of repeal even if there is simultaneous enactment unless a

contrary intention can be gathered from the new enactment.

Of course, the consequences laid down in s.6 of the General

Clauses Act will apply only when a statute or regulation

having the force of a statute is actually repealed. It has

no application when a statute which is of a temporary nature

automatically expires by efflux of time. The principles laid

down by the Court in Mohar Singh's case (supra), have

consistently been followed in subsequent cases. The old

doctrine of extinguishing or effacing the repealed law for

all purposes and intents except for the acts past and closed

has now given way to the principles enunciated by the Court

in Mohar Singh's case, (supra).

The question that falls for consideration in the appeal

is whether a "contrary intention" appears from the

provisions of the Central Amendment Act so as to exclude the

applicability of s.8 of the Bengal General Clauses Act. Anil

Kumar Sen,J. in B. Manna's case, (supra), mentions several

reasons why the Central Amendment Act was not really

intended to be retrospective in operation so that it would

not cover cases of offences committed prior to the enactment

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itself. In the first place, he observes that the Central

Amendment Act had not expressly repealed the West Bengal

Amendment Act nor dealt with the Act or any of its

provisions in any manner. It was enacted with reference and

having regard to the provisions of the Act as it stood

before the Central Amendment Act came into force. Even if

the Central Amendment Act had not expressly repealed the

West Bengal Amendment Act, it would still be repealed by

necessary implication under Art. 254(1) as it conflicts with

a later law with respect to the same matter enacted by

Parliament.

Secondly, the learned Judge refers to the language of

the statute itself. He observes that unlike many other

statutory provisions creating similar offences and providing

punishment therefor, in the Act the material provisions are

not in terms like "any person guilty of an offence of

manufacturing, storing, selling or distributing any article

of food which is adulterated shall be punishable with...".

On the other hand, he points out that the terms of s.

16(1)(a) of the Act are "if any person..... manufactures for

sale, or stores, or sells, or distributes any article of

food which is adulterated, he shall.....". The learned Judge

is of the view that on the words used and on their terms the

only consistent implication is that such manufacture,

storage, sale or distribution must be after the enactment

has come into force and not prior thereto. In our view,

nothing

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really turns on the language of s. 16(1)(a) because the

Central Amendment Act has not created a new offence thereby

but dealt with the same offence as before.

Lastly, the learned Judge refers to the new offences

created by the Central Amendment Act, one of them being that

under s. 16(1)(b) of the Act with regard to manufacturing

for sale, or storing, or selling, or distributing any

adulterant which was not in the Act at any time before.

Accordingly, he holds that it is not possible to give

retrospective effect to the other parts of the Act and

observes that it could never have been the intention of the

Legislature nor was it possible to give retrospective effect

to the Act. According to him Art. 20(1) of the Constitution

stands in the way of giving retrospective effect to s.

16(1)(b) of the Act and thus renders the act which was

otherwise innocent at the time when it was done to be an

offence by later enactment. We are not concerned with new

offences created by the Central Amendment Act or with

offences for which an enhanced punishment is provided for

and therefore there is no question of Art. 20(1) of the

Constitution being attracted. We are here concerned with the

same offence, namely, an offence punishable under s.

16(1)(a) of the Act for which a reduced punishment is

provided for.

It is only retroactive criminal legislation that is

prohibited under Art. 20(1). The prohibition contained in

Art. 20(1) is that no person shall be convicted of any

offence except for violation of a law in force at the time

of the commission of the act charged as an offence prohibits

nor shall he be subjected to a penalty greater than that

which might have been inflicted under the law in force at

the time of the commission of the offence. It is quite clear

that insofar as the Central Amendment Act creates new

offences or enhances punishment for a particular type of

offence no person can be convicted by such ex post facto law

nor can the enhanced punishment prescribed by the amendment

be applicable. But insofar as the Central Amendment Act

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reduces the punishment for an offence punishable under s.

16(1)(a) of the Act, there is no reason why the accused

should not have the benefit of such reduced punishment. The

rule of beneficial construction requires that even ex post

facto law of such a type should be applied to mitigate the

rigour of the law. The principle is based both on sound

reason and common-

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sense. This finds support in the following passage from

Craies on Statute Law, 7th edn. at pp. 387-88 :

"A retrospective statute is different from an ex

post facto statute. "Every ex post facto law ..... "

said Chase J. in the American case of Calder v. Bull(1)

"must necessarily be retrospective, but every

retrospective law is not an ex post facto law. Every

law that takes away or impairs rights vested agreeably

to existing laws is retrospective, and is generally

unjust and may be oppressive ; it is a good general

rule that a law should have no retrospect, but in cases

in which the laws may justly and for the benefit of the

community and also of individuals relate to a time

antecedent to their commencement : as statutes of

oblivion or of pardon. They are certainly

retrospective, and literally both concerning and after

the facts committed. But I do not consider any law ex

post facto within the prohibition that mollifies the

rigour of the criminal law, but only those that create

or aggravate the crime, or increase the punishment or

change the rules of evidence for the purpose of

conviction ..... There is a great and apparent

difference between making an unlawful act lawful and

the making an innocent action criminal and punishing it

as a crime."

To illustrate, if Parliament were to re-enact s. 302 of

the Indian Penal Code, 1860 and provide that the punishment

for an offence of murder shall be sentence for imprisonment

for life, instead of the present sentence of death or

imprisonment for life, then it cannot be that the Courts

would still award a sentence of death even in pending cases.

In Rattan Lal v. The State of Punjab(2), the question

that fell for consideration was whether an appellate court

can extend the benefit of Probation of Offenders Act, 1958

which had come into force after the accused had been

convicted of a criminal offence. The court by majority of 2

: 1 answered the question in the affirmative. Subba Rao, J.

who delivered a majority opinion, concluded that in

considering the question, the rule of beneficial

construction required that even ex post facto law of the

type involved in that case should be applied to reduce the

punishment.

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It is settled both on authority and principle that when

a later statute again describes an offence created by an

earlier statute and imposes a different punishment, or

varies the procedure, the earlier statute is repealed by

implication. In Michell v. Brown(1) Lord Cambell put the

matter thus :

"It is well settled rule of construction that, if

a later statute again describes an offence created by a

former statute and affixes a different punishment,

varying the procedure, the earlier statute is repealed

by the later statute See also Smith v. Benabo.(2)

In Regina v. Youle,(3) Martin, B. said in the oft-quoted

passage :

"If a statute deals with a particular class of

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offences, and a subsequent Act is passed which deals

with precisely the same offences, and a different

punishment is imposed by the later Act, I think that,

in effect, the legislature has declared that the new

Act shall be substituted for the earlier Act."

The rule is however subject to the limitation contained in

Art. 20(1) against ex post facto law providing for a greater

punishment and has also no application where the offence

described in the later Act is not the same as in the earlier

Act i.e. when the essential ingredients of the two offences

are different.

In the premises, the Central Amendment Act having dealt

with the same offence as the one punishable under s.

16(1)(a) and provided for a reduced punishment, the accused

must have the benefit of the reduced punishment. We wish to

make it clear that anything that we have said shall not be

construed as giving to the Central Amendment Act a

retrospective operation insofar as it creates new offences

or provides for an enhanced punishment.

In the result, the appeal must fail and is dismissed.

P.B.R. Appeal dismissed.

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