Harries, C.J:— This Court issued a Rule upon the District Magistrate of Burdwan to show cause why the records of this case should not be transferred to this Court for the decision of certain constitutional points which were said to arise in the case. The records were duly transferred and this Court has heard arguments on the constitutional points under the powers granted to it by Art. 228 of the Constitution of India.

2. The petitioners were charged with contravention of sec. 10 (i) of the Bengal Foodgrains Control Order, 1945, which had been made under powers granted by the Essential Supplies Act (Act XXIV of 1946). The case for the prosecution was that on May 23, 1950, the petitioners had in their possession more than fifty maunds of rice without a permit. The case was that they had hidden this rice amounting in all to fifty maunds and five Seers in a number of barrels which are concealed in a lorry or truck. The learned Magistrate found the petitioners guilty and convicted them of an offence under sec. 7 of the Essential Supplies Act read with the Foodgrains Control Order. Each of the accused was sentenced to six months' rigorous imprisonment and the rice was confiscated.

3. The petitioners preferred an appeal to the court of the learned Sessions Judge of Burdwan. He found that the prosecution had not established the case, but in his view the prosecution were entitled to an opportunity to adduce further evidence to establish the charges. The case was therefore remanded to the court of the learned Magistrate for additional evidence and the learned Magistrate was directed to return the record to the court of the Sessions Judge after taking the additional evidence and recording the statements of the petitioners under sec. 342 of the Code of Criminal Procedure.

4. At this stage an application was made to this Court under Art. 228 of the Constitution. It was contended that the case raised a number of constitutional points. In the first place it was contended that the Essential Supplies Act was not in force on May 23, 1950, when the offence was alleged to have been committed. There was a further contention that secs. 3 and 6 of the Essential Supplies Act were ultra vires the Constitution of India as these sections delegated legislative powers which was not permissible under the Constitution.

5. We have heard learned Advocate for the petitioners and the learned Advocate-General on behalf of the State and we are satisfied that there is no force in the contentions put forward by the petitioners.

6. I shall deal firstly with the contention that the Essential Supplies Act was not in force on May 23, 1950, and therefore no offence could have been committed.

7. The Essential Supplies Act, 1946, was enacted under powers granted to the Central Legislature in India by an English Statute, India (Central Government and Legislature) Act, 1946, 9 & 10 Geo. Ch. 39. This Act amended the Government of India Act, 1935, and empowered the Central Legislature to legislate on matters which they would otherwise have no power to do. The power given to the Indian Legislature was a power to enact a temporary statute and the duration of the legislative powers granted by the English Act is dealt with in sec. 4 of that Act. That section is in these terms:

“The period mentioned in the two last preceding sections is the period of one year beginning with the date on which the proclamation of Emergency in force at the passing of this Act ceases to operate or, if the Governor-General by public notification so direct, the period of two years beginning with that date:

Provided that if and so often as a resolution approving the extension of the said period is passed by both Houses of Parliament, the said period shall be extended for a further period of twelve months from the date on which it would otherwise expire so, however, that it does not in any case continue for more than five years from the date on which the Proclamation of Emergency ceases to operate”.

8. It is common ground that Emergency ceased to operate on April 1, 1946, and by a public notification the Governor-General directed that the Act should be in force for a period of two years beginning on April 1, 1946.

9. This notification therefore resulted in the Act continuing in force until April 1, 1948.

10. On August I5, 1947, the Indian Union came into existence and the old legislatures under the Government of India Act ceased to exist. However, by reason of the Indian Independence Act and the Indian (Provisional Constitution) Order, 1947, the statute 9 & 10 Geo. 6 was amended and the words “both Houses of Parliament” were amended to read the “Dominion Legislature”. Further it is common ground that the “Dominion Legislature” was later to be construed as the “Constituent Assembly”.

11. Up to this stage there is no dispute and on February, 25, 1948, by a resolution of the Constituent Assembly which by that time represented both Houses of Parliament, the operation of the Essential Supplies Act was extended to April 1, 1949. Again on March 23, 1949, by a second resolution of the Constituent Assembly the Act was extended to April 1, 1950.

12. It was contended that the Act was never validly extended beyond April 1, 1950, and that its purported extension by the President's Adaptation Order of January 26, 1950, was invalid. In the President's Adaptation Order of January 26, 1950, certain amendments were made to section 1 of the Essential Supplies Act, i946. In sub-section (3) of section 1 of that Act for the words “expiration of the period mentioned in section 4 of the India (Central Government and Legislature) Act, 1946” were substituted the words “on the first day of April, 1951” and for the words “before the expiration thereof” were substituted the words “before that date”. This adaptation amended section 1, sub-section 3 of the Essential Supplies Act so that its operation was extended until April 1, 1951. The contention was that extending the life of the Essential Supplies Act was in itself a purely legislative act and was in no sense an adaptation of existing law.

Head Note (1)

13. The President was given powers under Article 372, clause (2) of the Constitution to make necessary adaptations of existing law to suit the new circumstances brought into existence by the passing of the Constitution of India. That clause reads:

“For the purpose of bringing the provisions of any law in force in the territory of India into accord with the provisions of this Constitution, the President may by order make such adaptations and modifications of such law, whether by way of repeal or amendment, as may be necessary or expedient, and provide that the law shall, as from such date as may be specified in the order, have effect subject to the adaptation and modifications so made, and any such adaptation and modification shall not be questioned in any Court of law….”

14. There can be no doubt that the adaptation referred to was made under this power. But I think it is clear that this clause would not entitle the President to legislate except for the purpose of bringing the provisions of any law in force in India into accord with the provisions of the Constitution. The power of the President is strictly limited and I think it is clear that there was nothing in the Constitution which required an adaptation of this kind unless they had been a further extension before the Constitution came into force. Had the further extension of the Act depended entirely upon this provision in the Adaptation Order I should have had no hesitation in holding that the Act had not been validly extended and further, the provision at the end of cl. (2) of Art. 372 that no adaptation or modification could be questioned in a Court of law could not affect the decision, because once it was held that this extension was not an adaptation then the matter could be questioned in a Court of law.

15. The matter however has now been cleared up because it appears that on December 20, 1949, a third resolution was passed by the Constituent Assembly extending the operation of the Act to April 1, 1951. Therefore when the Constitution of India came into force on January 26, 1950, the Essential Supplies Act had already been extended to April 1, 1951, and it was for this reason that the President's Adaptation Order was made.

16. In order to put the matter beyond question the President passed an order for removal of difficulties on August 11, 1950, under Art. 392 of the Constitution and by that order Art, 249 of the Constitution was amended. Art. 249 empowers Parliament under the new Constitution to legislate with, respect to a matter in the State List in the national interest and by the Removal of Difficulties Order this Article was suitably-amended to apply to conditions existing immediately after the Constitution came into force. On August 12, 1950, Parliament passed a resolution assuming powers under Art. 249.

Head Note (2)

17. Having regard to the events that have happened it appears to me that the extension of the Essential Supplies Act from April 1, 1950, to April 1, 1951, did not depend solely upon the President's Adaptation Order. It had been extended as provided by the English Act as subsequently amended, by a resolution of the Constituent Assembly, dated December 20, 1949. The President's Adaptation Order and the subsequent orders merely made the necessary amendments so that the Act fitted in with the new circumstances.

18. Mr. Sudhanshu Mukherjee contended however that the extension of this Act to April 31, 1951, by the resolution of the Constituent Assembly of December 20, 1949, was illegal. His contention was that the Act could not be extended by a resolution except within the last few days of its existence without such extension. It is to be observed that the first extension was made on February 25, 1948, extending it for a further year from April 1, 1948. The second extension was made later, namely, on March 23, 1949, (that is a matter of eight days or so before the Act expired. The resolution of December 20, 1949, was passed a little over three months before the Act was due to expire and this, according to Mr. Sudhanshu Mukherji, rendered the resolution invalid.

19. All that the English Act provides is that the extensions by resolutions should be extensions for one year only and that _ the maximum life of the Act should be five years from the date upon which the Emergency terminated. The extension contemplated by the resolution of the Constituent Assembly of December 20, 1949, is an extension for one year and it was made during the currency of the year for which the Act had been extended by an earlier resolution. 1 can see no reason at all why this resolution passed on December 20, 1949, must be held to be invalid because it was passed perhaps a little early. What is forbidden is extending the Act beyond a period of one year and this resolution only extends the Act from April 1, 1950, to April 1, 1951, and it was actually passed during the currency of the year April 1, 1950. The resolution to my mind clearly complies with section 4 of the English Act as amended and is therefore valid. Mr. Mukherji contended that if the Act could be extended three or four months before it was due to expire then more resolutions than one could be passed extending the Act. However if more resolutions than one were passed on the same date there would clearly be a contravention of section 4 of the English Act because the effect would be that the Act would be extended for a period longer than one year. The extension therefore on December 20, 1949, was valid and all the President's Adaptation Order of January 26, 1950, did was to adapt the law existing at the date when the Constitution came into force to the new circumstances. The continued existence of the Act was therefore not the result of the President's order. It had previously been validly extended as provided by the English Statute already referred to.

20. It was suggested that the Essential Supplies Act could no longer be regarded as good law because it was an Act of the Cen tral Government dealing with matters upon which the State Legislatures only could legislate. However it is clear by Article 369 of the Constitution that the Centre has, during the first five years of the existence of the Indian Republic, power to make Jaws with respect to a large number of matters such as those covered by the Essential Supplies Act as if they were enumerated in the Concurrent List in the Seventh Schedule of the Constitution.

21. For these reasons I am satisfied that the Essential Supplies Act, 1946, was in force on May 23, 1950, when the offence in this case was alleged to have been committed. It was in fact in force from April 1, 1950, to April 1, 1951, and has since, by an Act of the Central Government, Act LII of 1950, been further extended to December 31, 1952.

22. Learned Advocate for the petitioner then contended that secs. 3 and 6 of the Essential Supplies Act were ultra vires of the Constitution of India in that the Central Legislature delegated its powers to legislate to the Central Government or to a State Government. That being so it was urged that the orders made by the State Government under this Act were ultra vires, and no offence could be committed in respect of these orders.

23. Section 3 of the Essential Supplies Act is as follows:

(1) “The Central Government, so far as it appears to it to be necessary or expedient for maintaining or increasing supplies of any essential commodity, or for securing their equitable distribution and availability at fair prices, may by notified order provide for regulating; or prohibiting the production, supply and distribution thereof and trade and commerce therein.

(2) Without prejudice to the generality of the powers conferred by sub-section (1), an order made thereunder may provide:”

Then follows a large number of subjects upon which orders can be made. For example, regulating by licenses, the production or manufacture of any essential commodity, or controlling the prices at which any essential commodity may be bought or sold, and such like.

24. Section 4 of the Act provides:

“The Central Government may by notified order direct that the power to make orders under section 3 shall, in relation to such matters and subject to such conditions, if any as may be specified in the direction, be exercisable also by

(a) such officer or authority subordinate to the Central Government, or

(b) such Provincial Government or such officer or authority subordinate to a Provincial Government, as may be specified in the direction”

25. Section 6 of the Act is in these terms:

“Any order made under section 3 shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or any instrument having effect by virtue of any enactment other than this Act.”

26. It is clear from these sections that the Act empowered the Central Government to make orders on specific matters and further that the Central Government could delegate their powers to an officer or authority of the Central Government or to a State Government or an Officer or authority subordinate to such State Government. Further, the orders made were to be valid notwithstanding any other law to the contrary.

27. It is suggested that secs. 3 and 4 are clearly ultra vires because the legislative power of the Central Legislature has been delegated. The legislature could not under sec. 3 itself enact the orders. The orders were to be made by the Executive Government, or by the State Government or by officers or authorities of such Governments who have been duly specified.

28. For the purpose of dealing with this contention I shall assume that the rule prohibiting the delegation of legislative authority applies to the Central legislature though recently it was contended that the rule had no application. The matter is, we understand, still under consideration in the Supreme Court. But for the purposes of this judgment it is unnecessary, I think, to decide that question. Even assuming that delegation of legislative power is not permissible under the Indian Constitution, nevertheless we are bound to hold in this case that there has been no such delegation.

29. It is to be observed that powers to make orders similar to those given by sec. 3 of the Essential Supplies Act were granted to Government during the period of the last War under the Defence of India Act. The Government were given wide powers to make rules and rules were so made. The validity of a number of those rules were challenged in the Courts in India and before their Lordships of the Privy Council. But it was never successfully contended that the section in the Defence of India Act empowering the Government to make rules under that Act was ultra vires, because it amounted to delegation of legislative powers. For example, in Keshav Talpade v. King Emperor (1) [48 C.W.N 32 (F.R)] the Federal Court held that Rule 26 of the Defence of India Rules, which was made under powers given to the Government by sub-secs. (1) and (2) of sec. 2 of the Defence of India Act, 1939, was ultra vires because the rule went beyond the powers given to Government by sub-sec. (2)(x) of sec. 2 of the Defence of India Act. It is to be observed that it was never contended in this case or even suggested by the learned Judges of the Federal Court that these rules were ultra vires because they were an exercise of legislative power by a delegated authority. All that was Contended and held in Talpade's case (1) (supra) was that the authority and power to make the rule had exceeded its power.

30. The Defence of India Rules were considered by their Lordships of the Privy Council in considerable detail in the case of King Emperor v. Sibnath Banerji (2) (72 I.A 241 : 50 C.W.N 25). In that case r. 26 of the Defence of India Rules was again considered and their Lordships of the Privy Council were of opinion that the case of Keshab Talpade (1) (supra) was wrongly decided. Again it was never suggested at the Bar that the Defence of India Rules were ultra vires and invalid, and the whole case proceeds upon the assumption that rules could be made and the only question was whether the rules complied with the provisions of secs. 1 and 2 of the Defence of India Act.

31. I can see no difference in principle between the rules made under the Essential Supplies Act and the rules made under the Defence of India Act; and if the contention now put forward that all the rules and orders made under the Essential Supplies Act are invalid by reason of the fact that the power to make orders is a delegation of legislative authority then it would appear to me that all the cases decided on the Defence of India Rules were wrongly decided because all the rules were invalid by reason of this delegation of legislative authority.

32. Whether the power to make orders similar to the orders made under the Essential Supplies Act amounts to a delegation of legislative authority has been considered by their Lordships of the Privy Council on a number of occasions.

33. In Hodge v. The Queen (3) (9 A.C 117) their Lordships of the Privy Council had to consider whether certain regulations made under the Liquor License Act of 1877 of the State of Ontario amounted to a delegated legislation. At page 132 Sir Barnes Peacock who delivered the judgment of the Board observed:

“Within these limits of subjects and area the local legislature is supreme, and has the same authority as the Imperial Parliament, or the Parliament of the Dominion, would have had under like circumstances to confide to a municipal institution or body of its own creation authority to make by-laws or resolutions as to subjects specified in the enactment, and with the object of carrying the enactment into operation and effect.”

“It is obvious that such an authority is ancillary to legislation, and without it an attempt to provide for varying details and machinery to carry them out might become oppressive, or absolutely fail. The very full and very elaborate judgment of the Court of Appeal contains abundance of precedents for this legislation, entrusting a limited discretionary authority to others, and has many illustrations of its necessity and convenience. It was argued at the Bar that a legislature committing important regulations to agents or delegates effaces itself. That is not so. It retains its powers intact, and can, whenever it pleases, destroy the agency. It has created and set up another, or take the matter directly into his own hands. How far it shall seek the aid of subordinate agencies, and how long it shall continue them, are matters for each legislature, and not for Courts of Law to decide.”

“Their Lordships do not think it necessary to pursue this subject further, save to add that, if by-laws or resolutions are warranted, power to enforce them seems necessary and equally lawful.”

34. Their Lordships again considered this question in the case of Powell v. Apollo Candle Company (4) (10 A.C 282). In that case it was argued that certain duties levied by an Order in Council issued under sec. 133 of the Customs Regulation Act of 1879 were really levied by authority of the legislature and not of the Executive.

35. It was contended in this case that there had been delegation by legislative authority and that the duties were levied by the Executive and not by the Legislature. At page 291 Sir Robert Collier who delivered the judgment of the Board observed:

“It is argued that the tax in question has been imposed by the Governor, and not by the Legislature, who alone had power to impose it. But the duties levied under the Order in Council are really levied by the authority of the Act under which the order is issued. The Legislature has not parted with its perfect control over the Governor, and has the power, of course, at any moment, of withdrawing or altering the power which they have entrusted to him. Under these circumstances their Lordships are of opinion that the judgment of the Supreme Court was wrong in declaring section 133 of the Customs Regulation Act of 1879 to be beyond the power of the Legislature.”

36. In a comparatively recent case — Shannon v. Lower Mainland Dairy Products Board (5) [(1938) A.C 708] the matter was again considered by their Lordships of the Privy Council. At page 722 Lord Atkin who delivered the judgment of the Board observed:

“The third objection is that it is not within the powers of the Provincial Legislature to delegate so-called legislative powers to the Lieutenant-Governor in Council, or to give him powers of further delegation. This objection appears to their Lordships subversive of the rights which the Provincial Legislature enjoys while dealing with matters falling within the classes of subjects in relation to which the Constitution, has granted legislative powers. Within its appointed sphere the Provincial Legislature is as supreme as ally other Parliament; and it is unnecessary to try to enumerate the innumerable occasions on which Legislatures, Provincial, Dominion, and Imperial, have entrusted various persons and bodies with similar powers to those contained in this Act.”

37. A Bench of this Court very recently held in the case of Monomohan Moitra…Defendant, v. Gobinda Das Chowdhury…Plaintiff, .* (6) (55 C.W.N 6) that the Defence of India Rules made under section 2 of the Defence of India Act were not invalid by reason of any invalid delegation of legislative power. A similar view had earlier been expressed by a Full Bench of the Bombay High Court in Haveliram Shetty v. Maharaja of Morvi (7) (46 Bom. L.R 877).

38. It appears to me that we are bound to hold upon these authorities that the powers given by sections 3 and 4 of the Essential Supplies Act to the Government themselves to make orders or to delegate powers to make orders to other authorities is not a delegation of legislative authority. A legislature which delegates its legislative authority effaces itself, as it is said, and permits some other body to legislate in its stead. What sections 3 and 4 of the Essential Supplies Act allow is certain orders to be made by the Central or the State Governments upon matters which are set out in very great detail in section 3(2) of the Act. The Central Parliament retains control and these powers to make rules can be taken away from an authority at any moment and the rules amended or repealed at the will of the Central Government. As pointed out by Sir Barnes Peacock in Hodge's case (3) (9 A.C 117), the granting of such power is not a delegation of legislative authority. The Central Legislature retains its authority. It has merely permitted the Central Government of the State Government or officers nominated by either to carry out the policy of the Act. Such also appears to have been the view of all Courts in India and of the Privy Council of the Rules made under the provisions of section 2 of the Defence of India Act. For these reasons we are bound to hold that the orders made under the Essential Supplies Act are not void as being legislation made by an authority to whom legislative power could not be delegated.

39. Mr. Sudhansu Mukherji has contended that by reason of section 6 of the Essential Supplies Act the delegated authority has been empowered to override all existing law. Section 6, it appears to me, is only an example of what appears in practically every statute now-a-days, namely, that the new enactment is valid notwithstanding any law to the contrary, a statement which is really wholly unnecessary. A new piece of legislation if validly enacted impliedly repeals existing law which is contrary to its term and implied repeal does not require such words as “notwithstanding any law to the contrary” or such like.

40. All that section 6 amounts to is that these orders made under powers given in section 3 will override existing law because they are orders validly made under section 3 of the Act. They are really part of the enactment and impliedly repeal any existing law to the contrary.

41. For these reasons I am satisfied that the Essential Supplies Act was in existence after April 1, 1950; further, that the Food-grains Control Order, 1945, which was continued as an Order under this Act, was in existence and valid. Therefore an offence against the provisions of the rule read with sec. 7 of the Act could be committed.

Head Note (4)

42. I am not satisfied however that in this case the learned Sessions Judge had any right to take the course which he did. The petitioners had been convicted and sentenced to six months' rigorous imprisonment and on appeal it was argued that before they could have been convicted the Court would have to be satisfied that neither of the petitioners was a producer, because if he was, then no offence had been committed. It is clear from the terms of sec. 10 of the Foodgrains Control Order that a producer is not required to take out a license for possessing more than twenty maunds of paddy or rice. The prosecution did not establish that the petitioners were not producers and the learned Sessions Judge realised this. But instead of holding that the case had not been established the learned Judge directed the learned Magistrate to give the prosecution another opportunity to adduce evidence on this question as to whether the petitioners were producers or not. In other words the learned Sessions Judge gave the prosecution, who had failed to establish their case, a second opportunity of doing so.

43. He directed the learned Magistrate to give the prosecution reasonable facilities to produce additional evidence on the point whether the appellants were producers and, if producers, whether the foodgrains were produced on their own lands. In short he told the prosecution what evidence they should adduce and what further they should prove, and he directed the learned Magistrate to give the prosecution reasonable facilities for adducing evidence. This procedure to my mind cannot be justified. It is an elementary rule of criminal law and procedure that the prosecution must establish its case. The accused is presumed to be innocent until his guilt is established beyond all reasonable doubt and the onus of establishing the guilt of the accused rests, on the prosecution. If at the close of the case for the prosecution the Court is left in any reasonable doubt, the accused is entitled to be acquitted. Where the essential ingredients of an offence have not been established then it cannot possibly be said that the offence has been brought home to the accused and that his guilt has been proved beyond all reasonable doubt. If it was not established that these petitioners were not producers then it had not been established that they were guilty of this offence and it appears to me that in those circumstances it was the plain duty of the Court to direct the accused to be acquitted. The prosecuting authorities should not be allowed one or more opportunities to fill gaps in the case for the prosecution. For example, if in this particular case the prosecution failed, on this remand to the Magistrate, to call all the evidence required, would they be entitled to a second remand, or a third, or a fourth for that matter? It appears to me that in normal cases the prosecution must, when they launch the prosecution and bring the matter to Court, prove their case beyond doubt and it is only in very rare circumstances that additional evidence can be allowed. For example, if evidence which was admissible was wrongly rejected by the trial Court, such evidence could be admitted. Again if the existence of available evidence was unknown at the time the proceedings took place in a trial Court, then possibly such evidence might be admitted, though it is unnecessary to decide in this case whether it should or should not be admitted. However, I think it is clear that additional evidence should only be admitted in exceptional cases and it should never be admitted and allowed merely to fill up gaps left by the prosecuting authorities in this case. Additional evidence in civil cases in similar circumstances is not permissible and I am wholly unable to see why greater latitude should be given to the prosecuting authorities than to parties in a civil suit. In my view where the prosecution has failed to establish its case the only proper order is one of acquittal.

44. This case came before us under Art. 228 of the Constitution. But as it is now before us I think we can exercise the revisional powers of this Court under sec. 439 of the Code of Criminal Procedure, particularly as learned Advocate for the accused and for the State have appeared before us. The order made by the learned Sessions Judge should in my view have never been made and therefore in our revisional jurisdiction this order must be set aside and so must the orders of the trial Magistrate. The accused are therefore found not guilty and are acquitted upon this charge.

45. Let the records of this case be returned to the Court below with a copy of this judgment.

Das, J.:— I agree.

Banerjee, J.:— I agree.

A.K.D.G