S.P Sinha, J.:— This application is directed against the order, dated 30th October, 1975, passed by the Chief Judicial Magistrate, Siwan, in case No. C-II 149 of 1975, taking cognizance of offence under section 52 of the Bihar Sugarcane (Regulation of Supply and Purchase) Ordinance, 1975, for contravention of section 49(7) of the said Ordinance.

2. Section 52 of the Ordinance is the penal section for contravening or attempting to contravene or abeting the contravention of any of the provisions of the Ordinance or the Rules thereof or of any order made or direction given thereunder or the terms and conditions of any licence.

3. In the instant case, the contravention alleged is of sub-section (7) of section 49 of the said Ordinance, namely, of removing sugar from the factory without clearing the tax imposed under sub-section (1) of section 49.

4. The relevant facts leading to this application are as under: The petitioners are occupier of factory being Director and General Manager of S.K.G Sugar Ltd. Co., Siwan, a company registered under Indian Companies Act, with head office at Patna. The company is a sugar factory situated at Siwan in the district of Siwan and is engaged in production of sugar. For the purpose of regulating the production, supply and distribution of sugarcane intended for use in sugar factories and Khandsari sugar manufacturing units and taxation of sugarcane and matters incidental thereto, the Governor of Bihar has been promulgating Ordinance known as the Bihar Sugarcane (Regulation of Supply and Purchase) Ordinance since the year 1968. In terms of section 49(1)(a) of the Ordinance the State Government has been empowered to impose by notification in the official gazette tax on the purchase of sugarcane. Such tax is to be paid by the occupier of the factory to the Collector of the District concerned in such manner as may be prescribed. In terms of sub-section (3) of section 49 of the Ordinance, the arrears of tax are recoverable as public demand or as an arrear of land revenue.

5. The expression “occupier of a factory” has been defined in section 2(1) of the Ordinance as meaning a person carrying on business of manufacturing sugar by vacuum-pan process in a factory and having the ultimate control over the affairs of the factory.

6. The tax is payable in respect of each crushing season which means according to section 2(1) of the Ordinance, the year commencing on the first day of July in any year and ending on the 30th June in the year next following. Under sub-section (7) of section 49 until the tax imposed under sub-section (1) of the said section is paid and certificate of payment is obtained from the Cane Officer concerned, the occupier of any factory or any persons acting on his behalf or any other person shall not remove sugar from the factory. If any person contravenes the mandate laid under sub-section (7) of section 49, he exposes himself to punishment under section 52 of the Ordinance. These are the relevant provisions of the Ordinance concerning the case.

7. It may, however, be stated that the contravention complained of against the petitioner refers to the crushing season 1974-1975. In the proposal sent by the Cane Officer, Siwan for sanctioning prosecution against the S.K.G Sugar Ltd., Co. under section 52, a copy of which proposal has been attached to the petition marked as Annexure ‘1’, the persons accused, besides the two petitioners, are Sri L.L Choudhary, Works Manager, Shri Shakti Singh, Cane Superintendent. According to the Cane Commissioner, a quantity of 11528 quintals of sugar was despatched by the factory up to the month of August, 1975, and 1st September, 1975. On despatches of sugar, the cane cess payable works out to Rs. 1,40,064.30 which have not been paid before the despatch of the sugar.

8. Sanction to prosecute the persons complained against, which as stated earlier included besides the petitioners to other persons, having been accorded by the Cane Commissioner, the Cane Officer submitted a prosecution report before the Chief Judicial Magistrate, Siwan against the said accused persons on the 30th of October, 1975. On the same date cognizance of offence under section 52 of the Bihar Sugarcane (Regulation of Supply and Purchase) Ordinance, 1975 was taken for contravention of the provisions of section 49(7) of the said Ordinance. The accused persons were summoned in regard to that Ordinance.

9. Mr. Sinha appearing for the petitioners assailed the impugned order on several grounds but ultimately confined his argument to only on two of them, namely, (1) that even if the facts stated in the prosecution report submitted by the Cane Officer be taken and accepted on their face value, the allegation of contravention of section 49(7) of the Ordinance is not made out and consequently the impugned order was fit to be quashed; and (2) that even if it be held that the petitioners contravened section 49(7) of the Ordinance, which had been repealed even before any action for prosecuting the petitioners was taken, the right to prosecute the petitioners was lost, and since the repealing Ordinance did not save the penal section of the Ordinance, the right and the remedy both were lost.

10. Mr. Chainpuri, appearing for the State, contended that neither of the two contentions raised by the petitioners were valid. According to Mr. Chainpuri, the Cane Officer's prosecution report laid a prima facie case of contravention of section 49(7) of the Ordinance and, therefore, the first contention was without any merit. With regard to the second contention, he urged that even if the offence was committed during the existence of the Ordinance which was repealed, an order under the repealed Ordinance continued to be an offence under the repealing Ordinance, notwithstanding the repeal of the Ordinance. The offenders could still be punished under the repealing Ordinance.

11. With regard to the first contention raised on behalf of the petitioners, I agree with Mr. Chainpuri that the facts stated in the prosecution report by the Cane Commissioner do constitute an offence of contravention of the provisions of section 49(7) of the Ordinance. It is clearly stated that although cess amount of Rs. 1,40,064.30 was payable for the sugar despatched by the factory up to the month of August, 1975 and 1st September, 1975, such tax has not been paid before despatching the sugar. These facts clearly constitute violation of section 49(7) of the Ordinance. For such contravention the persons who were liable to be prosecuted are the “occupier” of any factory or “any person” acting on his behalf or any other person, which expressions are wide enough to include the petitioner as also the other two persons complained against. I, therefore, reject the first contention, as being devoid of merit.

12. I, however, think the second contention raised on behalf of the petitioners is valid.

13. As stated earlier, for the purpose of regulating the production, supply and distribution of sugarcane and taxation of sugarcane and matters incidental thereto, the Governor of Bihar has been promulgating Ordinance since the year 1968. The Ordinances were being promulgated from time to time repealing the preceding Ordinance. Thus for example, Bihar Ordinance No. 36 of 1975, which was promulgated on the 15th of January, 1975, was repealed by the Second Ordinance, 1975, namely, by the Bihar Ordinance No. 91 of 1975. The Bihar Ordinance No. 91 of 1975 was repealed by the Third Ordinance of 1975, namely, by the Bihar Ordinance No. 135 of 1975, and the Third Ordinance was repealed by the Fourth Ordinance of 1975, namely, by the Bihar Ordinance No. 183 of 1975. The last Ordinance was also repealed by the Bihar Ordinance No. 43 of 1976 and so on. The contravention said to have been committed by the petitioners was in respect of the period ending the 1st of September, 1975, that is to say the period covered by the Third Ordinance of 1975, namely, the Bihar Ordinance No. 135 of 1975. This Ordinance was in force up to she 10th of September, 1975, after which it was repealed by the Fourth Ordinance of 1975, namely, the Bihar Ordinance No. 183 of 1975, which came into force from the 11th of September, 1975. Thus, although the contravention was made during the existence of the Third Ordinance of 1975, the complaint was filed before the Chief Judicial Magistrate after its repeal, on the 30th of October, 1975. The complaint petition of the Cane Commissioner is, dated two days earlier, namely, the 28th October, 1975. In other words, the complaint in respect of an offence under the repealed Ordinance was filed after the repeal of the Third Ordinance, Section 49(7) of which was said to have been contravened. The question, therefore, is whether after the repeal of the Third Ordinance, the complainant had lost his right to file the complaint and also the remedy which he sought under the complaint against the accused persons. It is an accepted principle of law and more so under the Criminal Jurisprudence that if the right is lost, the remedy is lost and if the remedy is lost, much more so is the right. It, therefore, becomes necessary to examine as to whether the repealing Ordinance saved the right and the remedy which had accrued to the complainant under the repealed. Third Ordinance. It has to be remembered that the complaint was filed on the 30th October, 1975. Section 66 of the repealing Ordinance, namely, the Bihar Ordinance No. 183 of 1975, is the provision concerned with the repeal and the saving of the repealed Ordinance, the relevant portion of which runs as under:

“………the Bihar Sugarcane (Regulation of Supply and Purchase) Third Ordinance, 1975 (Bihar Ordinance No. 135 of 1975) are hereby repealed.

(2) Anything done or any action taken (including any rule made or notification issued with prospective or retrospective effect, order passed, appointment made proceeding commenced, dispute decided or referred to arbitration, right accrued or liability incurred) under the Bihar Sugarcane (Regulation of Supply and Purchase) Third Ordinance, 1975 (Bihar Ordinance No. 135, 1975)………before the commencement of this Ordinance shall notwithstanding the repeal thereof be deemed to have been done or taken under this Ordinance as if the provisions of this Ordinance (other than those contained in section 52) were in force at all material times when such thing was done or action taken.”

14. Analysing this repealing and saving clause under the repealing Ordinance, if any action has been taken which includes a proceeding having been commenced, such proceeding will be deemed to have been taken under the repealing Ordinance as if the provision of the repealing Ordinance were in force at all material times when such action was taken. In the instant case, action relating to the contravention was taken for the first time after the repeal of the Third Ordinance, although the contravention alleged was in respect of an act done during the existence of the Third Ordinance. In other words, the action taken against the contravention of a provision relating to the Third Ordinance was taken after its repeal. Had such action been taken during the life time of the Third Ordinance, such action would have been saved by the repeal and saving clause. But the action having not been taken then, the right to take action lapsed with the repeal of the Third Ordinance. It is not saved by the repeal and the savings clause.

15. It is one of the cardinal principle of interpretation of statutes that a repeal means a complete obliteration of the Act repealed unless it is otherwise expressed. Say, for example if it is laid in the repealed Act itself that “the expiry of this Act shall not affect the operation thereof as respects things previously done or omitted to be done,” the rights and the remedies contained under the repealed Act would continue, or again if the repealing Act itself provides a saving clause, saving actions taken after the repeal of an Act, the action taken would continue to be valid and necessarily, therefore, the right would continue. The Supreme Court in the case of S. Krishnan v. State of Madras(1) has observed that;

“………The general rule in regard to a temporary statute is that, in the absence of special provision to the contrary, proceedings which are being taken against a person under it will ipso facto terminate as soon as the statute expires………”

16. An identical view has been expressed in another decision of the Supreme Court in the case of Gopi Chand v. Delhi Administration(2). While reiterating the observations made in S. Krishnan and others (supra) their Lordships observed that,—

“………It is true that the legislature can and often enough does avoid such an anomalous consequence by enacting in the temporary statute a saving provision, and the effect of such a saving provision is in some respects similar to the effect of the provisions of section 6 of the General Clauses Act………”

17. Their Lordships, however, further observed:

“………Since the impugned Act does not contain an appropriate saving section the appellant would be entitled to contend that, after the expiration of the Act, the procedure laid down in it could no longer be invoked in the cases then pending………”

18. In the instant case, the repealed Third Ordinance does not contain any clause validating things previously done or omitted to be done. So far as the repealing Ordinance is concerned, it validates only such action as had already been taken under the repealed Ordinance. The repealing Ordinance does not save any action which has lapsed with the repeal of the Ordinance, the action having not been taken during the existence of the repealed Ordinance. Thus, in my opinion, the right to complain in respect of violation of section 49(7) of the Third Ordinance lapsed with the repeal of the Third Ordinance, namely, such right continued only up to 10th September, 1975 and lapsed on the enforcement of the Fourth Ordinance which took effect from the 11th September, 1975. In other words, the right to take action lapsed with the repeal of the Third Ordinance.

19. Now with regard to the remedy, the position is still worse. Section 52 is the remedy which provides the punishment imposable for contravention of any of the provisions of the Ordinance. Now, so far as section 52 of the repealed Ordinance is concerned the savings clause under the repealing Ordinance, namely, under Fourth Ordinance of 1975, Ordinance No. 183 of 1975, does not save it at all. I have already quoted the relevant provisions of section 66 dealing with the repeal and the savings of the repealed Ordinance, which I may once again read. It says that actions taken before the commencement of this Ordinance shall be deemed to have been done or taken under this Ordinance, namely, under the Fourth Ordinance, 1975, but an exception is created in the said repeal and the savings clause by excluding section 52 from the operation of the said repeal and savings clause. In other words, the punishment imposable in terms of section 52 of the repealed Ordinance cannot be imposed under section 52 of the repealing Ordinance. Thus, even the remedy is lost.

20. I am, therefore, of the opinion that no action having been taken to prosecute the accused persons in respect of the contravention of section 49(7) of the Third Ordinance during the continuance of the Ordinance, the action taken by the complaint filed on the 30th October, 1975 was not maintainable. Moreover, since section 52 of the Third Ordinance had not been saved by any provision of the repealing Ordinance, no punishment either could be imposed on the accused persons. For these reasons, the impugned order, dated 30th October, 1975 has to be quashed. It is accordingly quashed.

21. I may, however, make it clear that this will not affect the realisation of the tax from the company because as is admitted by learned counsel for the petitioners, civil proceedings for realisation of tax had been started long back.