# Santosh Kamat Jain v. The State

- **Citation:** [1951] 1 S.C.R. 303
- **Court:** Supreme Court of India
- **Decided:** 1951
- **Case number:** Appeal (Criminal Appeal No. 3 of 1950
- **Bench:** Shri Harilal Kania C.J, Patanjali Sastri, DAs
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/santosh-kamat-jain-v-the-state-83
- **Pages:** 10

## Headnote

303
Emntial Supplies (TemP<miry Powers) Act (XXlV ·of 1946),
s. 3-Power to "provide for regulating or prohibiting production,
supply 11nd Ji11ribution" of goods-W heiher
includes
power
to
issue directions 111!d
orden to
particular persons to do
specific
acts-Order to se11rch 11nd seize goods held by particular company
-V11lidity-Scope -0/ Sflb-ss. (1) & (2) of s. 3-Generality of powers
conferred· by sub-s. (!)-Obstruction to officers carr.ying out .. order
for s_eizure-Con11iction
under
s.
186,
l.P.C.-Legality-lndian
Penal Code, 1860, s. 186-0ffence under, essentials of.
Section 3 of the Essential Supplies (Temporary Powers)
Act,
1946, provided as follows :
( 1) The Central
Government, so far as it appears to it to
be necessary or expedient for maintaining or increasing supplies
cif an essential commodity, or for
securing their equitable distribution
and availability at fair , prices,
may be
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-s. ( 1) an order made thereunder may provide ..... .
(j) for any incidental and supplementary matters, including in
particular the . entering, and search of premises, vehicles,
vessels
and aircraft, the
seizure by a person authorised to make
sucht
search of any articles in respect of which such person has reason
to liclieve that a contravention has been, is .being, or is about to
be committed ...... "
In exercise of the powers conferred on the Central Government by cl. (j) of sub-s. (2) of s. (3) of the above said Act, which
had been delegated to the Provincial Government in
relation to
foodstuff!, the Governor of Bihar made an order authorising the
District Magistrate, Patna, and the Special Officer in charge of
rationing, Patna, to search the stock of sugar held by a company
of which the appellant was the General Manager and directing
the seizure of 5.000 maunds of sugar held in stock by the said
company, on the ground that the company was about to commit
a contravention of an order of the Chief Controller of Prices and
Supplies made
under the Sugar aud Sugar Products CQ!ltrol
6--2 S. C. India/68
1951
~iuch ~.
1951
Santosh Kamat
Jain
v.
The State
SUPREME COURT REPORTS
(1951)
Order, 1947.
The appellant obstructed the officers who went to
search and seize the goods and was convicted under s. 186, Indian
Penal Code.
Held,
(i) the power "to provide for regulating or prohibiting
production,
supply
and
distribution" conferred by the
Act on
the
Central
Government included the
power
tO
regulate
or
prohibit by issuing directions to a
particular producer or
dealer
or by requiring any specific act to be done or foreborne in regard
to production, etc.,
and the order of the Governor was not therefore invalid on the ground that it was not a rule or regulation of
general application but an order concerning a pa1ticular
company
alone;
(ii) sub-section ( 2)
of s. 3 conferred no further
or other
powers than What were conferred by sub-s. (1) and· the enumera·
tion of certain matters in !llUb-s. (2) was
merely
illustrative,
as
such enumeration
was
"without prejudice to
the
generality of
the powers conferred by sub-s. (!)";
(iii) seizure of an article
being within the purview of
sub-s. ( l) of s. 3 it was
therefore
competent to the
Central
Government,
and its
delegate the
Provincial
Government,
to
make an
order for. seizure under sub-s.
( 1)
apart from and
irrespective of
the anticipated
contravention of any other
order
as contemplated in cl. (j) of sub-section (2);
(iv) even assuming that the order of the
Chief
Controller
of
Prices .under the
Sugar Control
Order was incomplete
and
inoperative and there could be no question of its contravention,
the rc::fereni;::e to that order in the
order
made by
the Governor
would be a mere redundancy and would not affect the validity of
the latter order,
and the appellant was rightly
convicted
under
s. 186; Penal Code

## Text

S.C.R.
SUPREME COURT REPORTS
SANTOSH KUMAR JAIN
"·
THE STATE.
UNION OF INDIA-Intervener.
[SHRI HARILAL KANIA C.J., PATANJALI SASTRI,
and DAs JJ.]
303
Emntial Supplies (TemP<miry Powers) Act (XXlV ·of 1946),
s. 3-Power to "provide for regulating or prohibiting production,
supply 11nd Ji11ribution" of goods-W heiher
includes
power
to
issue directions 111!d
orden to
particular persons to do
specific
acts-Order to se11rch 11nd seize goods held by particular company
-V11lidity-Scope -0/ Sflb-ss. (1) & (2) of s. 3-Generality of powers
conferred· by sub-s. (!)-Obstruction to officers carr.ying out .. order
for s_eizure-Con11iction
under
s.
186,
l.P.C.-Legality-lndian
Penal Code, 1860, s. 186-0ffence under, essentials of.
Section 3 of the Essential Supplies (Temporary Powers)
Act,
1946, provided as follows :
( 1) The Central
Government, so far as it appears to it to
be necessary or expedient for maintaining or increasing supplies
cif an essential commodity, or for
securing their equitable distribution
and availability at fair , prices,
may be
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-s. ( 1) an order made thereunder may provide ..... .
(j) for any incidental and supplementary matters, including in
particular the . entering, and search of premises, vehicles,
vessels
and aircraft, the
seizure by a person authorised to make
sucht
search of any articles in respect of which such person has reason
to liclieve that a contravention has been, is .being, or is about to
be committed ...... "
In exercise of the powers conferred on the Central Government by cl. (j) of sub-s. (2) of s. (3) of the above said Act, which
had been delegated to the Provincial Government in
relation to
foodstuff!, the Governor of Bihar made an order authorising the
District Magistrate, Patna, and the Special Officer in charge of
rationing, Patna, to search the stock of sugar held by a company
of which the appellant was the General Manager and directing
the seizure of 5.000 maunds of sugar held in stock by the said
company, on the ground that the company was about to commit
a contravention of an order of the Chief Controller of Prices and
Supplies made
under the Sugar aud Sugar Products CQ!ltrol
6--2 S. C. India/68
1951
~iuch ~.
1951
Santosh Kamat
Jain
v.
The State
SUPREME COURT REPORTS
(1951)
Order, 1947.
The appellant obstructed the officers who went to
search and seize the goods and was convicted under s. 186, Indian
Penal Code.
Held,
(i) the power "to provide for regulating or prohibiting
production,
supply
and
distribution" conferred by the
Act on
the
Central
Government included the
power
tO
regulate
or
prohibit by issuing directions to a
particular producer or
dealer
or by requiring any specific act to be done or foreborne in regard
to production, etc.,
and the order of the Governor was not therefore invalid on the ground that it was not a rule or regulation of
general application but an order concerning a pa1ticular
company
alone;
(ii) sub-section ( 2)
of s. 3 conferred no further
or other
powers than What were conferred by sub-s. (1) and· the enumera·
tion of certain matters in !llUb-s. (2) was
merely
illustrative,
as
such enumeration
was
"without prejudice to
the
generality of
the powers conferred by sub-s. (!)";
(iii) seizure of an article
being within the purview of
sub-s. ( l) of s. 3 it was
therefore
competent to the
Central
Government,
and its
delegate the
Provincial
Government,
to
make an
order for. seizure under sub-s.
( 1)
apart from and
irrespective of
the anticipated
contravention of any other
order
as contemplated in cl. (j) of sub-section (2);
(iv) even assuming that the order of the
Chief
Controller
of
Prices .under the
Sugar Control
Order was incomplete
and
inoperative and there could be no question of its contravention,
the rc::fereni;::e to that order in the
order
made by
the Governor
would be a mere redundancy and would not affect the validity of
the latter order,
and the appellant was rightly
convicted
under
s. 186; Penal Code.
Quaere : Whether for an offence under s. 186, Penal Code, it
i.s
necessary that
the
act which was
obstructed must be
duly
authorised and otherwise lawful.
King Emperor v. Sibnath Baneri« [1945] F.C.R. 195 applied.
CRIMINAL
APPELLATE
JURISDICTION : Appeal (Criminal Appeal No. 3 of 1950) from a judgment of the
High
Court of Judicature at
Patna dismissing a
petition to revise an order of the Sessions Judge,
Patna, convicting the appellant for an offence under s.
186, Indian Penal Code : The facts of the case appear
in \he judgment.
N. C. Chatterjee (Rameshwar Nath, with him) for
the appellant.
S. K. Mitra (K. Daval, with him) for the respondant.
S. M. _Sikri for the Intervener.
S.C.R.
SUPREME COURT REPORTS
305:
1951. March 5.
The Judgment of the Court was
delivered by
PATANJALI SASTRI J.-This is an appeal from a
judgment of the High Court of Judicature at Patna
dismissing a revision petition against the conviction of
the appellant for an offence under s.
186 of the
Indian Penal Code.
The appellant was at all material times the General
Manager
of
the
Jagdishpur
Zamindary
Company
(hereinafter reterred to as the company) whc were the
lessees of ·a sugar
factory referred to in -these proceedings as the Bhita Sugar Factory.
He was prosecuted
for obstructing the then District Magistrate and
the
Special Officer-in-charge of Rationing, Patna,
in
the
discharge of their official functions when they went to
the factory on 6th December, 1947, to remove 5,000
maunds of sugar which had been seized out of the stock
held by the company pursuant to an order of the Government of Bihar, dated 5th December, 1947. The case
for the prosecution was as follows : The company had
deliberately failed to comply with the orders for . supply
of sugar issued from time to time under the provisions
of the Sugar and Sugar ·Products Control Order, 1947,
by officers of the Government duly authorised in that
behalf, and in consequence, the Government made the
following order on 5th December, 1947 :-
"In exercise of the powers conferred on the Central
Government by cl. (j) of sub-section (2) of section 3 of
the Essential Supplies (Temporary Powers) Act, 1946,
which have been delegated to the Provincial
Government in relation to foodstuffs in the notification of the
Government of India, Department of Food, No. PY"
603 (2)-1, dated 21st October, 1946, the Governor of
Bihar is pleased :-
( 1) to authorise the
District Magistrate, Patna,
and/or
the
Special
Officer-in-charge
of
Rationing,
Patna, to search the stock of sugar held by Messrs.
Jagdishpur Zamindary Company, Bhita, in the District
of Patna, which is about to commit a contraventiqn of
1951
Sanlo:Sh Krunai'
Jaiti
Vo
The State
Patanjali
Sastrij.
1951 ----
]ad
v.
T/uSIDI•
SUPREME COURT REPORTS
[1951]
the. order . .of the Chief Controller of Prices and Supplies, Bihar, made under cl. 7(1) (ii) of the Sugar and
Sugar Products Control Order, 1947, and issued in order No. 1613-P.C.R., dated 27th September, 1947, in so
far as the said order relates to the said Company, and
(2) to direct that 5,000 maunds of sugar held in
stock by the said Company shall be seized.
By order of the Governor of Bihar,
Sd. T. P. SINGH,
Secretary to Government."
On the 6th Decembc;.r, 1947, when the officers named
went to the factory to carry out the aforesaid order,
they were told by the appellant that he would do
everything possible to obstruct the removal of the
sugar-, and accordingly it. was found that the sugar
godowns had been locked and the road leading to them
blocked by heaps of coal, firewood and tins placed
across, so as
to make vehicular traffic impossible. A
railway siding leading to the godowns had also been
rendered unserviceable by the removal of some - of the
rails and fishplates.
As . a result of such obstruction,
the officers had to seek the aid of armed police to
break open the locks, repair the railway line and clear
the road block .before the sugar. could be removed from
the factory.
The appellant's main defence was that on a proper
construction of s. 3 of the Essential Supplies (Temporary Powers) Act, 1946, (hereinafter referred to as the
Act) it was not competent for the Government to pass
the order of 5th December, 1947, which was consequently illegal and void, and that obstruction to the
exccutien of that order could not constitute an offence
under s. 186 of the Indian Penal Code. The contention was rejected and the appellant was convicte<l
and sentenced to simple imprisonment for a term of
three weeks.
On appeal, the Sessions Judge, Patna, confirmed
the conviction and sentence, agreeing with the findings
of the trial court, and a Revision Petition preib;red
by the appellant was rejected by the High Court,
S;C.R.
SUPREME COURT REPORTS
which, however,. granted a certificate under article
134
(1) ( c) of the Constitution that the case was a fit one
for appeal to this court as it involved a point of
"sufficient public importance" as to the interpretation
of section 3 of the Act.
Section 3, so far as it is
material here, runs as follows :-
"3: (1) The Central Government, so far as it
appears to it to be necessary or expedient for n-.aintairiing 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-
(j) for any incidental and supplementary
matters,
including in particular the entering. and search
of
premises, vehicles, vessds and aircraft, the seizure by
a person authorised to make such search of any articles
in respect of which such person has reason to believe
that a contravention of the order · has been, is being, or
is about to be committed, the grant or issue of licences,
permits or other documents, and the charging of fees
therefor." ·
·
It was contended that an order under sub-section (1)
should be in the nature of a rule or regulation of general
application, like the Sugar and Sugar Products Control
Order, 1947, issued by the Central Government on 4th
August, 1947. as the suJHection confers on the Central
Gl)Vc:rnment only the power to "provide for regulating
ar vrohibiting" the production, supply,
distributfon,
etc., of essential commodities, and d<>es not authorise
the making of . ad hoc or · speeial orders with respect to
any particular person or thing.
We see no reason to
place such a restricted construction on the scope of the
power conferred on the Central Government. The term
"notified order" which is
defined
as
meaning "an
. .f-0
1951
SantosliKIUIMIT
]Qin
v.
The State
Patanjal;
·SastriJ.
1951
Santosla K11ma'
Jain
v.
Th~Stalt!
Palanjali
Sastri].
308
SUPREME COURT REPORTS
[ 1951]
order notified in the official Gazette" is wide enough to
cover special as well as general orders .relating to the
matters specified in section 3.
The power to provide
for regulating or prohibiting production,
distribution
and supply conferred on an executive body may well
include the power to regulate or prohibit by issuing
directions
to a particular producer or dealer or
by
requiring any specific act to be done or forborne
in
regard to production, etc., and the provisions of section
4 lend support to that view. The Central Government
is empowered under the latter section to delegate its
. power to make order under section 3, subject to conditions to be specified, to any officer or subordinate
authority either of the Central or a Provincial Government. It would be strange if, as contended for
the appellant, a subordinate officer in charge, say,
of a small area, should, by delegation, exercise powers
of a legislative character in relation to the
matters
specified · in section 3, but should not have the power
of issuing special orders concerning specific individuals
or things. We do not think that such a situation
could have been contemplated. The power delegated
under section 4 must, in our opinion, include the power
of issuing directions to any producer or dealer in relation to production, etc., of any specified essential commodity. If so, the delegating authority itself must
pos~ess such power under section 3. For
instance,
·secl:Ion 7. of the Sugar and Sugar Products Control
Order, 1947, made by the Central Government empowers the "Controller" "to issue directions
to
any
producer or dealer to supply sugar or sugar products"
to specified
areas,
persons or organisations.
This
delegation is expressed .to be made "in exercise of the
powers -onferred by section 3 and 4" of the Act, but
unless the Central Government itself had the power of
issuing such directions under section 3, it could not
delegate that power to the Controller under section 4.
This view is reinforced by the language
of
section
15, which. contempla~es orders under section 3 being
made _ agamst a part:Icular person, for it speaks of "an
order made under section 3 which prohibits him (that
S.C.R.
SUPREME COURT REPORTS
309
is, the person prosecuted for its contravention) from
doing any act or being in possession of a thing without lawful authoritv, etc." The restricted construction
of section 3 contended for by the appellant's counsel
would render the scheme of the Act largely unworkable, and we have no hesitation in rejecting it.
Even so, it was argued, an order for seizure could be
made only subject to the conditions and
limitations
specified in clause (j) of sub-section (2) of section 3,
that is to say, only where the person authorised in that
behalf "has reason. to believe that a contravention of
the order [an order made under sub-section ( 1)] has
been, is being, or is about to be committed". In the
present case, the order of 5th December 1947, directing.
the seizure of 5,000 maunds of the company's sugar J.n
the execution of which the appellant has been found to
have obstructed the officers of the Provincial Government, recited that the company was "about to commit a
contravention of the order of the Chief Controller of
Prices and Supplies, Bihar, made under cl. 7(15 (ii) of
the Sugar and Sugar Products Control Order,
1947,'
and issued in order No. 1613 P.C.~, dated 27th September, 1947, in so fur as the said order relates to the
said company".
The latter order, while it dire·cted the
company, among others, "to supply sugar at the
prices fixed
t.o the approved dealers of certain Districts'', left it to the District or Sub-divisional Officer
to fix quotas for the approved dealers of his District
or Sub-division
from the District or · Sub-divisional
allotment and to inform the company when and where
the supplies are to be made. It has been found by the
courts below that the total quantity of sugar which
the order required to be supplied was varied from .time
to time, and no quotas to approved dealers were ever
fixed nor information sent to the company as to when
and where supplies were to be made. The order of the
27th September,
1947, having thus remained inchoate
and incomplete and so incapable of being carried out
or contravened till the.5th December, 1947, it was submitted that no seizure and removal could be lawfully
ordered on the basis of an anticipated contravention .
1951
SantoshKumm
Jain
v.
Th1Stat1
Patanjali
SastriJ
1951
S•Usi KllMCt
]«in
v.
TheSe.te
Polm!iali
SttslriJ.
310
SUPREME COURT REPORTS
f195l J
of such
an order,
and that the officers concerned
in the illegal and unauthorised removal of the sugar
were not acting in the discharge of their public func·
tions. Reference was made in this connection to the
decisions of the Calcutta High Court in Lilla Singli
v. Queen Empress(') and Queen Empress v. Jogendra
Nath Mukherjee( 2 ) where it was held that the public
function in the discharge of which a public servant
was obstructed must . be a legal or legitimately authorised function, in order that the obstruction might
constitute an offence under section 186 of the Indian
Penal Code.
On the other hand, counsel for the respondent maintained that for an offence under that
section it was not necessary that the act which was
Obstructed must be duly authorised and
otherwise
lawful if it was being done or was sought to be done by
a public servant honestly and in good faith believing
that it was part of his public functions, and reliance
was placed in support of this view on the decisions of
the Madras High Court in Queen Empress v. Poomatai
Udayan( 8 ),
Public
Prosecutor
v.
Madava
Bhonjo
Santos(') and Peer Masthan Rowther v. Emperor(").
We think it is unnecessary for the purpose of this
appeal to pronounce on tbe true scope of section 186 of
the Indian Penal Code as we are of opinion that the
appellant's argument must fail on another ground.
It is manifest that sub-section (2) of section 3 confers no further or other
powers
on
the
Central
Government than what are conferred under sub-section
(1), for it is "an order made thereunder" that may
provide for one or the other of the matters specifically
enumerated in sub-section (2) which are only illustrative, as such enumerarion is "without prejudice to the
generality of the powers conferred by sub-section ( l) ".
Seizure of an article being thus shown to fall within
the purview of sub-section (1), it must be competent
for the Central Government or its delegate, the Provincial Government, to make an order for seizure under
(1) I.L.R. 22 Cal. 286.
(4) 31 M.L.J. 505.
(2) I.J..R. 24 Cal.'320.
(5) 1938 M.W.N. 418.
(3) I.L.R. 2 I Mad. 296.
S.C.R.
SUPREME COURT REPORTS
311
that sub-section apart from and irrespective of the
anticipated contravention of any other order as contemplated in clause (j) of sub-section (2). The order
of 5th December, 1947, must, therefore, be held to be a
valid order, notwithstanding its reference to the order
of the 27th September, 1947, as being about to be
contravened.
If the latter order was incomplete and
inoperative and consequently there could be no question
of
its
contravention,
as
contended
for
the
appellant, the reference to it in the order dated· the. 5th
December, 1947, would be an immaterial redundancy
and could not affect the validity of the latter
order.
The seizure of the company's sugar must, therefore,
be regarded as duly authorised and lawful, and
the
appellant
by obstructing its removal, committed an
offence under section 186 of the Indian Penal Code
even on the stricter construction placed · on that provision by the Calcutta High Court.
The view we have expressed above receives support
from the decision of the Privy
Council in
Sibnath
Baneriu's case(1). Section 2(1) of the Defence of India
Act, 1939, as amended by section 2 of the Defence of
India (Amendment) Act, 1940, empowered the Central
Government to make rules for securing the defence of
British India, the public safety, the maintenance
of
public
order,
etc.,
and
sub-section
(2)
enacted
"without prejudice to the generality · of the powers
conferred by sub-section (1), the rules may provide
for all or any of the following matt.!rs ...... ". Among
such matters was the detention of any person "reasonably suspected" of having acted etc. in a manner
prejudicial to the public safety etc.
[clause
(x) ].
Rule 26 of the Rules made under the section, however,
authorised the Government to detain a person "if it is
satisfied" that it was necessary ro detain him with a·
view to prevent . him from acting prejudicially ....... .
The Federal Court held (9) that this rule was ultr•
vires as it went beyond the . scope of clause (x) in that
it left it to the satisfaction
of
the
Government to
decide whether or not it was necessary to detain :a
(1) [19+5] F.C.R. 195; 72 I.A. 241, 248.
· (2) (19+4] p;c,
1951
Stm"1SllK11111.,
Jain
v.
Tiii Stat•
Patanjali
Sastri;l.
1951
Santosh .Kumar
Jain
...
Th1Stal1
P111anjali
SastriJ.
1'51
Muabl9.
312
SUPREME COURT REPORTS
[1951]
person. The decision was reversed and Lord Thankerton, delivering the judgment of the Board, observed :
"In the opinion of their Lordships, the function of subsection (2) is merely an illustrative one; the rule-making
power is conferred by sub-section (1), and "the rules"
which are referred to in the opening sentence of subsection (2) are the rules which are authorised by, and
made under, sub-section ( 1) ; the provisions of sub-section (2) are not restrictive of sub-section (1), as, indeed
is expressly stated by the words "without prejudice to
the generality of the powers conferred by sub-section (1)". "There can be no doubt-as the learned
Judge
himself
appears
to have thought-that
the
general language of sub-section (1) amply justifies the
terms of rule 26, and avoids any of the criticisms
which the learned Judge expressed in relation to subsection (2) ".
This accords with our view of the effect of subsections (l) and (2) of section 3 of the Act.
The appeal is dismissed. The appellant's bail bond
is cancelled and he is ordered to surrender.
Appeal dismissed.
Agent for the appellant: Rajinder Narain.
Agent for respondent and Intervener: P. A. Mehta.
R.R. CHARI
"·
THE STATE OF UTTAR PRADESH
[SHIU Rum.AL KANIA C.J, PATANJALI SASTRI
and DAS JJ.)
Indian· Penal Code
(XLV of 1860),
SI. 161.
165-Criminal
l'rocedure Code, 1898, ss. 190, 197-Preveniion of Corruption Act
(II of 1947), ss. 3, 6-0fjence under ss. 161 and 165, l.P.C.-Warra.nt issued by Magistrate during investigation by
police-Sanction
under s. 197, Cr. P. C., not obtained before iS1uing warrantLe11ality of trial-When Magistrate takes "cognisance" of offence.
Un«r •·
~ of the Prevention of Corruption Act,
1947, an
offcnc:c pllnishable under •· 161 or s. 165 of the Indian Penal Code