1. The petitioner is the accused in C. C. No. 872/49.50 before the City Magistrate, Bangalore. He was charge sheeted by the police for an offence under Rule 81 (4), Defence of India Rules, as applied to Mysore, for contravening Clause 3, Mysore Food Order 1949 (Restrictions of Service of Meals by Catering Establishments and others).
2. The case for the proetcution is that the accused was running a new catering establishment styled 'Lake View Milk Bar without a permit in that behalf. The accused admitted that he was running the Milk Bar without a permit from the Director of Food Supplies. A charge was, therefore, framed against him under Rule 81 (4) for contravening the provisions of Clause (3) of the Mysore Food (Restrictions of Service of Meals by Catering Establiahmenta and others) Order, 1949, and the learned Magistrate convicted the accused and sentenced him to pay a fine of Rs. 40 and in default to undergo Rule 1., for 15 days. This revision petition is filed against that order.
3. Sri G. V. Ramaohar, the learned advocate for the petitioner, mainly contended that while it is open under Section 2, Defence of India Act, that?) the Central Government may make rules for certain purposes and that the rules may provide or empower any authority to make orders providing for all or any of the matters contained therein, the Provincial Governments are only authorised to make rules under Rule 81 (2) for regulating or prohibiting the consumption of articles and things of any description whatsoever but cannot delegate the legislative authority to the executive to make any orders to their subjective satisfaction. It is urged by him that Clause 3 of the Mysore Food Order which is framed under Rule 81 (2), Defence of India Rules, invests the Director of Food Supplies with arbitrary powers to issue or withhold permits, which will have the effect of creating monopoly affecting the fundamental rights of the citizens under the Constitution of India.
4. The learned Advocate-General on behalf of the respondent raised a plea by way of preliminary objection that the offence under consideration has been committed on 32-11-1949 and the prosecution was also launched before the commencement of the Constitution and that it cannot be contended that the prosecution was untenable according to the law valid and prevailing then and that the Constitution has positively enacted transitional provisions to save and legalise liabilities regarding actions committed and enforced earlier to 26-1-1950.
5. It was contended by the learned counsel for the petitioner that the Constitution declares that all Acts inconsistent therewith shall be void importing thereby that they are void and actions taken thereunder should automatically cease to have effect on the commencement of the Constitution.
6. Under Article 13(i) of the Constitution of India the laws in force immediately before the commencement of the Constitution in so far as they are inconsistent with the provisions of fundamental rights shall, to the extent of such inconsistency, be void. But Article 372 states that notwithstanding the repeal by the Constitution of the enactments referred to in Article 395, all the laws in force in the territory of India immediately before the commencement of the Constitution shall continue in force therein until altered or repealed or amended by a competent legislature. The laws that existed before the Constitution in relation to the matters under consideration are admittedly not repealed. The case of the petitioner is that the law that is made applicable is discriminatory and to that extent it is opposed to fundamental rights; his client should be deemed not to have committed any offence at all. The expression used in Article 13(1) is that the laws in force inconsistent with fundamental rights shall be void, and so, if they are found to be inconsistent, it is left to the judiciary to declare them void.
7. Assuming that the Defence of India Rules and Orders made thereunder have to be declared to be void after the commencement of the Constitution the question that arises for consideration is whether the Constitution could have retrospective effect to affect the liability for offences committed. Article 367 of the Constitution states that unless the context otherwise requires, the General Clauses Act, 1897, shall apply for the interpretation of the Constitution. Section 6, General Clauses Act, prescribes the procedure in relation to the effect of Acts repealed. Clause (3) of the said section states that the repeal of any law shall not affect any investigation, legal proceeding, liability etc., which has been instituted under the earlier law in force. As the case from which this revision petition arises has been instituted for an offence alleged to have been committed before the Constitution came into force, the prosecution will not be affected even if the provision of law under which the petitioner is convicted is void under Article 13(1). In this view we are supported by a recent Fall Bench decision of the Bombay High Court reported in In re, Keshav Madhav Menon, where, in connection with a prosecution launched before the Constitution came into force, for an offence punishable under the Indian Press Act, it was held that the result of prosecution will not be affected by declaring the impugned law as being void under Article 13(1) of the Constitution. We, there, fore, express no opinion about the Acts impugned, but we uphold the preliminary objection raised by the Advocate-General that the offence having been committed and the prosecution launched before the Constitution came into force, the result is not affected by the declaration of rights under the Constitution. The petitioner has not assailed the conviction on merits.
8. We, therefore, decline to interfere with the order of the Court below. The revision petition stands dismissed.