Ch. Sultan Mahmood, J. This petition under section 561-A Cr.P.C. is directed against order dated 28.04.2023 passed by the learned Additional Sessions Judge, Sadiqabad, District Rahim Yar Khan.
2. The brief facts of the matter, as narrated in the FIR, are that on 14.04.2023, Mansoor Hussain, Food Supervisor, intercepted Vehicle No. NGR/339 within the territorial jurisdiction of Police Station Kot Sabzal, Tehsil Sadiqabad, District Rahim Yar Khan, which was found to be transporting 1,200 sacks of sugar to Sukkur Beverages Co. (Pvt.) Ltd., located in Sukkur, Province of Sindh, from Muzaffargarh, Province of Punjab. Upon inquiry, no permit or requisite documentation for the transportation of the sugar was produced by the driver or relevant personnel. Consequently, an FIR bearing No. 198/2023 was registered against Respondent No.2 under Sections 7, 8, 9, 10, and 11 of the Punjab Prevention of Speculation in Essential Commodities Act, 2021.Subsequently, Respondent No.2 filed an application before the learned Magistrate Section 30, Sadiqabad, seeking custody of the confiscated sugar stock on Supardari. However, the learned Magistrate dismissed the said application through order dated 20.04.2023. Aggrieved by the dismissal, Respondent No.2 preferred a criminal revision before the learned Additional Sessions Judge, Sadiqabad, District Rahim Yar Khan. Vide order dated 28.04.2023, the learned Revisional Court allowed the revision, set aside the impugned order dated 20.04.2023 of the Magistrate, and directed that the sugar stock be handed over to Respondent No.2 on Supardari, subject to furnishing a surety bond in the amount of Rs. 60,00,000/- (Rupees Six Crores Only) along with one local surety, to the satisfaction of the learned trial court. Feeling aggrieved by the order of the Revisional Court dated 28.04.2023, the petitioner has preferred the instant petition.
3. Arguments heard. Record perused.
4. A perusal of the order passed by the learned Additional Sessions Judge reflects that the FIR in question was registered under Sections 7, 8, 9, and 10 of the Punjab Prevention of Speculation in Essential Commodities Act, 2021 ("the Act of 2021"). A plain reading of the FIR indicates that the allegations, prima facie, constitute cognizable offences under the said provisions. However, it is pertinent to note that the seized commodity was being transported outside the territorial limits of the Province, which necessitates a closer examination of the applicable legal provisions governing Inter-Provincial transportation of essential commodities. Furthermore, the learned Law Officer raised a specific objection regarding the release of the seized goods on Supardari, contending that the provisions of the Code of Criminal Procedure, 1898, do not extend to searches and seizures carried out under the Act of 2021. In light of this, it was argued that the remedy of Supardari was not available in such matters, and the learned Revisional Court erred in allowing release of the goods under this procedure.
5. On December 24, 2021, the Punjab Prevention of Speculation in Essential Commodities Act, 2021 came into force with immediate effect. The primary objective of the Act is to establish a legal framework to prevent speculation in essential commodities, thereby curbing artificial price hikes and profiteering, in the broader interest of the public. The term "essential commodities" is defined under Section 2(f) of the Act. According to this provision, the Provincial Government is empowered to declare any commodity as essential by notifying it in the Schedule to the Act. The Section 3 of the Act ibid deals that "every person shall provide to authorized officer information regarding production, purchase, stock, sale or distribution of essential commodities and such other information as may be prescribed and Authorized Officer includes Director General Industries, Prices, Weights and Measures, Punjab, Director Food, a Deputy Commissioner or an officer authorized by him in this behalf, or any other officer as may be nominated by the Government to perform any function under this Act." The Section 4 deals that "every person or consignee or owner or agent to whom delivery order of essential commodities is made shall get the delivery order register with the authorized officer of the district." The Section 5 provides that "every person or consignee or owner or agent shall be bound to lift essential commodities as per delivery order within fifteen days from issuance of the delivery order except for industrial purpose or bulk consumer where the lifting shall be done within ninety days". The Section 6 directs that the "present case relates to this section it is section which prescribes the power of search and seizure and provides that an authorized officer where he has reasonable grounds to suspect, either upon information from anyone or on his own, he may, after recording in writing the grounds of his suspicion, enter and search, without any warrant, any common house where essential commodities is being kept." The Section 6(3) deals that "the provisions of the Code Criminal Procedure shall not be applicable on search and seizure made under this act, hence protection provided under Code of Criminal Procedure about the search and seizure are not applicable as the seized essential commodities would be sold in open market so it is argued in continuation of the same search and seizure wherein ouster of the Code contained in section 7 prescribes the other method of the essential commodities which does not prescribe any power to return the seized essential commodities". The Section 7 mandates the power to sell seized essential commodities. This provision is very unique in its character because it provides the Authorized Officer power to sell seized essential commodities seized under this act as notified price within thirty days of the seizure and proceeds of such sale would be provided to the accused, if he is acquitted from the charge, acquitted of the offence or where the accused is convicted, the proceeds of sale would be deposited in the Provincial Consolidated Funds. The Section 8 provides penalties for owning, keeping or having charge of a common house. The Section 9 provides penalty for being found in common house. The Section 10 deals the penalty for offence of speculation. The Section 11 defines the punishment of aiding and abetting the offence. The Section 12 deals the mechanism for Inquiry, Investigation and Trail. The Authorized Officer is vested with all the powers necessary for the purposes of inquiry and investigation under subsection (1). Such inquiry and investigation are to be conducted in accordance with the provisions of the Code of Criminal Procedure. Consequently, the Authorized Officer possesses the same powers as those granted to a police officer under the Code, including the power to arrest an accused, carry out an investigation, and submit a report for trial. The trial itself is to proceed in accordance with the procedure prescribed under the Code. However, an exception exists with respect to search, seizure, and disposal of the property seized under the Act. These aspects are governed specifically by the provisions of the concerned enactment and not by the Code. The Schedule to the Act classifies sugar, wheat, vegetables, cooking oil, edible oil, and rice as essential commodities. A key argument raised by the learned Law Officer, which holds merit, is that the Revisional Court has erred in granting Superdari of the seized property. Firstly, the power of search and seizure lies solely within the framework of the Act, and not under general criminal law. Secondly, Section 7 read with Section 18 of the Act, confers overriding effect to its provisions over any other law currently in force. Notably, Section 7 does not contemplate or permit the grant of Superdari. Therefore, the order passed by the Revisional Court granting Superdari is without legal justification and is unsustainable in law.
From the above survey of the Act of 2021 it is clear that the Act does not contain any provision which has implications on Inter Provincial trade. It is also clear that the law does not recognize any method of return of the seized articles rather those have to be dealt in accordance with law and has to be sold and proceeds have to deposited in the Provincial Consolidated Fund.
6. Viewed from the foregoing perspective, it becomes evident that the court below lacked the jurisdiction to pass the impugned order. However, the matter does not rest there. There is yet another important dimension to consider. It is a settled principle of law that every legislative enactment and executive action must conform to the express provisions of the applicable statute and, more importantly, must not be repugnant to the Constitution. Any action taken in contravention of these foundational legal principles is liable to be declared null and void.
7. Firstly, it is essential to determine whether the transaction in question falls within the ambit of any provision of the Constitution of 1973. The answer is clearly in the affirmative, as the product in question was sold and purchased across provincial boundaries. Although the Constitution does not explicitly define the term "Inter-Provincial trade," it would be prudent to rely on scholarly interpretations and jurisprudence to aid in understanding and applying this concept. Rottschaefer on Constitutional law defines the inter-state commerce in following words: The activity of buying and selling constitutes inter-state (province) commerce if the contracts therefore contemplate necessarily involve movement if goods in inter-state commerce". Applying this definition to the facts of the case clearly establishes that the disputed transaction pertains to the movement of sugar an essential commodity from Muzaffargarh in the province of Punjab to Sukkur in the province of Sindh. This transaction, involving the transfer of goods across provincial boundaries, squarely falls within the scope of Inter-Provincial trade. Reliance is placed on case law titled as Indian Standard Wagon Co. Ltd., v. Commercial Tax Officer etc.(AIR 1960 Calcutta 25).
8. The relevant provision of the Constitution of 1973 is Article 151, which deals with Inter-Provincial Trade and reads as under: "151. Inter-Provincial Trade--(1) Subject to clause (2), trade, commerce and intercourse throughout Pakistan shall be free.
(2) Majlis-e-Shoora (Parliament) may by law impose such restrictions one the freedom of trade, commerce or intercourse between one Province and another or within any part of Pakistan as may be required in the public interest.
(3) A Provincial Assembly or a Provincial Government shall not have power to--
(a) make any law, or take any executive action, prohibiting or restricting the entry into, or the export from, the Province of goods of any class or description, or
(b) impose a tax which, as between goods manufactured or produced in the Province and similar goods not so manufactured or produced, discriminates in favour of the former goods or which, in the case of goods manufactured or produced outside the Province discriminates between goods manufactured or produced in any area in Pakistan and similar goods manufactured or produced in any other area in Pakistan.
(4) An Act of a Provincial Assembly which imposes any reasonable restriction in the interest of public health, public order or morality, or for the purpose of protecting animals or plants from disease or preventing or alleviating any serious shortage in the Province of an essential commodity shall not, if it was made with the consent of the President, be invalid."
Entry 27 of the Part I of the Federal Legislative List Contained the Fourth Schedule of the Constitution reads as under: "Import and export across customs frontiers as deemed by the Federal Government, inter- provincial trade and commerce, trade and commerce with foreign countries; standard of quality of goods to be exported out of Pakistan"
Regulation of interprovincial in Worlds Constitutions was firstly introduced in the Constitution of United States of America and the US Supreme Court has interpreted the Article 1(8) of the American Constitution to regulate inter-state(federating units are called state in American unlike our constitution where those are cited as provinces) and law and has recognized Congressional power to regulate inter-state laws where a state law has certain protectionist tendencies, the former is known as the Commerce clause and the latter is known as the Dormant Commerce Clause. The dormant commerce clause arises out of negative reading of the Article 1(8) of American Constitution, reliance is placed on Willson v. Black-Bird Creek Marsh Co., 27 U.S. 245. Article 151 has functional semblance with the American Dormant Commerce Clause and American Commerce Clause has functional semblance with Entry 27 of the Part I of the 4th Schedule of the Constitution. While enacting the Article 151 Mr. Hafeez Peerzada, the than Law Minister and mover of the Article delivered a speech and a relevant excerpt of the same is: "Goods manufactured in one Province were put at disadvantage by imposition of takes so as to destroy the market for those goods in a particular Province. It makes the price so high and in competitive that people would refrain from buying those goods. In one country, with one economic system and with one economy, this Article is absolutely necessary, and I am glad to see that there is no serious resistance to this Article inasmuch as mere nominal amendments have been suggested by one or two persons, a few amendments which were not even moved."
The framers of the Constitution on both sides of the aisle, reached consensus on the importance of Article 151, which is pivotal in ensuring economic unity within the country. Our legislature has gone a step further than its American counterpart by explicitly mandating that any restrictions imposed by a province under Article 151 must be enacted through a statute and must receive the President's assent to become law. In support of this interpretation, reliance is placed on "Arshad Akram & Co. and 8 others v. Divisional Superintendent, Pakistan Railways, Rawalpindi and 5 others" (PLD 1982 Lah. 109) and "Star Flour Mills v. Province of Punjab and others" (PLD 1996 Lah. 687). In both cases, it was held that an executive order prohibiting the transportation of food grains from the Province of Punjab to another province violated Article 151 of the Constitution, as it obstructed the freedom and flow of inter-provincial trade and commerce. The only exception to this line of authority is found in "Mahmood Majid v. The State" (PLD 1998 Lah. 296), where Mr. Justice Faqir Muhammad Khokhar (as he then was) upheld a similar order issued by a District Magistrate. The order was deemed non-discriminatory, as it did not distinguish on the basis of domicile. The Court further observed that although the Food Control Act, 1958, lacked Presidential assent, the Punjab Foodstuffs (Control) Act, 1958, was an "existing law" within the meaning of Article 268 of the Constitution. The Court held that, under clause (6) of Article 268, necessary constitutional adaptations must be read into the law, and thus Presidential assent was not required. However, the ratio in Mahmood Majid does not apply to the Act of 2021, which was enacted under the operative framework of the Constitution of 1973. Therefore, Presidential assent remains a constitutional requirement for such legislation to validly impose restrictions under Article 151.
It would be apt to discuss the legislative history of the Article 151, similar clauses existed in previous Constitutions: The Government of India Act, 1935The Constitution of 1956The Constitution of 1962The Constitution of India Section 297. (1) No Provincial Legislature or Government shall-
(a) by virtue of the entry in the Provincial Legislative List relating to trade and commerce within the Province, or the entry in that list relating to the production, supply, and distribution of commodities, have power to pass any law or take any executive action prohibiting or restricting the entry into, or export from. the Province of goods of any class or description; or
(b) by virtue of anything in this Acthave power to impose any tax, cess, toll, or due which, a between goods manufactured or produced in the Province and similar goods not so manufacturer produced,Article-119. No Provincial Legislature or provincial government shall have power--(a) to pass any law, or take any executive action, prohibiting or restricting the entry into, or export from, the Province of goods of any class or description;---- Provided that no Act of a provincial AssemblyArticle-142 (1) Subject to clause (2) of this Article, the Legislature of a Province shall not have power
(a) to make any law prohibiting or restricting the entry into, or the export from, the Province of any goods; or
(b) to impose a tax which, as between goods manufactured or produced in the Province and similar goods not so manufactured or produced, discriminates in favour of the former goods or which, in the case of goods manufactured or produced outside the Province, discriminates between goods manufactured or produced in any locality in Pakistan and similar goods produced in any other locality in Pakistan. (2) No Provincial Law which imposes any reasonable restriction in the interest of public health, public order or morality or for theArticle-304 Restrictions on trade, commerce and intercourse among States-. Notwithstanding anything in Article 301 or Article 303, the Legislature of a State may by law-
(a) impose on goods imported from other States 88 [or the Un-ion territories] any tax to which similar goods manufactured or produced in that State are subject, so, however, as not to discriminate between goods so imported and goods so manufactured or produced; and
(b) impose such reasonable restrictions on the freedom of trade, commerce or intercourse with or within that State as may be required in the public interest: Provided that no Bill or amendment for the purposes of clause (b) shall be introduced or moved in the Legislature of a State without the previous sanction of the President. discriminates in favour of the former, or which, in the case of goods manufactured or produced outside the Province, discriminates between goods manufactured or produced in one locality and similar goods manufactured or produced in another locality.purpose of protecting animals or plants from disease or preventing or alleviating any serious shortage in the Province of an essential commodity shall, if it was made with consent of the President, be invalid by reason of this Article.
It is not out of place to mention that British Parliament enacted two earlier enactments for dominions of Canada and Australia before Govt. of India Act, 1935. The Section 91(2) of the Constitution Act, 1867, also known as the Trade and commerce power, grants the Canadian Parliament the authority to legislate on:
2. The Regulation of Trade and Commerce.
The Section 92 of the Constitution of Australia provided: "Trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free."
Compare to these the Section 297 of the Government of India Act 1935 provided more legislative space to the provincial legislatures in India to legislate on the provincial subjects even though relating trade and commerce with only a caveat that province could not restrict any Inter Provincial trade or commerce. The proviso of the Article 304 of the Constitution of India mandates prior assent on the Bill before introduction in Assembly, however, President's assent after passage from the assembly has been declared as valid[1].
9. The situation remained the same in the Constitution of 1956 but a lee way was created and province was enabled to legislate on the subject provided the regulation is imperative for public health, public order or morality and the bill so passed has to receive presidential assent to graduate to the status of a law. In the Constitution of 1962 this provision came in Article 1962 and while analyzing the same in, "Fazlul Quader Chowdhry and others v. Muhammad Abdul Haque (PLD 1963 SC 486) at pages 501 and 515, it was laid down as under:- "With respect, it should be pointed out that Article 142 (now Article 151) is in the same Part as Article 133, yet the wording of Article 142 clearly indicates divided responsibility, some part of which must necessarily fall on the Judiciary. The Article declares that the Legislature of a Province shall not impose restraints upon trade between that Province and another Province, either-by placing restrictions upon entry and export or by imposition of discriminatory taxes. The prohibition being absolute, a Legislature which contravenes this provision cannot be, thought to be exercising its 'responsibility', in terms of the Constitution properly. But it must be remembered that such restraints are capable of being applied in modes, which by design or otherwise, avoid the appearance of direct contraventions. Such modes have frequently been discovered and the relevant provisions declared void by Courts, in the sub-continent as well as in a number of other countries. It is at least doubtful whether to place the responsibility upon the Legislature of a Province in this respect, is a sufficient safeguard against the kind of discrimination which the Constitution intended to prevent, but, clause (2) of this Article clearly attracts judicial intervention when it says that a law having the effect of restraining trade by import or export restrictions or by taxation should not be invalid provided firstly, it imposes 'any reasonable restriction in the interest of public health, public order of morality or for the purposes of protecting animals or plants from disease or preventing or alleviating any serious shortage in the Province of an essential commodity', and secondly, if it was made with the consent of the President. The latter condition and its satisfaction are easy of ascertainment, but there is no doubt that the determination, of the question whether or not a restraint is 'a reasonable restriction' of the kind specified is precisely and exclusively a matter for judicial determination..."(Emphasis supplied)
So, the presidential assent was sine qua non for such provincial legislative instrument. Under the Constitution of 1962 the presidential assent was required for both tax and regulatory legislations but here comes another drift now the taxing limb having extra territorial implications has been clothed in the Article 151(3) and the regulatory limb has been enacted in 151(4). In the Article 151(3) there is no requirement of Presidential assent. The Article 151(4) contains two fold test in this regard; firstly the legislative instrument should contain reasonable restriction in the interest of public health, public order or morality, or for the purpose of protecting animals or plants from disease or preventing or alleviating any serious shortage in the Province of an essential commodity and unlike the Constitution of 1956; secondly the bill has to be presented to the President. The sub- Article 4 mandates that the Provincial Act has to be presented to the President so to say the Bill after receiving Governor assent and publication be sent to the President and after receiving Presidential nod it would be an enforceable law to regulate Inter-Provincial trade. This Act was passed by the Punjab Assembly on 15 December 2021; assented to by the Governor of the Punjab on 24 December 2021; and was published in the Punjab Gazette (Extraordinary), dated 24 December 2021 clearly there is no Presidential assent. Hence, the Act of 2021 cannot impact any Inter Provincial trade activity, consequently was inapplicable on the transaction under question.
In the present case, the officer of the Province purported to act under a Provincial statute. However, the said statute contains no provision authorizing such officer to regulate or control the movement of goods outside the territorial limits of the Province. For the sake of emphasis, even if the statute had contained any such provision, it would require Presidential assent in accordance with the Constitution, which it admittedly lacks. On the face of it, the Act does not confer any authority upon officers acting under it to prevent the inter-provincial transfer of goods.
Provincial Government has executive authority co-extensive with its legislative authority[2], in this case it had not passed any order in pursuance of any legislation conforming requirement of the Article 151 whereby it imposed any such restriction thus officer acted beyond the power so vested in him under the law and the Constitution. In view of the Constitutional dispensation he could not restrict any movement of Sugar from the Province of Punjab to the Province of Sindh and the provisions of the Punjab Prevention of Speculation Essential Commodities Act 2021 does not apply to the transaction of Inter Provincial trade.
Now, adverting to the statutory dispensation pressed into service and the argument advanced by the Learned Law officer that the product so seized under the law cannot be released as the Code of Criminal procedure does not apply to seizure and searches made the Act of 2021. Above legal position clearly establishes that the transaction attracts definition of the Inter- Provincial trade and the relevant articles of the Constitution and the officer was acting under a statute which is not compliant with the Article 151. Consequently, the action of seizure performed by the complainant of the FIR does not have any recognizable administrative and statutory underpinnings and was not sustainable being dehors the law. In the above backdrop, that the impugned order dated 28.04.2023 release of the Sugar is lawful for the above reasons.
10. The epitome of above discussion is that the petition has no force and same is hereby dismissed.
1. Atibari Tea Co.Vs. State of Assam, AIR 1961 SC 232(253); Automobile Transport(Rajasthan)
Ltd. V. State of Rajasthan AIR 1962 SC 1406(1416)
2. 1997 SCMR 641 Gadoon Textile Mills Vs. Wapda