1. These are eight applications under Section 491, Criminal, P. C. by per] eons who are detained by the Provincial Govern, ment and are in the nature of petitions for the issue of writs of habeas corpus. The main point which has been argued before us by Dr. Kedar is whether Section 2, Ordinance no. II of 1918 (The Central Provinces and Berar Criminal Procedure (Amendment) Ordinance 1948), is ultra vires the Governor of the Central Provinces and Berar. The Crown was not called upon to reply.
2. The learned Counsel for the applicants urges that the matter covered by the impugned section of the Ordinance relates to items Nos. 29 and 42 of the Federal Legislative List in the Seventh Schedule to the Government of India Act, 1985, and that the Provincial Legislature and the Governor are equally incompetent to legislate in this field, He invokes the non obstinate clause in Section 100 (l), Constitution Act.
3. The impugned section provides as follows: 'Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (hereinafter referred to as the Code), no person accused or convicted of a contravention of any provisions of the Indian-Arms Act. 1878, Or any rules or orders made thereunder shall, if in custody, be released on bail or on his own bond unless:
(a) the prosecution has been given an opportunity to Oppose the application for such release, and
(b) where the prosecution opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such contravention.
This section reproduces R, 130-A, Defence of India Rules, with which Courts had to deal in the past.
4. It is argued by Dr. Kedar that the pith and substance of the impugned section relates to the punishment of offences against the Arms Act and thus is covered by items 29 and 43 of the Federal Legislative List, These items read as follows:
Item 29 ... Arms, firearms and ammunition.Item 42 ... Offences against laws with respect toany of the matters in this list.
Dr. Kedar urges that though the section incidentally relates to criminal procedure, the power to enact it cannot be derived from item No. 2 of the Concurrent Legislative List.
5. In our opinion the matter is the other way round. The power to enact the impugned section is derived from item no. 2 of the Concurrent Legislative List, That item relates to the Criminal Procedure Code including all matters included in the Code of Criminal Procedure at the date of the passing of the Government of India Act. 1936. On the date of the passing of the Constitution Act the question whether bail ought or ought not to be granted in cases arising under Section 19-A, Arms Act, was covered by Sch. 2 to Criminal P. C, where specific provision is made for it under the heading 'Offences against other laws.' It is true that the matter incidentally relates to arms, firearms, and ammunition, but in our opinion the pith and subatance of the impugned section lies entirely within item No. 2 of the Concurrent List. Where a piece of provincial legislation incidentally touches upon a field reserved for the Centre, it is not ipso facto ultra vires. If the power to enact that legislation is to be found in either the Provincial or the Concurrent List, then the incidental overlapping does not necessarily render the law in-effective. This has now been laid down by there Lordships of the Privy Council in Prafullah Kumar v. Bank of Commerce, Ltd., Khulna A.I.R. 1947 P.C. 60 : 74 I. A. 23 and Megh Raj v. Allah Rakhia A.I.R. 1947 P.C. 72; 74 I.A. 12. Id the former case their Lordships held that the Bengal Money-lenders Act was not ultra vires the Provincial Legislature even though it provided for the scaling down of debts on promissory notes. The subject has also been discussed in Om Prakash v. King-Emperor and the ground need not be traversed again. We are satisfied that the power to enact the Ordinance is entirely derived from item No, 2 of the Concurrent Legislative List.
6. We have next to examine whether the conditions laid down by B. 107, Constitution Act, have been observed. Under Sub-section (2) of that section, the impugned section if it had been enacted by the Provincial Legislature would have been required to be reserved for the consideration of the Governor-General and his assent. Now under the proviso to Section 88 (S), Constitution Act, if the Governor enacts an Ordinance in pursuance of instructions from the Governor General, the Ordinance is deemed to be an Act of the Provincial Legislature which has been reserved for the consideration of the Governor General and assented to by him. Under B. 88 (1) (b) (iii) the Governor could enact the Ordinance with the instructions from the Governor General. We find that in this case instructions were in fact obtained by the Governor and thus the enactment cannot successfully be challenged. The applications accordingly fail and are dismissed.