T.U. Mehta, J.
1. The petitioners of both these writ petitions have challenged the constitutional vires of the Act known as Delhi Special Police Establishment Act, 1946 (Act No. 25 of 1946) and especially Sections 3, 5 and 6 thereof mainly on the ground that these provisions result in excessive delegation of legislative power to the Central Government and also result in encroachment over states power to legislate on the subject of police. This Act is hereinafter referred to either as the impugned Act or the Act.
2. Short facts of the case are that the petitioners in both these petitions are limited concerns which run textile mills named the new swadeshi mills and manjushri textiles at Ahmedabad they admittedly belong to Birla group of mills.
3. On 13th June, 1967, a first information report alleging the offences under Section 120B read with Section 420 I.P.C., Section 7 of essential commodities Act and Section 5(2) of Act II of 1947, was lodged against the management of these two mills and other mills which are spread over at different parts in India a copy of this information is found at anna in the record of these petitions. The said information was lodged by the first respondent, who is the Superintendent of Police in the Central Bureau of Investigation, which functions under the Police establishment contemplated by the impugned Act pursuant to this first information report, orders were issued under Section 165 of the old criminal procedure code for search and seizure of documents and records and other all articles of the above referred two Textile Mills of the petitioners. These documents were thereafter seized at Ahmedabad. Thereupon the petitioners filed a writ petition under Article 226 of the constitution being Spl. C.A. No. 1198/67 in this Court challenging the validity of the orders made by the first respondent under Section 165 of the old Criminal Procedure code. On that writ petition this Court passed an interim order on 25th September, 1967 and ultimately on 11/13th October, 1967 the Court made the rule absolute and declared that the impugned orders of the first respondent for search and seizure were bad see New Swadeshi Mills v. S.K. Roller IX G.L.R. 14. Against this judgment of this court, the respondents approached the Supreme Court in appeal on a certificate granted under Article 133(1)(c) of the Constitution. The said appeal came up for hearing before the Supreme Court on 3rd January, 1968 and it was disposed of by the Supreme Court as per consent terms which are found at ann. B. By these consent terms, it was decided without prejudice to the contentions raised by the parties that all the documents, which were seized from the two mills, should be returned to the petitioners after they were initialed in the manner stated in the terms of compromise by the City Magistrate, 3rd Court, in whose custody they were lying at that time it was further provided by the terms of compromise that the magistrate concerned should be at liberty to give such further directions as to the said documents as he deemed fit. It is an admitted position that the secretary of the petitioner-companies had given an undertaking to the Supreme Court to produce any documents and papers which the magistrate might order. After obtaining these consent orders from the Supreme Court several proceedings were undertaken between the parties in which the petitioners-company had demanded the return of the documents and the respondents asked for production and inspection of some other documents. The last time when the matter came before this High Court, it came in the form of C.R.A. No. 385/72 wherein our learned brother A.A. Dave, J. Permitted the respondents to inspect the documents in accordance with the orders passed by the magistrate on 10th September, 1970. He also ordered the petitioners to produce some more documents and to allow the respondents to take inspection thereof and directed the magistrate not to return the documents until the investigation was complete. It is after this order that the petitioners have filed these writ petitions in which the above referred prayers are made.
4. Since the writ petitions seek to challenge some important provisions of the impugned Act, it would at this stage be proper to make a reference to these provisions. The impugned Act was enacted to make provision for the constitution of a special police force in delhi for investigation of certain: offences in the union territory, for the superintendence and administration of the said force, and for the extension to other areas of the powers and jurisdiction of the members of the said force in regard to the investigation of the said offences. Section 2 of this Act contemplates the constitution and powers of the Special Police Establishment. Section 3 contemplates a notification to be issued by the Central Government specifying the offences which are to be investigated by this special force. This section is in the following terms:
3. The Central Government may, by notification in the official gazette, specify the offences or classes of offences which are to be investigated by the delhi special police establishment.
Section 4 provides for the superintendence and administration of the Special Police Establishment, and Section 5 provides for the extension of powers and jurisdiction of the Special Police Establishment to other areas. This sections being one of the impugned sections, it is necessary to quote it. It is in the following terms:
5. Extension of powers and jurisdiction of special police establishment to other areas:
(1) the Central Government may by order extend to any area (including railway areas) in (a state, not being a union territory) the powers and jurisdiction of members of the Delhi Special Police establishment for the investigation of any, offences or classes of offences specified in a notification under Section 3.
(2) when by an order under Sub-section (1) the power and jurisdiction of members of the said police establishment are extended to any such area, a member thereof may, subject to any orders which the Central Government may make in this behalf, discharge the functions, of a police officer in that area and shall, while so discharging such functions, be deemed to be a member of the police force of that area and be vested with the powers, functions and privileges and be subject to the liabilities of a Police Officer belonging to that police force;
(3) where any such order under Sub-section (1) is made in relation to any area then, without prejudice to the provisions of Sub-section (2) any member of the Delhi Special Police Establishment of or above the rank of sub-inspector may subject to any orders which the Central Government may make in this behalf, exercise the powers of the officer in charge of a police station in that area and when so exercising such powers, shall be deemed to be an officer in charge of a police station discharging the functions of such an officer within the limits of his station.
Then follows Section 6 which requires the consent of the State Government to exercise the powers and jurisdiction which are extended under Section 5. This Section 6 is in the following terms:
6. Consent of State Government to exercise of powers and jurisdiction: nothing contained in Section 5 shall be deemed to enable any member of Delhi Special Police Establishment to exercise powers and jurisdiction in any area in a state, not being a union territory or railway area, without the consent of the Government of that state.
Section 7 is about the repeal of the previous ordinance 22 of 1946. These are the only sections in the impugned Act.
5. Here it should be mentioned that the impugned Act has its origin in the Special Police Establishment (war department) Ordinance No. 22 of 1943 which was promulgated for the purpose of investigating offences of bribery and corruption concerned with the Departments of Central Goverment. Under the said ordinance, the Government of India had set up a police staff called Special Police Establishment (war department). Under the advice of the Special Committee of the Central legislature for Home Department, the Government had decided to retain this police staff on permanent basis by means of a legislation. Therefore, the above referred Ordinance No. 22 of 1943 was replaced by another ordinance called delhi special police establishment Ordinance No. 22 of 1946, which was promulgated on 25th September, 1946. Thereafter the impugned Act (Act No. 25 of 1946) came into force on 23rd November, 1946. Even this impugned Act has been subsequently amended. But when it was put in the statute book, it was enacted for investigation of certain offences committed in connection with matters concerning departments of the Central Government, for superintendence and administration of the Special Police Force and for extension to other areas in British India for the purpose of powers and jurisdiction of the members of the said force in regard to the investigation of the said offences. Thereafter on 6th March, 1952, this Act was amended by Delhi Special Police Establishment (Amendment) Act 1952 (Act No. 26 of 1952). It should be noted here that when the principal Act was brought into the statute book in the year 1946, our country was governed by the constitution contemplated by the Government of India Act, 1935. But when the amendment Act of 1952 came into force on 6th March, 1952, the country was governed by the present constitution of India. This Amendment Act of 1952 carried out important changes in the long title and preamble of the Principal Act of 1946. These changes are mentioned in Section 2 of the amending Act in the following terms:
In the long title of, and the preamble to, the Delhi Special Police Establishment Act, 1946 (hereinafter referred to as the principal Act), for the words for the state of delhi for the investigation of certain offences committed in connection with matters concerning departments of the Central Government, the words in delhi for the investigation of certain offences in part c states shall be substituted.
It is thus apparent that one important effect of the amendment was that while the principal Act was enacted for investigation of certain offices committed in connection with matters concerning the departments of the Central Government the amendment Act, 1952, made the Act operate be for the purpose of investigation of certain offences in parts same after there organisation of states, this reference to part states was amended as reference to union territory. This is how we get the spur ned enactment in the present form. The details of the different amendments winch have been brought about in this Act, have been sufficiently narrated by the Supreme Court in The Management of Advance Insurance Coltd v Shn Gumdasmal and Ors. and, therefore we need not repeat the : 3SCR881 se details. We have mentioned here only those details which are very relevant to the cases under our consideration.
6. The petitioners have in these petitions challenged the impugned Act and its provisions by raising the contentions which are as under:
(1) The provisions of the impugned Act are unconstitutional as they Result in an encroachment upon the legislative power of the states To legislate on the subject of police.
(2) Sections 3, 5 and 6 of the Act delegate excessive power the Central Government and, are therefore ultra vires the govt of India Act, 1935 As well as the present Constitution of India.
(3) The impugned provisions of the Act would not be rendered ultra vires, If they are construed as authorising the special police force established Under the Act, to investigate only those offences which have been Committed in the union terrritory. But in that case the Action of the Central govt. In allowing this police force to investigate the offence committed in the area outside the union territory would be rendered bad.
(4) If at all it is held that the powers and jurisdiction of the social Police establishment can be extended to an area outside the union territory, the said area cannot comprise the whole of the state but only that Part in which the investigation is absolutely necessarily.
(5) The state of Gujarat has not given its consent to the investigation of Offences after the notification dt. 18.2.63 was passed by the Central Government under Section 3 of the Act supersed in a the previous notifications on the subject.
These are the five main contentions, which arise to be considered in these writ petitions.
7. It is evident from the facts stated above, that the impunged Act was passed when the Government of India Act, 1935 was in force and it was subsequently amended in the year 1952 when the present Constitution of India was inforce. The argument, therefore was that the prmctpal Act when it was enacted in the year 1946, was ultra vires the Government of India Act, 1935 and, therefore would not be saved even by Article 372 of the Constitution as a law in force. Argument in support of the unconstitutionally of the Act, and especially of Sections 3, 5 and 6, under the Government of India Act, 1935 as well as under the present constitution of India, was the same, namely, these provisions encroach upon the legislative subject police which is in the state list. Here it should not be noted that the entry corresponding to entry No. 2 of the state list of our present constitution, was entry 3 of the provincial list of the Act of 1935 and entry corresponding to entry 80 of the union list of our present constitution, was entry No. 39 of the federal list of the Government of India Act, 1935. Thus, the question whether the impugned provisions of the Act encroach upon the legislative power of states, is required to be dealt with in the same manner, irrespective of the fact whether it arises to be considered under the provisions of the Government of India Act, 1935 or under the present constitution.
8. At this stage it should be noted that entry No. 2 of the state list of our present constitution, which deals with the subject police, is in the following terms:
2. Police, including railway and village police.
Entry 80 under which the powers and jurisdiction of the members of special police force is sought to be extended as per the provisions of 5 of the Act, contained in the union list, is in the following terms:
80 extension of the powers and jurisdiction of members of a police force belong-ny state to any area outside that state, but not so as to enable the police state to exercise powers and jurisdiction in any area outside that state without neent of the Government of the state in which such area is situated; extend the he powers and jurisdiction of members of a police force belonging to any state to railway areas outside that state.
Shri Daru, who appeared for the petitioners in Spl. C.A. No. 1418/73, need lengthy arguments on the question as to what should be done a hen legislative entries of list i and ii over-lap. His submissions were based on a postulate that the above referred two entries of the two lists r over-lap. He, therefore, contended that with a view to harmonise two entries, the court should read some inherent checks and guide-vesse in these entries and should hold that entry 80 can operate only some nexus for the use of police force of one state in the area of an-w state is found, and not otherwise. In his submission, such a nexus to t exist between the state whose police force is used and us state to which the powers are extended. After arguing of the necessity or such a nexus, he contended that looking past history of those enactments, it is found that such 10 due originally existed inasmuch as the police force established under the Section A was to be utilised not for investigating each and every offence, iv h the Central Government thought fit to investigate, but for investi-lv those offences which were committed in connection with the gating on the departments of the Central Government. However, contended Shri Daru, this nexus is now lost because after the amendment of the impugned Act in the year 1952, the Central Government is empowered to notify and offence under Section 3, and to extend the powers and jurisdiction of the members of the special police force with regard to the investigation of these offences under Section 5 of the Act. He, therefore, contended that if the Act is construed in light of the inherent limitations of the entry 80 of the union list, as submitted by him, it must follow that the Central Government is not authorised to investigate each and every offence which it chooses to notify under Section 3. It was further submitted that in its operation and effect, the provisions of the impugned Act make an encroachment upon the legislative powers of the states to legislate on the subject of police and, therefore, the impugned Act is a piece of colourable legislation.
9. We are not impressed by the above process of reasoning put forward before us by shri daru. We find that the above referred two entries, as they stand, operate m the fields which are altogether distinct and different and the apprehended over-lapping, if any, is merely incidental. If a reference is made to entry 2 of the state list, it becomes plain enough that it suggests that the subject of police is the state subject and only the state legislature can make laws on that subject, (vide Article 246(3) of the constitution). Entry No. 80 of the union list does not contemplate any legislation on the subject of police. It merely contemplates a legislation by which powers and jurisdiction of the members of police force belonging to one state can be extended to an area outside that state with the consent of the State Government of that outside area for a limited purpose of the exercise of those powers. Though the first part of this entry contemplates an extension of power and jurisdiction, the second part limits the scope of extension only so far as its exercise i.e. Its execution is concerned. To put it differently, the union legislature, when legislating or the subject contemplated by entry 80, is not to legislate on all the aspects of the subject of police, which stands in the state list. Legislation on the subject of police would be wide enough to cover all the preventive and punitive powers which a police force generally enjoys. Such powers are not to be enjoyed by the union legislature under entry 80. What it does, is to enable a member of the police force of one state to function in another state and that too with the consent of the Government of that state in connection with investigation of only specified offences. There is no legislative encroachment in such a procedure of investigation, because, it is for the Government of every state to engage the services of police officers for the purpose of investigation of crimes. And when the Government of one state avails of the extended services of a member of the police force belonging to another state under a legislation enacted pursuant to entry No. 80, it does so just in the same manner in which it avails of the services of its own police force. To avail of the services of a particular person in investigation of a particular crime, is purely an executive function, and it is only the Government of a state, as distinguished from its legislature, which can performes this function it is thus evident that entry No. 80 operates in its ultimate effect on the executive and procedural field and not on the legislative field. Therefore the apprehended overlapping, if any, would be only on the executive plane. But so far as the executive plane is concerned, entry 80 contains a very sound and sure safeguard by providing that the extended powers can be exercised only with the consent of the concerned State Government.
10. Apart from what is stated above, the operative fields of both the entries can be clearly recognised if once we bear in mind the contingencies and circumstances which these entries seek to cover. By putting entry 80 in the union list, the framers of the constitution have visualised various situations of great national importance wherein the police force of one state may not be able to meet the challenge effectively. In the increasing complexities of modern economic activities, there would naturally be a wide network of different types of industrial and commercial concerns throughout the country. If one of such concerns indulges in some mal-practices, generally, the modus operand of such mal-practices would be the same or similar in all of its branches. If different police forces of different states investigate such mal-practices by their different and divergent methods, much of the purpose of unearthing such mal-practices would obviously be lost. In such cases entry 80 can be best utilised in national interest. It can be utilised with equal efficacy in cases where typical law and order problems arise at or near the common borders of two or more states, or in case of a single state in which peculiar problems of law order and espionage have arisen on account of its vicinity to a hostile foreign power. In all such cases, use of police force of one state into the area of another state would be a national requirement. If that is so, only the union legislature can be entrusted with the function to make a suitable law which can effectively deal with such situations. State legislature would obviously be incompetent to supply any effective legislation under entry No. 2 of the state list to meet with such matters of national importance. This discussion therefore shows that even the legislative fields of operation of both the entries are different.
11. In this connection, it would not be out of place to note that the subject of Criminal Procedure is found in list iii, which is the concurrent list. This shows that so far as the provisions regarding Criminal Procedure are concerned, the parliament of our country has the legislative competency to make an enactment on that subject. Investigation by police in a particular offence is a part of criminal procedure and, therefore, the investigation which is contemplated by entry No. 80 of the union list, is nothing but a part of Criminal Procedure. Thus the concurrent legislative power of the union legislature to legislate on every aspect of Criminal Procedure is exclusively confined to that legislature by entry 80 for investigation of specified offences provided the Government of the state within whose territorial limits the said investigation is required to be conducted gives its consent. By doing so the constitution has merely extended that principle which is recognised by it by putting the subject of Criminal Procedure in the concurrent list. States legislative power to make enactment for investigation of offences committed in its own territory is, in no manner affected by an enactment made under entry 80, because, investigation by a police member of one state into an offence in the area of another stale under such an enactment, does not, preclude the power and jurisdiction of the police of such state to investigate the same offence. In Actual practice when the State Government has given its consent contemplated by entry 80, there seems to be no possibility of two simultaneous investigations of the same offence in the same state. But if in any event such simultaneous investigations are in fact undertaken, we see nothing legally objectionable therein.
12. Shri Daru, however, contended that the sting of the whole procedure, which is contemplated by the impugned Act, lies in Section 4 thereof, because, according to that section, the superintendence of special police force vests in the Central Government. The contention was that the member of this force, whose services are extended to another state is subject to the superintendence of the Central Government even when he is investigating an offence in that state and, therefore, there would be a conflict between the state authority and the central authority resulting in diminution of state autonomy as guaranteed by the constitution. According to shri daru, therefore, the effect of the provisions of the impugned Act in their Actual working is to produce a blatant encroachment on the state legislative powers and renders the impugned Act a piece of colourable legislation. In this connection, he put reliance upon some observations made by the Supreme Court in K.C. Gajapati Narayan Deo and Ors. v. State of Orissa : 1SCR1 , wherein it is explained that the transgression upon the legislative power of one legislature by another may be patent, manifest or direct, but it may also be disguised, covert and indirect, and it is to this latter class of cases that the expression colourable legislation has been applied in certain judicial pronouncements. While discussing this aspect the Supreme Court has emphasised that in order to know whether a particular legislation is a piece of colourable legislation or not, it is the substance of the legislation which should be seen, and it is also permissible for the court to examine the effect of the legislation and to take into consideration its object, purpose or design. We find that this and other decisions, which are cited at the bar by shri daru, have no relevance to the facts of the present case, for the simple reason that the exercise of the extended power and jurisdiction contemplated by entry 80 is required to be made only after obtaining the consent of the concerned State Government. There is, therefore, no question of any disguised or covert exercise of power. The Supreme Court has ruled in various decisions that in every case where the legislative competence of a legislature with regard to a particular enactment is challenged with reference to the entries in various lists, it is necessary to examine the pith and substance of the enactment under consideration, and if the matter comes substantially within the item in the union list, it is not deemed to come within an entry in the state list even though the classes of subjects looked at singly, over-lap in many respects. Vide Chaturbhai v. Union of India : 1978(2)ELT297(SC) and The Second Gift Tax Officer, Mangalore v. D.H. Hazarelh A.I.R. 1970 I.C. 999. If, therefore, the pith and substance of the impugned Act is taken into account, it becomes clear that it does not touch the subject of Police but only seeks to extend the powers and jurisdiction of the members of the police force of one state to the areas of another state only for a limited purpose, namely, the investigation of a crime. We are of the opinion that if in any particular case during the course of the execution of the provisions of the impugned Act, there is any conflict with the state power, the said conflict is merely incidental, and such incidental overlapping of the entries mentioned in the three lists of our constitution, cannot invalidate the legislation. In this connection, it would not be out of place to make a reference to Article 246 Clause (1) of the constitution. In view of this article, exclusive power of the state legislature under Clause (3) has to be exercised subject to Clause (1) i.e. The exclusive power which the parliament has in respect of the matter enumerated in union list. Therefore, even presuming that there is a conflict between entry No. 80 of the union list and entry No. 2 of the state list, and that this connect is not capable of reconciliation, the power of parliament to legislate on the subject mentioned in entry No. 80 of the union list is exclusively entrusted to it and must supersede pro-tanto the exercise of power of the state legislature. Vide Sudhir Chandra Nawn v. Wealth Tax officer, Calcutta and Ors. : 68ITR897(SC) . Of course, we should mention here that in our view, the said two entries are not conflicting or over-lapping and that even where such a conflict appears in the Actual working of these entries, the same is merely incidental.
13. Since we do not find any conflict between entry No. 80 of the unionist and entry No. 2 of the state list, it is not necessary to find out any nexus which would supply justification for the extension of power and jurisdiction of the police force of one state to the area of another state. As stated above, there is an in built limitation on the operation of this entry, in as much as, it cannot be worked out unless the Government of another state accords its consent. It can, however, be stated that when each of the states of India has its own police force, the central legislation made under entry No. 80 would contemplate the use of police force of one state into the area of another state only in special types of cases of general public importance, and would not contemplate an interference in the ordinary, and day to-day affairs of law and order of another state. If, therefore, entry No. 80 is required to be interpreted in light of any nexus, this is the nexus which we can visualise.
14. We may now proceed to consider the next question. This next question is whether the impugned Act is a conditional legislation as contended on behalf of there spondents, or is the one which delegates any of the essential legislative functions of the executive, as is contended on be half of the petitioner. If it is the former no question of excessive delegation arises, but if it is the latter, the Court will have to consider whether the delegation is excessive on account of the fact that the legislature has not provided any guidelines for the exercise of the power by the delegate.
15. A conditional legislation is one wherein the legislative power is fully exercised by the legislature, but the manner of, and the time for the exercise or the operation of the power is left to the discretion of an external authority. In such cases the operation of the legislation depends upon the condition of Actual exercise of the discretion by such an external authority, and hence it is called a conditional legislation. Thus, when the legislation is complete in itself, and the legislature has not only declared a rule of conduct, as well as its legislative policy in clear terms but has also given a complete law on the subject, the mere fact that it has left the manner of applying that law, and the field of its operation, to the discretion of an outside authority, would not make that legislation a delegated legislation. The distinction between a conditional legislation and a delegated legislation is explained by the Supreme Court in Hamdard Dawakhana and Anr. v. The Union of India and Ors. : 1960CriLJ671 , in the following words:
The distinction between conditional legislation and delegated legislation is this, that in the former the delegates power is that of determining when a legislative declared rule of conduct shall become effective, and the latter involves delegation of rule making power which constitutionally may be exercised by the administrative agent. This means that the legislature having laid down the broad principles of its policy in the legislation can then leave the details to be supplied by the administrative authority. In other words by delegated legislation the delegate complete the legislation by supplying details within the limits prescribed by the statute and in the case of conditional legislation, the power of legislation is exercised by the legislature conditionally leaving to the discretion of an external authority the time and manner of carrying its legislation into effect as also the determination of the area to which it is to extend.
In view of these observations, the crucial point to be considered in such cases is what is the nature of the function which is left to the discretion of an external authority. Is it a function which only legislature could have discharged? If the answer is in the affirmative then the delegation of that function takes it as a delegated legislation, but if the function delegated is not a legislative one, and is found to be one which the legislature could not have ever dealt with effectively, and which requires that day to day exigencies of the situation should be taken into account before putting it into operation, then leaving that function to be performed by an external authority, makes the legislation a conditional one. As observed in some American decisions (in Lockes Appeal 72 PA. 491 and Field and Co. v. Clark (1892) 143 U.S. 649 : 36 Law Ed. U.S. 143-146 at pages 294), the legislature cannot, delegate its power to make law, but it can make law to delegate a power to determine same fact or state of things upon which the law makes or intends to make its own action depend. There are many things upon which wise and useful legislation must depend which cannot be known to the law making power and must therefore be subject of inquiry and determination outside the hall of legislature. As observed at page 228 of coolys Constitution Limitation (8th Edition) the maxim that power conferred upon legislature to make laws cannot be delegated to any other authority does not preclude the legislature from delegating any power not legislative which it may itself rightfully exercise. The same principle is recognised by Privy Council in Queen v. Surah 5 I.A. 173 in the following words:
Where plenary powers of legislation exist as to particular subjects, whether in an imperial or in a provincial legislature, they may (in their lordships judgment) be well exercised, either absolutely or conditionally. Legislation, conditional on the use of particular powers, or on the exercise of limited discretion, entrusted by the legislature to persons in whom it places confidence, is no uncommon thing; and, in many circumstances, it may be highly convenient.
The High Court of Australia in Baxter v. Ab. Way (1909) 8 C.L.R. 626 at page 637 has made the following observations:
The aim of all legislatures is to project their minds as far as possible into the future, and to provide in terms as general as possible for all contingencies likely to arise in the application of the law. But it is not possible to provide specifically for all cases and therefore, legislation from the very earliest times, and particularly in modern times, has taken the form of conditional legislation, leaving it to some specified authority to determine the circumstances in which the law shall be applied, or to what its operation shall be extended, or the particular class of persons or goods to which it shall be applied.
16. Now applying these principles to facts of the cases which are before us, the first question which we should address to our selves is: whether the impugned Act of 1946 is a complete piece of legislation which exhausts all the relevant legislative functions, or which is an incomplete piece of legislation, the legislative details of which require to be filled in by any external authority. The long title and the preamble of the Act suggest that the legislature had three main objects in view at the time of enacting this Act. They were (1) constitution of a Special Police Forces, (2) super intendence and administration of the said force, and (3) extension of its powers and jurisdiction to other areas. Reference to Sections 2,4, 5, and 6 shows that the legislature has carried out all these 3 objects with sufficient clarity and details and has left nothing to be done by an external authority. Having thus achieved these objects, the legislature fully exhausted its legislative functions. The only question which remained to be decided was: with reference to what offences the police force contemplated by the Act should operate. In other words, this subject wise field of operation of the police force still remained to be decided, and it was the selection of this subjectwise field which was left to the discretion of the Central Government by Section 3 of the Act. Therefore, the pertinent question is whether this selection of this subjectwise field for the operation of the Act was a legislative function or was a function which could not have been effectively determined within the hall of legislature. In our view, it was the latter type of function. The object and purpose of the legislature in enacting the impugned Act was to create a special police force which can deal with Special categories of offences. Here it is necessary to keep in mind the fact that when the impugned Act was passed, the ordinary police force was already functioning under the police Act, 1861. The fact that inspite of the existence of this ordinary police force, this special police force was required to be established, suggests that the legislature intended to entrust to this special police force the investigation of only special type of offences. It need not be emphasised that the selection of these special types of offences depended upon the consideration of day to day exigencies of a changing situation, which could not have been foreseen by the legislature. It was, therefore, practically impossible for the legislature to prescribe any rigid formula for the selection of offences to be notified for the purpose of Section 3. If the legislature attempted to prescribe any such rigid formula, it would have frustrated its own object of bringing the impugned Act on the statute book. Therefore, the only manner in which the legislature could have brought the provisions of the impugned Act into operation, was to leave it to the Government to select the offences for being notified under Section 3. In other words, Section 3 provides only the manner of bringing the provisions of the impugned enactment into force. In our opinion, therefore, the impugned Act is an example of a conditional legislation, and not of a delegated legislation.
17. The point which we want to make will be clear by reference to a few decisions, whose facts and ratio are quite apposite to the cases under our consideration. We may first refer to the decision given by the privy council in Queen v. Burah (supra), wherein Section 9 of the Act 22 of 1869 was held intra-vires by their lordships of the privy council. I by this Section 9, power was conferred on lieutenant governor of Bengal to determine whether the Act or any part of it should be applied to certain districts. In other words, the authority to extend the territorial limits of the operation of the statute was conferred on the lieutenant governor and such extension had the result of depriving the High Court of its jurisdiction in those areas and of conferring jurisdiction in respect of them on the Commissioner. The conferment of such powers on the lieutenant governor of Bengal was in dispute on the ground of excessive legislative delegation. Holding this conferment intra-vires their lordships of the privy council observed as under:
Their lordships think that it is a fallacy to speak of the powers thus conferred upon the lieutenant-governor (large as they undoubtedly are) as if, when they were exercised, the efficacy of the Acts done under them would be due to any other legislative authority than that of the governor-general in council. Their whole operation is, directly and immediately, under and by virtue of this Act (xxii of 1869) itself. The proper legislature has exercised its judgment as to place, person, laws, powers, and the result of that judgment has been to legislate conditionally as to all those things. The conditions having been fulfilled, the legislation is now absolute.
In State of Bombay v. Narottamdas Jethabhai and Anr. : 2SCR51 , the Supreme Court considered the provisions of Section 4 of the Bombay City Civil Court Act (No. 40 of 1948). By this section, the legislature asked the provincial Government to invest any City Court, by notification, with jurisdiction of such value not exceeding Rs. 25,000/- as may be specified in the notification. A contention was raised that the delegation of such power to the provincial Government was excessive. This contention was negatived by the Supreme Court holding that the legislation was merely a conditional one. The Supreme Court observed that the provisions contained in Section 4 related only to the enforcement of the policy which the legislature itself had laid down. The law, observed the Supreme Court, was full and complete when it left the legislative chamber permitting the provincial Government to increase the pecuniary jurisdiction of the City Court to a certain amount which was specified in the statute itself. What the provincial Government was to do, was not to make any law. It had merely to execute the will of the legislature by determining the time at which and the extent to which within the limits fixed by the legislature, the jurisdiction of the Court should be extended.
18. In Emperor v. Benoarilal Sharma and Ors. , the question arose whether Sub-section (3) of Section 1 of Special Criminal courts ordinance (2 of 1942) was an excessive delegation of legislative powers of the governor general. Sub-section (3) of Section 1 of the said ordinance provided that the ordinance shall come into force in any province only if the provincial Government being satisfied of the existence of an emergency arising from any disorder within the province or from a hostile attack on India or on a country neighbouring on India or from the imminence of such an attack by notification in the Official Gazette, declares it to be inforce in the province, and shall cease to be in force when such notification is rescinded. An objection, which was, interalia raised against this provision was that it amounted to what was called a delegated legislation by which the governor general without legal authority sought to pass the decision as to whether an emergency existed to the provincial Government instead of deciding it for himself. This] objection was rejected by the privy council in the following words:
Their lordships are unable to see that there was any valid objection, in point of legality, to the governor-generals ordinance taking the form that the Actual setting up of a special court under the terms of the ordinance should take place at the time and within the limits judged to be necessary by the provincial Government specially concerned. This is not delegated legislation at all. It is merely an example of the not uncommon legislative arrangement by which the local application of the provision of a statute is determined by the judgment of a local administrative body as to its necessity.
In our opinion, all these decisions supply a workable guidance for coming to the conclusion that the impugned Act is merely a conditional legislation.
19. Now presuming that the impugned Act is not a conditional legislation, but is a legislation by which legislative powers are delegated to an external authority, namely, the Central Government, the question is whether such a delegation is excessive. It is a settled position in law that a legislative delegation becomes excessive only if no guidelines are available for the exercise of power by the delegate. If legislature has laid down policy, principle or standard for the guidance of an authority, on whom the power to make ancillary legislation is conferred, the delegation cannot be called excessive because the delegate has to function within the limits of the said policy, principle or standard. But laying down of the guidelines in form of policy, principle or standard, need not always be in express terms. If considering the historical background of a particular statute and the circumstances under which it was passed as well as the purpose which it seeks to achieve, necessary guidelines are available by implication, the delegate is required to Act within the limits suggested by these circumstances and purpose. In such cases, it cannot be said that the delegation is excessive. The Supreme Court has pointed out in Jyoti Pershad v. Administrator for the Union Territory of Delhi and Ors. : 2SCR125 as under:
It is not, however, essential for the legislation to comply with the rule as to equal protection, that the rules for the guidance of the designated authority, which is to exercise the power or which is vested with the discretion, should be laid down in express terms in the statutory provision it self...such guidance may thus be obtained from or afforded by (a) the preamble read in the light of the surrounding circumstances which necessitated the legislation, taken in conjunction with wellknown facts of which the court might take judicial notice or of which it is appraised by evidence before it in the form of affidavits : 1952CriLJ805 , being an instance where the guidance was gathered in the manner above indicated, (b) or even from the policy and purpose of the enactment which may be gathered from other operative provisions applicable to analogous or comparable situations or generally from the object sought to be achieved by the enactment.
In Municipal Corporation of Delhi v. Birla Cotton, Spinning and Weaving Mills, Delhi : 3SCR251 , the Supreme Court has pointed out what form the guidance should take in the following words:
What guidance should be given and to what extent and whether guidance has been given in a particular case at all depends on a consideration of the provisions of the particular Act with which the court has to deal including its preamble...what form the guidance should take is again a matter which cannot be stated in general terms. It will depend upon their cumstances of each statute under consideration; in some cases guidance in broad general terms may be enough, in other cases more detailed guidance may be necessary.
The case law on the subject on the excessive delegation has been recently reviewed by the Supreme Court in Gwalior Rayon Mills Mfg. (Wvg). Co. Ltd. v. Asstt. Commissioner of Sales Tax and Ors. : 94ITR204(SC) . The facts of that case show that parliament by enacting Section 8(2)(b) of the central Sales Tax Act, adopted the rate applicable to the sale or purchase of goods inside the appropriate state in case such rate exceeded 10 per cent in view of such a provision a contention was raised that parliament have not fixed the rate itself and in adopting the rate of the concerned states Sales Tax Act, abdicated its legislative function the court unanimously rejected this contention but was divided in its opinion on the question whether it is not necessary for the legislature to lay down a legislative policy, standard or guidelines in the statute if it retains enough control over the authority making the subordinate legislation. The majority of the learned judges have been of the view that the prescription of the policy and guidelines cannot be dispensed with even if legislature retains enough control over the delegate. With these observations, the Supreme Court has approved the ratio of the decision in the above referred case of Delhi Municipality.
20. In view of this settled legal position, we should ask ourselves the question: whether any guidelines in form of principal, policy and standardare available to the Central Government at the time of Acting under Section 3 of the impugned Act.
21. While considering this question, we should atonce admit that there are no express guidelines available from the language of the statute. We find, however, that important guidelines are surely available from the nature of the statute and the obvious purpose for which it was enacted. We shall presently discuss how this is so.
22. The most important fact to be noted in this connection is that when impugned Act was passed, the ordinary police force was already in existence and was functioning under the Police Act of 1861 though this police force was capable of investigating all types of offence, the impugned Act was passed. Therefore, the purpose for which the impugned Act was passed becomes apparent. That purpose was to see that while the ordinary police force which was already functioning would continue to discharge all the police functions, the special force contemplated by the Act would discharge only one of these functions viz. The function to investigate. This purpose is carried out by the legislature by specifically providing in Section 2 of the Act that the Central Government may constitute a special police force for the investigation of offences notified in Section 3. One very important guideline which is thus provided by the legislature to the Central Government is that only those offences should be notified under Section 3 which require a special type of investigation by the special police force, and which, in its opinion, cannot be effectively and efficiently handled by the ordinary police force.
23. The fact that the special police force cannot be invested with the powers to investigate all ordinary offences is inherent in the situation as such power was already enjoyed by the ordinary police force therefore, at the time of issuing the notification under Section 3 of the Act, the Central Government has to notify only those offences, which require special type of care and skill in investigation. At the time of issuing notification under Section 3, the Central Government has also to take into account the provisions of Section 5, which contemplates the extension of powers and jurisdiction of special police establishment to areas outside the union territory. This shows that only those offences should be notified under Section 3 which involve questions of general public importance. Moreover, the Central Government has also to bear in mind that Action under Section 5 for extension of powers and jurisdiction of the special police force can be taken only with the consent of the State Government, to which the power is required to be extended. The Central Government, therefore, cannot afford to be oblivious of the fact that no State Government would give its consent to the investigation of an offence by a member of another police force unless the investigation of the said offence involves the quest ion of some general public importance. This is therefore, yet another check and guideline available to the Central Government at the time of notification under Section 3.
23. A it is thus apparent that the scheme of the Act and the neuron for which this Act was enacted by the parliament do supply sufficient guidelines at the time of choosing the offences for the purpose of being notified in Section 3 of the Act 8.
24. At the time of considering whether a particular delegation is recessive or not, one factor which is required to be borne in mind is, as by the Supreme Court m the case of Delhi Municipality (supra), the nature of the body to which the delegation is made. Here we find that the due gationis made to a very responsible body, namely, the Central Government self. Obviously, it is only the Central Government who can have an over-all conception with regard to the offences which require special type of investigation in the country. It is the body which can possess a degree of adaptability to the changing situations and day to day problem? Of public importance. Under the circumstances, the delegation of an authority to such a body is one of the factors which can be taken into consideration at the time of deciding whether the said delegation is excessive or not.
25. The advocates for the petitioners contended that in of the fact that the provisions of the impugned Act do not contain specific guidelines it would be useful to refer to the statement of objects and reasons for the purpose of considering under what guideline or limitations, the Central Government has to Act at the time of filing under Section 3. In support of this contention, our attention was dfa following statement of objects and reasons which was attached by which the amendment Act of 1952 was brought in. This Statement is as under:
The Delhi Special Establishment is a Central Police Delhi Special Police Establishment Act to invest offences corruption committed by officers or others in departments of does not confer any power to deal with cases Government. It up and financed the Government.
(b) departments of the administrations in centrally administered states.
It is considered necessary that the delhi special police empowered to investigate such offences the rity to the Central Government to confer this jurisdiction.
Pointing out to this statement, it was contended that the which the Central Government is expected to issue under Section 3 of the I should confine itself only to the offences of bribery and corruption committed by the officers or others in the departments of the Central Government. It was contended that such offences may also relate to corporations and other bodies setup and financed by the Government of India and the departments of administration in centrally administered states it was therefore submitted that since the Central Government has Actually notified even those offences which do not fall within the ambit mentioned in the statement of objects and reasons, it should be held that these notifications of the Central Government fall beyond the guidelines provided by the statement of objects and reasons. Apart from the validity or acceptability of this contention, we would state that if a reference is made to the first information report on which the investigation is stated, it is found that it mentions only those offences which relate to the departments of the Central Government. Be that as it may, the contention which is canvassed for our acceptance cannot be accepted for the obvious reason that the statement objects and reasons cannot control the plain and obvious meaning which the sections, which are enacted by the parliament, obviously convey. As already noted above, the amendment, which is brought by the amendment Act of 1953 in the long title and the preamble of the Act, clearly shows that the operation of the Act is not confined only to the departments of the Central Government and other corporations. The operation of the Act as visualised by this amendment is for the investigation of certain offences which are notified by the Government under Section 3. It was for this reason that reference too the matters concerning the departments of the Central Government was taken out from the preamble ass well as the long title. The result, therefore, is that the types of offences which are referred to in the statement of object and reasons are merely illustrative and cannot provide the complete guidance about the offences which the Central Government is expected to notify under Section 3 of the Act.
26. The above discussion covers the first two contentions raised by the learned advocates of the petitioners. So far ass the third contention is concerned, the argument was that if the impugned provisions of the Act are construed as authorising the special police force established under the Act to investigate only those offences which have been committed in the union territory, the vires of these provisions would be saved. But having considered all the provisions of the impugned Act, we find that there is no justification for taking a view that the notification of the Central Government contemplated by Section 3 of the Act should be confined only to those offences which are committed within the union territories. Section 5 and 6 of the Act clearly disclose the intention of the legislature to extend the powers and jurisdiction of the special force even to those offences which have been committed in the area which falls outside the union territory. Therefore, we find ourselves unable to accept even this contention.
27. It was next contended that even if it is held that the powers and jurisdiction of the Special Police establishment can be extended to an area outside the Union territory the said area cannot comprise the whole State, but only that part of the state in which the investigation is absolutely necessary. Even this contention is not acceptable because Section 5 specifically refers to the extension of the powers and jurisdiction of the special police establishment to any area. The plain reading of Section 5, therefore, negatives this contention.
28. It was lastly contended that the Government of the state of Gujarat has not given its consent to the notification issued by the Central Government on 18th February, 1963 under Section 3 of the Act, by which all the previous notifications on the subject have been superseded. Now so far as this contention is concerned, we find that as early as 6th November, 1956 the Central Government notified under Section 3 various offences under the penal code, offences punishable under the prevention of corruption Act, import & export, Act, Foreign Exchange Regulation, Indian post office Act, companies Act, insurance Act, Indian official secrets Act, essential commodities Act, industries (development and regulation) Act and attempts, abetments and conspiracies in relation to these offences. A copy of this notification is found at ann. G-1 in the paper book. Thereafter further notifications were issued adding still more offences to the list under Section 3 of the Act. These subsequent notifications are found at ann. G-2, G-3 and G-4 The Government of Gujarat is found to have given its consent to the extension of investigation regarding all these offences by its notification at. 3rd August, 1960 which is found at ann. H The first information which is lodged against the petitioners is admittedly with regard to those offences which are covered by the notification appearing at ann. G-1 to which reference is already made above. It, therefore, follows that the Government of Gujarat has accorded its consent to the investigation of all the offences which are referred to in the first information report which is filed against the petitioners. However, the contention of the learned advocates of the petitioners was that the notifications found dt. Ann. G-1 to G-4 have been superseded by the subsequent notification dt. 18th February, 1963 and, therefore, the consent given by the Government of Gujarat to the investigation of the offences mentioned therein by ann. H automatically lapses. It was pointed out that the offences mentioned in the first information filed against the petitioners are again mentioned in the said superseding notification dt. 18th February, 1963 and hence a fresh consent of the Government of Gujarat was required and as no such fresh consent is found to have been given, the investigation undertaken by the respondents is illegal. A copy of the superseding notification dt. 18th February, 1963 is found at ann. J-1. A reference to it shows that by this document, the Central Government has issued a fresh notification regarding all the offences which were referred to in the superseded notifications and has further added some more offences under other Acts. The result has been that the offences, which are mentioned in the superseded notification, ann. G-l continued to remain the notified offences under Section 3 of the impugned Act inspite of the so called supersession. The learned advocates of the petitioners, however, made much of the fact that the superseding notification found at ann. 1-1 uses the word supersession and, contended that the previous notifications found at ann. G-1 to G-4 should be considered as having been repealed and, therefore, even though the superseding notification again brings into picture the offences, already mentioned in the superseded notifications, a fresh consent of the Government of Gujarat is required.
29. We are of the opinion that we should not be guided merely by the use of the word superseded which is found used in Ann. J-1. It is not the form of the language but it is the substance which should be taken into consideration, it cannot be gainsaid that the notification found at Ann. J-1 is nothing but the rearrangement of the offences, which were already notified and some more offences which were freshly notified by this annexure. In fact notification found at Ann. J-1 is in substance a consolidation notification which seeks to combine the offences which were already notified along with the offences which were freshly notified. In these circumstances, merely because the word superseded is loosely used in the notification found at Ann. J-l it cannot be said that the offences, which were already notified earlier, ceased to be the offences notified under Section 3. As a matter of fact, there was absolutely no time gap between the so called supersession of the previous notifications and the fresh notification, which was issued, and by which the same offences which were mentioned in the previous notifications were also mentioned again. Speaking about consolidation Acts, of this type caries on Statute Law (7th edition) observes as under at page 362:
The effect of most of these Acts may be described as purely literary. In so far as the Act is purely a consolidation Act, although it may repeal the reproduced enactments, the repeal is merely for the purpose of rearrangement, and there is no moment at which the substance of the older enactments ceases to be in force, although it is true that its ancient form is destroyed by the process of reproduction and repeal.
These observations are very apt to the point under our consideration, because, we find that at no moment of time the offences which were mentioned in the previous notifications, ceased to be the offences notified under Section 3 of the Act. We find that no further discussion on this point is necessary in view of the decision given by the Supreme Court on this question in The Management of Advance Insurance Co. Ltd. v. Shri Gurudasmal and Ors. : 3SCR881 . The very same contention was raised before their lordships in this case with regard to the notification dt. 18th February, 1963. The contention has been rejected by the Supreme Court in the following words:
It is, however, urged that the Government of India on February 18, 1963, issued another notification (No. 25/12/62-Avd-II) which superseded the earlier notification No. 25/7/60-Avd dt. January 21, 1962. From this it is argued that the earlier notification to which consent was given by the Maharashtra Government had all been revoked and fresh consent was, therefore, necessary and has not been proved. In our judgment this is an argument of no avail. It is true that if Sections 409 and 477-a Indian penal code were newly added, consent of the Government of Maharashtra would have been necessary. But the Maharashtra Government had on more than one occasion consented to the investigation in the state of Maharashtra of these offences. The notifications mentioned those offences afresh with some other offences. In so far as the newly added offences are concerned, the argument would have some validity but not in respect of offences already assented to. We find no force in the argument since we consider the new notification as merely restating the old notification after including some other offences in the new notification.
In view of this decision, even this last contention should fail.
30. The result, therefore is that both these writ petitions should fail. They are, therefore, dismissed and the rule is discharged with costs.
31. Before parting with the case we may note that notice on the attorney general was issued in view of the fact that certain constitutional points have been involved and the vires of the impugned Act and its provisions have been challenged after the hearing commenced and some arguments were advanced on constitutional points, we found, during the course of the hearing, that the service on the attorney general has not returned back. In ordinary course, we would have waited for the return of the service, but since we are taking the view that the impugned Act and its provisions are intra-vires, we have not thought it proper to adjourn the hearing and wait for there turn of the service.
32. The learned advocates of the petitioners made an oral request for leave to appeal to the Supreme Court under articles 132 and 133 of the constitution. The request is opposed by Shri Vakharia on behalf of the respondents we find that the matter is covered by Article 132 because the matter involves substantial questions of law as to the interpretation of our constitution and especially entry 30 of list i and entry 2 of list ii. We are told that all the points, which are involved in this case, were involved in a Calcutta case, against which an appeal is pending before the Supreme Court. In these circumstances, we think this to be a fit case for granting a certificate for leave to appeal to the Supreme Court, both under articles 132 and 133 of the constitution.
This Court has given an interim stay restraining the respondents from filing any chargesheet under Section 221 of the Criminal Procedure code or causing any chargesheet to be filed on the basis of the investigation made by the respondents. The said inter in order shall continue upto a period of two weeks from the date on which the petitioners get urgent certified copies and the bill of costs.