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The State Vs. Birdhichand and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberCriminal Appeal No. 81 of Samwat 2005 and Cri. Ref. No. 229 of 2005
Judge
Reported inAIR1951Raj25
ActsJaipur Opium Act, 1924 - Sections 1; Jaipur General Clauses Act, 1944 - Sections 3 and 5; Government of Jaipur Act, 1944 - Sections 41; Jaipur Law Act, 1923
AppellantThe State
RespondentBirdhichand and anr.
Appellant Advocate R.K. Rastogi, Government Adv.; R.N. Mathur, Adv.
Respondent Advocate G.L. Khuteta, Adv. for Birdhichand and; Jai Biharilal Saksena, Adv. for Harla
Excerpt:
- - 'all other bussiness means business which was not specifically mentioned in any of the appendices attached to the schedules, and would necessarily include the business of legislation as well. he also referred to section 5, general clauses act, 1944, and urged that according to this provision as well, an act came into operation on the day on which it was first published in the jaipur gazette......framed by this council. on the question of its competency, our attention has been invited to the jaipur gazette dated 11.8.1923 which contains a number of schedules indicating the powers reserved to the resident, the cabinet, the council and sighas. the powers of the sigha members are defined in schdule iv and rule 4 of schedule iii expressly mentions that all other business will be disposed of at meetings of the full council. 'all other bussiness means business which was not specifically mentioned in any of the appendices attached to the schedules, and would necessarily include the business of legislation as well. it was rather early for a separate legislative body to come to exist in the state as far back as 1924 and the council of ministers was the only body of persons which.....
Judgment:

Nawal Kishore, C.J.

1. Criminal App. No. 81 of 2005 has been filed by the State from the order of the learned Special Magistrate acquitting the accused Birdhichand of the offence under Section 7, Opium Act. In another case, the Special Magistrate had convicted the accused Harla under the same provision of the Opium Act and also sentenced him. The learned Sessions Judge, however, has made a reference to this Court recommending, for reasons recorded by him, that the order of conviction and sentence may be quashed and the accused acquitted. This is reference No. 229 of 2005. Since in both these cases allied questions of law arise, they will be disposed of by this judgment.

2. In both these cases, the accused were arrested for being in possession of a certain amount of opium. In the first mentioned case, there was the further allegation that the accused had also sold a portion of the opium in his possession. In both these cases, the Court came to the conclusion that the Opium Act was ultra vires and did not, therefore, have the force of law. He referred to Section 3, General Clauses Act, 1944 and held that since the Opium Act did not conform to the definition of 'Act' as stated there, it must be held to be ultra vires. In his view, Section 41, Government of Jaipur Act, 1944 did not affect the question inasmuch as while this Act was passed in 1944, the General Clauses Act came into existence in 1943. This is practically the entire basis on which the learned Sessions Judge has come to the conclusion that the Opium Act of 1924 did not have the force of law.

3. The important questions which call for a determination in this case are whether the Opium Act had been framed by a competent authority and whether it was necessary that before it came into force it should have received the assent of His Highness the Maharaja. According to the definition of 'Act' in the Jaipur General C1auses Act 1944, it means an Act made by or with the assent of his Highness the Maharaja. It is conceded that at or about the time when the Opium Act was framed, there was minority administration in Jaipur. The late His Highness the Maharaja of Jaipur had died and accordingly, the Government was being run by a Council of Ministers with the President and under the advice and guidance of the Resident at the time. The question is whether the Council was empowered to legislate. A doubt has been raised regarding the authors of the Act but since the Council of Ministers was the only governing body at the time, there is no escape from the conclusion that it was framed by this Council. On the question of its competency, our attention has been invited to the Jaipur Gazette dated 11.8.1923 which contains a number of schedules indicating the powers reserved to the Resident, the Cabinet, the Council and Sighas. The powers of the Sigha members are defined in Schdule iv and Rule 4 of Schedule III expressly mentions that all other business will be disposed of at meetings of the full Council. 'All other bussiness means business which was not specifically mentioned in any of the Appendices attached to the Schedules, and would necessarily include the business of legislation as well. It was rather early for a separate legislative body to come to exist in the State as far back as 1924 and the Council of Ministers was the only body of persons which attended to all the business of the State including legislation. The learned counsel for the respondent has frankly accepted the position and accordingly we are of the view that so far as the work of legislation during the minority administration was concerned, it was done by the full Council of Ministers which, at the time, had all the powers of the Rulers of the Jaipur State. The learned counsel for the respondent, after conceding the position as stated above that minority administration was competent to pass all the laws, urged on the basis of the Jaipur Laws Act of 1923 that it was necessary that the enactments and regulations thereafter passed from time to time by the State, in order that they may come within the purview of law to be administered by the Courts, should be published in the official Gazette. The Opium Act had not been published in the official Gazette and therefore, it was contended that it was not an Act which could be administered by the Courts of this State. He also referred to Section 5, General Clauses Act, 1944, and urged that according to this provision as well, an Act came into operation on the day on which it was first published in the Jaipur Gazette. So far as the last mentioned Act is concerned, the position is clear inasmuch as, in our opinion, except Section 3, the rest of the Act is not and could not be made to have retrospective effect, Section 3 of this Act, no doubt, was made to have retrospective effect by the use of the word 'before' in the opening clause. This word does not exist in the General Clauses Act (x [10] of 1897) and its addition shows that it was intended that for the interpretation of the Acts which has been passed before the commencement of this Act, the provision relating to the definitions should have retrospective effect. This world be so, however, only in oases where there is no repugnancy in the subject or Context. During the minority administration since the Council of Ministers had full powers of legislation, there was no occasion for obtaining the assent of His Highness to the passing of an Act. For this reason, even Section 3 cannot be held to have retrospective effect in respect of Acts passed by the Council during His Highness's minority. As regards the other provisions of the Act, there is no question at all about their being retrospective. The Act having come into existence in 1944, it could not and did not provide that Acts passed previous to its date should be deemed to have come into operation only after their publication in the Jaipur Gazette. Under the Jaipur Laws Act of 1923 as stated above, no doubt publication in the Jaipur Gazette was essential before an Act could be administered by the Courts of Jaipur. The only question, therefore, which now remains is whether on account of the fact that the Act does not appear to have been published in the Jaipur Gazette, it can be held that it should not be administered by the Courts of Jaipur. It is conceded that so far as prosecutions in connection with offences relating to opium are concerned, there is no other Act in force at the moment except the Opium Act of 1924. Thus it is plain that even though the Opium Act was not published in the Gazette it has stood on the Statute book and continued to be in force in Jaipur all these years. In the circumstances according to Section 41, Government of Jaipur Act, 1944, an exception to its validity cannot be taken now. According to this section, all the laws in force in Jaipur immediately before the commencement of this Act, shall continue in force until altered or repealed or amended by competent authority. For all these reasons we are unable to agree with the view taken by the learned Sessions Judge. The result is that the Appeal No. 81 of 2005 succeeds and is hereby accepted and the case sent back to the learned Special Magistrate for disposal on the merits. The reference No. 229 of 2005 fails and is hereby rejected. The learned Sessions Judge is directed to dispose it of on the merits.

Dave, J.

4. I agree.


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