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L.E. Mohamed HussaIn and ors. Vs. Deputy Superintendent of Customs, R.i.V. Tiruchirapalli and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal;Constitution
CourtChennai High Court
Decided On
Case NumberWrit Petn. Nos. 1725, 1757, 3243 and 3690 of 1967 and 3536 and 3537 of 1968
Judge
Reported inAIR1970Mad464
ActsConstitution of India - Articles 14, 246(1), 246(4) and 372; Foreign Exchange Regulation Act, 1947 - Sections 4(1), 19J(2), 23(1), 23D and 23F; Code of Criminal Procedure (CrPC) , 1898; Government of India Act, 1935 - Sections 46(3), 100(4) and 316; Delhi Police Establishment Act, 1946 - Sections 3 and 5
AppellantL.E. Mohamed HussaIn and ors.
RespondentDeputy Superintendent of Customs, R.i.V. Tiruchirapalli and ors.
Appellant AdvocateV.K. Thiruvenkatachari, Adv. for ;K.C. Jacob, Adv., ;S.K.L. Ratan, ;I. Ibrahim Khan, ;A.R. Ramanathan, ;L. Vedapuri, ;N.C. Raghavanchari, ;N.S. Varadachari, ;S.T. Ramalingam and ;P. Venkataraman, Advs
Respondent AdvocateThe Central Govt. Standing Counsel, ;M. Shakir Ali, Adv. for ;Govt. Pleader
DispositionPetition dismissed
Cases ReferredConstitution. In South India Corporation (P) Ltd. v. Secy.
Excerpt:
criminal - constitutional validity - sections 4 (1), 19j (2), 23 (1), 23 d and 23f of foreign exchange regulation act, 1947, criminal procedure code, 1898, sections 46 (3), 100 (4) and 316 of government of india act, 1935, sections 3 and 5 of delhi police establishment act, 1946 and articles 14, 246 (1), 246 (4) and 372 of constitution of india - sections 23 (1) (a), 23 (1) (b) and 23-f confer powers on director in choosing procedure for imposing punishment on persons charged of offences under act of 1947 - constitutional validity of section 23 (1) (a), 23 (1) (b) and 23-f challenged on ground of violation of article 14 - special procedure will not be hit by article 14 as it is based on classification which has just and reasonable relation to object of legislation - procedure prescribed.....orderkailasam, j. 1. in these writ petitions, the power of the superintendent of police, central bureau of investigation economic offences wing, to investigate an offence under the foreign exchange regulation act, 1947 (hereinafter referred to as the act) and the power of the director of enforcement, ministry of finance to take proceedings under sections 23(1) (a) and 23-d- of the act are questioned. in w. p. 3536 of 1968 the petitioner messrs. bheru manufacturing co. prays for the issue of a writ of quo warranto calling upon the superintendent of police, central bureau of investigation to show the validity of his appointment and his exercising powers in madras state in respect of offences under the foreign exchange regulation act. the same petitioner in w. p. 3537 of 1968, has prayed for.....
Judgment:
ORDER

Kailasam, J.

1. In these writ petitions, the power of the Superintendent of Police, Central Bureau of Investigation Economic Offences Wing, to investigate an offence under the Foreign Exchange Regulation Act, 1947 (hereinafter referred to as the Act) and the power of the Director of Enforcement, Ministry of Finance to take proceedings under Sections 23(1) (a) and 23-D- of the Act are questioned. In W. P. 3536 of 1968 the petitioner Messrs. Bheru Manufacturing Co. prays for the issue of a writ of quo warranto calling upon the Superintendent of Police, Central Bureau of Investigation to show the validity of his appointment and his exercising powers in Madras State in respect of offences under the Foreign Exchange Regulation Act. The same petitioner in W. P. 3537 of 1968, has prayed for the issue of a writ of prohibition restraining the Enforcement Directorate from taking any action for adjudication under Section 23(1). In the other Writ petitions the same questions that are raised in W. P. 3537 of 1968, are raised. In the circumstances, the batch of writ petitions may be disposed of by a common order.

2. The points that are raised in these writ petitions may be classified under the following heads: Firstly, the validity of Sections 23(1) (a), 23(1)(b) and 23-F are Questioned on the' ground that they are ultra vires of the Constitution, in that they conferred on the Director unfettered, unguided and arbitrary powers in choosing the procedure for imposing the punishment on persons charged of offences under the Foreign Exchange Regulation Act. It was submitted that as the Director has an option to choose one of the two criminal proceedings without, any guidance, the proceedings are violative of the provisions of the Constitution. Secondly, it was contended that as the Foreign Exchange Regulation Act has prescribed its own procedure for investigation of offences under the Act and also specifically provided that no court shall take cognisance of an offence under the Act except upon a complaint in writing by the Director of Enforcement, the provisions of the Criminal P. C. relating to investigation are, to that extent, not applicable and the police are not entitled to investigate such offences. Thirdly, it was submitted that the Special Police Establishment being a police force under the Central Government, it has no jurisdiction to investigate into offences within any State, as police is a State subject.

3. The challenge about the validity of the power conferred on the Director of Enforcement under Sections 23(1) (a), 23 (1) (b), 23-D and 23-F of the Act may be considered. Section 23(1) runs as follows:

'If any person contravenes the provisions of Section 4, Section 5, Section 9, Section 10 or subsection (2) of Section 12, Section 17, Section 18-A or Section 18-B or of any rule, direction or order made thereunder, he shall-- '

(a) be liable to such penalty not exceeding three times the value of the foreign exchange in respect of which the contravention has taken place, or five thousand rupees, whichever is more, as may be adjudged by the Director of Enforcement in the manner hereinafter provided, or (b) upon conviction by a court, be punishable with imprisonment for a term which may extend to two years or with fine or with both.'

Section 23(1) (a) confers on the Director power to impose a penalty not exceeding three times the value of the foreign exchange in respect of which the contravention has taken place or five thousand rupees whichever is more. Under subsection (1) (b) the person who had contravened any of the provisions mentioned in the sub-section is liable, on conviction by a court, to be punished with imprisonment for a term which may extend to two years or with fine, or with both. Section 23(3) provides that ho court shall take cognisance of any offence punishable under Sub-section (1) except Upon complaint in writing made by the Director of Enforcement. Section 23-D(1) prescribes the procedure to be followed by the Director of Enforcement for conducting an enquiry under Section 23(1) (a). The proviso to the section provides that if the Director of Enforcement of opinion, at any stage of the enquiry, that having regard to the circumstances of the case the penalty which he is empowered to impose would not be adequate, he shall, instead of imposing any penalty himself, make a complaint in writing to the court. Section 23-F provides that if any person fails to pay the penalty imposed by the Director of Enforcement or the Appellate Board or the High Court or fails to comply with any of their directions or orders, he shall, on conviction before a court, be punishable with imprisonment for a term which may extend to two years or with fine or with both.

4. The procedure envisaged under Sections 23(1) (a), 23(1) (b), 23-D and 23-F is that the Director has a discretion, for a contravention of the provisions enumrated in Section 23, either to adjudicate under Section 23(1) (a) or to prefer a criminal complaint in writing to' a court. Even after an adjudication proceeding has been started by the Director, at any stage of the enquiry, if he is of opinion that having regard to the circumstances of the case, the penalty which he is empowered to impose would not be adequate, he shall instead of imposing any penalty himself, make a complaint in writing to the court. An appeal is provided against the order of the Director of Enforcement passed under Section 23, to the Central Government and a further appeal to the High Court on questions, of law from any decision or order of the Appellate Board under Sub-section (3) or Subsection (4) of Section 23-E. On a person's failure to pay the penalty imposed by the Director of Enforcement or the Appellate Board or the High Court or of his failure to comply with any of their directions or orders, he shall, on conviction before a court be punishable with imprisonment for a term which may extend to two years, or with fine, or with both.

5. The prescribing of a procedure to be followed by the Director which is different from the one prescribed in the Criminal P. C., was attacked. It was further contended that the discretion conferred on the Director to take up adjudication proceedings or to file a criminal complaint is arbitrary in that no guidance is given under the Act as to under what circumstances the Director should resort to adjudication proceedings or criminal proceedings. Section 23-D is challenged op the ground that the Director once having started adjudication proceedings which are civil in nature, is permitted to resort to criminal proceedings: It is submitted that while in civil proceedings the petitioner may be compelled to answer questions and made to sign statements, by empowering the Director to resort to criminal proceedings at a later stage, the answers and statements given by the petitioner are liable to be used in the criminal proceedings which is contrary to law. So far as these objections are concerned, the matter is concluded by authority. In Shanti Prasad v. Director of Enforcement : [1963]2SCR297 the Supreme Court held that a law which prescribes a special procedure for investigation of breaches of foreign exchange regulations will not be hit by Article 14 as it is based on a classification which has a just and reasonable relation to the object of the legislation, and that the vires of Section 23(1) is not open to attack on the ground that it is governed by a procedure different from that prescribed by the Criminal P. C. Section 23-D which provides for transfer by the Director of Enforcement of cases which he can try to the Court was held to be valid and could not be attacked on the ground that the power conferred on the director is unguided and arbitrary and also unconstitutional. In Union of India v Sukumar. : 1966CriLJ946 the Supreme Court reiterated its, view 'expressed in : [1963]2SCR297 .

6. Mr. V K. Thiruvenkatachari, the learned counsel for the petitioner, submitted that after the introduction of Section 23-F which makes a person liable to conviction in a criminal court on his failure to pay the penalty imposed by the Director of Enforcement or the Appellate Board or the High Court or on his failure to comply with any of their directions or orders, even the ' adjudication proceeding under Section 23(1) (a) has become criminal, for, after the conclusion of the adjudication proceedings, the person becomes liable for conviction in a criminal court for non-payment of the penalty imposed. The learned counsel is right in his contention that Section 23-F Is an extraordinary provision which makes nonpayment of the penalty imposed by the Director, a criminal offence. The Act has not prescribed any mode for recovery of the penalty that may be imposed by the Director of Enforcement like Section 142 of the Customs Act. The Legislature, instead of creating a machinery for collecting the penalty Imposed by the Director of Enforcement by provisions analogous to Section 142 of the Customs Act, has made non-payment of, the penalty an offence punishable by a Criminal Court. The provision relating to the collection of the penalty however drastic it may be cannot render the adjudication proceedings criminal in nature. The adjudication proceedings in enactments like the Incomertax Act and the Customs Act were held to be civil proceedings and parallel proceedings in respect of the same matter--Vide Sivagaminatha Moopanar and Sons y. I. T. O. II Circle, Madurai : [1955]28ITR601(Mad) Thomas Dana v. State of Punjab : 1959CriLJ392 and Tukaram G. Gaokar v. R. N. Shukla, C. A. No. 1597 of 1967 = (reported in : 1968CriLJ1234 ). Provision for civil and criminal proceedings relating to the same matter has, been held to be valid in the decisions referred to above. The adjudication proceedings which are civil in nature cannot be contended to have become criminal in nature because of the provisions which makes non-payment of the penalty adjudicated, liable to be punished in criminal Court. Therefore, the pleas that the introduction of Section 23-F has the effect of converting the adjudication proceedings into criminal proceedings, and that as the Director is given a choice to Select one of the two criminal proceedings the power is unconstitutional, cannot be accepted. Krishnaswami Reddy J. in Cr. M. P. Nos. 978 and 980 of 1968 = (reported in (Mad)), M. R. Pratap v. Director of Enforcement, New Delhi, has expressed the same view. The learned Judge took, the view that the nature and the characteristics of proceedings provided under Section 23(1) (a) and Section 23-D were civil proceedings, that their nature and character were not changed by virtue of the introduction of Section 23-F of the Act and that the adjudication proceedings under Section 23(1) (a) do not become criminal in nature. I am in respectful agreement with the view expressed ,by the learned Judge.

7. The second contention of the learned counsel for the petitioner is that as a special procedure has been prescribed for investigation of offences under the Foreign Exchange Regulation Act, the police are not entitled to investigate an offence under the Criminal Procedure Code. Section 5(2), Crl. P. C. provides that all offences under any other law shall be investigated, enquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force, regulating the manner or place of investigation, inquiring into, trying or otherwise dealing with such offences. The submission is that as the manner of investigation and enquiring into an offence is provided for under the special Act, the Criminal P. C. is not applicable. By Section 19-A to Section 19-F of the Foreign Exchange Regulation Act, police powers are conferred upon the Director of Enforcement and officials subordinate to him. Section 19-A confers upon the enforcement officer power to search suspected persons. Section 19-B confers a power of arrest, Section 19-C a power to stop and search conveyances, Section 19-D a power to search premises, Section 19-E a power to examine persons and Section 19-F power to summon persons to Rive evidence and produce documents. The powers of investigation and enquiry are conferred on the Director of Enforcement under Section 19-A to Section 19-F.

Section 19-J '(2) provides that notwithstanding anything contained in the Criminal Procedure Code, 1898, any police officer not below the rank of Inspector of Police, or any other officer of the Central Government or a State Government authorised by the Central Government in this behalf may enter any public place and search and arrest without warrant any person found therein who is reasonably suspected of having committed or of committing or of being about to commit a contravention of Sub-section (1) of Section 4. Under this sub-section, power is specifically conferred on the police to arrest without warrant persons found in any public place who were reasonably suspected to have committed or of committing or of being about to commit a contravention of Sub-section (1) of Section 4, Sub-section (4) to Section 19-J provides that the provisions of the Criminal Procedure Code. 1898 shall, subject to the provisions of this section, apply, as far as may be in relation to any entry, search or arrest, made under the subsection and Sub-section (5) provides that the provisions of the sub-section shall have effect notwithstanding anything inconsistent therewith contained in any other provisions of the Act.

The provisions under Section 19-A to Section 19-F having been prescribed for Investigation by the officials of the Enforcement Directorate under the special Act the power of the police to investigate to that extent should be considered as having been taken away. But there Is a specific saving of the powers of the police under Section 19-J(2). Section 19-J(2) empowers the police to arrest without warrant any person in a public place in relation to an offence under Section 4 (1) and the provisions of the Criminal Procedure Code, are made applicable so far as entry, search or arrest made by the police under the section. No such power is conferred on the police in the Foreign Exchange Regulation Act with regard to the offence under any other section in the Act and the police cannot Investigate these offences.

8. Ch. XIV of the Criminal Procedure Code deals with information to the police and their powers to Investigate. On information of a cognisable offence, the officer in charge of a police station is empowered, without the order of a Magistrate, to investigate the offence. In the ease of a non-cognisable offence, without a complaint and without the order of & Magistrate, the police cannot ' investigate.

So far as offence in the special enactmentswhich are made cognisable, the police,under the general power, may investigate. In the Foreign Exchange Regulation Act, the only offence that is madecognisable is the contravention of Subsection (1) of Section 4, and the policecannot Investigate other offences excepton the complaint of the officer concernedand with the order of the Magistrate.The question arises as to whether thegeneral powers of the police would beaffected when the special enactment requires that the court shall not take cognisance of an offence under the specialAct without the written complaint of theofficer concerned.

Section 23(3) states that Bo Court shall take cognisance of any offence punishable under Sub-section (1) except upon complaint in writing made by the Director of Enforcement. Section 190. Crl. P. C, enumerates the circumstances under which the court can take cognisance of an offence, and as cognisance of an offence under the Act cannot be taken without a complaint in writing by the Director of Enforcement, cognisance cannot, be taken on a report by the police officer. Section 173, Crl. P. C. requires the police officer in charge of the police station to forward to a Magistrate empowered to take cognisance of the offence on a police report, a report after completion of the Investigation. The submission is that unless the Magistrate is empowered to take cognisance of the offence on a police report, the Chapter relating to information to the police and their powers to investigate, namely, Ch. XIV, cannot be made applicable for offences under the Foreign Exchange Regulation Act, and therefore the police officers' are not competent to investigate such offences.

In the Criminal Procedure Code, itself there are certain offences which prohibit the taking of cognisance, unless there 'is a complaint by a . specified person. Section 195(1)(a) prohibits the court from taking cognisance of offences under' Sections 172 to 188. I.P.C. except on the complaint in writing of the public servant concerned, or of some other public servant to whom he is subordinate, and clauses (b) and (c) of Sub-section (1) of Section 195 prohibit the court from taking cognisance of certain offences, except on a complaint in writing by the court. Section 196 prohibits the court from taking cognisance of certain offences unless the complaint is made by the State Government. Section 198 prohibits the court from taking cognisance of offences under Sections 493 to 496. I.P.C. except upon a complaint made by some person aggrieved by such offence. For offences with respect to which the Magistrate cannot take cognisance upon a police report, several sections in Ch. XIV, will not be applicable. Though Section 156, Crl. P. C. empowers the officer in charge of a police station to investigate a cognisable offence. Section 157 requires the police officer, in case of suspicion, to send a report to the Magistrate empowered to take cognisance of such offence upon a police report. So also Section 170 speaks of an officer in charge of a police station forwarding' the accused under custody to a Magistrate empowered to take cognisance of the offence upon a police report Under Section 173(1), the report of the police officer, after completion of the investigation, has to be forwarded to a Magistrate empowered to take cognisance of the offence on a police report.

These sections which specify the report to be submitted to the Magistrate empowered to take cognisance of a police report would not be applicable to cases where the law prohibits taking of cognisance by a Magistrate except on a complaint. Whether or not a report of a police officer on the investigation of a non-cognisable offence would amount to a police report or a complaint, when there is a prohibition against, taking cognisance by the Magistrate without a complaint by a concerned authority and when procedure is laid down under the special Act, the power of the police to investigate can only be confined to that conferred on them ' under Section 19-J(2) of the Foreign Exchange Regulation Act. If the police in this cage were Investigating an offence under any of the sections of the Foreign Exchange Regulation Act, except that covered by Section 19-J(2), the petitioner would be right in his contention that the police are not empowered to investigate under Ch. XIV, Crl. P. C,

But in W. P. 3536 of 1968, where the jurisdiction of the police to investigate is questioned, the offences registered against the petitioner and three others are that the petitioner and others entered into a criminal conspiracy to import stainless steel sheets under the licence obtained by the petitioner declaring , them as special steel in coils. It is also alleged that the information now available discloses the offences of conspiracy under Section 120B, I.P.C., Section 23 read with Sections 4 and 5 of the Foreign Exchange Regulation Act, Section 5 of the Imports and Exports (Control) Act. 1947 and Section 420 read with Section 511, I.P.C. So far as the offence under Section 420, I.P.C. is concerned, it is a cognisable offence and the right of the police to investigate cannot be Questioned. In investigating a cognisable offence which they are entitled to, it may be that certain facts which may amount to an offence under special Act may also be disclosed. But that would not deprive the police of their power to investigate a cognisable offence not falling under the special statute.

On behalf of the Special Police Department it was stated that the information registered by the police was not in the information given by the Director and when they were investigating offences like cheating there could not be any valid objection to such investigation. If an offence of cheating is being investigated as stated by the police, there could be no objection to the police proceeding to summon the accused under Section 160, Crl. P. C. Section 160. Crl. P. C. empowers the police officer making an investigation under Ch. XIV. Crl. P. C., to require by an order in writing the attendance before him of any person' who appears to be acquainted with the circumstances of the case. It is not disputed that the police officer is entitled to summon an accused also. In W. P. 3536 of 1968 it is prayed that the police be restrained from taking steps in pursuance of the notice under Section 160, Crl. P. C, The police are entitled to issue notice under Section 160. Crl. P. C. while investigating a cognisable offence. This relief cannot, therefore, be given to the petitioner.

9. The next submission by the learned counsel for the petitioner is that the Special Police Establishment being a police force under the Central Government, it has no jurisdiction to investigate into offences within any State, as police is a State subject. In considering this question, it is necessary to refer to the Delhi Special Establishment Act, the Government of India Act 1935, and the Constitution of India. The Delhi Special Police Establishment Act 1946 was enacted to make provision for the constitution of a Special Police Force in Delhi for the investigation of certain offences in the Union Territories for the superintendence and administration of the said force and for the extension to other areas in the States of the powers and jurisdiction of members of the said force in regard to the investigation of the said offences. Section 2 of the Act provides that notwithstanding anything in the Police Act 1861, the Central Government may constitute a special police force to be called the Delhi Special Police Establishment for the investigation in any Union Territory of offences notified under Section 3 Section 3 authorises the Central Government to specify by notification the offences or classes of offences which are to be investigated by the Delhi Special Police Establishment. Section 4 provides that the superintendence of the Delhi Special Police Establishment shall vest in the Central Government Section 5(1) is important in connection with the point, raised and may be set out in full:--

'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.'

Sub-sections (2) and (3) empower the police officer of the Central Government to discharge the function of the police officer in the area in which the offence is committed and to exercise the powers of an officer in charge of the police station. It will thus be seen that under Section 5 power is taken by the Central, Government to extend to any area in a State the power and jurisdiction of the members of the Delhi Special Police Establishment for investigation of offences specified by A notification under Section 3. As this section, envisages the extension of the power of the Delhi Special Police Establishment to the States, a safeguard is provided for under Section 6 which states that nothing contained in Section 5 shall be deemed to enable any member of the 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.

10. The main question for consideration is whether such extension of the powers of the Delhi Special Police Establishment to investigate into certain offences within the State is within the legislative competence of the Central Government. The attack on the validity of the Delhi Special Police Establishment Act 1946. so far as the investigation of certain offences in Union Territories is concerned, may be shortly' disposed of While under the Government of India Act, 1935. Item No. 3 in the Provincial Legislative List (List II) in the VII Schedule related to 'Police including Railway and Village Police' and the power to make law- under this item was that of the Provincial Legislature under Section 100(4) read with Sections 46(3) and 316 of the Government of India Act, 1935, the Indian legislature was empowered to make laws with respect to matters enumerated in the Provincial Legislative List of the VII Schedule for a Chief Commissioner's province. Therefore, so far as the areas which fell within the administration of the Indian Legislature, the Indian Legislature was competent to enact laws which a Stale Government was empowered under List II, Seventh Schedule of the Government of India Act. The Delhi Special Police Establishment Act 1946, was therefore an Act validly made under the Government of India Act, 1935. It was continued under Article 372 of the Constitution of India. Article 246(4) of the Constitution of India specifically empowers the Parliament to make laws with respect to any matters for any part of the territory of India not included in a State notwithstanding such matter is a matter enumerated in the State List Item 8 in List I in Seventh Schedule to the Constitution of India is 'Central Bureau of Intelligence and Investigation' and the Indian Legislature is competent to make laws relating to this item. Under these circumstances, the challenge to the validity of the Delhi Special Police Establishment Act so far as the Union Territories are concerned, is without substance and has to be rejected,

11. The validity of Sections 5 and 6 of the Delhi Special Police Establishment Act which empowers the Central Government to extend to any area in a State, the powers and jurisdiction of members of the Delhi Special Police Establishment for investigation of any of the offences specified under Section 3 with the condition that the consent of the State Government concerned should be obtained, is challenged as beyond the competence of the Indian Legislature. It was also submitted that Section 5 conferred unguided discretion on the Central Government to discharge police functions in State areas under orders of the Central Government without any guidance as to how and in what case such orders can be made and that the conferment of such powers on the Central Police Officers concurrently with the powers of the State Officers is not valid in law. Item 39 of List I, Seventh Schedule in the Government of India Act provided as follows--

'Extension of the powers and jurisdiction of members of a Police force belonging to any part of British India to any area in another Governor's province or Chief Commissioner's Province, but not so as to enable the police of one part to exercise powers and jurisdiction elsewhere without the consent of the Government of the Province or the Chief Commissioner, as the case may be; extension of the powers and jurisdiction of members of a police force belonging to any unit to railway areas outside the unit.'

In view of this item, the competence of the Indian Legislature to enact Sections 5 and 6 of the Delhi Special Police Establishment Act cannot be questioned, for the Central Government with the consent of the Government of the Province could extend the powers and iurisdiction of the members of the police force of the Central Government to any area in another Governor's province. The law having been thus enacted in 1946 and being in force in the territory of India when the Constitution came into force on 26th January 1950, Article 372 of the Constitution provided that such law will be continued to remain in force after the coming into force of the Constitution. The provisions of the Delhi' Special Police Establishment Act were brought in conformity with the provisions of the Constitution by the adoption of the various laws and by subsequent amendments. By amendment to Sections 5 and 6 of the Delhi Special Police Establishment Act for the words 'Part A States and Part C States' the word 'India' was substituted. By Act 26 of 1952, Section 6 was' also amended. Under Item 39, List I. Seventh Schedule- of the Government of India Act there is power in the Indian Legislature to extend the power and jurisdiction of the members of the police force belonging to any part of British India to any area in another Governor's province with the condition that the consent of the Government of the Province was obtained, and this power has been preserved in the Constitution. Item 80, List I, Seventh Schedule to the Constitution provides for the extension of the powers and jurisdiction of members of a police force belonging to any State to any area outside that State, with the consent of . the other State. Item 80, List I, Seventh Schedule read with Article 246(4) of the Constitution of India would empower the Parliament to make laws with respect to any matter for any part of the territory of India not included in a State notwithstanding that such matter is a matter enumerated in the State List, and for the extension of the powers and jurisdiction of members of a Police force belonging to any State to any area outside that State with the latter State's consent. The Act as it was passed in 1946 before the Constitution came into force, has been kept alive under Article 372 of the Constitution. In South India Corporation (P) Ltd. v. Secy., Board of Revenue : [1964]4SCR280 , the Supreme Court observed thus--

'The object of this Article (372) is to maintain the continuity of the pre-existing laws after the Constitution came into force till they were repealed, altered or amended by a competent authority. Without the aid of such an Article, there would be utter confusion in the field of law. The assumption underlying the Article is that the State laws may or may not be within the legislative competence of the appropriate authority under the Constitution. The Article would become ineffective and purposeless if it was held that pre-Constitution laws should be such as could be made by the appropriate authority under the Constitution. The words 'subject to the other provisions of the Constitution' should, therefore, be given a reasonable interpretation, an interpretation which would carry out the intention of ' the makers' of the Constitution and also which is in accord with the Constitutional practice in such matters. The Article posits the continuation of the preexisting laws made by a competent authority notwithstanding the repeal of Article 395; and the expression 'other' in the Article can only apply to provisions other than those dealing with legislative competence'.

In these circumstances, the validity of Sections 5 and 6 of the Delhi Special Police Establishment Act 1946 cannot be questioned. That the consent' of the Madras Government was obtained is also clear from the notification dated 23-1-1957 and the notifications of the subsequent years in 1961, 1963, 1964 etc.

12. The submission that Section 5 will not be valid as the citizens are liable to be proceeded against both by the State police and by the Central police is also not valid. So far as the offences that are notified under Section 3 of the Act are concerned, the offences are to be investigated by the Delhi Special Police Establishment and unless there is some arrangement between the authorities, normally it will be the Delhi Special Police Establishment that would be investigating such offences. The question whether the police of the State Government can investigate such offences does not arise for consideration in this case. The challenge on the ground of conferment of unguided powers on the Delhi Special Police Establishment does not arise. It therefore follows that the Delhi Special 'Police Establishment can investigate any offences or classes of offences which had been notified by the' Central Government in the official gazette. By notification dated 6th November 1956, the Government in exercise of the powers conferred by Section 3 of the Delhi Special Police Establishment Act 1946, specified various offences. These offences include an offence under Section 420, I.P.C. So far as the investigation of an offence under Section 420, I.P.C. is concerned, the Delhi Special Police Establishment is within its powers. I am unable to accept the contention of the learned counsel for the petitioner that the investigation by the Special Police Establishment of an offence of cheating is without jurisdiction.

13. In the result, all the contentions raised by the learned counsel for the petitioner fail, and the Writ Petitions are dismissed. There will be no order as to costs in all the petitions.


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