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Khorshed Ali and ors. Vs. the King - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Case NumberCriminal Revn. Nos. 716 and 717 of 1949
Judge
Reported inAIR1950Cal202
ActsEssential Supplies (Temporary Powers) Act, 1946 - Sections 1(3), 7 and 8; ;India (Central Government and Legislature) Act, 1946 - Section 4
AppellantKhorshed Ali and ors.
RespondentThe King
Appellant AdvocateSudhansu Sekhar Mukharjee and ;Amaresh Chandra Roy, Advs.
Respondent AdvocateS.M. Bose and ;N.K. Sen, Advs.
Excerpt:
- .....the sub-section is in these words :'it shall cease to have effect on the expiration of the period mentioned in section 4, india (central government and legislature) act, 1946 except as respects things done or omitted to be done before the expiration thereof...'4. to find out therefore whether this act is in operation in any case, we have to ascertain first the date of expiration of the period mentioned in section 4, india (central government and legislature) act, 1946. if the act or omission complained of was done after that date, act xxiv [24] of 1946 has no operation, if the act or omission was done before that date, act xxiv [24] of 1946 has operation.5. turning now to the india (central government and legislature) act, 1946, we find that was originally enacted 'by the king's.....
Judgment:

Das Gupta, J.

1. These two applications are against two orders of conviction and sentence under Section 7 of Act XXIV [24] of 1946, read with Section 8 of the same Act, in two different cases. In both the cases the petitioners were sentenced to rigorous imprisonment for two and a half months, and the paddy was forfeited.

2. They were heard together, as both of them raise the same question of law--the question whether on the alleged date of contravention of orders for which the petitioners have been convicted, 23rd September 1948--Act XXIV [24] of 1946 was in force. Mr. Mukherjee who has argued the cases for all the petitioners has contended that Act XXIV [24] of 1946 ceased to be in force after 3lst March 1948. If this contention be correct, it must be held that the conviction of the petitioners for acts committed on 23rd September 1948, would be unsustainable.

3. Admittedly, Act XXIV [24] of 1946 is, or was a temporary Act. As the preamble states, it was enacted to provide for the continuance of certain powers during a limited period. It was therefore necessary to define in the Act itself the period during which it would be in operation. This has been done in Sub-section (3) of Section 1, by saying when the Act will cease to operate. The sub-section is in these words :

'It shall cease to have effect on the expiration of the period mentioned in Section 4, India (Central Government and Legislature) Act, 1946 except as respects things done or omitted to be done before the expiration thereof...'

4. To find out therefore whether this Act is in operation in any case, we have to ascertain first the date of expiration of the period mentioned in Section 4, India (Central Government and Legislature) Act, 1946. If the act or omission complained of was done after that date, Act XXIV [24] of 1946 has no operation, if the act or omission was done before that date, Act XXIV [24] of 1946 has operation.

5. Turning now to the India (Central Government and Legislature) Act, 1946, we find that was originally enacted 'by the King's most Excellent Majesty by and with the advice and consent of the Lords Spiritual and Temporal, and Commons' assembled in the British Parliament, and 'by the authority of the same' this Act had six section of which Section 1 repealed a provision in the Government of India Act as regards qualifications of Executive Councillors; Section 2 provided that notwithstanding anything in the Government of India Act, 1935, the Indian Legislature should during the period mentioned in section 4 of the Act have power to make laws with respect to certain matters. Section 3 provided that notwithstanding anything in the Government of India Act, 1935, the powers of the Indian Legislature to make laws shall extend to the making of laws providing for continuance of certain powers until not later than the end of the period mentioned in section 4 of the Act. The provisions of Sections 5 and 6 of the Act are not relevant for our present purpose; but it is necessary to set out in full Section 4 of the Act, as originally enacted. It is in these words :

'The period mentioned in the two last preceding sections is the period of one year beginning with the data on which the proclamation of emergency in force at the passing of this Act ceases to operate, or, if the Governor-General by public notification so directs, the period of two years beginning with that date :

Provided that if and so often as a resolution approving the extension of the said period is passed by both Houses of Parliament, the said period shall be extended for a further period of twelve months from the date on which it would otherwise expire so, however that it does not in any case continue for more than five years from the date on which the proclamation of emergency ceases to operate.'

6. It is not disputed that the proclamation of emergency mentioned in Section 4 ceased to be in force after 3lst March 1946. It is also undisputed that before 3lst March 1947, the Governor-General had by public notification directed the period mentioned in Section 4 to be the period of two years beginning with the date on which the proclamation of emergency ceased to be in force. The position on 14th August 1947, therefore, was that the period mentioned in Section 4, India (Central Government and Legislature) Act, 1946 was due to expire on 3lst March 1948, unless there was further extension under the proviso, by a resolution passed by both Houses of the British Parliament. If, on 14th August 1947, or on an earlier date, the two Houses of British Parliament had passed a resolution, approving the extension of the period for a further period of twelve months, the period mentioned in Section 4 would have been extended up to 31st march 1949. Petitioners' advocate does not dispute the fact that the two Houses of Parliament could have passed such a resolution and that if they had passed such a resolution, the effect would have been as mentioned above.

7. The British Parliament did not, however, pass any such resolution. On 18th July 1947, the British Parliament enacted the Indian Independence Act, under which India became an Independent

Dominion as from 15th August 1947. Consequently, the British Parliament lost all legislative authority over India, so that the Houses of Parliament could not, I think, pass any resolution under the provision (proviso?) to Section 4, India (Central Government and Legislature) Act, 1946, on or after 15th August 1947, even if this Act had remained unaltered. But it did not remain unaltered. On 14th August 1947, the Governor-General of India made an order in exercise of powers conferred by Section 9 read with Section 19, Sub-section (4), Indian Independence Act, by which, he directed substitution for 'both Houses of Parliament,' the words 'the Dominion Legislature' in Section 4 and the insertion of a new Section 4A. There was no modification, in Sections 2 and 3 material for our present purpose. The position, after this order had been made by the Governor-General, therefore, was that Sections 2 and 3 remained unaltered except in matters which are not relevant for our present purpose, while Sections 4 and 4A stood thus :

'4. The period mentioned in the two last preceding sections Is the period of one year beginning with the date on which the proclamation of emergency in force at the passing of this Act ceases to operate or, If the Governor-General by public notification so directs, the period of two years beginning with that date :

Provided that if and so often as a resolution approving the extension of the said period is passed by the Dominion Legislature, the said period shall be extended for a further period of twelve months from the date on which it would otherwise expire so, however, that it. does not in any case continue for more than five years from the date on which the Proclamation of Emergency ceases to operate.

4A. Powers of the Dominion Legislature to be powers of the Constituent Assembly The powers of the Dominion Legislature, under this Act shall, until other provision is made by or in accordance with a law made by the Constituent Assembly under Sub-section (1) of Section 8, Indian Independence Act, 1947, be exercisable by that Assembly, and accordingly reference in this Act to the Dominion Legislature shall be construed as references to the Constituent Assembly.'

8. It cannot be seriously disputed that the Governor. General had full legal authority to make the order mentioned above, if in fact Section 9 read with Section 19 (4), Independence Act conferred on him the power to make it. The relevant portion of Section 9 is in these words :

'The Governor-General shall by order make such provision as appears to him to be necessary or expedient.

* * * * *

for making omissions from, additions to, and adaptations and modifications of, the Government of India Act, 1935.........'

Section 19 (4) is in these words :

'In this Act, except so far as the context otherwise requires.

References to the Government of India Act, 1935, include references to any enactments amending or supplementing that Act, and, In particular, references to the India (Central Government and Legislature) Act, 1946.'

9. Quite clearly, therefore, these provisions of the Indian Independence Act gave the Governor-General the power to make 'omissions from, additions to, and adaptations and modifications'' of the India (Central Government and Legislature) Act, 1946. The order made by the Governor-General making the additions and alterations in the India (Central Government and Legislature) Act, 1946, was therefore a good and valid order, and not ultra vires the Governor-General, as was, rather faintly suggested by Mr. Mukherjee at one stage of his argument.

10. The position from 15th August 1947, onwards, therefore, was that the period mentioned in Section 4, India (Central Government and Legislature) Act, 1946, would expire on 31st March 1948, unless the Constituent Assembly, exercising, the powers of the Dominion Legislature, passed a resolution approving the further extension of the period under the proviso to Section 4. On 25th| February 1948, the Constituent Assembly did pass the following resolution :

'In pursuance of the proviso to Section 4, India (Central Government and Legislature) Act, 1946 as adapted by the India (Provisional Constitution) Order, 1947, this Assembly hereby approves the extension of the period mentioned in Sections 2 and 3 of the said Act for a further period of twelve months commencing on 1st day of April 1948.'

Again, on 23rd March 1949, the Constituent Assembly passed the following resolution :

'In pursuance of the proviso to Section 4, India (Central Government and Legislature) Act, 1946 as adapted by the India (Provisional Constitution) Order, 1947, this Assembly hereby approves the extension of the period mentioned in Sections 2 and 3 of the said Act for a father: period of twelve months commencing on 1st of day April 1949.'

11. The question for decision is whether these resolutions had the effect of delaying the expiry of the period mentioned in Section 4, India (Central Government and Legislature) Act, 1946, beyond 31st March 1948.

12. Mr. Mukherjee's main argument is that these resolutions had no legal effect whatsoever, as they did not receive the Governor-General's assent. He found this argument on Section 32 Government of India Act, 1935, which after adaptation by the India (Provisional Constitution) Order, 1947, runs thus:

'When a Bill has been passed by the Dominion Legislature it shall be presented to the Governor-General, and the Governor-General shall declare either that he assents in His Majesty's name to the Bill, or that he withholds assent therefrom :

Provided that the Governor-General may return the Bill to the Legislature with a message requesting that they will reconsider the Bill or any specified provisions thereof, and in particular, will consider the desirability of introducing any each amendments as he may recommend in his message, and the Legislature shall reconsider the Bill accordingly.'

13. This provision of the Government of India Act, the argument proceeds, puts a limit to the power of the Legislature of the Dominion and so, stands in the way of the Dominion Legislature legislating by a resolution without obtaining the assent of the Governor-General. In this connection, Mr. Mukherjee has drawn our attention to Sub-section (3) of Section 8, Iadian Independence Act, which is in these words :

'Any provisions of the Government of India Act, 1935, which, as applied to either of the new Dominions by Sub-section (2) of this section and the orders therein referred to, operate to limit the power of the legislature of that Dominion shall, unless and until other provision is made by or in accordance with a law made by the Constituent Assembly of the Dominion in accordance with the provisions of Sub-section (1) of this section, have the like effect as a law of the Legislature of the Dominion limiting for the future the powers of that legislature.'

14. It is difficult to see how the provision of Section 32, Government of India Act operates to limit the power of the Legislature. It puts no restriction on the power of the Legislature either to consider any matter, or to pass any resolution, or any Bill. In fact, it does not deal with the power of the Legislature at all; but merely provides that when the Legislature has exercised its power by passing a Bill, it should be placed before the Governor-General for his assent.

15. In my judgment, there is no scope for the operation of Section 8 (3), Indian Independence Act in this case. Quite apart from that however it seems clear to me that the provisions of Section 32, Government of India Act continue to be applicable to the Constituent Assembly, exercising the powers of the Dominion Legislature. These provisions, however, apply only to Bills passed by the Legislature. The section does not provide that a resolution passed by the Legislature will have to be placed before the Governor-General for his assent. There is no justification for reading into the section the words 'resolution passed by the Dominion Legislature' when they do not occur there. It must be held therefore that Section 32, Government of India Act does not require that a resolution passed by the Dominion Legislature should be placed before the Governor-General for his assent.

16. Mr. Mukherjee next argued in a general way that as all legislation by the Dominion Legislature requires for its validity the assent of the Governor-General the passing of a resolution under the proviso to Section 4, India (Central Government and Legislature) Act, 1946, which is also 'legislation' requires for its validity the assent of the Governor-General. It is not correct to say however that all legislation by the Dominion Legislature requires the assent of the Governor-General. The principal mode of legislation by the Dominion Legislature is by passing bills. Indeed the passing of a Bill incorporating the provisions is the only mode in which the Dominion Legislature can legislate unless an Act of a legislature with plenary powers has conferred on it--the Dominion Legislature--the power to legislate in a certain matter in some other way viz., by passing a resolution. But there can be such conferment of powers, and when there has been such conferment, as under the proviso to Section 4, India (Central Government and Legislature) Act, 1946, it is clear the Dominion Legislature can legislate by passing resolution. Such legislation does not come within the operation of Section 32, Government of India Act, and so, does not require for its validity the assent of the Governor-General. My conclusion is that the resolutions mentioned above that were passed by the Constituent Assembly functioning as the Dominion Legislature did not require for their validity the assent of the Governor-General.

17. Mr. Mukherjee contented, however, that even if the resolutions passed by the Constituent Assembly be legally valid, the resolutions as worded have not the effect of extending the period of operation of Act XXIV [24] of 1946. The only effect of the resolutions, according to Mr. Mukherjee, is that the Dominion Legislature can during the extended period exercise certain powers, which it otherwise would not have; that it could have enacted legislation extending the period of operation of Act XXIV [24] of 1946, but as this has not been done, the act expired on 31st March 1948. This argument is in my judgment entirely misconceived. As we have seen Sub-section (3) of Section 1 of Act XXIV [24] of 1946 fixes the period of operation of the Act to be the period mentioned in Section 4, India (Central Government and Legislature) Act, 1946. If the resolutions have produced the effect of extending the period mentioned in 8 4, India (Central Government and Legislature) Act, 1946, to a certain date, the consequential effect is that up to that date, Act XXIV [24] of 1946 is in force. The question of enacting fresh legislation to extend Act XXIV [24] of 1946 does not arise at all. If the period mentioned in Section 4, India (Central Government and Legislature) Act, 1946, had not been extended, the Dominion Legislature could still have passed an Act with the assent of the Governor-General amending Sub-section (3) of Section 1 of Act XXIV [24] of 1946, in order to extend the period of its operation.

18. The resolutions mentioned above approved of the extension of the period mentioned in Sections 2 and 3, India (Central Government and Legislature) Act, 1946. The necessary consequence under the proviso to Section 4 of the same Act, is that the period mentioned in that section was extended for a period of twelve months from 31st March 1948, by the first resolution dated 25th February 1948; and for another period of twelve months from 31st March 1949 by the second resolution.

19. The period mentioned in Section 4, India (Central Government and Legislature) Act, 1946, did not therefore expire on 31st March 1948, but at the present moment, stands extended to 31st March 1950. Act XXIV [24] of 1946 did not therefore cease to be of effect after 31st March 1948, but will cease to have effect unless there is further extension of the period mentioned in Section 4, India (Central Government and Legislature) Act, 1946 only after 31st March 1950 as regards acts or omissions after that date. As regards acts omitted or committed before 31st March 1950, Act XXIV [24] of 1946 will continue to operate indefinitely after 31st March 1950.

20. The alleged date of the acts in both the applications is 23rd September 1949. Act XXIV [24] of 1946 is therefore inforce as regards these.

21. The legal objection raised by Mr. Mukherjee herefore fails.

22. As regards merits, it is necessary to consider the two applications separately.

23. The petitioners in Revision case No. 716 of 1949 were convicted for attempt to move twenty five maunds of paddy from West Dinajpur District into Malda District, without permit. It is not disputed that such movement would contravene the West Bengal Government notification dated 17th September 1947. The question for the decision of the Courts below was whether the prosecution had been able to prove that the accused persona were attempting to move such paddy from West Dinajpur District to Malda District. The prosecution case was that on the night of 23rd September 1948, a boat with twenty bags of paddy containing twenty-five maunds, was caught, when moving down a river, towards the Malda border, about a rashi from the border. The defence story was that when these persons were loading paddy into a boat about one and a half miles from the border, they were arrested, and the boat with the paddy seized. Evidence that they were caught, about a rashi from the border from the boat, when it was moving towards the border, with these petitioners and twenty bags of paddy on board, has been given by an Assistant Sub-Inspector of Police and two other persons, who were on duty there. The defence story sought to be proved by the evidence of one witness who says that he gave a loan of fifty maunds of paddy to the petitioners, and there other witnesses who say that the petitioners were arrested and the paddy seized, near Rangapukur about one and a half mile from the Malda border. The most striking circumstance is that D. W. 1 who claims to have given the paddy on loan did not say anything to the police that night or the following morning though the seizure is said to have taken place just when the paddy was being loaded into a boat near his' house. That is not the conduct of a person who knows that he is going to lose fifty maunds of paddy, as a result of police high handedness.

24. The learned Magistrate who had the opportunity of seeing the witnesses believed the prosecution witnesses, and found the defence witnesses unworthy of credit. Not a single circumstance has been mentioned by the learned defence Advocate, why the assessment of evidence made by the Magistrate should not be accepted. On a consideration of probabilities, and the ordinary course of human conduct, I agree with the learned Magistrate, and the Court of appeal below, that the prosecution witnesses told the truth in saying that the boat, with these petitioners, and twenty bags of paddy on board, was caught about a rashi from the Malda border, when moving towards that border. Admittedly they had no permit for this attempted movement of the paddy into Malda. They have therefore been rightly convicted, in my opinion, under Section 7 read with Section 8 of Act XXIV [24] of 1946 The sentence in my opinion is not too severe.

25. The petitioners in Revision case No. 717 of 1949 were convicted under Section 7 of Act XXIV [24] of 1946 read with Section 8 of the same Act for attempting to move twenty bags containing twenty-five maunds of paddy from West Dinajpur District into Malda District.

26. The prosecution case was that on 23rd September 1948, the patrol men on duty in West Dinajpur near the West Dinajpur Malda border found a boat with these petitioners and 20 bags of paddy on boat moving down the stream, about a rashi from the Malda border, and arrested the men, and seized the boat and the paddy. The defence story was that they were caught when they were loading paddy which they had borrowed from one Abdul Hossain Beg, near his house, about one mile and a half from the border.

27. Evidence that these petitioners were caught on the boat which had in it twenty bags of paddy, about a rashi from the Malda border, when the boat was moving towards the Malda border has been given by an Assistant Sub-Inspector of Police, and two other persons, who were on patrol duty near the West Dinajpur Malda border. The learned Magistrate who had the opportunity of seeing the witnesses believed the testimony of these prosecution witnesses, and considered the defenee witnesses who had given evidence that the men and the boat with the paddy were caught one and a half mile away, unworthy of credit. Abdul Hossain Beg who gave evidence that he had given fifty maunds of paddy on loan to these petitioners, admitted that though he was informed immediately that the paddy he had lent and the men to whom he had lent it had been seized near his house, he took no action whatsoever. That is not normal human conduct. On a consideration of probabilities, and the ordinary course of human conduct I think the learned Magistrate rightly rejected the defence evidence, as unworthy and believed the prosecution case that these petitioners were caught in a boat, with twenty bags of paddy, about a rashi from the Malda border when the boat was moving towards the Malda border. Admittedly they had no permit for the movement of the paddy from West Dinajpur into Malda. They were, therefore, rightly convicted under Section 7 of Act XXIV [24] of 1946, read with Section 8 of the same Act.

28. The sentence is not in my opinion too severe and the order of forfeiture wag rightly made.

29. I would, therefore, discharge the rules. The petitioners should surrender to their bail to serve out their sentence.

30. Certificate under Section 205, Government of India Act, 1935, is granted.

Harries, C.J.

I agree.


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