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The Superintendent and Remembrancer of Legal Affairs, W. Bengal Vs. NesaruddIn Shaikh - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberGovernment Appeal No. 11 of 1960
Judge
Reported inAIR1963Cal508,1963CriLJ258
ActsExplosive Substances Act, 1908 - Section 7; ;Constitution of India - Article 258 and 258(1)
AppellantThe Superintendent and Remembrancer of Legal Affairs, W. Bengal
RespondentNesaruddIn Shaikh
Appellant AdvocateS.N. Banerjee, D.L.R. and ;A.K. Sen, Adv.
Respondent AdvocateKishore Mukherjee, Adv.
DispositionAppeal allowed
Cases ReferredAnwarali Sarkar v. State
Excerpt:
- .....was taken, that as consent under section 7 of the explosive substances act had been given by the state government and not by the central government as required by the section, the trial could not proceed, me learned judge accepted this preliminary objection on the strength of a decision of the allahabad high court chaitanya prakash v. state : air1960all376 .2. the point for decision before us is whether the consent given by the state government is a sufficient con-sent in terms of section 7 of the explosive substances act, 1903.3. section 7 of the explosive substances act as it stands at present is as follows:'no court shall proceed with the trial of any person for an offence against this act except with the consent of the central government.'in the allahabad case, desai, j. referred.....
Judgment:

S.K. Sen, J.

1. This is an appeal by the Legal Remembrancer, Gov-ernment of West Bengal on behalf of the State of West Bengal against an order by Shri S. K. Chakravarti, Sessions Judge, Murshidabad acquitting the respondent Nesaruddin snaikh in respect of a charge under Section 5 of the Explosive Substances Act, 1908 on a preliminary point of law. The respondent was committed for trial to the Court of the Sessions Judge, Murshidabad under Section 5 of the Explosive Substances Act, 1908, the allegation against him being that on 19th December, 1956 six country-made throw-down crackers dangerous to life were found in the possession ot the respondent. When the case came up for trial before the learned Sessions Judge, a preliminary objection on a point of law was taken, that as consent under Section 7 of the Explosive Substances Act had been given by the State Government and not by the Central Government as required by the Section, the trial could not proceed, me learned Judge accepted this preliminary objection on the strength of a decision of the Allahabad High Court Chaitanya Prakash v. State : AIR1960All376 .

2. The point for decision before us is whether the consent given by the State Government is a sufficient con-sent in terms of Section 7 of the Explosive Substances Act, 1903.

3. Section 7 of the Explosive Substances Act as it stands at present is as follows:

'No Court shall proceed with the trial of any person for an offence against this Act except with the consent of the Central Government.'

In the Allahabad case, Desai, J. referred to the Notification No. 25/1/54 Police-1, dated 31-8-54, by which the power of the Central Government under Section 7 of the Explosive Substances Act was delegated to the State Governments. Desai, J., however, held that such order of delegation was invalid. He observed that there was no provision in the Explosive Substances Act itself conferring any power upon the Central Government to delegate its powers and duties to any authority subordinate to it; that what is required is the specific consent by the Central Government to the particular prosecution and not a general consent; and the direction by the Central Government that it gives can-sent to all prosecutions that are consented to or sanctioned by a subordinate authority cannot be accepted as a valid consent to a particular prosecution by the Central Government, even though the subordinate authority has given specific consent to the same.

4. Mr. S. N. Banerjeo, appearing for the State, has referred us to the terms of the Notification No. 25/1/54 Police-I, dated 1st September, 1954 and the subsequent Notification No. 33/2/57-Police-IV, dated 14th May, 1957, and he has pointed out that what the Central Government has done is not to give a general consent to all prosecutions that are consented to by the subordinate authority, but has delegated or entrusted its executive power of granting consent in specific cases to the State Governments. The terms of the latest Notification, namely, Notification Ho. 33/2/57-Police-IV, dated 14th May, 1957 are as follows :

'In exercise of the powers conferred by Clause (1) of Article 258 of the Constitution and in supersession of all previous Notifications on the subject, the President hereby entrusts to all State Governments, with their consent, the functions of the Central Government under Section 7 of the Explosive Substances Act, 1908'.

Clause (1) of Article 258 of the Constitution runs as follows :

'Notwithstanding anything in this Constitution, the President may with the consent of the Government of a State entrust either conditionally or unconditionally to that Government or to its officers the functions in relation to any matter to which the executive power of the Union extends.'

Granting of consent to a particular prosecution is an exercise of the executive power. It is clear, therefore, that under Article 258, Clause (1), the Central Government may with the consent of the Government of a State, entrust the exercise of such executive power to that State Government or to its officers. In the circumstances, the delegation or entrustment of the executive function under Section 7 of the Explosive Substances Act by the latest Notification No. 33/2/57-Police-IV, dated 4-5-1957, as well as the earlier Notification of the 1st September, 1954 which was in similar terms, must be considered perfectly legal and valid. Article 258(1) of the Constitution appears to have been overlooked by Desai, J. or it may be that the particular Notification under Article 258(1) was not produced before His Lordship.

5. It is relevant to mention that Article 258(1) is more or less a reproduction of Section 124(1) of the Government of India Act, 1935. Section 7 of the Explosive Substances Act, 1908, as it was originally enacted, mentioned both Central Government and Local Government in connection with giving of sanction, the provision being that for a trial of a person for an offence under the Act, consent of the Central Government or Local Government was necessary. After the Government of India Act, 1935 had come into force and Section 124(1) thereof began to operate, it was thought unnecessary to retain the words 'or Local Government' in Section 7 of the Explosive Substances Act, 1908, because the Government of India could delegate its powers under Section 124(1) of the Government of India Act, to tne Local or Provincial or State Governments, and accordingly, by the Adaptation Of Laws Order, 1937, which was made after the Government of India Act, 1935 had come into force, the words 'or Local Government' were deleted tram Section 7 of the Explosive Substances Act. This indicates that the deletion of the words 'or Local Government' was not made by the Central Legislature with the purpose of taking away the power of granting consent in an individual case from the State Government or the Provincial Government as it then was, but because it was considered that under Section 124(1) of the Government of India Act, 1935, the Government of India had the power to entrust or delegate such executive functions to the Provincial Governments or their officers and, therefore, it was unnecessary to mention 'Provincial Government or Local Government' in Acts like the Explosive Substances Act, 1908.

6. It may be mentioned that the question of validity of consent granted by the State Government under Section 7 of the Explosive Substances Act for prosecution under Sections 3 and 5 of the Explosive Substances Act was considered by K. C. Das Gupta and Guha, JJ. in the case Anwarali Sarkar v. State : AIR1955Cal535 . There the point raised was not that the delegation or entrustment made by the Central Government in exercise of the powers conferred by Sub-section (1) or Section 124 of the Government of India Act, 1935 to the Provincial Government was invalid, but that the Government of India Act having been repealed on the Constitution of India coming into force, delegation was no longer in force. This objection was met by their Lordships by observing as follows :

'The objection might have been substantial but for Article 73(2) of the Constitution which is in these words.

'Unless otherwise provided by Parliament, a State and any officer or authority of a State may, notwithstanding anything in this Article, continue to exercise in matters with respect to which Parliament has power to make laws for that State, such executive power or function as the State or officer or authority thereof could exercise immediately before the commencement of this Constitution.' In other words, it was held that the delegation made by the Central Government under Section 124(1) of the Government of India Act in respect of giving of consent under Section 7 of the Explosive Substances Act to a prosecution under that Act, continued to be in force even after the repeal of the Government of India Act, 1935, until a fresh order was made by the Central Government, such fresh orders were made by the Central Government in 1954 and again in 1957 vide the Notifications already referred to. There is no reason therefore, at all to think that this delegation or entrustment of the executive power of the Central Government to give consent to the prosecution underSec. 7 of the Explosive Substances Act is in any way invalid.

7. Mr. Kishore Mukberjee, appearing for the respondent, has repeated some of the arguments of Desai j., namely, that in each individual case, consent must be granted, and that a general consent to all prosecutions which may be instituted is not valid. It is quite true that a general consent to all prosecutions that may be instituted is not valid, but what the Government of India has done is not to give a general consent to all prosecutions that may be instituted by subordinate authorities, but to entrust the power of giving consent to the State Government. In each individual case, therefore, the State Government will consider the facts of the case and apply its mind to the question whether or not such consent should be given. In the present case the Notification giving consent, which the learned Sessions Judge quoted In his judgment, sufficiently shows that the State Government or the appropriate officer thereof applied his mind to the facts of the case and then gave consent to the prosecution. In the circumtances the consent granted must be deemed to be regal and valid.

8. Mr. Kishore Mukherji has urged also that since the Explosive Substances Act itself contains no provision for delegation or entrustment of its power of giving sanction by the Central Government, the notification entrusting such power to State Government cannot be considered valid. He has urged that if such delegation could be made by virtue of Article 258(1) of the Constitution alone, there is no reason why specific provisions for delegation of authority should have been made by Section 12 of the foreigners Act, 1946 or Section 5 of the Essential Commodities Act, 1955. But under Section 12 of the Foreigners Act, a wider provision is made for delegation of the power to make or give any direction, consent, or permission, by any authority on which such power is conferred by the Act; e.g. under Section 6(2) of the Act, any District Magistrate or any Commissioner of Police may require the master of a vessel or the pilot of an air-craft to give certain information, and under Section 12, this power may be delegated by the District Magistrate or the Commissioner of Police to any subordinate authority, e.g. the Additional District Magistrate or the Deputy Commissioner of Police. Under Section 5 of the Essential Commodities Act, provision is made for delegation of the Dower under Section 3 of the Act to make order to control production, supply, distribution etc. of essential commodities; i e. the section provides for the delegation of the power of enacting delegated legislation and not for delegation of any executive Junction of the Central Government. In either case, it is clear that the matter provided by the specific provisions for delegation is not covered by the Article 258(1), which refers to entrustment or delegation of the executive power of the Central Government in respect of any matter. Where the Central Government only wants to entrust its executive function under any State Government, (sic) an order under Article 258(1) of the Constitution is quite sufficient, as in the present case.

9. It must be field that the learned Sessions Judge took a wrong view of the matter and therefore, his order of acquittal of the respondent cannot be upheld and must foe set aside.

10. This appeal is, therefore, allowed and the olderof acquittal of the respondent Nesaruddin Shaikh in respectof the offence under Section 5 of the Explosive Substances Actis set aside and it is directed that the respondent be triedin accordance with the law.

11. Meanwhile the respondent will remain on bail as at present.

N.K. Sen, J.

12. I agree.


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