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Bimal Protiva Debi Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1942Cal464
AppellantBimal Protiva Debi
RespondentEmperor
Cases ReferredBaker v. Emperor
Excerpt:
- .....24-parganas to show cause why the conviction of the petitioner under rule 39(6) of the defence of india rules and the sentence passed thereunder should not be set aside. the material facts are as follows. on a search of the premises of the petitioner, sreemati bimal protiva debi on 3rd april 1941, documents which are alleged to be documents containing prejudicial reports were found in a drawer in the desk in a room which the lady was occupying. the lady was placed upon her trial on a charge of being in possession of documents containing prejudicial reports and was sentenced by the additional district magistrate of 24 parganas to simple imprisonment for a period of one year and also to pay a fine of rs. 250 and in default to serve a further term of simple imprisonment for six months. an.....
Judgment:

Lodge, J.

1. This is a rule issued upon the District Magistrate of 24-Parganas to show cause why the conviction of the petitioner under Rule 39(6) of the Defence of India Rules and the sentence passed thereunder should not be set aside. The material facts are as follows. On a search of the premises of the petitioner, Sreemati Bimal Protiva Debi on 3rd April 1941, documents which are alleged to be documents containing prejudicial reports were found in a drawer in the desk in a room which the lady was occupying. The lady was placed upon her trial on a charge of being in possession of documents containing prejudicial reports and was sentenced by the Additional District Magistrate of 24 Parganas to simple imprisonment for a period of one year and also to pay a fine of Rs. 250 and in default to serve a further term of simple imprisonment for six months. An appeal to the Sessions Judge was dismissed.

2. It has been argued before us, that the Defence of India Act as a whole is ultra vires inasmuch as the Act was passed by the Central Legislature purporting to act under the provisions of Section 102, Government of India Act, 1935 though it was beyond the powers of the Indian Legislature to pass that Act. It has been argued before us that there is no evidence to show that the proclamation of emergency which was admittedly made by the Governor General under Section 102(1), Government of India Act, 1935, had been approved by resolutions of both Houses of Parliament. Mr. Gupta appearing for the petitioner has argued that the official report of the proceedings of the House of Lords on which reliance was placed before us to show that the approval of the House of Lords had been obtained was not admissible in evidence. In a previous case, we have already decided that the proclamation of emergency was approved by resolutions of both Houses of Parliament within the period provided by Section 102(3), Government of India Act, 1935, and we have therefore no hesitation in holding that the proclamation of emergency was so approved and in accepting the official report [of the proceedings of the House of Lords as proof tthat the proclamation was approved by that House. Mr. Gupta has further argued that the provisions of Section 1(4), Defence of India Act, are repugnant to the provisions of Section 102(4), Government of India Act, 1935, and that therefore the Defence of India Act was not legally in force at anytime. Section 102(4), Government of India Act, provides that : 'A law made by the Federal Legislature which that Legislature would not but for the issue of a Proclamation of Emergency have been competent to 'make shall cease to have effect on the expiration of a period of six months after the Proclamation has ceased to operate, except as respects things done or omitted to be done before the expiration of the said period.' Section 1(4), Defence of India Act, provides that the Act 'shall be in force during the continuance of the present war and for a period of six months thereafter.' It is clear that unless the proclamation of emergency remains in force for the period of the present war the Defence of India Act cannot continue in force for the, period laid down in Section 1(4) of the Act. In other Words, Section 1(4) provides that the Act shall be in force for a period which is dependent upon future events and which may in fact exceed the period for which the Legislature was entitled to legislate under Section 102(4), Government of India Act, From these circumstances, Mr. Gupta has argued that Section 1(4), Defence of India Act, was beyond the powers of the Central Legislature acting under Section 102, Government of India Act, and therefore the Defence of India Act should be interpreted as though these provisions did not exist in the Act. We are unable to accept this contention. In the first place, at the time the Defence of India Act was. passed there was a proclamation of emergency Under Section 102, Government of India Act, and that proclamation of emergency had not then ceased to operate. The Central Legislature was therefore competent under Section 102, Government of India Act, to pass the Defence of India Act and to provide that that Act should remain in force for the period of the proclamation of emergency and for a period of six months after the proclamation had ceased to operate that is to say, the conditions necessary to enable the Central Legislature to pass an Act of this nature existed at the time the Act was passed. The proclamation of emergency has not been revoked by any subsequent proclamation under Section 102(3)(a), Government of India Act. It has, within the period of six months from its proclamation been approved by resolutions of both Houses of Parliament. Therefore, under Section 102(3), Government of India Act, the proclamation of emergency still operates and has never ceased to operate since it was first made. In other words, the conditions necessary to enable the Central Legislature to pass the Defence of India Act Still exist and have existed continuously from the time when the Act was first passed. Such being the case, it is our opinion that the Defence of, India Act was in force at the time it was passed, has remained in force up to date and will remain in force under Section 102(4), Government of India Act, until the expiration of the period of six months after the proclamation of emergency has ceased to operate unless the present war comes to an end before the proclamation of emergency is revoked. If that period should not be the same as the period prescribed in Section 1(4), Defence of India Act, then the provisions of Section 1(4) will be ultra vires only in respect of the period not covered by Section 102(4), Government of India Act.

3. The question whether in fact Section 1(4), Defence of India Act, is repugnant to the provisions of Section 102(4), Government of India Act, is dependent upon events which have not yet taken place. The provisions of the two Acts are not necessarily conflicting. Mr. Gupta has pointed out that in the judgment of the learned Additional Sessions Judge dismissing the appeal of his client, the learned Additional Sessions Judge relied upon Rule 39(2) of the Defence of India Rules in order to come to a finding that the petitioner was in possession of documents containing prejudicial reports. Rule 39(2) reads as follows:

Any person who, without lawful authority or excuse, has on any premises in his occupation or under his control any document containing any information likely to assist the enemy, any confidential information or any prejudicial report shall, unless he proves that he did not know, and had no reason to suspect, that the said document contained any such information or report as aforesaid, or that the said document was on such premises without his knowledge or against his consent, be deemed to have contravened this rule.

4. Mr. Gupta has argued that this rule is ultra vires in that it was beyond the scope of the rule-making power conferred by Section 2, Defence of India Act. The particular provision under Section 2, Defence of India Act, with which we are concerned is Section 2(2)(iv)(b) which provides:

(2) 'without prejudice to the generality of the powers conferred by Sub-section (1) the rules may provide for, or may empower any authority to make orders providing for, all or any of the following matters, namely...(iv)...preventing anything likely to assist the enemy or to prejudice the successful conduct of war, including...(b) acquisition, possession without lawful authority or excuse and publication of information likely to assist the enemy.

5. Mr. Gupta has conceded that under the rulemaking power the Central Government was entitled to provide that no person should without lawful authority or excuse have in his possession any document containing a prejudicial report and was entitled under the Act to provide for the punishment of anybody contravening that rule. Mr. Gupta argues that the Central Government had no authority under the rules to provide that possession referred to in Section 2(2)(iv)(b), Defence of India Act, should be possession other than as known to the law of the land. Such being the case, his argument is that any provision by rule to the effect that existence of a document in a particular place should be deemed to be possession, if the existence of that document in that place is not possession according to the ordinary law of the land, is ultra vires. We are not prepared to say that there is no substance in this argument, but it is not necessary in the present case for us to consider and determine whether or not this rule is ultra vires. The facts found in the present case by both the Courts below were, in our opinion, sufficient to prove possession of the documents by the petitioner according to the ordinary legal interpretation of the word 'possession.'

5. Mr. Gupta drew our attention to the ruling in Baker v. Emperor : AIR1930Cal668 , in which it was held that to prove possession it was necessary for the prosecution to establish some element of knowledge on the part of the person said to be in possession. With that proposition we are in agreement, but we consider that this element of knowledge can be established from the attendant circumstances and that the circumstances proved in the present case were sufficient to establish beyond reasonable doubt that the lady had knowledge of the existence of those documents in a drawer of her desk and as she clearly had dominion over those documents she was, in our opinion, in possession of them. Such being the case, she was rightly convicted. In the result, therefore, we find that there is no ground for our interference. The rule is accordingly discharged. The petitioner must surrender to her bail to serve out her sentence. Certificate under Section 205(1), Government of India Act, 1935, is granted.

Bartley, J.

6. I agree.


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