ISMAIL KUTTY Vs. ASSISTANT COLLECTOR OF CENTRAL EXCISE

JUDGEMENT

(1.) THIS is a petition filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in C.C. No. 7/89 pending before the Additional Chief Judicial Magistrate's Court (Economic Offences), Ernakulam. The Assistant Collector, Central Excise, Trivandrum Division filed complaint against the petitioner alleging that he committed violation of Section 27 of the Gold (Control) Act. The contention of the petitioner is that the Gold (Control) Act, 1968 was repealed by the Gold (Control) Repeal Bill, 1990 passed by the Parliament and therefore the prosecution initiated against the petitioner under the Gold (Control) Act is not sustainable and the petitioneraccused should be discharged. It is contended that the effect of the repeal is to obliterate the statute repealed completely as if it had never been passed and it must be considered as a law which never existed. The petition is opposed by the respondents. The learned Central Government Standing Counsel contended that by virtue of the provisions contained in Section 6 of the General Clauses Act the repeal of the Gold (Control) Act will not affect any investigation or legal proceedings initiated under the repealed Act.

(2.) WHENEVER there is a repeal of an enactment the consequences that flow from such repeal are stated in Section 6 of the General Clauses Act. Section 6 of the General Clause Act runs thus:

(3.) IN Keshavan v. State of Bombay (AIR 1951 SC 128) the Supreme Court held that Article 13(1) of the Constitution of India has no retrospective operation. That was a case in which the petitioner therein published a pamphlet describing it as a 'book' within the meaning of Section 1 of Press and Registration of Books Act. The Bombay Government Authorities however took the view that the pamphlet was a 'news sheet' within the meaning of Section 2(6) of Press (Emergency Powers) Act, 1931 and as it had been published without the authority the petitioner was prosecuted. During the pendency of the proceedings the Constitution of India came into force on 26 -1 -1950. On 3 -3 -1950 the petitioner filed a written statement submitting inter alia that the definition of news sheet as given in Section 2(6), 15 and 18 of the Press (Emergency Powers) Act, 1931 was ultra vires and void in view of Article 19(1)(a) read with Article 13 of the Constitution. The Supreme Court held that Article 13(1) will have no retrospective operation and transactions which are past and closed and rights which have already vested will remain untouched. The above decision also would strengthen the contention that whatever action taken under the repealed Act is not affected by the subsequent repeal of the enactment, unless a different intention appears from such repealing enactment.