SETH JUGMENDAR DAS Vs. STATE

JUDGEMENT

(1.) The applicants are being prosecuted under Section 120B, I. P. C. & Rules 81(4) & 121, Defence of India Rules, for entering into a conspiracy & infringing the provisions of the Non-ferrous Metals Control Order of 1942. They are said to have committed the offence in the years 1943 to 1945. The offence remained under investigation for a long period & the prosecution was launched against them on 16-1-1950. On 19-4-1950 they pressed before the trial Ct. that their prosecution could not be continued for various reasons, the most important being that the Defence of India Act & Rules have expired & the Govt. of India Act, 1935 has been repealed by the Const. The trial Ct. held that there was no bar to the continuance of the prosecution & refused their request to quash the proceedings. They went up in revision against this order to the Ses. J. The learned Sess. J. contented himself with pouring encomia on the trial Ct. for its elaborate order & refused to do anything in the matter. So they have come up to this Ct. in revision.

(2.) The control order that is said to have been infringed by the applicants was made in exercise of the powers conferred by the Defence of India Rules framed by the Central Govt. in exercise of the powers conferred upon them by the Defence of India Act. The Defence of India Act itself is deemed to have been passed by the Central Legislature in exercise of the powers conferred by Section 102, Govt. of India Act, 1935. Section 102 has been amended by the British Parliament twice. The provision in the original Act was to the effect that if the Governor-General declared by Proclamation that a grave emergency existed threatening the security of India, the Central Legislature had the power to make laws for a Province or any part thereof with respect to, any of the matters of List II (the Provincial Legislative List), & that a law made by the Central Legislature in exercise of its power would cease to have effect on the expiration of a period of six months after the Proclamation ceasing to operate, "except as respects things done or omitted to be done before the expiration of the said period."

(3.) The India (Proclamation of Emergency) Act 1945 (9 & 10 Geo. 6. C. 23) passed on 14-2-46 amended Section 102 by permitting the Central Legislature to make laws with respect to any matter not enumerated in any of the three Lists; in other words, the amendment vested the residuary power during the continuance of an Emergency Proclamations in the Central Legislature. The amendment was given restrospective effect; it was deemed to have come into operation on the commencement of Part III of the Govt. of India Act. The second amendment was effected through the India (Central Govt. & Legislature) Act 1946 (9 & 10 Geo. 6. C. 39) passed on 26-3-1946. The effect of this amendment was that a law made by the Central Legislature, partly in exercise of special powers conferred by Section 102, would cease to have effect only to the extent of its incompetency, on the expiration of six months after the revocation or cancellation of the Proclamation. If the Central Legislature, during the continuance of a proclamation of Emergency made a law dealing with matters included in Lists I & II, then on the expiry of six months after the revocation of the Proclamation, the law relating to the matters of Lists II only would cease to have effect and the remaining law in respect to matters of List I would continue to be in effect.