EMPEROR Vs. SAVER MANUEL DANTES

JUDGEMENT

(1.) THESE are two applications to the Court to grant a certificate under Section 205 of the Government of India Act, 1935, certifying that the case involves a substantial question of law as to the interpretation of the Act. When the matter first came before this Court, we directed notice to issue to the accused, because it appeared to us that the question involved was not free from difficulty.

(2.) THE question arises in this way. In April, 1940, a full bench of this Court (1932) L.R.60 I.A. 76 : s.c. 35 Bom. L.R. 331 held that a Notification issued by the Government of Bombay on July 17, 1939, under the Bombay Abkari Act, 1878, was invalid. Subsequently, the Government of Bombay passed an Act amending the Bombay Abkari Act, the effect of which was intended to be to revive the Notification of July 17, 1939. After the passing of the Amendment Act, the accused in the present case, that is to say, the respondent on these applications, was prosecuted for infringing the notification in question, and the learned Magistrate, before whom the case came, referred two questions for the opinion of this Court under Section 432 of the Criminal Procedure Code. THE first question did involve a point of law arising under the Government of India Act. THE second question dealt with the validity of the notification in question, apart altogether from the provisions of the Government of India Act. On July 1, 1940, this present bench heard the reference, and held that the first question did not arise, and that the only question which did arise was as to the validity of the notification, though we recognized that the validity of the notification might depend upon the validity of the Act under which it was passed. THE Court held that the notification had not been effectively revived, and that there was not in existence any effective notification under the Bombay Abkari Act prohibiting the possession of intoxicants by persons generally in the City of Bombay, and answered the second question raised in that sense. With that answer the Court remitted the matter to the learned Magistrate. He, in conformity with the view of the: law expressed by this Court, acquitted the accused. Government then appealed against the acquittal, and the appeal was summarily dismissed by a bench of this Court.

(3.) THE first question, which arises, is what is the final order against which Government claim the right to appeal? In; our opinion, it is perfectly plain that the order made by the full bench of this Court, merely answering a question raised by the learned Magistrate, and expressing an opinion on a question of law, is not a final order. That exact point has been decided by a bench of the Calcutta High Court in Emperor v. Hemendra Prasad Ghosh [1939] 2 Cal. 411 and we have no hesitation in following that case. THE only final order, which has been made, is the order of this Court dismissing the appeal against the order of acquittal passed by the learned Magistrate, and that order of dismissal does not involve: directly any question under the Government of India Act. However, the actual wording of Section 205 of the Government of India Act is: An appeal shall lie to the Federal Court from any judgment, decree or final order of a High Court in British India, if the High Court certifies that the case involves a substantial question of law as to the interpretation of this Act or any Order in Council made thereunder.