STATE OF MAHARASHTRA Vs. FAIZULLABHAI ABDULHUSSAIN

JUDGEMENT

(1.) These are five appeals filed by the State of Bombay against the acquittal of five persons who were prosecuted under Section 5, Influx from Pakistan (Control) Ordinance, 34 of 1948, and under Section 5, Influx from West Pakistan (Control) Art, 1949. The same point arises in all these five appeals. We shall, therefore, state the facts in respect of appeal No. 280 of 1952. In this appeal the accused entered India on or about 22-9-1948, from West. Pakistan under a temporary permit for three months. The temporary permit expired on 23-12-1948, but the accused did not return to Pakistan on or before that date. He was, therefore, alleged to have contravened the provisions of Rule 12 of the Rules framed under Section 3, Influx from West Pakistan (Control) Ordinance, 17 of 1948. He was prosecuted for having committrd an offence under Section 4, West Pakistan (Control) Ordinance, 17 of 1948. The accused contended that he was a permanent resident of the then Baroda State and had received a certificate to that effect from the Naib Suba of the Baroda State. He was arrested while he was attempting to get a permanent permit from the Government of India. Although the allegation against the accused was that he had contravened the provisions of the West Pakistan (Control) Ordinance 17 of 1948, the charge had to be subsequently amended when it was realised that Ordinance 17 of 1948 was replaced by Ordinance 34 of IMS on 10-11-1943. When the accused was said to have committed an offence on 23-12-1943, Ordinance 34 of 1948 was in force. This Ordinance 34 of 1948 was replaced by the Influx from West Pakistan (Control) Act, 19-19. This Act came into force on 22-4-1949, and therefore, the cumulative charge against the accused was that he committed an offence under Section 5, Influx from Pakistan (Control) Ordinance, 34 of 1948 and also under Section 5. Influx from West Pakistan (Control) Act,

(2.) The learned trial Magistrate before whom the ease was tried took the view that the influx from Pakistan (Control) Ordinance, 34 of 1948 was a Legislation by the Governor-General and therefore was not an Act of the Dominion Legislature. The learned Magistrate argued that under the Instrument of Accession, the Ruler of Baroda had agreed to accept matters specified in the schedule to the Instrument of Accession as matters with respect to which the Dominion Legislature may make laws for the State. In substance, the learned Magistrate's view was, as the Ordinance was not promulgated by the Dominion Legislature, it could not be regarded as the law which bound the State of Baroda as it then existed. He was further of the opinion that even this Ordinance was not applicable to the Baroda State for the reason that Baroda State as it then existed did not form part of India as defined in the Government of India Act, and that, therefore, the Ordinance was not applied to the State until 13-1-1949. when, under the orders of the Baroda Government, the Ordinance "was extended to the Baroda State by virtue of the Instrument of Accession." The third reason why the learned Magistrate took the view that the accused was not guilty was that even the Influx from West Pakistan (Control) Act, 1949, did not apply because that Act came into force on 22-4-1949. His argument was that as the overstay after 23-12-1948, did not constitute an offence and was perfectly legal at the time, it cannot be said that that overstay became illegal and was therefore an offence by reason of some subsequent legislation unless such subsequent legislation was retrospective in its effect. The learned Magistrate did not consider that the Act was retrospective in its application. He was, therefore, of the opinion that the accused had not committed any offence either under the Ordinance or under the Act. He accordingly acquitted the accused. It is against that order that the1 State of Bombay has come in appeal.

(3.) We are of the view that the Influx from Pakistan (Control) Ordinance, 34 of 1948 was applicable to the Baroda State when the accused overstayed the temporary permit from 23-12-1948. In this view, it is not necessary to consider what would have been the position under the Influx from West Pakistan (Control) Act, 1949, if the Ordinance did not apply and the overstay of the accused after 23-12-1948, was perfectly legal.