STATE Vs. JAGAT SINGH MOTA SINGH

JUDGEMENT

(1.) A reference has been made by the Magistrate 1st Class, Bassi, in the above two) cases, under Section 432 (1), Code of Criminal Procedure because, in his opinion, certain rules framed by the State Government under Section 5, Opium Act (Act No. 1 of 1878) fall beyond the powers conferred by the section and are, therefore, ultra vires the provision of the Act.

(2.) At the outset, it may be observed that the reference is misconceived both as regards its -competency, and merits. under Section 432 (1) Code of Criminal Procedure what can be referred for decision of the High Court is the question of invalidity 'of any Act, Ordinance or Regulation or of any provision contained in an Act, Ordinance or Regulation.' No question as to. the validity of any Act, Ordinance or Regulation or of any of their provisions is involved in the present case. The dispute relates to the validity of certain rules framed by the Government in exercise of the powers conferred by Section 5, Opium Act. The rules may have the force of law and their contravention may also be liable to penalty under the Act; but that by itself does not make the rules part of the Act or its provisions. In - 'The State V/s. Kunja Behari Chandra, 1954 AIR(Pat) 371(FB) (A), the question of invalidity or inoperativeness of certain rules framed under the Mines Act was referred for decision of the High Court under Section 432(1), Code of Criminal Procedure Section 30, Mines Act, enables the Central Government to make rules which are consistent with the Act; and its Section 31 (4) states in express terms that the rules, on publication in' the official (AuguBt) 1956 Pepsu D.F./5/(2) & 6/(1) gazette, shall have effect as if enacted in the Act. In spite of this express provision, Jamuar J. took the view that the rules must be considered as such and, though having the force' of law, yet, not as provision of the Act", and that Section 432 (1), Code of Criminal Procedure does not include the reference where there is involved a question as to the validity of any rule framed under any Act.

(3.) No such express provision is made in the Opium Act. I am, therefore, of opinion that the reference is incompetent, as it does not strictly fall within the purview of Section 432 (1), Code of Criminal Procedure.