SHAM LAL Vs. STATE

JUDGEMENT

(1.) THIS habeas corpus application Under Section 491, Criminal P. C. arises in the following circumstances:

(2.) ON September 5, 1969, the petitioner filed an application before this Court Under Section 491, Criminal P. C. challenging his conviction and sentence on the aforesaid counts. The application initially came up for hearing before Hon'ble Bhat. J. It appears to have been contended before the learned Judge by the learned Addl. Advocate General appearing on behalf of the State that as the petitioner was undergoing a sentence of imprisonment imposed by a competent court and an appeal against his conviction and sentence law to the Sessions Judge, Jammu, the present application was not maintainable. After hearing the learned Counsel for the parties, the learned Judge vide his order dated December 18, 1969, referred the following two questions for decision to a Division Bench.

(3.) AT the hearing before the Full Bench, the points relating to the constitutional validity of the Act and its-extension to the State have not been pressed. In my opinion, the learned; counsel for the petitioner has rightly refrained from canvassing these points. . It is now well settled that in examining the constitutionality of an enactment the presumption is in favour of validity and unless the invalidity is beyond doubt the court will construe it so as to have effect and will not strike it down as ultra-vires. Thai: apart, there are other weightier reasons for holding that the Act is constitutionally valid. It appears that this piece of legislation which was enacted by the Dominion Legislature in 1949" came into force on the 28th day of December of that year i. e. , a little over two years after the State acceded to the Dominion of India by means of an instrument of accession executed by-the erstwhile ruler of the State on October 26, 1947, and accepted by the then Governor General of India October 27, 1947. A perusal of paragraph 3 of the Instrument of Accession would reveal that the ruler accepted the matters specified in the Schedule thereto as the matters with respect to which the Dominion Legislature might make laws for the State.