RAMPALSINGH Vs. EMPEROR

JUDGEMENT

(1.) These three applications, in revision arise out of three separate oases. They have, however, been heard together, because of a common question of law which arises in them. I shall first deal with the common question of law and then deal with the facts of each case separately, so far as those facts are material for the contentions raised before us.

(2.) The common question of law which has been raised is the effect of the expiry of the Defence of India Act and the Rules made thereunder on the convictions recorded and the sentences passed in these three cases. For the purpose of considering the question of law, it is sufficient to state that in criminal Revision No.845 of 1946, the two petitioners have been convicted and sentenced under Rule 81(4) of the Defence of India Rules for the contravention, of certain notifications made by the Governor of Bihar in exercise of the powers conferred by Sub-rule (2) of Rule 81, Defence of India Rules. The contravention took place on 15 May 1945 and related to the despatch of some bags of rice by Shree Sita Ram Rice, Mills of Nirmali of which petitioner Ram Pal Singh was the proprietor and. petitioner Gulabchand Rai was the Manager. The prosecution case was that the bags of rice had been despatched from Nirmali to a place in the Muzaffarpur District in contravention of certain notifications made by the Governor of Bihar relating to the transport of rice from one district to another. In Criminal revision No. 867 of 1946 the petitioner is one Sad ho Rai. He was convicted and sentenced under Rule 81(4) read with Rule 121, Defence of India Rules, for a contravention of a similar notification relating to the transport of rice from one district to another. In Criminal Revision No. 1264 of 1946 the petitioner 19 Haricharan Bhagat. He was convicted and sentenced under Section 81(4), Defence of India Rules, for contravening the terms of a licence granted to him under Clause 3, Bihar Cotton Cloth and Yarn (Control) Order, 1945.

(3.) Now, the point of law which has been urged before us on behalf of the petitioners is that the Defence of India Act, the rules made thereunder, the orders and Notifications made under the Rules all ceased to have any effect after 30th September 1946, and the expiry of the said Act, Rules, Orders and Notifications must now be given effect to by setting aside the convictions and sentences passed against the petitioners, Sub-section (4) of Section 1, Defence of India Act, 1989, as it originally stood, said that "the Act shall remain in force during the continuance of the present war and for a period of sis months thereafter." Ordinance X of 1946 passed by the Governor-General on 5 February 1946, determines the date of the termination of the present War for certain purposes. It says, inter alia, that for the purposes of any provision made after 2nd September 1939, in any enactment or in any notification, rule or order under any enactment etc., making any reference, to the present war or the present hostilities, the present war arid present hostilities, shall, unless the subject or context otherwise, requires be deemed to continue to, and to end on, the day on which the Proclamation of Emergency made on 3rd; September 1939 under Section 102, Government of India Act, 1935, is revoked. It is stated that the Proclamation was revoked on 1 April 1946, and therefore the period of six months during which the Defence of India Act remained in force under Sub-section (4) of Section 1 of the Act expired on 30 September 1946. So far the argument of learned Counsel for the petitioners appears to be unassailable. On 30 March 1946, (that is a day before the revocation of the Proclamation of Emergency), the Governor General made and promulgated the Defence of India (Second Amendment) Ordinance, 1946, and to Sub-section (4) of Section 1 Defence of India Act 1939, were added the following provisions, namely: but its expiry under the operation of this Sub-section shall not affect (a) the previous operation of, or anything duly done or suffered under this Act or any rule made thereunder or order made under any such rule, or (b) any right, privileges, obligation Or liability acquired, accrued or incurred under this Act or any rule mode there under or any order made under any such rule, or (c) any penalty,, forfeiture or punishment incurred in respect of any order made under any such rule, or (d) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if this Act had not expired.