1951 (4) TMI 33 - HC - Indian Laws

Issues Involved:
1. Continuance of prosecution under expired Defence of India Act and Rules.
2. Validity of the Non-ferrous Metals Control Order of 1942.
3. Effect of the repeal of the Government of India Act, 1935, by the Constitution.
4. Applicability of the General Clauses Act to the Constitution.
5. Interpretation of "things done or omitted to be done" under Section 102(4) of the Government of India Act.
6. Validity of Section 2 of the Defence of India Act as delegated legislation.

Detailed Analysis:

1. Continuance of Prosecution under Expired Defence of India Act and Rules:
The applicants were prosecuted under Section 120B, IPC, and Rules 81(4) and 121 of the Defence of India Rules for conspiracy and infringement of the Non-ferrous Metals Control Order of 1942. The offences were committed between 1943 and 1945, and the prosecution was launched on 16-1-1950. The applicants argued that the Defence of India Act and Rules had expired, and the Government of India Act, 1935, had been repealed by the Constitution. The trial court and the Sessions Judge refused to quash the proceedings, leading to the revision petition before the High Court.

2. Validity of the Non-ferrous Metals Control Order of 1942:
The Control Order was made under the Defence of India Rules, which were framed under the Defence of India Act. The Act itself was enacted under Section 102 of the Government of India Act, 1935, which allowed the Central Legislature to make laws during an emergency. The Control Order was thus validly made under the powers conferred by the Defence of India Act and Rules.

3. Effect of the Repeal of the Government of India Act, 1935, by the Constitution:
Article 395 of the Constitution repealed the Government of India Act, 1935, effective from 26-1-1950. However, Article 372(1) ensured the continuance of all laws in force before the commencement of the Constitution. The President issued the Adaptation of Laws Order, 1950, which adopted the General Clauses Act without changes to Section 6. Clause 27 of the Order stated that the repeal would not affect any previous operation or any right, privilege, obligation, or liability already incurred.

4. Applicability of the General Clauses Act to the Constitution:
Article 367 of the Constitution makes the General Clauses Act applicable for interpreting the Constitution as it applies to an Act of the Legislature of the Dominion of India. The distinction between "interpretation" and "construction" was discussed, with the conclusion that the General Clauses Act applies to both. The Full Bench of the Bombay High Court in 'Keshavan Madhavan Mennon' and the Supreme Court in 'Keshavan Madhava Menon v. The State of Bombay' confirmed the applicability of Section 6 of the General Clauses Act to the interpretation of the Constitution.

5. Interpretation of "things done or omitted to be done" under Section 102(4) of the Government of India Act:
The phrase "things previously done or omitted to be done" was interpreted by the House of Lords in 'Wicks v. Director of Public Prosecutions' and accepted by the Privy Council in 'J.K. Gas Plant Manufacturing Co.'. The acts done by the applicants in 1943 to 1945 were considered "things done or omitted to be done" before 30-9-1946, allowing the prosecution to continue under Section 102(4), Government of India Act.

6. Validity of Section 2 of the Defence of India Act as Delegated Legislation:
Mr. Pathak raised the question of the validity of Section 2 of the Defence of India Act, arguing it was delegated legislation. However, this argument was not pressed further in light of the precedent set by the High Court in 'State v. Basdeo'.

Conclusion:
The High Court allowed the application and quashed the proceedings against the applicants. The Defence of India Act had expired, and the law under which the prosecution was allowed to continue became dead on 26-1-1950 with the repeal of the Government of India Act by the Constitution. The General Clauses Act did not apply to the Constitution, and thus, the prosecution could not be sustained. The applicants were discharged, and their bail bonds were canceled.

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