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TMI Blog1978 (9) TMI 186X X X X Extracts X X X X X X X X Extracts X X X X ..... eaded guilty and has been convicted on such plea, there shall be no appeal except as to die extent or legality of the sentence except where the conviction is made by a Magistrate of the Second or the Third Class. But there is no doubt that even though the facts admitted amount to an offence under the provisions of a law, but the law itself is not in force or operation, the so called admission cannot amount to an admission of the commission of an offence or a plea of guilty. The expression "offence" means, as will appear from Section 8(38) of the General Clauses Act, 1897, an act or omission made punishable by any law in force; but if the relevant law is not at all in force, then the facts admitted, even if they amount to an offence under the provisions of the said law, would not amount to an admission of the commission of an offence or a plea of guilty in any area where the law is not in force. Therefore, if the Arms Act, 1959, is not validly operative in Sikkim, the admission of guilt in this case shall not amount to any admission or a plea of guilt within the meaning of Section 412 of the Cr.P.C. 1898, to bar an appeal challenging the legality of the conviction. I cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in this case for the accused, who was then undefended, so that this important point could be decided by this Court after receiving as much assistance as possible from the learned Counsel on both sides, I am glad that on the advice of the Advocate-General the State in this case has provided the accused with a Counsel at State expense and Mr. D. P. Chaudhury has appeared before me in this case on behalf of the accused. 5. In the Supreme Court case, generally known as the "Delhi Laws Act case" AIR 1951 SC 332, a similar question arose for the opinion of the Supreme Court under the provisions of Section 7 of the Delhi Laws Act, 1912, Section 2 of the Ajmer Merwara (Extension of Laws) Act, 1947, and Section 2 of the Part C States (Laws) Act, now renamed as the Union Territories (Laws) Act. 1950. For the purpose of my discussion I will only refer to the relevant provisions of Section 2 of the Part C States (Laws) Act, 1950. material portions whereof are hereunder: The Central Government may by notification in the Official Gazette extend to any Part C State...with such restrictions and modifications as it thinks fit any enactment which is in force in a Part A State at the dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he corresponding Sikkim Arms Rules, 1962. 6. The question as to the validity of any enactment extended by the Executive in exercise of delegated powers to a new area, without repealing the corresponding law of that area, came up for decision before the Supreme Court in Bhaiyalal v. State of Madhya Pradesh AIR1962SC981. In that case, the Central Provinces and Berar Sales Tax Act, 1947 (hereinafter referred to as the Central Province Law), was extended to the new Part C State of Vindhya Pradesh by the Central Government by a Notification on 29th Dec, 1950, in exercise of the power conferred by Section 2 of the said Part C States (Laws) Act, 1950, the validity of the provisions whereof was considered by the Supreme Court in aforesaid Delhi Laws Act case. By the same Notification the corresponding Vindhya Pradesh Sales Tax Ordinance, 1949, (hereinafter referred to as the Vindhya Pradesh Law), was also sought to be repealed and the Central Provinces Law, extended as aforesaid, was thereafter enforced in Vindhya Pradesh with effect from 1st April, 1951. But the purported repeal of the Vindhya Pradesh law failed as it was declared by the Supreme Court by the majority in the Delhi Laws Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Delhi Laws Act case AIR 1951 SC 332. According to the ratio of this Bhaiyalal's case AIR1962SC981 therefore, the extension of the Arms Act, 1959, to Sikkim, even by an Executive authority as a delegate of the Legislature, would have been valid without any repealment of the corresponding Sikkim law, being the Sikkim Arms Rule, 1962. 9. It is not necessary for me in this case to say that as the decision in Bhaiyalal's case is the unanimous decision of a Bench of five Judges and is a later one, I should be governed by the ratio of the said decision and not by the majority view of the four Judges in Delhi Laws Act case. It is also not necessary for me to ascertain as to what extent the authority of the Delhi Laws Act case has been shaken or otherwise affected by observations of Patanjali Sashtri, C. J. (who was also one of the Judges in the Delhi Laws Act case) in Kathi Raning v. State of Saurashtra 1952CriLJ805 to the effect that: while undoubtedly certain definite conclusions were reached, by the majority of the Judges who took part in the decision in re-gard to the constitutionality of certain specific enactments, the reasoning in each case was different, and it is dif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... valid and intra vires even according to the majority view to the Delhi Laws Act case; (2) the extension of any such law on a subject on which there is already a corresponding law in Sikkim would result in repealment of such existing law; (3) as such repealment will amount to a repealment by a non-legislative body, conferment of such a power, whether express or implied, by the Legislature would be ultra vires the provisions of the Constitution whereunder essential legislative power, like the power to repeal, must be retained and must not be surrendered by the Legislature. 12. Therefore, if the delegation made under Article 371F (n) was made by Parliament in exercise of its ordinary legislative power, the delegation of power to extend laws relating to matters in respect of which there were corresponding existing laws would have been ultra vires the power of Parliament according to the majority view of the Delhi Laws Act case AIR 1951 SC 332 as such delegation carries with it the implied power to effect re-pealment of the corresponding existing laws and such a power cannot be delegated by Parliament to any other authority in exercise of its ordinary legislative power. But it must ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lal v. State of Delhi [1959]1SCR445 , Venkata-ratna Aiyar, J. speaking for the unanimous Court and considering the analogous provisions of Section 2 of the Part C States (Laws) Act, 1950, authorising the Central Government to extend by notifications enactment in force in Part A States to Part C States, observed (at page 685) that "when a notification is issued by the appropriate Government extending the law of a Part A State to a Part C State, the law so extended derives its force from Section 2 of the Part C States (Laws) Act enacted by Parliament" and that "the result of a notification issued under that section is that the provisions of the law which is extended become incorporated by reference in the Act itself. (Underlining mine). If that is the position in law, then we will have to regard all enactments extended to Sikkim under Article 371F (n) to have been incorporated in the said Article 371F (n) of the Constitution which will, therefore, have over riding effect over all other Acts which are required to be overridden or overthrown. Even if the extension of the Arms Act, 1959, was under the authority of an ordinary Parliamentary Act and not a Constitution Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w as is referred to in Clause (k) in relation to the administration of the State of Sikkim and for the purpose of bringing the provisions of any such law into accord with the provisions of this Constitution, the President may, within two years from the appointed day, by order, make such adaptations and modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient, and thereupon, every such law shall have effect subject to the adaptations and modification so made, and any such adaptation or modification shall not be questioned in any Court of law; (n) the President may, by public notification, extend with such restrictions or modifications as he thinks fit to the State of Sikkim any enactment which is in force in a State in India at the date of the notification. 15. Under the provisions of Clause (k), all laws in force in Sikkim immediately before its incorporation in the Union of India shall continue in force until amended or repealed by a competent Legislature or other competent authority. As early as in 1836 it was decided by the Privy Council in a case from India, being Mayor of Lyons v. East India Co. ((1836) 1 Ind App 175 (PC) mat on chan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1-F, read with the non obstante clause as aforesaid, are compared and contrasted with the provisions of Article 372 (1) of the Constitution, it will be clear that though both provide for continued operation of the earlier laws, yet under Article 372 (1), pre-Constitution laws have been allowed to operate only so far (as) they are consistent with the provisions of the Constitution and that so far as they are not so consistent, they have ceased to operate, while under Article 371 (k) of the Constitution, the earlier Sikkim laws have been guaranteed continued operation even though they or some of them are violently inconsistent with or are shockingly violative of the provisions of the Constitution, until they are amended or repealed by a competent Legislature or other competent authority. 16. Clause (1) provides for the adaptation and modification of Sikkim laws for the purpose of facilitating their application and for the purpose of bringing them into accord with the provisions of the Constitution and provides for amendment and even for repeal of any such law for effecting such modification or adaptation. 17. Relying on the provisions of Clause, (k) and (1), Mr. Chaudhury has urged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... existing laws, it should be held that extension of such laws is not contemplated by the provisions of this Clause (n). 18. This argument, though ingenuous and attractive is, in my view, not sound and I have not been able to persuade myself to agree that the expression "enactment" in Clause (n), which, in my view, is absolute and unqualified, should be so construed as to limit it to only to such enactments which relate to matters in respect of which there are no corresponding laws in Sikkim and I am afraid that such a construction of Cl- (n) would amount to rewriting the provisions of the clause and reading words which are not there. In Mithan Lai v. State of Delhi [1959]1SCR445 the Supreme Court, in construing the expression "enactment" in a similar context in Section 2 of the Part C States (Laws) Act, 1950, held (at page 686) that the expression "enactment which is in force" means any statute in force, I do not say that the Supreme Court in that Mithan Lai's case was considering this question now before me; but at any rate, I am of opinion that there could not be any justification for con-struing the expression "enactment" in Clause (n) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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