Hansraj Moolji Vs. The State of Bombay
[1957] INSC 13 (12 February 1957)
BHAGWATI, NATWARLAL H.
JAGANNADHADAS, B.
IMAM, SYED JAFFER MENON, P. GOVINDA KAPUR,
J.L.
CITATION: 1957 AIR 497 1957 SCR 634
ACT:
Ordinance, duration of-Promulgation under the
Emergency Provisions-Declaration of termination of emergency-Scope and
effect-Operation of Ordinance after end of emergencyGovernment of India
Act,1935 (25 & 26 Geo.5 Ch. 42) Sch. 9, s. 72-India and Burma (Emergency
Provisions) Act, 1940 (3 & 4 Geo. 6 Ch. 33), Ss. 1 (3), 3-High Denomination
Bank Notes (Demonetisation) Ordinance, 1946 (Ordinance No. III Of 1946), ss. 4,
7.
HEADNOTE:
Under s. 72 Of the 9th Sch. of the Government
of India Act, 1935: " The Governor-General may, in cases of emergency,
make and promulgate ordinances ... and any ordinance so made shall, for the
space of not more than six months from its promulgation, have the like force of
law as an Act passed by the Indian Legislature ... " ; S. I (3) of the India
and Burma (Emergency Provisions) Act, 1940, provided that s. 72 Of the
Government of India Act, 1935, shall as respects Ordinances made during the
period beginning with June 27, 1940, the date of the passing of that Act, and
ending with such date as His Majesty may by Order in Council declare to be the
end of the emergency, have effect as if 635 the words " for the space of
not more than six months from its promulgation " were omitted.
The appellant was prosecuted for having on
July 11, 1953, contravened the provisions of S. 4 of the High Denomination Bank
Notes (Demonetisation) Ordinance, 1946. The Ordinance was promulgated by the
Governor-General of India on January 12, 1946, but on April 1, 1946, an Order
in Council was published in the Gazette of India Extraordinary whereby the
period of emergency referred to in the India and Burma (Emergency Provisions)
Act, 1940, was declared to have ended on April 1, 1946. It was contended for
the appellant that the Ordinance in question was not in operation on the date
when the offence was alleged to have been committed and that therefore the
prosecution was not maintainable, because (1) the Ordinance had been
promulgated in exercise of the emergency powers and that it lapsed ipso facto
on April 1, 1946, when the declaration was made that the emergency was at an
end; and (2) S. 72 of the 9th Sch. of the Government of India Act, 1935, having
been restored with effect from April 1, 1946, one must look to its terms as
they originally stood, to justify the continuance of the Ordinance after April
I, 1946.
Held, that the deletion of the words "
for the space of not more than six months from its promulgation " from S.
72 of the 9th Sch. of the Government of India Act, 1935, by s. 1 (3) of the
India and Burma (Emergency Provisions) Act, 1940, had the effect of equating
Ordinances which were promulgated between June 27, 1940, and April I, 1946,
with Acts passed by the Indian Legislature without any limitation of time as
regards their duration, and therefore continuing in force until they were
repealed.
Though after April I, 1946, S. 72 Of the 9th
Sch. of the Government of India Act, 1935, was restored in its original form,
the continuance of the Ordinance in question after that date had to be
determined having regard to the terms of the section as they stood on the date
of such promulgation, as there was nothing to justify retrospective operation
of the section so restored.
J. K. Gas Plant Manufacturing Co. (Rampur)
Ltd. and others v. King Emperor, [1947] F.C.R. 141, relied on.
CRIMINAL APPELLATE JURISDICTION: Criminal'
Appeal No. 93 of 1956.
Appeal by special leave from the judgment and
order dated the April 14, 1955, of the Bombay High Court in Criminal Appeal No.
156 of 1955 and Criminal Revision Application No. 435 of 1955 arising out of
Judgment dated the January 3,1955, of the Court of 636 the Additional Chief
Presidency Magistrate, Bombay, in Case No. 9/p of 1954.
Purshottam Tricumdas, J. B. Dadachanji, S. N.
Andley and Rameshwar Nath, for the appellant. C. K. Daphtary, Solicitor-General
of India, Porus A. Mehta and R. H. Dhebar, for the respondent.
1957. February 12. The Judgment of the Court
was delivered by BHAGWATI J.-This appeal with special leave under Art. 136 of
the Constitution raises the question whether the High Denomination Bank Notes
(Demonetisation) Ordinance, 1946 (Ordinance No. III of 1946) promulgated by the
GovernorGeneral of India on January 12, 1946, was in operation on July 11,
1953, when the offence under s. 7 read with s. 4 thereof was committed by the
appellant herein.
The appellant who was the accused No. 1
before the Additional Chief Presidency Magistrate's Court, Bombay, was charged
along with the accused Nos. 2, 3, 5 and 6 with having on or about July II,
1953, transferred by sale 10 High Denomination Bank Notes of the Denomination
of Rs. 1,000 each to one Velji Lakhamshi Joshi for Rs. 1,800 at the rate of Rs.
180 per note and thus contravened the provisions of s. 4 of the Ordinance and
committed an offence punishable under s. 7 of the Ordinance read with s. 109 of
the Indian Penal Code.
A preliminary objection was urged by the
learned counsel for the appellant that the said Ordinance was not in operation
at the date when the offence was alleged to have been committed and that
therefore the prosecution was not maintainable. This objection was overruled by
the learned Presidency Magistrate and the trial ended in the conviction of the
appellant along with the co-accused of the offence with which they had been
charged. The appellant was sentenced to pay a fine of Rs. 8,000 and in default
suffer six months' rigorous imprisonment and the co-accused of the appellant
were awarded varying sentences of fine with which however we are not concerned.
The appellant took an appeal to the High
Court of Judicature at Bombay being Criminal Appeal No. 156 637 of 1955. The
State of Bombay, the respondent herein, also filed an application for
enhancement of the sentence, being Criminal Revision Application No. 435 of
1955. The coaccused of the appellant had also filed appeals against their
convictions and sentences of fine imposed upon them and all these appeals and
the application of the respondent were heard together by a Division, Bench of
the High Court.
The High Court agreed with the learned
Presidency Magistrate in regard to the finding of fact and held that the
appellant had in fact transferred by sale 10 High Denomination Bank Notes of
Rs. 1,000 each to the possession of Velji Lakhamshi and his act fell within the
prohibition enacted in s. 4 of the Ordinance. The High Court also overruled the
contentions which were urged before it in regard to the Ordinance having lapsed
and ceased to be in operation before July 11, 1953, the date on which the
offence was alleged to have been committed. It accordingly confirmed the
conviction recorded against the appellant by the learned Additional Chief
Presidency Magistrate. In regard to the sentence the High Court saw no ground
for enhancing the same and confirmed the sentence of fine of Rs. 8,000 and in
default six months' rigorous imprisonment which had been awarded by the learned
Presidency Magistrate to the appellant.
The appellant applied to the High Court for a
certificate under Art. 134 (1) (c) of the Constitution. The said application
was however dismissed by the High Court with the result that he applied for and
obtained from this Court special leave under Art. 136 of the Constitution.
The decision of this appeal turns on the
construction of s. 72 of the 9th Sch. of the Government of India Act, 1935 (25 and
26 Geo. 5 ch. 42) and s. 1 (3) of the India and Burma (Emergency Provisions)
Act, 1940 (3 and 4 Geo. 6 ch. 33).
Section 72 of the 9th sch. of the Government
of India Act, 1935, read as follows:
" The Governor-General may, in cases of
emergency, make and promulgate ordinances for the peace and good Government of
British India or any part thereof, and any ordinance so made shall, for the 638
space of not more than six months from its promulgation, have the like force of
law as an Act passed by the Indian Legislature; but the power of making
ordinances under this section is subject to the like restrictions as the power
of the Indian Legislature to make laws; and any ordinance made under this
section is subject to the like disallowance as an Act passed by the Indian
Legislature, and may be controlled or ,superseded by any such Acts. "
Section 1 (3) of the India and Burma (Emergency Provisions) Act, 1940, ran as
under:
" Section seventy-two of the Government
of India Act, (which, as set out in the Ninth Schedule to the Government of
India Act, 1935, confers on the Governor-General power to make Ordinances in
cases of emergency) shall, as respects Ordinances made during the period
specified in section three of this Act, have effect as if the words "for
the space of not more than six months from its promulgation" were omitted;
and, notwithstanding the provision in the said section seventy-two that the
power of making Ordinances there under is subject to the like restrictions as
the power of the Indian Legislature to make laws(a) Ordinances may, during the
said period, be made under that section affecting the Army Act, the Air Force
Act, or the Naval Discipline Act; and (b) Section one hundred and eleven of the
Government of India Act, 1935 (which exempts certain British subjects from
certain Indian Laws) shall not apply to any ordinance made under the said
section seventy-two during that period." Section 3 referred to hereinabove
-was in the terms following:
" The period referred to in the
preceding sections is the period beginning with the date of the passing of this
Act and ending with such date as His Majesty may by Order in Council declare to
be the end of the emergency which was the occasion of the passing of this Act.
" The India and Burma (Emergency Provisions) Act, 1940, was passed on June
27, 1940 , and was an Act to 639 make emergency provisions with respect to
Government of India and Burma. On April 1, 1946, was published in the Gazette
of India Extraordinary His Majesty's Order in Council called " The India
and Burma (Termination of Emergency) Order, 1946 ". By the said order the
period of emergency referred to in s. 3 of the India and Burma (Emergency
Provisions) Act, 1940, was declared to have ended on April 1, 1946. The period
specified in s. 3 of the said Act thus extended from June 27, 1940, to April 1,
1946. The Ordinance in question was promulgated on January 12, 1946, and was
therefore within the said period.
The argument which was addressed before us by
the learned counsel for the appellant based on these provisions was (a) that as
soon as the declaration that the emergency was at an end was made on April 1,
1946, the original position was restored and the Ordinance in question which
had been promulgated in exercise of the emergency powers ipso facto lapsed when
the emergency was declared to have ended, (b) that, in the alternative, s. 72.
of the 9th Sch. of the Government of India Act, 1935, having been thus restored
with effect from April 1, 1946, one must look to its terms as they originally stood
to justify the continuance of the ordinance in question after April 1, 1946,
when so ever it may have been promulgated.
It will be useful at this stage to see what
was the scheme provided in the Government of India Act, 1935, for enacting
legislative measures. It may be noted that the Act envisaged the establishment
of the Federation of India.
Part II, ch. 3 provided for the constitution
of the Federal Legislature which was to consist of two chambers known
respectively as the Council of States and the House of Assembly. The normal
legislative procedure required a bill to be passed by both the Chambers of the
Federal Legislature and assented to by the Governor-General. There was a
distribution of legislative powers between the Federal Legislature and the
Provincial Legislatures and the Federal Legislature was invested with the power
to make laws for.
the whole or any part of British India or for
any Federated State with respect to any of the matters enumerated 640 in the
Federal Legislative List and any of the matters enumerated in the Concurrent
Legislative List. Power was however given, to the Federal Legislature, if the
GovernorGeneral in his discretion declared by a "Proclamation of
Emergency" that a grave emergency existed whereby the security of India
was threatened, whether by war or internal disturbance, to make laws for a
Province or any part thereof with respect to any of the matters enumerated in
the Provincial Legislative List.. These were the powers of the Federal
Legislature to enact legislative measures.
The Governor-General was, however, conferred
certain legislative powers in Part II, ch. 4. Power was conferred upon him to
promulgate Ordinances if at any time when the Federal Legislature was not in
session he was satisfied that circumstances existed which rendered it necessary
for him to take immediate action. Ordinances thus promulgated were to have the
same force and effect as Acts of the Federal Legislature assented to by the
Governor-General. But every such Ordinance would cease to operate at the
expiration of six months from the re-assembly of the Legislature. Similar power
was conferred upon the Governor-General to promulgate Ordinances if at any time
he was satisfied that circumstances existed which rendered it necessary for him
to take immediate action for the purpose of enabling him satisfactorily to
discharge his functions in so far as he was required in the exercise thereof to
act in his discretion or to exercise his individual judgment. Such Ordinances
also were to have the same force and effect as the Acts of the Federal
Legislature assented to by the Governor-General and were to continue in
operation for such period not exceeding six months as may be specified therein
but could by subsequent Ordinances be extended for a further period not
exceeding six months. Power was also conferred upon the Governor-General if at
any time it appeared to him that for the purpose of enabling him satisfactorily
to discharge his functions in so far as he was required in the exercise thereof
to act in his discretion or, to exercise his individual judgment it was
essential that provision should be made by legislation, to enact I SUPREME
COURT REPORTS 641 Governor-General's Acts which when enacted were to have the
same force and effect as Acts of the Federal Legislature assented to by the
Governor-General. These were the special legislative powers conferred upon the
Governor-General which could be exercised by him when the normal legislative
procedure could not be resorted to. It is worthy of note however that howsoever
and under whatever circumstances the legislative powers vested in the
Governor-General were exercised by him, the Governor-General's Acts thus
enacted and the Ordinances thus promulgated were equated with the Acts of the
Federal Legislature assented to by the GovernorGeneral.
Part XIII enacted Transitional Provisions. A
period of time was bound to elapse between the commencement of Part III of the
Act which related to the Governor's Provinces and the establishment of the
Federation and s. 317 of the Act continued in force certain provisions of the
Government of India Act with amendments consequential on the provisions of the
Act set out in the 9th Sch. thereof until the establishment of the Federation.
Section 72 above quoted formed part of the 9th Sch. under the caption "
Indian Legislature" and conferred upon the Governor-General power to make
and promulgate Ordinances for the peace and good Government of British India or
any part thereof in cases of emergency.
Ordinances thus promulgated by the
Governor-General in exercise of the power thus conferred upon him were to
continue in operation for the space of not more than six months from the date
of their promulgation and were to have the like force of law as Acts passed by
the Indian Legislature. They were also equated with the. Acts passed by the
Indian Legislature by having resort to the normal legislative procedure set out
in the Government of India Act.
Even though the Governor-General's Acts and
the Ordinances promulgated by him were thus equated with the Acts passed by the
Federal Legislature or the Indian Legislature as the case may be, the period of
duration thereof had to be determined. Every statute for which no time is
limited is I 642 SUPREME COURT REPORTS [1957] called a perpetual Act, and its
duration is prima facie perpetual. It continues in force until it is repealed.
(Vide Craies on Statute Law, 5th Ed. p. 374;
Halsbury's Laws of England, Hailsham Ed., Vol. XXXI, p. 511, para. 664).
If an Act contains a proviso that it is to
continue in force only for a certain specified time, it is called a Temporary
Act. This result would follow not only from the terms of the Act itself but
also from the fact that it was intended only as a temporary measure. This ratio
has also been applied to emergency measures which continue during the
subsistence of the emergency but lapse with the cessation thereof. It was
therefore contended that Ordinances promulgated under the emergency powers
vested in the Governor-General would be in operation during the period of
emergency but would cease to be in operation once the emergency was declared to
have ended. In the instant case before us the Ordinance in question was
promulgated in exercise of the emergency powers vested in the GovernorGeneral
under s. 72 of the 9th Sch. of the Government of India Act, 1935, and it was
urged that the Ordinance thus promulgated would cease to be in operation after
the emergency was declared to have ended on April 1, 1946, by the India and
Burma (Termination of Emergency) Order, 1946, in spite of the words of
limitation " for the space of not more than six months from its
promulgation " having been omitted from s. 72 by s. 1(3) of the India and
Burma (Emergency Provisions) Act, 1940.
Reliance was placed in support of this
contention on the observations of Vardachariar C. J. in King Emperor v. Benoari
Lall Sharma and others(1):
" Legislation by Ordinance has no doubt
been given the same effect as ordinary legislation and the ambit as to the
subject-matter is the same in both cases. But there are two fundamental points
of difference which have a material bearing on the present question: One is
that by the very terms of s.72 of the Ninth Schedule to the Constitution Act,
the operation of the Ordinance is limited to a period of (1) [1943] F.C.R. 96,
137.
643 six months (and even now it is only
temporary, though the particular limit has been removed), and secondly, it is
avowedly the exercise of a special power intended to meet an emergency."
Zafrulla Khan J. also had expressed himself to the same effect in King Emperor
v. Sibnath Banerjee (1):
" The legislature can at any time enact
a measure and such measure can remain in force without any limit of time; but
the exercise of the Ordinance-making power is limited in two ways (1) by the
limitation as to the circumstances in which it can be exercised, and (ii) by
the limitation as to the time during which any measure so enacted can remain in
operation. The existence of an emergency is a condition precedent to the exercise
of the power. The fact that the Court cannot go behind a declaration of
emergency made by the Ordinance-making authority cannot affect this question.
The power was intended to be availed of and
could be availed of only in an emergency, whereas ordinary legislation is not
governed by any such limitation. Similarly, an Ordinance is necessarily of
limited duration, whether under s. 72 or under the terms of the India and Burma
(Emergency Provisions) Act of 1940." An argument was accordingly addressed
before us that even though the Ordinance in question had been promulgated
during the period specified in a. 3 of the India and Burma (Emergency
Provisions) Act, 1940, viz., between June 27, 1940, and April 1, 1946, and s.
72 of the 9th Sch. of the Government of India Act, 1935, was to be read with
the omission of the words " for the space of not more than six months from
its promulgation " therefrom, the effect of such omission was not to
continue the duration of the Ordinance in question in any event beyond April 1,
1946. The Ordinance lapsed or ceased to be in operation on the, declaration
having been made on April 1, 1946, that the emergency had ended.
This argument however ignores the fact that
whatever Governor-General's Acts were enacted or (1) [1944] F.C.R. 1, 12.
83 644 Ordinances promulgated by him in
exercise of his special legislative powers or in exercise of the emergency_
power conferred upon him by s. 72 of the 9th Sch. of the Government of India
Act, 1935, were all equated with the Acts of the Federal Legislature or the
Indian Legislature, as the case may be, assented to by the Governor-General. If
there was a limitation to be found in the Acts or the Ordinances themselves in
regard to the duration thereof the same was to prevail. But if no time was limited
in the enactment itself for its duration it was to continue in force until it
was repealed. If by the operation of s. 1 (3) of the India and Burma (Emergency
Provisions) Act, 1940, the words " for the space of not more than six
months from its promulgation " were omitted from s. 72 during the period
specified in s. 3 of that Act, viz., June 27,1940 to April 1, 1946, there was
no limitation of the period of duration of the Ordinance in question and the
Ordinance having the like force of law as an Act passed by the Indian
Legislature without any limitation on its duration was to continue in force
until it was repealed. The emergency under which the Governor-General was
invested with the power to make and promulgate Ordinances for the peace and
good government of British India or any part thereof under s. 72 was the
condition of the exercise of such power, by the Governor General and did not
impose any limitation on the duration of the Ordinances thus promulgated. For
determining the duration of such Ordinances one had to look to the substantive
provisions of s. 72 which in terms enacted and laid down the limitation of
"not more than six months from its promulgation " on the life of the
Ordinance. If these words had not been omitted by s. 1 (3) of the India and
Burma (Emergency Provisions) Act, 1940, the Ordinances thus promulgated -would
have been of a duration of not more than six months from their promulgation.
Once these words were omitted by a. 1 (3) of the India and Burma (Emergency
Provisions) Act, 1940, s. 72 of the 9th Sch. of the Government of India Act,
1935, would read as under:645 The Governor-General may, in cases of emergency,
make and promulgate ordinances for the peace and good government of British
India or any part thereof and any ordinance so made shall..................
have the like force of law as an Act passed by the Indian Legislature; but the
power of making ordinances under this section is subject to the like
restrictions as the power of the Indian Legislature to make laws; and the like
disallowance as an Act passed by the Indian Legislature, and may be controlled
or superseded by any such Act." The effect of the deletion of these words
from s. 72 leaving the section to be read as above had the necessary effect of
equating the Ordinances which were promulgated between June 27, 1940, and April
1, 1946, with Acts passed by the Indian Legislature without any limitation of
time as regards their duration. Ordinances thus promulgated were perpetual in
duration and continued in force until they were repealed.
This position was considered by the Federal
Court in J. K. Gas Plant Manufacturing Co., (Rampur) Ltd. and others v. King
Emperor (1) where Spens C. J. observed:" These Ordinances were made under
the powers conferred on the Governor-General by s. 72 of the Ninth Schedule to
the Constitution Act, as amended by the India and Burma (Emergency Provisions)
Act, 1940 (3 & 4 Geo. 6, Ch. 33).
Under the said s. 72, as it originally stood,
Ordinances were limited to an effective life of six months only from the date
of promulgation. Sub-section (3) of s. I of the said Act, however, provided
that in respect of Ordinances made under s. 72 during the period specified in
s. 3 of the Act, s. 72 should have effect as if the words ,for the space of not
more than six months from its promulgation" were omitted. The period
specified in s. 3 of the Act is " the period beginning with the date of
the passing of this Act and ending with such date as His Majesty may by Order
in Council declare to be the end of the emergency which was the occasion of the
passing of this Act." The date of `the passing of the (1) [1947] F.C.R.
141, 161.
646 said Act was the 27th June, 1940, and the
emergency was not notified to have come to an end on the 1st April, 1946.
It was contended on behalf of the appellants
that the true construction to be given to s. 72 as so amended was in effect to
substitute in s. 72 in respect of the duration of an Ordinance, -the period
specified in s. 3 of the Act for the original six months' period and that
accordingly on the expiration of that period, viz., on the 1st April, 1946,
Ordinances made after the passing of the Act automatically came to an end. It
was not made very clear how one could arrive at such a construction. It appears
to be based on the suggestion that the power to promulgate an Ordinance under
s. 72 was by the section confined to the existence of an emergency, Cf: the
words in the sub-section "in cases of emergency ", and that the Act
was entitled an Act to make emergency provision with respect to the Government
of India and Burma and defined the period of emergency. Unless therefore the
construction contended for by the appellants was accepted no period would be
provided for the continuance of these Ordinances, and that could not have been
the intention of the legislature, as the ordinance-making power of the
Governor-General was recognised as temporary only.
In our opinion, the emergency on the
happening of which an Ordinance can be promulgated is separate and distinct
from and must not be confused with the, emergency which occasioned the pawing
of the Act and the clear effect of the words of the, Act on s. 72 is that
Ordinances promulgated under that subsection during the period specified in s.
3 of the Act are subject to no time limit as regards their existence and
validity, unless imposed by the Ordinances themselves, or other amending or
repealing legislation, whether by Ordinance or other. wise. In our judgment, it
is clear that the second Lahore Tribunal did not cease to exist or to have
jurisdiction in the case under appeal by reason of the expiration on the 1st
April, 1946, of the period specified in s. 3 of the Act in question." In
our opinion, the above observations of Spens C. J. enunciate the correct
position. The Ordinance in 641 question having been promulgated during the
period between June 27, 1940, 'and April 1, 1946, was perpetual in duration and
continued in force until it was repealed. Our attention has not been drawn to
any subsequent Ordinance or Act of the Indian Legislature amending or repealing
the said Ordinance with the result that it continues to be in force and was in
operation on July 11, 1953, the date on which the offence in question was
committed by the appellant.
This position was recognized in the
Adaptation of Laws Order, 1950, issued under -the Constitution of India. In the
Second Schedule to the said Order were contained several Central Ordinances
enacted between 1940 and 1946 including the High Denomination Bank Notes
(Demonetisation) Ordinance, 1946 (Ordinance No. III of 1946) where in s.. II
thereof the words " Part A States and Part C States " were to be substituted
for "the provinces". It is not necessary to refer to the other
Ordinances appearing in this compilation but suffice it to say that in respect
of all the Ordinances which were thus promulgated by the Governor-General in
exercise of the power conferred upon him under s. 72 of the 9th Sch. of the
Government of India Act, 1935, the continuance thereof even after April 1,
1946, was predicated and the adaptations prescribed in the Adaptation of Laws
Order, 1950, issued under the Constitution of India were made applicable
thereto.
This position is further supported by
referring to the relevant provisions of the Reserve Bank of India Act, 1934 (II
of 1934). Section 26 of that Act provided ill (1) Subject to the provisions of
sub-section (2), every bank note shall be legal tender at any place in India in
payment or on account for the amount expressed therein, and shall be guaranteed
by the Central Government.
(2)On recommendation of the Central Board the
Central Government may, by notification in the Gazette of India, declare that,
with effect from such date as -may be specified in the notification, any series
of bank notes of any denomination, shall cease to be legal tender save at such
office or a agency of the bank and to such extent as may be specified in the
notification.
648 Under s. 1 (2) of the Act as it stood,
the Act extended to whole of India excepting the State of Jammu and Kashmir.
The' High Denomination Bank Notes
(Demonetisation) Ordinance, 1946 (Ordinance No. III of 1946) declared that
Denomination Notes of the denominational value of Rs. 500, Rs. 1,000 or Rs.
10,000 ceased to be legal tender in payment or on account at any place in
British India on the expiry of January 12, 1946. The Ordinance having continued
in operation even after the declaration of the emergency having come to an end
was made on April 1, 1946, the said notes continued to be ineffective as legal
tender in India, though the position in Jammu and Kashmir in regard to the same
could not be affected by reason of the Reserve Bank of India Act, 1934, not
having been made applicable to the State of Jammu and Kashmir as stated above.
On September 25, 1956, however, the Jammu and Kashmir (Extension of Laws) Act,
1956 (LXII of 1956) being an Act to provide for the extension of certain laws
to the State of Jammu and Kashmir was passed by the Parliament. In the Schedule
to that Act was contained the Reserve Bank of India Act, 1934 (II of 1934). The
words " except the State of Jammu and Kashmir" were omitted from s.
1, sub-s. (2) and s. 26A was added after s. 26 of the Act.
Section 26A provides:,, Notwithstanding
anything contained in section 26, no bank note of the denominational value of
five hundred rupees, one thousand rupees or ten thousand rupees issued before
the 13th day of January, 1946, shall be legal tender in payment or on account
for the -amount expressed therein.
The law in the State of Jammu and Kashmir
with regard to these High Denomination Bank Notes issued before January 13,
1946, was thus brought into line with the law as it obtained in the rest of
India. This would certainly have not been done but for the acceptance of the
position that the Ordinance in question continued in operation even after April
1, 1946, and was in operation right throughout even after April 1, 1946.
649 The alternative argument addressed before
us by the learned counsel for the appellant need not detain us at all, for the
simple reason that reading s. 72 in the manner suggested would be tantamount to
giving a retrospective effect to the section as it originally stood in regard
to Ordinances which had been promulgated between June 27, 1940, and April 1,
1946. There is nothing to justify such retrospective operation. As regards such
Ordinances the period of their duration had to be determined having regard to
the provisions of s. 72 as they stood with the omission of the words " for
the space of not more than six months from its promulgation " there from
during the period specified in s. 3 of the India and Burma (Emergency
Provisions) Act, 1940, and the Ordinance in question was therefore not limited
to the space of not more than six months from the date of its promulgation but
was perpetual in its duration with the result that it continues in operation
until it is repealed.
There is no warrant for reading the
provisions of s. 72 with the omitted words restored to their original position
after April 1, 1946, while determining the duration of the Ordinances which had
been promulgated between June 27, 1940, and April 1, 1946.
Both the contentions urged by the learned
counsel for the appellant before us having thus failed, it follows that the
High Denomination Bank Notes (Demonetization) Ordinance, 1946 (Ordinance No.
III of 1946) was in operation on July 11, 1953, the date on which the offence
was committed by the appellant and the appellant was rightly convicted by both
the courts below. The appeal will accordingly stand dismissed.
Appeal dismissed.
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