Neel & Nirenjan Majumdar Vs. The
State of West Bengal [1972] INSC 147 (23 May 1972)
SHELAT, J.M.
SHELAT, J.M.
KHANNA, HANS RAJ
CITATION: 1972 AIR 2066 1973 SCR (1) 675 1972
SCC (2) 668
ACT:
General Clauses Act, 1897-Ss. F, 24-Effect
of-Arms Act, 1959 repeating and re-enacting Arms Act, 1878-Notification issued
under latter Act, if continue under the 1959 Act-Arms Act, 1959--s. 2(1)--(c)
Sword, if 'arms'-West Bengal (Prevention of Violent Activitieso Act, 1970, S.
3(2)(d).
HEADNOTE:
The combined effect of section 6 and 24 of
the General Clauses Act is that a notification of 1923 issued under section 15
of the Arms Act, 1878 prohibiting the acquisition, possession or carrying of
arms other than fire arms without a licence, not only continued to operate but
has to be deemed to have been enacted under the Arms Act, 1959, which repealed
and re-enacted the provisions of the earlier Act. The 1959 Act nowhere contains
an intention to the contrary signifying that the operation of the repealed Act
or of a notification issued thereunder was not to continue. [678C-F] A sword is
arms within the meaning of the definition of arms' in section 2(1)(c) of the Arms
Act, 1959. In the present case though the offence of being in possession and
carrying a sword without licence took place after the commencement of the new
Act of 1959, the notification issued under the Act of 1878 was in. force, by
virtue of section 24 of the General Clauses Act, on the date of the alleged
offence. The offence thus fell under the arms Act, 1959, and that being so, the
acts set out in the grounds of detention served on the petitioner were covered
by clause (d) of section 3(2) of the West Bengal (Prevention of Violent
Activities) Act, 1970. [677D-H; 678G-H; 679F]
ORIGINAL JURISDICTION: Writ Petition No. 77
of 1972.
Under Article 32 of the Constitution of India
for a writ in the nature of habeas corpus.
S. K. Dhingra, for the petitioner.
Dilip Sinha and G. S. Chatterjee, for the
respondent.
The Judgment of the Court was delivered by
Shelat, J. The District Magistrate, Howrah passed on June 12, 1971 the impugned
order of detention under sub-s. (1) read with sub-s. (3) of s. 3 of the West
Bengal (Prevention of Violent Activities) Act, 1970 directing the petitioner's
detention thereunder. The order stated that the District Magistrate was
satisfied that it was necessary to do so in order to prevent the petitioner
from acting in a manner prejudicial to the maintenance of public order. On June
13, 1971, the petitioner was accordingly arrested and detained in Dum Dum
Central Jail.
676 The grounds of detention served on the
petitioner at the time of his arrest read as follows :
(1) On 17-8-70 at about 02.00 hours, you and
your associates Bhaja alias Tarapada Ghosh, Bablu, Kartic and others attacked
the members of R.G. Party who were on duty near Jatadhari Park by hurling bombs
towards them. When chased by them, you and your associates again hurled bombs
towards them and managed to escape and thereby disturbed public order.
(2) On 10-4-71 at about 16.00 hours, you and
your associates being 'armed with sword assaulted one Basudeb Laha of 56/18,
Banarjee Bagan Lane. at Sambhu Halder Lane near Jatadhari Park causing injuries
on his person.
When objected by the members of the public,
you also terrorised them by brandishing the sword.
(3) On 1-5-71 at 15.00 hours, you and your
associates Tapan, Kartic and others being armed with bombs and other deadly
weapons demanded money from one Banshi Show of 28, Haraganj Road, P.S.
Malipanchghora. When refused, you and your associates assaulted him. The local
people and the neighbouring shop keepers objected. At this you and your
associates became more violent and terrorised them by throwing bombs towards
them. Consequently they became panicky and fled away.
Sub-s. (1) read with sub-s, (3) of s. of the
Act authorises inter alia a District Magistate to direct detention of any
person in respect of whom be is satisfied that such detention should be ordered
with a view to prevent him from acting prejudicially to the security of the
State of West Bengal, or the maintenance of public order. Sub-s. (2) of s. 3
contains a special definition of the expression "acting in any manner
prejudicial to the security of the State or the maintenance of public
order" to mean the acts enumerated in cls. (a) to (e) thereof. Cl. (d),
which is the only relevant clause for purposes of this petition provides as
follows:
"(d) committing, or instigating any
person to commit, any offence punishable with death or imprisonment for life or
imprisonment for a term extending to seven years or more or any offence under
the Arms Act, 1959 or the Explosive Substances Act, 1908, where the commission
of such offence disturbed, or is likely to disturb, public order." 677 It
is not disputed that the petitioner'salleged activities set out in grounds ( 1
) and (3) of the said grounds of detention fell under cl. (d) being offences
under the Explosive Substances Act, 1908, and also being such that they did or
were likely to disturb public order. The only contention raised for our
determination was that activities set out in ground No. (2), namely, causing
injuries with a sword. would constitute an offence under s. 324 of the Penal
Code, an offence neither punishable with death, nor life imprisonment, nor
imprisonment for a term of seven years.
Therefore, ground No. (2) would be, it was
urged, a ground which would not fall under the said definition, and would,
therefore, be an extraneous ground rendering the impugned order invalid.
The contention in our view has no substance
as the offence alleged in ground No. (2) would fall under cl. (d) of s. 1 (2)
of the Act inasmuch as it will be one, punishable under the Arms Act, LIV of
1959.
Under S. 2(1) (c) of the Arms Act, the word
'arms' inter alia means articles of any description designed or adapted as
weapons for offence or defence, and includes firearms, sharp edged and other
deadly weapons. A sword is thus arms I within the meaning of this definition.
Sec. 3 of the Act then prohibits, among other things, possession of firearms or
ammunition except under a licence issued under the Act or the rules made there
under. So far as arms, other than firearms, are concerned, s. 4 empowers the
Central Government, if it is of opinion that having regard to the circumstances
prevailing in any area it is necessary or expedient in the public interest,
that acquisition,.
possession or carrying of arms, other than
firearms, should also be regulated, it may by notification direct that this
section shall apply to the area specified in such notification, and thereupon
no person shall acquire, have in his possession or carry in that area arms of
such class or description as may be specified in that notification, except
under a licence issued under the provisions of the Act or the rules made there
under. Once, therefore, such a notification is issued under the Act or the
rules made there under, and that notification specifies any arms, e.g. a sword,
possession of or carrying such a sword without licence in the specified area
would be an offence under the Arms Act. Sec. 25 (1) (b) provides that whoever
acquires, has in his possession or carries in any place specified by
notification under s. 4 'any arms of such class or description as have been
specified in that notification in contravention of that section shall be
punishable with imprisonment for a term which may extend to three 1 years, or
with fine or with both.
It, however, appears that no such
notification as contemplated by S. 4 of the 1959 Act has been issued. But, in
1923 such a 678 notification bearing reference No. Political (Police)
Department Notification No. 787 PL, dated March 9, 1923 was issued under s. 15
of the earlier Indian Arms Act, XI of 1878, which was in terms similar to S. 4
of the present Act.
The question is, whether Act XI of 1878
having been repealed, the said notification issued under s. 15 thereof can
still be said to be operative ? Sec. 46(1) of the Arms Act, 1959 repealed the
preceding Act of 1878. Its sub-s. (2) provides that notwithstanding such repeal
and without prejudice to ss. 6 and 24 of the General Clauses Act, X of 1897 a
licence granted under the repealed Act and in force immediately before the
commencement of the new Act shall continue, unless sooner revoked, for the
unexpired period for which it had been granted or renewed. Sec. 46(2) thus
saves only licences issued under the Arms Act.
Sec. 6(b) of the General Clauses Act,
however, provides that where any Central Act or regulation made after the
commencement of the Act repeals any earlier enactment, then, unless a different
intention appears, such repeal shall not "affect the previous operation of
any enactment so repealed or anything duly done or suffered hereunder".
Sec. 24 next provides that where any Central Act is repealed and reenacted with
or without modification, then, unless it is otherwise expressly provided, any
notification issued under such repealed Act shall, so far as it is inconsistent
with the provisions re-enacted, continue in force and be deemed to have been
made under the provisions so re-enacted unless it is superseded by any
notification or order issued under the provisions so re-enacted. The new Act
nowhere contains an intention to the contrary signifying that the operation of
the repealed Act or of an notification issued thereunder was not to continue.
Further, the new Act re-enacts the provisions of the earlier Act, and s. 4 in
particular, as already stated, has provisions practically identical to those of
s. 15 of the earlier Act. The combined effect of ss. 6 and 24 of the General
Clauses Act is that the said notification of 1923 issued under s. 15 of the Act
of 1878 not only continued to operate but has. to be deemed to have been enacted
under the new Act.
Possession of arms, such as a sword without a
licence or contrary to the terms and conditions of such a licence would thus be
an offence punishable with imprisonment under the Arms Act, 1959. Though the
possession of and carrying a sword were alleged to have been committed in 1970,
that is, after the repeal of the Arms Act, 1878, the said notification of 1923
issued under the repealed Act would, despite its repeal, continue to be in
force and its provisions would be deemed to have been enacted under the new Act
by virtue of s. 24 of the General Clauses Act.
679 This was the construction placed upon
these two sections by this Court in the Chief Inspector of Mines v.Lala Karam
Chand Thapar,(1) where the question as to the meaning of S. 24 of the General
Clauses Act arose. In that case, the directors of a colliery company and its
managing agents were prosecuted under the Mines Act, 1952 for violation of Coal
Mines Regulations of_ 1926 made under Mines Act, 1923, which was repealed by
1952 Act. Repelling the contention that the prosecution in respect of the
violation of those Regulations made under the repealed Act was unauthorised and
invalid, the Court construed s. 24 of the General' Clauses Act to mean that
when an earlier Act is repealed by a later Act, which re-enacted the provisions
of the earlier Act, Regulations framed under the repealed Act continue in force
and are deemed to have been made under the provisions so re-enacted, and must
be so construed as to have continuity of force, and are to be regarded as laws
in force at the date of the offence within the meaning of Art.
20(3) of the Constitution. In that case, the
breach of those Regulations took place before the commencement of the new Act.
Even then the prosecution under the new Act was held to be valid on the ground
that the Regulations were deemed to have, been made under the new Act. In the present
case, the offence of being in possession of and carrying a sword without
licence took place after the commencement of the new Act of 1959. The said
notification, by virtue of s.
24 of the General Clauses Act having to be
deemed to have been made under S. 4 of the Arms Act, 1959, the notification was
in force on the date of the alleged offence.
The offence thus fell under the Arms Act,
1959, and that being so, acts set out in ground No. (2) were covered by cl.
(d) of S. 3(2) of the Act. Consequently, that
ground cannot be said to be extraneous to the Act.
This being the only contention arising for
our consideration and it having failed, the petition fails and is dismissed.
K.B.N. Petition dismissed.
(1) [1962] 1 S.C.R. 9.
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