Full Judgment Text
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PETITIONER:
NEEL & NIRENJAN MAJUMDAR
Vs.
RESPONDENT:
THE STATE OF WEST BENGAL
DATE OF JUDGMENT23/05/1972
BENCH:
SHELAT, J.M.
BENCH:
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1959, which repealed and re-enacted the provisions of the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the contrary signifying that the operation of the repealed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]
JUDGMENT:
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
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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. Con-
sequently 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’s- alleged 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
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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,
sharpedged 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 thereunder. 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 thereunder. Once, therefore, such a
notification is issued under the Act or the rules made
thereunder, 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
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where any Central Act or regulation made after the commence-
ment 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 re-
enacted 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 be-
ing so, acts set out in ground No. (2) were covered by cl.
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(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.
680