TaxTMI 
TaxTMI 
1962 (5) TMI 40
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....of 1960, Bhagwana was searched by the Saharanpur Police on August 6, 1956, and was found to be ion possession of a country-made pistol and four cartridges for which he held no licence. He was prosecuted before the City Magistrate, Saharanpur under s. 19(f) of the Act and was convicted and sentenced to six months rigorous imprisonment. No sanction was obtained for his prosecution, obviously because under s. 29 of the Act it is not required when the offence are committed in certain areas and Saharanpur is within those areas. The appellant preferred an appeal against his conviction and sentence to the Sessions Judge, Saharanpur but the appeal was dismissed and the conviction and sentence were confirmed. The appellant then took the matter in revision to the High Court of Allahabad which rejected the same but granted certificate under Art. 134(1) of the Constitution. This is how this appeal comes before us. Though the two appeals arise out of two different prosecutions unconnected with each other, they were heard together as the same questions of law arise for determination in both. 3. The first question that arises for our decision is whether s. 29 of the Act is unconstitutional and v....
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....w Act, Arms and Ammunition Act 31 of 1860 came into force. This statute contains in addition to what was enacted in Act 28 of 1857, certain new provisions, of which s. 32 is material for our discussion. It is as follows : - "Clause 1. It shall be lawful for the Governor-General of India in Council or for the Executive Government of any Presidency or for any Lieutenant Governor, or with the sanction of the Governor General in Council for the Chief Commissioner or Commissioner of any Province, District or place subject to their administration respectively, whenever it shall appear necessary for the public safety, to order that any Province, District, or place shall be disarmed. "Clause 2. In every such Province, District, or place as well as in any Province, District, or place in which an order for a general search for arms has been issued and is still in operation under Act XXVIII of 1857, it shall not be lawful for any person to have in his possession any arms of the description mentioned in s. 6 of this Act, or any percussion caps, sulphur, gunpowder or other ammunition without a licence. 6. This Act again was repealed in 1878 and the present Indian Arms Act (XI of....
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..... That was the view taken by the Allahabad High Court in Mehar Chand v. State AIR1959All660 and we are in agreement with it. The correctness of this decision on this point has been assailed before us. 9. On this conclusion two questions arise for decision : (i) Is s. 29, omitting that part of it which contravenes Art. 14, valid, and are the prosecutions in the instant cases bad for want of sanction thereunder; and (ii) if s. 29 is void in toto whether s. 19 also becomes void and unenforceable. 10. On the first question our attention has been drawn to two decisions of the High Court of Allahabad where this point has been considered. In Mehar Chand's case AIR1959All660 already referred to, after holding that the distinction made in s. 29 between offences committed in territories to the north of the Jamna and Ganga and those committed elsewhere was repugnant to Art. 14, the learned Judges stated as its consequence that sanction for prosecution under the Act was necessary in all cases. But this decision was overruled by a Full Bench of the Allahabad High Court in Bhai Singh v. The State AIR1960All369 , where it was held that the effect of the finding that the section was in part ....
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....t will be upheld notwithstanding that the rest has become unenforceable." (p. 951). 14. On this test, the part of s. 29 which requires sanction must be held to be severable from the portion, under which no sanction is required, and therefore valid. 15. This contention must fail for the simple reason, that if accepted it must result in defeating the intention clearly and unequivocally expressed in the section, that no sanction is required for prosecution for offences committed north of the Jumna and Ganga. It will be opposed to all recognised canons of interpretation, to construe a statute as forbidding what it expressly authorises. We cannot therefore so read the section as to require sanction for prosecution for offences in the areas north of the Jumna and Ganga. When once this conclusion is reached it is difficult to accept the contention of Mr. Sarju Prasad that the section insofar as it requires sanction for prosecution for offences committed in territories other than those to the north of the Jumna and Ganga is severable from the rest and that to that extent the law is valid. If this contention is correct, it must necessarily result in discrimination between persons wh....
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....Davis Wallace (1921) 257 U.S. 477; 66 L. Ed. 325 the point for decision was whether when a provisions which is in the nature of an exception is held to be unconstitutional, the main provision which it is intended to quality can be enforced in its own terms. In answering it in the negative the Court observed : "Here the excepting provision was in the statute when it was enacted, and there can be no doubt that the legislature intended that the meaning of the other provisions should be taken as restricted accordingly. Only with that restricted meaning did they receive the legislative sanction which was essential to make them part of the statute law of the State; and no other authority is competent to give them a large application." 17. In Lemke Farmers Grain Company (1921) 258 U.S. 50; 66 L. Ed. 468, a law of North Dakota was assailed as unconstitutional on the ground that it was one on interstate commerce which the State Legislature could not enact. One of the contentions raised was that there were certain provisions in the Act which could be sustained as within the competence of State Legislature. In rejecting this contention the Court observed : "It is insisted that....
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....20. We agree with the appellants that the object s. 29 was to give protection to subjects against harassment. That appears clearly on the reading of the section. There was some argument before us as to whether the statement of objects and reasons relied on for the appellants is admissible in evidence. It is well settled that proceedings of the Legislature cannot be called in aid for constructing a section, vide Administrator General of Bengal v. Prem Lal Mullick (1895) 22 I.A. 107, Krishna Ayyangar v. Nellaperumal I.L.R (1919) . 47 IndAp 33. "It is clear" observed Lord Wright in Assam Railway & Trading Co. Ltd. v. Inland Revenue Commissioner (1935) A.C. 445 "that the language of a Minister of the Crown in proposing in Parliament a measure which eventually becomes law is inadmissible." The question whether the statement of objects and reasons admissible in evidence for construing the statute arose directly for decision in Aswini Kumar Ghosh v. Arabinda Bose [1953]4SCR1 , and it was held that it was not. 21. It was argued that the history of a legislation would be admissible for ascertaining the legislative intent when the question is one of severability. That is....
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....s to render it ineffective. But such cases must be exceptional. And we see nothing in the present statute to take it out of the general rule. On the other hand, the paramount intention behind the law was to punish certain offences. No doubt s. 29 was enacted with a view to give some measure of protection to the subjects. But if the legislature had been told that s. 29 would be bad, can there be any doubt as to whether it would have enacted the statute without s. 29 ? The consequence of withdrawing the protection of that section is only that the accused will have to take up his trial in a court, but there ultimately justice will be done. Therefore if the choice was given to the legislature between allowing an offence against the State to go unpunished, and failing to give protection to a subject against frivolous prosecution, it is not difficult to see where it would have fallen. We cannot be mistaken if we conclude that the intention of the legislature was to enact the law, with s. 29 if that was possible, without it, if necessary. And that is also the inference that is suggested by the provision in s. 29, exempting certain areas from its operation. 26. The American authorities ci....