Kadiani Bai Nandu Valji vs State

Chhatpar, J.—This is a revision application to revise an order of the Sessions Judge, Central Saurashtra, dismissing the applicant''s appeal from an order of conviction u/s 66B, Bombay Prohibition Act, as adapted and applied to the State of Saurashtra. The applicant along with one Luvana Dayalji Batanshj was prosecuted for this offence. The Magistrate acquitted Luvana Dayalji Eatanshi and convicted the present applicant and sentenced her to three months'' simple imprisonment and a fine of Rs. 500 & in default to undergo one month''s simple imprisonment. The substance of the offence was that the applicant was found in possession of 58 bottles of foreign liquor, viz., 24 bottles of Vikers Gin and 34 bottles of Koes Brandy without a licence. Both the lower Courts came to the conclusion from the evidence and the circumstances in which the bottles were found that the applicant accused was in possession of liquor without a licence. The Courts were also satisfied that the bottles did contain foreign liquor. The applicant had admitted that she herself had placed the bottles in the trunks from which they were found carefully packed and concealed between her own clothes.

I am not prepared to differ from the finding of the two lower Courts that the applicant was consciously in possession of foreign liquor without a licence. The sentence awarded is the minimum which is ordinarily required to be imposed, unless the Court finds special circumstances to the contrary. In the present case there were no special circumstances to award a sentence lower than the minimum provided in the section.

The main argument of the learned Advocate for the applicant is that the notifications bringing into force in the State of Saurashtra the Bombay Prohibition Act as adapted and applied by the Saurashtra State are invalid on two grounds : (1) That they are not expressly stated ''by the order of the Raj Pramukh'' and (2) that the Officer who has signed the Notifications is not authorised to issue such Notifications on behalf of the Raj Pramukh. It is therefore contended that the Prohibition Act is not legally in force in the State of Saurashtra and therefore the conviction of the applicant thereunder is not maintainable.

The first of the two Notifications in question is dated 28-12-49, and states that in pursuance of powers under Sub-section (3) of S.I., State of Saurashtra Application of Central and Bombay Acts Ordinance (NO. 25 of 1948), the Bombay Prohibition Act, 1949, as adapted by the State of Saurashtra excepting Part 3 thereof, is brought into force in the whole State of Saurashtra with effect from 1-1-1950. This is signed : "M.S. Dave, Legal Remembrancer and Joint Secretary, Legal Department and Legislative Assembly." The second Notification is dated 20-3-50 and states that in continuation of the previous Notification above recited, Part 3 of the Bombay Prohibition Act as adapted by the State of Saurashtra would come into force into the whole State of Saurashtra from 1-4-50. This Notification is signed by the same individual Mr. M.S. Dave described simply as Legal Remembrancer.

It is necessary to dilate briefly upon the scheme of legislation adopted by the State of Saurashtra. Under the Covenant by which the Rulers of Kaihiawar State agreed to unite and integrate their territories in one State, with a common executive, legislature and judiciary, by the name of ''The United State of Kathiawar'' which now bears the name of ''The State of Saurashtra,'' the legislative authority of the State was vested in the Raj Pramukh, who was authorised to make and promulgate Ordinance for the peace and good government of the State and such Ordinances were to have the force of law as Acts passed by the legislature of the State. This was a transitional provision until a Constitution was framed for the State and legislature set up. In pursuance of this authority, the Raj Pramukh from time to time promulgated Ordinances which have the effect of law. In bringing the laws in the State of Suurashtra into conformity with the laws in force in the Indian States Ordinance No. 25 of 1948 designated as ''The State of Saurashtra (Application of Central and Bombay Acts) Ordinance, 1948, which contained a Schedule of Central & Bombay Acts which were passed with some modifications & adaptations mentioned in the Schedule itself was promulgated. Sub-section (3) of Section 1 of this Ordinance authorised the Government of the State of Saurashtra to specify either by general or special notification published in the Official Gazette the date or dates on which all or any of the Acts specified in the Schedule were to come in force either in the whole State or any specified area. To this Schedule from time to time were added further Acts of the Central and Bombay Governments by subsequent Ordinances which were designated as amendments to the main Ordinance No. 25 of 1948. The Bombay Prohibition Act was adapted by the 20th amendment of the Ordinance No. 25 of 1948, by an Ordinance made on 30-10-49 and published at p. 862 of the Saurashtra Government Gazette of 1949. The Act was actually brought into force in the State of Saurashtra by the two Notifications referred to above which were under the signature of Mr. M.S. Dave who was then the Remembrancer of Legal Affairs to the Government of Saurashtra and Joint Secretary of the Legal Department and the legislative Assembly. The two Notifications are not expressed on their face to have been issued by an order of the Raj Pramukh. It is contended on behalf of the applicant that Article 8 of the Covenant which is the Charter under which the State of Saurashtra was formed, provided specifically that the executive authority of the State was to be exercised by the Raj Pramukh either directly or through officers subordinate to him. The article reads as under:

Subject to the provisions of this Covenant and of the Constitution to be framed thereunder, the executive authority of the United State shall be exercised by the Raj Pramukh either directly or through officers subordinate to him; but nothing in this Article shall prevent any competent legislature of the United State from conferring functions upon subordinate authorities or be deemed to transfer to the Raj Pramukh any functions conferred by any existing law or any Court, Judge, officer or local authority in a Covenanting State.

Immediately on the integration and the formation of the State of Saurashtra, the Raj Pramukh promulgated the first Ordinance named "The Saurashtra State Regulation of Government Ordinance No. 1 of 1948, Section 6 whereof provided as under:

(1) All executive action of the Government of Saurashtra shall be expressed to be taken in the name of the Raj Pramukh.

(2) Orders and other instruments made and executed in the name of Raj, Pramukh shall be authenticated in such, manner as may be specified in rules to be made by the Raj Pramukh and the validity of an Order or Instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Raj Pramukh.

(3) The Raj Pramukh shall make rulen for the more convenient transaction of the business of the Saurashtra Government and for the allocation among Ministers of the said business.

In pursuance of Section 6, the Kaj Pramukh has framed the Eules of Business, Rules 11 and 12 whereof read as under:

All orders or instruments made or executed by order or on behalf of the Government of Saurashtra shall be expressed to be made by or by order of the Raj Pramukh of the State of Saurashtra.

Save in cases where an officer has been specifically empowered to sign an order or instrument of the Government of Saurashtra, every such order or instrument shall be signed either by the Secretary, the Joint Secretary, the Deputy Secretary, the Under-Secretary or the Assistant Secretary to the Government of Saurashtra and such signatures shall be deemed to be proper authentication of such order or instrument.

It would thus be seen that by the Ordinance 25 of 1948 adapting and applying the various Central and Bombay Acts to the State of Saurashtra, authority is conferred on the Government of Saurashtra to nominate the date from which each one the Acts should come into force in the State of Saurashtra or any part thereof. Kale 12 of the Business Rules reproduced above authorises any Secretary, Joint Secretary, Deputy Secretary, Under Secretary or Assistant Secretary to the Government of Saurashtra to sign an order on behalf of the Government of Saurashtra. The two notifications in question however are not expressed to have been made by or order of the Raj Pramukh of the State. The words ''by order of the Eaj Pramukh of the State of Saurashtra'' are not contained below the designation of Mr. M.S. Dave, who has signed the two Notifications. It has been argued with vehemence that the Covenant, the Ordinance 1 of 1948 & R. 11 of the Business Rules lay down that the executive authority of the State vests in the Raj Pramukh and any order in the exercise of such authority must be expressed to be made by or by order of the Raj Pramukh in specific words and inasmuch as these words are missing, the Notifications could not be properly considered as valid as having been issued under the authority of the Government of the Saurashtra State or of the Raj Pramukh. The learned Advocate for the applicant has strongly relied upon a ruling of the Madhya Bharat High Court in case of Lateef Ahmad v. State AIR 1950 AP 34 wherein an order of detention signed by the Chief Secretary, but not containing the words ''by order of the Raj Pramukh'' was held to be bad and the detention under it illegal. The learned Judges of that High Court construed the analogous provisions of the covenant and Rules of Business of the State of Madhya Bharat and observed after reciting the clause in the covenant as under:

This makes it abundantly clear that the Constitution of the United State vests the executive authority of the State in the Raj Pramukh which may be exercised by Mm directly or through officers subordinate to him. The executive authority is not to be exercised ''by'' a subordinate officer but by the Raj Pramukh ''through'' a subordinate officer. The significance of it is that the authority is exercised by the Raj Pramukh himself or ''through'' an accredited agent but not by the subordinate officer in exercise of a delegated power. The responsibility of the action remains that of the Raj Pramukh.

The judgment then quotes the rules of conduct of business and observes:

On the Raj Pramukh is imposed the duty of making rules for the more convenient transaction of business of the Government and for the allocation among the Ministers of the ''said'' business. The words ''business'' and ''said business'' occurring in this sub-section have reference to ''all executive action of the Government of Madhya Bharat'' in Sub-section (1) of the Section. By whomsoever executive action is taken, be it by the Raj Pramukh himself or a minister to whom the doing of a specified executive act, e.g. the power to order detention has been allocated by rules made under Sub-section (3), the action under Sub-section (1) has to be expressed to be taken in the name of the Raj Pramukh. To use the words of their Lordships of the Privy Council in the case reported in AIR 1945 156 (Privy Council) , the Raj Pramukh remains responsible for the action of his subordinates taken in his name. The subordinate officer or the minister is not exercising the executive authority of the State as vested in him by law. It is vested in the Raj Pramukh who by rules made has declared that the executive authority in respect of specified acts shall be exercised by him, through specified subordinate officers. And hence executive action of the Government of the State has to be expressed as taken in the name of the Raj Pramukh. If an order purporting to be made under Sub-section (1) of Section 3, Maintenance of Public Order Ordinance is not made out in the name of the Raj Pramukh it cannot be deemed to be made by the Government of the State. Persons can only be authorised by the Raj Pramukh by rules made to take executive action in his name. When the act is done in the name of the Raj Pramukh it becomes an act of the Government but not otherwise. An order made in the name of the Raj Parmukh, is an order made by the Raj Pramukh, see Sub-section (2) of Section 7. The Raj Pramukh is, so far as the exercise of executive authority is concerned, the Government of the United State of Madhya Bharat.

Particular stress seems to have been laid in the judgment on the technical aspect that executive action of the Government of the State cannot be attributed to it unless it is expressed as taken in the name of the Raj Pramukh, on the basis that the rule of the business requiring it was so mandatory that any order which was not expressed to be in the name of the Raj Pramukh could not be considered as of the Government.

Now the question as to the correct interpretation of the rule prescribing the mode of making an executive order on behalf of the Government has been considered by the Federal Court, and it has been held that such a rule is not mandatory but only directory because it does not lay down that if the provision of the affirmative rule is not complied with, adverse consequences will follow. In the case of J.K. Gas Plant Manufacturing Co. (Bampur) Ltd. v. Emperor AIR 1947 F.C. 88, a distribution order purported to be made under the powers conferred by Rule 81 of the Defence of India Rules was impugned on similar grounds and the learned Judge of the Federal Court had to construe Section 40, Government of India Act, 1935, relating to the business of the Governor-General in Council, the substance of which is very much the same as Rules 11 and 12 of the Conduct of Business above. I cannot do better than quote the following portion of the judgment of the learned Chief Justice which answers all the arguments on the subject:

It has been strongly argued before us that the distribution order does not comply with the requirement of Section 40(1). It wag contended that u/s 40(1), it is imperative that all orders and proceedings made by the Governor-General in Council should fulfil three requirements (1) that they should be made by Governor-General in Council, (2) that they should be expressed to be so made, and (S) that they should be signed by the'' proper person therein mentioned. It was submitted that the Governor-General in Council is a legal entity created by and deriving its existence and all its powers from Statute, including the powers of making the orders and that the statutory provisions relating to the exercise of such powers must be scrupulously and in every detail observed, if the orders are to be legally valid. Only therefore when all the three requirements above set out are complied with, can the order be held to be validly made.

Section 40 is as follows:

Business of the Governor-General in Council: All orders and other proceedings of the Governor-General in Council shall be expressed to be made by the Governor-General in Council, and shall be signed by a Secretary to the Government of India, or otherwise as the Governor-General in Council may direct, and, when so signed, shall not be called into question in any legal proceeding on the ground that they were not duly made by the Governor-General in Council. The Governor-General may make rules and orders for the more convenient transaction of business in his Executive Council, and every order made or Act done in accordance with such rules and orders shall be treated as being the order or the act of the Governor-General in Council.

The Distribution Order on the face of it purports to be made by "the Central Government." It has been signed by a Secretary to the Government of India. It was, therefore, argued that while the condition as to signature may have been fulfilled, the condition about the order being expressed to be made by the Governor-General in Council has not been complied with.

In support of this contention strong reliance was placed on the wording of Sections 17 and 59, Constitution Act. Counsel drew attention to Section 175, Constitution Act, corresponding to Section 80, Government of India Act of 1915, with reference to orders passed by the Provincial Governors. It was pointed out that the old Section 30 has been construed to be imperative. It has been held that a contract has to be made in the name of the Provincial Government and also signed by the authorised person. Reliance was placed in this connection on 1988 Bom. L.R. 19 and the observations in particular at p. 28. That case, however, is not helpful because the initial correspondence, which was contended to contain the contract, was not carried in the name of the Secretary of State or with his authority. At a later stage the Government passed a resolution accepting the transaction, but that was a one-sided move. In pursuance of that resolution when a contract form was offered to the other party he refused to accept the transaction. Therefore, at no stage was an offer made in the name of the Secretary of State and accepted by the other party. Similarly, in 1987 Bom. L.R. 807, the employee was never employed in the name of the Secretary of State. Counsel further relied strongly on Maxwell on the Interpretation of Statutes (Edn. 9) at p. 376 (last three lines) where the imperative meaning of the word ''shall'' is stated in the following words:

Where a company or public body is incorporated or established by statute for special purposes only and is altogether the creature of statute law, the prescriptions for its acts and contracts are imperative and essential to their validity.

It must be noticed, however, that these observations are in respect of a body or corporation created by statute for certain purposes only. It has also been held that in such cases strict compliance with the conditions must be made that is natural because the Act creating the body is its sole-charter and the latitude of action is controlled by the words of the charter. We are, however, by no means satisfied that this criterion must be strictly applied to an Act passed to establish the Government of a Dominion or in this'' case India from 1935 A.C. 124 at p. 136 and 1936 A.C. 500 at pp 618 519, it appears that no narrow construction such as might be applicable to the affairs of an English parish is to be applied to an Act passed to ensure the peace, order and good government of a British Colony. Still less, in our opinion, should any narrow construction be put upon any provisions of the old or present Constitution Act of India. Such Acts must be given a large and liberal construction.

In further support of their contentions, numerous other cases in the reports of the United Kingdom and of British India were cited to us on behalf of the appellants. We do not propose to deal with such other cases on other statutes in respect of other statutory bodies. The general principles on which Courts have to decide such cases as this, where a statute requires that something shall be done in a particular manner without expressly declaring what shall be the consequences of non-compliance are in our judgment accurately and conveniently set out in Section 8. ''Imperative or Directory''--on pp. 872 to 874 of Maxwell. It is to be noted that the question whether the provision is affirmative or negative has a material claring. If it is in the affirmative, it is a weaker case for reading the provisions as mandatory; 1939 A.C. 277. Further, according to this passage in Maxwell, we are in our judgment entitled to consider certain questions: First would the whole aim and object of the Legislature in constituting the Governor General in Council and conferring the far-reaching powers which have by a statute been conferred on the Governor General in Council be plainly defeated if the provisions of Section 40(1) were not held to imply a prohibition to allow validity to orders of the Governor-General in Council expressed otherwise than as provided in sub Section (1) of Section 40? Secondly, would the construction contended for by the appellants involve general inconvenience and injustice to innocent persons without promoting the real aim and object of the Constitution Act? Thirdly is the construction suggested in conformity with the whole scope and purpose of the Constitution Act? In our opinion, the answer to the first question, so far as this case is concerned, is clearly in the negative. It is to our minds inconceivable that if such overriding, if not vital, importance was intended by Parliament to be put upon the manner and form in which orders of the Governor-General in Council were to be expressed to be made, the provisions of Section 40(1) would not have been enacted originally in the Old Constitution Act and in the Transitional Provisions of the Constitution Act, in more absolute and emphatic terms and reinforced by clear enactments as to the complete invalidity of orders not strictly complying with the requirements of Section 40(1). As to the second question, no one can possibly doubt the immense general inconvenience and injustice which would be caused to innocent persons, it the appellants'' construction of Section 40(1) were held to be justified. As to the third, alter the most careful examination of the scope and purpose of the Act, we cannot conclude that its scope and purpose demand a construction giving a mandatory rather than a director) effect to these words in Section 40(1). On this reasoning we prefer to approach the question feeling ourselves not compelled, so far as authorities are concerned, to put either a mandatory or directory construction on the provision in question but free to construe it, having regard to she ordinary meaning to be put upon the sub-section itself and the context in which the provision is found in the first place, it must be noticed, dealing with Sub-section (1) of Section 40 alone, that the provision that all orders of the Governor-General in Council are to be expressed to be made by the Governor-General in Council does not define how orders are to be made bat only how they are to be expressed. It appears to imply that the process of making an order precedes, or is something different from, the expression of it. It does not say that orders can only be made by ''being'' or "if" expressed to be made by the Governor-General in Council. Secondly it must be noticed that these provisions are not connned to orders only. They also include ''proceedings''. In the case of ''proceedings'' it is still more clearly a method of recording proceedings which have already taken place which is being prescribed rather than any form in which proceedings must take place if they are to be valid Thirdly, there is the addition of the provision relating to the signature by a Secretary to the Government of India or other person indicated, which clearly indicates that it is a provision as to the manner in which a previously made order should be embodied in publishable form. Lastly, there is the result indicated in the last words of the sub-section that if the previous directions either both the direction as to the expressing of orders and proceedings and that as to signature or the latter as to the signature only (whichever be the true construction) are complied with, the orders and proceeding shall not be called into question in a Court of Law on one grand only. All these points in the subsection itself indicate that it it not a sub-section, prescribing a manner and form in which orders of the Governor General must be made to be valid. It may be that there are two possible constructions of the sub-section. Either the whole is to be read together as one provision prescribing the manner in which orders and proceedings of the Governor-General in Council are to be expressed and signed, for the limited purpose of preventing them being called in question in Courts of Law as not duly made by the Governor-General in Council, or the directions as to manner of expression are separate from those as to signature & it is the signature only of the appropriate person which gives the necessary protection against the investigation in a Court of Law. Clearly if the first construction be the right one, the purpose of the sub-section is a very limited one and does not go near to forming any sound basis for the submissions of the appellants. They have to rely on the second and maintain that the provision as to the expression is completely separate and mandatory by itself, though unfortunately coupled with provisions as to signature which clearly are inserted for very limited purposes. In our judgment it is not necessary to decide which is the true construction of the sub-section, far, if we accept the view put forward by the appellants that the provision as to the method of expression of orders of the Governor-General should be read as a separate provision we can not read it, placed as it is in close juxtaposition with the provision as to signature and its limited purpose as a separate imperative provision as to the only valid method in which orders can be made, nor give it in its context any force beyond that of a directory provision, as to how orders and proceedings already made should be expressed.

That this is the right view is in our judgment strongly reinforced by a consideration of Sub-section (2) of the same section which is clearly not a mandatory provision. In such context it would be surprising to find one independent mandatory provision.

For all these reasons, in our judgment, the provision cannot be held to be mandatory and given the construction and effect claimed by the appellants.

This ruling of the Federal Court has been recently followed by the Bombay High Court in the case of Mahomed Yasin v. Shripat Amrit 50 Bom. L.R. 471. In that case the appointment of an Election Tribunal was questioned. The order of appointment was signed by Mr. P.N. Moos the Chief Secretary but was not expressed to be made by or by order of the Governor of Bombay the learned Judges interpreted Section 59(1) and (2). Government of India Act, 1935, which are analogous to the rules of business of the Saurashtra Government above cited and held that the Constitution Act should be given a liberal construction; when there is a direction in a provision of a statute and it is not suggested what the result would be of non-compliance with such a direction, then the proper canon of construction is to treat that provision as merely directory and not mandatory. These two rulings of the Federal Court and of the Bombay High Court, it seems unfortunate, were not considered by the learned Judges of the, Maddya Bharat High Court in deciding the case relied upon by the learned Advocate for the applicant. I am unable to follow the decision of the Madhya Bharat High Court and would follow the rulings of the Federal Court and the Bombay High Court.

There is no doubt in the present case that the two notifications in question were signed by a person who was a Secretary to the Government of Saurashtra. The mere fact that the orders were not expressed to be made by or by order of the Raj Pramukh does not make such orders ipso facto invalid; at the most it may be contended that such orders are not conclusive proof that they represent the orders of the Government of Saurashtra. For this reason, ex majore cautela we thought it proper to ask the learned Advocate General to file a statement by a responsible officer of the Government to the effect that the two notifications were in fact issued by Mr. Dave under the authority of the Government of Saurashtra. It may be mentioned that this question has been raised for the first time in this Court. The legality of the two notifications was not challenged in the two lower Courts. The learned Advocate General has now filed an affidavit of Mr. Dave in which the latter has definitely stated that all the various Government Notifications published in the Saurashtra Government Gazette of the years 1948, 1940 and 1950 under his signature either as Remembrancer of Legal Affairs or as Remembrancer of Legal Affairs and Secretary to Government notifying any Act or Acts as applied to the State on a particular date on which and the place to which they were intended to be applied were, in fact, issued under the orders of the Government. This affidavit sets at rest any doubt about the authority of Mr. Dave to notify the dates on which the Bombay Prohibition Act as adapted and applied to the State of Saurashtra should come into force. I accordingly hold that the two notifications have validly brought into force the provisions of the Prohibition Act. The applicant was rightly convicted of the offence of which she was charged. This revision application therefore fails and is dismissed.

Shah, C.J.

I agree.