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PETITIONER: JANARDAN

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT04/04/1978

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA SHINGAL, P.N.

CITATION:  1978 AIR 1234            1978 SCR  (3) 586  1978 SCC  (2) 465

ACT: Bombay  Prevention of Gambling Act, (Bom.  Act IV of  1887), 1887, Section 6 read with Bombay Police Act, 1951 and S.- 17 of  Bombay  General  Clauses  Act,  1886-Ambit,  scope   and interpretation  of  Section 6 of  Gambling  Act-Whether  the Assistant  Commissioner of Police can validly  issue  search warrant.

HEADNOTE: The appellant along with sixteen others was convicted  under section  4  of the Gambling Act and  sentenced  to  rigorous imprisonment for two months and a fineof  Rs. 400/- or  in default  to suffer rigorous imprisonment for one month.  The appellant  alone filed a revision before the High Court  and an appeal to thisCourt  by obtaining a  certificate  from the  High Court.  It was contended that the  search  warrant issued by the Assistant Commissioner which formed the  basis of  his conviction was legally invalid, and, therefore,  the conviction was not sustainable in law. Dismissing the appeal. the Court Per Fazal Ali, J. HELD  :1.  The conviction of the appellant does  not  suffer from any infirmity and must be upheld.  But having regard to the  fact  that the offence took place more than  ten  years herein before, the interests of justice do not require  that he should be sent back to jail. [592 B-C] [While  maintaining the sentence of fine awarded under  both the Courts namely Sections 4 and 5 of the Gambling Act,  the sentences  of  imprisonment  were  modified  to  the  period already undergone] 2.  It  would  be seen from a perusal of section  6  of  the Gambling  Act that as the term ’Commissioner of Police’  has not  been  defined  any where in the Act it  cannot  per  se include an Assistant Commissioner and the provisions of  the Police  Act  which was passed long after  the  Gambling  Act could  not  be pressed into service, unless there  was  some other Act which could make the provisions of the Police  Act applicable to the Gambling Act.  Prima facie, therefore, the contention of the appellant seems to be tenable. [589 G-H] 3. (a) Bombay General Clauses Act of 1886 was amended by Act 1  of  1904  which doubtless was an Act  passed  before  the coming  into force of the Gambling Act.  Section 17  of  the

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Bombay  General  Clauses Act which remained  unamended  even after the Amendment Act of 1904 runs thus :-               "17(1)  In  any  Bombay  Act  made  after  the               commencement   of   this  Act  it   shall   be               sufficient  for the purpose of indicating  the               application of law to every person or  number               of  persons for the time being  executing  the               functions   of  an  office,  to  mention   the               official  title  of  the  officer  at  present               executing  the  functions,  or  that  of   the               officer  by  whom the functions  are  commonly               executed." Analysing  this definition it would appear that any official title  of  the officer mentioned in any Act made  after  the General Clauses Act would deem by fiction of law to include any such official title referred to in any Act passed  after the  General Clauses Act.  Not only the official  title  but even the functions" executed by the said officer would  also be deemed to have been exercised by the official  designated in the subsequent Act.  The combined effect,therefore, f 587 section  6  of  the Gambling Act and Section  17(1)  of  the General Clauses Act would be that the term ’Commissioner  of Police’  would  include all officers who  are  executing  or performing  the functions of the Commissioner of  Police  as definedor  authorised under the latter Act,  namely,  the Police Act.            [589 H, 590 C] (b)  A perusal of section 11 of the Police Act leads to  the inescapable   conclusion  that  an  Assistant   Commissioner appointed under subsection (1) is to perform such duties and functions as can be exercised under the Act or any other law for the time being in force, which undoubtedly includes  the Gambling  Act which was a law in force at the time when  the Police  Act  was  passed.  Apart  from  this  the  Assistant Commissioner could also perform those functions which  could be assigned to him by the Commissioner under the general  or special orders of the State Government. [591 A-B] 4.  Having regard to the combined reading of the  provisions of section 17 of the General Clauses Act and the Police  Act the term ’Commissioner of Police’ appearing in section 6  of the   Gambling   Act  would  include   even   an   Assistant Commissioner  who  was  legally  and  validly  assigned  the powers,  functions and duties of the Commissioner of  Police by  the State Government under section 10(2) of  the  Police Act.   As  the General Clauses Act was a statute  which  was passed  before the Gambling Act came into force, section  17 of  the  General  Clauses Act could be called  into  aid  to interpret  the scope and ambit of the term ’Commissioner  of Police’ as used in section 6 of the Gambling Act. [591 E-F] 5.  To contend that the power of assignment of functions  by the  Government given to the Commissioner of Police  or  the Assistant Commissioner of Police could be exercised only  in respect of matters covered by the Police Act and not  beyond that  is to overlook the avowed object of section 17 of  the General  Clauses Act which has been passed to  resolve  such anomalies and it is not possible to construe the  provisions of  the  Police Act in complete isolation  by  ignoring  the provisions  of  the General Clauses  Act  which  undoubtedly apply to the facts ,in  Circumstances of the present case. [591 G-H. 592 Per  Shinghal, J. 1.  Sub-section (2) of s. 17 of the Bombay  General  Clauses Act.  1904, specifically provides that the  section  applies

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also to all Bombay Acts made before the commencement of  the Act.   It would follow that section 17(1) is  applicable  to the  present  controversy under the Gambling  Act  of  1887. Under  sub-section (1) it was therefore sufficient  for  the purpose  of indicating the application of at law  to every person  "for  the time being executing the functions  of  an office"  to  mention the official title of the  officer  "at present executing the functions." Accordingly it was  enough to  mention  the "Commissioner of Police"  by  his  official title  for purposes of section 6 of the Gambling Act Is  lie was the functionary who was executing the functions referred to in the section at the time when that Act came into force. As  section 17 of the Bombay General Clauses Act deals  with the   substitution   of  functionaries,  it   enabled   that functionary  to discharge the functions of the  Commissioner of  Police  under section 6(1) of the Gambling Act  who  was "for the time being executing the functions" of that office. In other words, as it was the Commissioner of police who bad the  authority  to issue the special warrant  under  section 6(1)  of  the  Act  when it came  into  force,  it-would  be permissible  for the Assistant Commissioner of police to  be substituted  for that functionary if it could be shown  that it   was  he  who  was  executing  the  functions   of   the Commissioner  of police on the date of issue of the  special warrant referred to above i.e. on December 25, 1967. [593 D- G] 2.  Section  11(2) of the Bombay Police Act.  1961  provides that an Assistant Commissioner of Police shall exercise such powers  and  perform  such duties and functions  as  can  be exercised  or performed under the provision of that  Act  or any other law for the time being in force or as are assigned to  him  by the Commissioner under the  general  or  special orders  of the State Government.  The High Court  has  taken note in this connection of the State Government’s order  dt. March 10. 1967. which empowered all Commissioners of  Police to 588 assign  to  the Assistant Commissioners  of  Police  working under  them  any of their powers, duties and  functions  not only  under the Police Act but also under any other law  for the  time being in force.  It is also not disputed that  the Commissioner  of Police issued an order dated September  19, 1967  authorising  all  Assistant  Commissioners  of  Police working under him to issue search warrants under s. 6 of the Act  to any Police Officer working under them not below  the rank  of a Sub-Inspector.  This was legally permissible  and the High Court did not commit any error in taking that view. [594 A. C, E-F]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 36  of 1972. From  the Judgment and Order dated 8-11-1971 of  the  Bombay High  Court  (Nagpur Bench) at Nagpur in  Criminal  Revision Application No. 39 of 1971. S. K. Mehta and K. R. Nagaraja for the, appellant. M. C. Bhandare and M. N. Shroff for the Respondent. The Judgments of the Court were delivered by FAZAL  ALI,  J. This appeal by certificate  granted  by  the Bombay  High Court raises an interesting question of law  as to  the ambit, scope and interpretation of section 6 of  the Bombay Prevention or Gambing Act, 1887 (Act No. IV of  1887) (hereinafter referred to as the Gambling Act) read with  the

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Bombay  Police  Act, 1951 (hereinafter referred  to  as  the Police Act). The appellant along with others was convicted under  section 4 of the Gambling Act and sentenced to rigorous imprisonment for  two  months and a fine of Rs. 400/- or  in  default  to suffer  rigorous  imprisonment for one month.  He  was  also convicted under section 5 of the Gambling Act and  sentenced to 7 days rigorous imprisonment and a fine of Rs. 501/-.  16 accused  besides  the  appellant  were  convicted  but   the appellant  alone filed a revision before the High Court  and an appeal to this Court by obtaining a certificate from  the High Court’. The facts of the case are not in dispute and counsel for the appellant has not raised any question relating to the merits of   the  case.   In  fact,  all  the  three   courts   have concurrently  found that the offence against  the  appellant has  been  established beyond any doubt and in view  of  the concurrent finding of facts by the courts below there is  no question of arguing the case on merits. One  of the important points of, law which was urged  before the High Court as also before this Court was that the search warrant  issued by the Assistant Commissioner  which  formed the  basis  of the conviction of the appellant  was  legally invalid, and, therefore, the conviction was not  sustainable in  law.  It was also argued before the High Court that  the search   warrant  did  not  contain  a  full  and   complete description  of the hut where the game was being played  but the  High Court has rightly repelled this contention on  the ground that the search warrant contained full description of the place and this finding was not assailed before us also. 589 Thus,  the  entire.  case turns upon the validity  of  the search  warrant  ISsued by the Assistant  Commissioner.   In this  connection,  it was submitted before  us  that under section  6  of  the  Gambling Act  it  was  lawful  for  the Commissioner of Police to issue a search warrant but in  the instant case admittedly the search warrant was not issued by the   Commissioner   of   Police  but   by   the   Assistant Commissioner.  It was contended that as the Commissioner  of Police  has  not been defined in the Gambling Act so  as  to include an Assistant Commissioner any warrant issued by  the Assistant Commissioner were legally invalid and could not be acted  upon.   The  High  Court appears  to  have  met  this argument  on  the ground that under the  provisions  of  the Police  Act  the term ’Commissioner of Police?  includes  an Assistant  Commissioner, and, therefore, the  provisions  of section  6  of  the Gambling Act were  fully  complied  with inasmuch  as  the,  word  ’Commissioner  of  Police?   would include, an .Assistant Commissioner also. Learned counsel for the appellant however submitted that the view  taken by the High Court is legally  erroneous  because the  definition of the term ’Commissioner of Police’ in  the Police  Act  could  not be imported into section  6  of  the Gambling Act.  First, the term ’Commissioner of Police,  was not defined in the Gambling Act and secondly, the,  Gambling Act  was passed long before the Police Act came into  force. In our opinion, the argument put forward by learned  counsel for  the appellant merits serious consideration.  It is  no. doubt  true that the, Gambling Act does not at  all  contain any definition of the word ’Commissioner of Police.  In this connection,  the relevant part of section 6 of the  Gambling Act runs thus :-               "It  shall be lawful for the  Commissioner  of               Police  in the City of Bombay,  and  elsewhere               for  any Magistrate of the First Class or  any

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             District  Superintendent of Police or for  any               Assistant    superintendent    empowered    by               Government in this behalf, upon any  complaint               made before him on oath, that there is  reason               to suspect any house, room or place to be used               a  common gaming-house,, and  upon  satisfying               himself  after such enquiry as- he  may  think               necessary that there are good grounds for such               suspicion, to give authority, by special  war-               rant under his band, when in his discretion be               shall  think fit, to any Inspector,  or  other               superior  officer of Police, of not less  rank               than a chief constable................" It would be seen from a perusal of section 6 of the Gambling Act  that as the term ’Commissioner of Police’ has not  been defined  any  where in the Act it cannot per se  include  an Assistant Commissioner and the provisions of the Police  Act which  was passed long after the Gambling Act could  not  be pressed into service, unless there was some other Act  which could  make the provisions of the Police Act  applicable  to the  Gambling Act Prima facie, therefore, the contention  of the  appellant  seems  to be  tenable.   Our  attention  has however been drawn to the Bombay General Clauses Act of 1886 as  amended  by  Act 1 of 1904 which doubtless  was  an  Act passed before the coming into force 590 of  the  Gambling  Act, Section 17  of  the  Bombay  General Clauses   Act  which  remained  unamended  even  after   the Amendment Act of 1904 runs thus :               "17(1)  In  any  Bombay  Act  made  after  the               commencement   of   this  Act  it   shall   be               sufficient  for the purpose of indicating  the               application of a law to every person or number               0  persons  for the time being  executing  the               functions   of  an  office,  to  mention   the               official  title  of  the  officer  at  present               executing  the  functions,  or  that  of   the               officer  by  whom the functions  are  commonly               execute’. Analysing this definition it would appear that any  official title  of  the officer mentioned in any Act made  after  the General Clauses Act would deem by fiction of law to  include any such official title referred to in any Act passed  after the General Clauses Act. Furthermore,  not  only  the official  title  but  even  the functions executed by the said officer would also be  deemed to  have  been exercised by the officer  designated  in  the subsequent Act.  The combined effect, therefore, of  section 6  of  the  Gambling Act and section 17(1)  of  the  General Clauses Act would be that the term ’Commissioner of  Police’ would  include all officers who are executing or  performing the  functions of the Commissioner of Police as  defined  or authorised under the latter Act, namely, the Police Art.  It would thus be seen that sub-section (6) of section 2 of  the Police  Act clearly mentions that the term ’Commissioner  of Police’ would include, an Assistant Commissioner.  Thus.sub- section (6) runs thus :               "2.  In  this Act, unless  there  is  anything               repugnant in the subject or context               *     *       *        *               (6)............   A  Commissioner  of   Police               including   an  Additional   Commissioner   of               Police,  A Deputy Inspector General of  Police               (including the Director of Police Wireless and               Deputy  Inspector General of Police  appointed

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             under  section 8A), a Deputy  Commissioner  of               Police    and   Assistant   Commissioner    of               Police.............               Section 11 of the Police Act runs thus               "11  (1) The State Government may appoint  for               any  area for which a Commissioner  of  Police               has been appointed under section 7 such number               of Assistant Commissioners of Police as it may               think expedient.               (2) An assistant Commissioner appointed  under               subsection (1) shall exercise such powers  and               perform  such duties and functions as  can  be               exercised or performed under the provisions of               this  Act or any other law for the time  being               in  force  or as are assigned to  him  by  the               Commissioner  under  the  general  or  special               orders of State Government". 591 A  perusal  of section 11 of, the Police Act  leads  to  the inescapable   conclusion  that  an  Assistant   Commissioner appointed  under sub-section (1) is to perform  such  duties and  functions as can exercised- under the Act or any  other law for the time being in force, which undoubtedly  includes the  Gambling Act which was a law in force at the time  when the  Police Act was passed.  Apart from this the,  Assistant Commissioner could also perform those functions which  could be assigned to him by the Commissioner under the general  or special  orders of the State Government.  The provision  for assignment  of powers by the Government to the  Commissioner are contained in section 10(2) of the Police Act which runs thus               "10(2)  Every such Deputy Commissioner  shall,               under the orders of the Commissioner, exercise               and  perform any of the powers, functions  and               duties of the Commissioner to be exercised  or               performed by him under the provisions of  this               Act  or  any other law for the time  being  in               force  in  accordance  with  the  general   or               special orders of the State Government made in               this behalf". The  High  Court  has  found as a  fact  that  there  was  a notification by the State Government dated 10th March,  1967 by which all the Assistant Commissioners of Police including that  of Nagpur were conferred powers and functions  of  the Commissioner  of Police.  Thus, in,the instant case  at  the time when the offence was committed two things had happened, (1)  that in Nagpur where the offence had taken place  there was a Commissioner of Police, and (2) that the  Commissioner of  Police  had been conferred the power by  the  Government Notification  to assign his functions, powers and duties  to the   Assistant  Commissioner.   In   these   circumstances, therefore,  we do not find any difficulty in  accepting  the contention  of  the  respondent that having  regard  to  the combined  reading  of the provisions of section  17  of  the General   Clauses,   Act  and  the  Police  Act   the   term ’Commissioner  of  Police’  appearing in  section  6  of  he Gambling  Act would include even an Assistant  Commissioner’ who  was legally and validly assigned the powers,  functions and  duties  of  the Commissioner of  Police  by  the  State Government  under section 10(2) of the Police Act.   As  the Central  Clauses Act was a statute which was  passed  before the Gambling Act came info force. section 17 of the  General Clauses Act could be called into aid to interpret the  scope and  ambit of the term ’Commissioner of Police’ as  used  in section 6 of the Gambling Act.

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Learned counsel for the appellant however submitted that the power of assignment of functions by the Government given  to the  Commissioner  of Police or the  Assistant  Commissioner could be exercised only in respect of matters covered by the Police  Act  and not beyond that.  I am  however  unable  to agree  with this contention which completely  overlooks  the avowed object of section 17 of the General Clauses Act which has  been  passed to resolve such anomalies and  it  is  not possible  to  construe the provisions of the police  Act  in complete isolation by ignoring the provisions of the General Clauses Act which 592 undoubtedly  apply  to the facts and  circumstances  of  the present  case.   For these reasons,  therefore,  the  second contention put. forward by the appellant also fails. I  am,  therefore,  satisfied that  the  conviction  of  the appellant  does  not suffer from any  infirmity  but  having regard to the fact that the offence took place more than  10 years herein before I feel that the interests of justice  do not require that the appellant should be sent back to  jail. I  would, therefore, while upholding the conviction  of  the appellant under sections 4 and 5 of the Gambling Act  reduce the  sentence of imprisonment to the period  already  served maintains  the  sentence  of fine  awarded  under  both  the counts,  namely, sections 4 and 5 of the Gambing Act.   With this modification only the appeal is dismissed. SHINGHAL, J., While agree with the conclusion arrived at  by my  brother Fazal Ali, I would like to state my reasons  for the same. This  appeal  by a certificate of the Bombay High  Court  is directed  against  its judgment dated November 8,  1971,  by which  it dismissed the petition for revising the  appellate judgment   of  the  Additional  Sessions  Judge  of   Nagpur upholding the conviction of the revision petitioner.   ’This trial  court  convicted appellant Janardhan  of  an  offence under  section 4 of the Bombay Prevention of  Gambling  Act, 1887, hereinafter referred to as the Act, and sentenced  him to  rigorous imprisonment for two months and a fine  of  Rs. 400/-,  or in default of payment of fine to undergo  further rigorous imprisonment for one month.  The remaining  accused (except accused No,. 15) were convicted of an offence  under section  5  of  the  Act, and  were  sentenced  to  rigorous imprisonment  for 7 days and a fine of Rs. 501- each.   This appeal relates to appellant Janardhan. It was alleged against the appellant that be, was keeping  a common  gaming  house in a hut in Nagpur which  was  in  his occupation. , The Assistant Commissioner’ of Police issued a special  warrant of entry and search under section 6 of  the Act on December 25, 1967, which was valid upto December  31, 1967,  empowering the Police Inspector to enter  and  search the appellant’s hut as it was suspected to be used as common gaming  house.   This was done by the  Police  Inspector  on December 27, 1967, when he found that the other accused were indulging in gaming and the appellant was accepting the nal. They  were accordingly apprehended and were  challenged  and convicted as aforesaid. It has been argued before us that the special warrant under section  6  of the Act, referred to above, could  be  issued only by the Commissioner of Police, and not by the Assistant Commissioner of Police, so that the warrant under which  the entry  and the search were made in the appellant’s  hut  was unauthorised  and invalid and that the High Court  erred  in taking a contrary view. Section 6 (1) (i) of the Act with which we are concerned  in this  case provides for entry and search in  gaming  houses,

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inter alia, by the following Police.  Officers,- 593               "6(1) (i) in any area for which a Commissioner               of  Police  has been appointed not  below  the               rank  of a Sub-Inspector and either  empowered               by  general order in writing or authorised  in               each  case  by special warrant issued  by  the               Commissioner of Police..........." The expression "Commissioner of Police" has however not been defined in the Act. The  Bombay General Clauses Act, 1904, does not also  define the expression "Commissioner of Police." Section 17 of  that Act appears under the rubric "Powers and Functionaries"  and reads as follows,-               "17. (1)In  any Bombay Act  or  Maharashtra               Act made after the commencement of this Act it               shall   be  sufficient  for  the  purpose   of               indicating  the application of a law to  every               person   or   number  of   persons   for   the               time  being  executing  the  functions  of  an               office, to, mention the official title of  the               officer at present executing the functions, or               that of the officer by whom the functions  are               commonly executed." Sub-section  (2) of the section specifically  provides  that the section applies also to all Bombay Acts made before  the commencement  of the Bombay General Clauses Act,  1904.   It would  therefore follow that section 17(1) is applicable  to the  present controversy.  Under sub-section (1) of  section 17 it was therefore sufficient for the purpose of indicating the application of a law to every person "for the time being executing  the  functions  of  an  office"  to  mention  the official  title  of the officer "at  present  executing  the functions".   Accordingly it was sufficient to  mention  the "Commissioner of Police" by his official title for  purposes of  section 6 of the Act as be was the functionary  who  was executing  the functions referred to in the section  at  the time  when  the Act came into force.  As section 17  of  the Bombay  General Clauses Act deals with the  substitution  of functionaries, it enabled that functionary to discharge  the functions ’of the Commissioner of Police under section  6(1) of  the  Act  who  was "for the  time  being  executing  the functions"  of that office.  In other words, as it  was  the Commissioner  of Police who had the authority to  issue  the special  warrant under section 6(1) of the Act when it  came into  force,  it  would be  permissible  for  the  Assistant Commissioner   of   Police  to  be  substituted   for   that functionary  if  it could be shown that it was  he  who  was executing  the functions of the Commissioner of  Police,  on the date of issue of the special warrant referred to,  above i.e. on December 25, 1967. It   remains   for  consideration  whether   the   Assistant Commissioner  of Police could be said to be  executing  tile functions  of the Commissioner of Police under section  6(1) of the Act at the  time when lie issued the special warrant. Reference  in this connection may be made to section 11  (2) of  the  Bombay  Police  Act,  195  1,  which  provides   as follows,-- 594 .lm15 "11(2).    An   Assistant   Commissioner   appointed   under subsection  (1) shall exercise such powers and perform  such duties and functions as can be exercised or performed  under the  provisions  of this Act or any other law for  the  time being in force or as are assigned to him by the Commissioner

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under the  General  or  Special  orders  of   the   State Government." It was therefore permissible for the Assistant  Commissioner of Police not only to exercise such powers and perform  such duties  and  functions as he could, in  terms,  exercise  or perform  under the provisions of the Bombay Police  Act,  or any  other  law for the time being in force,  but  also  the duties and functions assigned to him by the Commissioner  of Police  under  the general or special orders  of  the  State Government.   The High Court has taken note in this  connec- tion  of  the State Government  Order  No.  APO-2463-C-2896- (III)(E)-V.  dated  March  10,  1967,  which  empowered  all Commissioners   of  Police  to  assign  to   the   Assistant Commissioners  of  Police working under them  any  of  their powers,  duties and functions not only under the  provisions of the Bombay Police Act, 1951, but also under any other law for the time being in force.  The existence of such an order has  not in fact been challenged before us.   The  Assistant Commissioner  of  Police was therefore the  functionary  who could, by virtue of section 17 of the Bombay General Clauses Act,  discharge the functions of the Commissioner of  Police under  section  6(1) of the Act in the matter of  issuing  a special  warrant like, the one issued in the  present  case. It  is  also not disputed that the  Commissioner  of  Police issued Order No. 2036 dated September 19, 1967,  authorising all  Assistant Commissioners of Police working under him  to issue  search  warrants under section 6 of the  Act  to  any Police  Officer working under them not below the rank  of  a Sub-Inspector  of  Police.   As has  been  shown,  this  was legally  permissible, and it is futile to contend  that  the High Court erred in rejecting the appellant’s contention  to the contrary. It  however  appears  that in a matter like,  this,  when  a period  of  more  than  7  years  has  gone  by  since   the appellant’s conviction,it would not be necessary to send him back to prison.  While therefore the appellant’s  conviction is  upheld,  the sentence, is reduced  to  the  imprisonment already undergone by him without, however, making any change in the sentence of fine and.the imprisonment which has  been ordered in default of its payment.With this modification the appeal fails and is dismissed. S. R.                              Appeal dismissed. 595