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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licence, not only continued to  operate  but has  to be deemed to have been enacted under the  Arms  Act, 1959,  which repealed and re-enacted the provisions  of  the earlier Act.  The 1959 Act nowhere contains an intention  to the  contrary signifying that the operation of the  repealed Act  or  of  a notification issued  thereunder  was  not  to continue.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