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PETITIONER: UTTAM BALA RAVANKAR

       Vs.

RESPONDENT: ASSTT.  COLLECTOR OF CUSTOMS & CENTRAL EXCISE, GOA & ANR.

DATE OF JUDGMENT: 03/08/1970

BENCH: SIKRI, S.M. BENCH: SIKRI, S.M. DUA, I.D.

CITATION:  1970 AIR 1765            1971 SCR  (1) 714  1970 SCC  (2) 396  CITATOR INFO :  R          1984 SC  87  (15)

ACT: Goa, Daman and Diu (Laws) Regulation, 1962, s. 8-Difficulty’ meaning of. Power-Wrong  authority for its exercise invoked-Validity  of exercise of power. General  Clauses  Act  (10  of  1897)-’Central   Government’ includes Lt. Governor of Goa, Daman and Diu.

HEADNOTE: Under  s. 3(2) of the Goa, Daman and Diu (Laws)  Regulation, 1962.  November 1, 1963, was the date fixed for coming  into force of the Indian Po" Code and the Indian Code of Criminal Procedure  in  Goa,  Daman  and Diu.   Under  s.  8  of  the Regulation if any difficulty arises in giving effect in Goa, Daman  and  Diu, to any Act extended to that  territory  the Central Government may make provision for the removal of the difficulty.  As some difficulties were experienced regarding the law relating to criminal procedure the Lt.  Governor, on November  6.  1963. passed an Order, not under s. 8  of  the Regulation,   but  in  Purported  exercise  of  the   powers conferred by the Goa, Daman and Diu (Administration) Removal of Difficulties Order, 1962, to the effect that all criminal proceedings  in relation to offenses committed prior to  the date  of coming into force of the Indian Criminal  Procedure Code  shall  be  carried on under the law in  force  in  the territory before that date. On  June  25, 1963, some bars of gold were seized  from  the residence of the appellant and a complaint was filed against him, in 1966. On  the  question  of  the procedure  to  be  followed,  the Judicial  Commissioner, in revision, held that the Order  of November  6,  1963 was ultra vires the Goa,  Daman  and  Diu (Administration)  Removal of Difficulties Order,  1962,  and held  that  the procedure laid down in the  Indian  Criminal Procedure Code should be followed. in appeal this Court, HELD:(1) ’Me Goa, Daman and Diu (Administration) Removal  of Difficulties Order, 1962, does not enable the Lt.   Governor to  Pass the Order dated November 6, 1963.  But s. 8 of  the

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1962-Regulation  autborised him to pass the Order.   If  the power  subsists,  and the Lt.  Governor  could  justify  the order  under  any  law, the parties are  not  debarred  from relying on it. [717 B-D] (2) Section 8 of the Regulation authorises the Government to make  provision  for  removal  of  difficulties.   The  word ’difficulty’ is not to be construed in the narrow sense of a difficulty with respect to a concrete case. [1717 F] Majority  opinion  in  Jalan Trading Co. (P)  Ltd.  v.  Mill Afazdoor Union, [1967] 1 S.C.R. 15, 59, followed. (3)  Under  the definition of ’Central  Government’  in  the General clause% Act, the Lt.  Governor, as the Administrator of Goa, Daman and Diu is entitled to exercise the powers  of the Central Government, [178 B-C] 715 (4)  Therefore, the procedure to be followed in the  present case  is  the  one  laid down  by  the  Portuguese  Criminal Procedure  Code  and  not by the  Indian  Code  of  Criminal Procedure. [718 C]

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal  No.30  of 1970. Appeal  by special leave from the judgment and  order  dated June  19,  1969 of the Judicial Commissioner’s  Court,  Goa, Daman and Diu in Criminal Revision Application 23 of 1968. M.  C.  Chagla, E. C. Agarwala and S. R.  Agarwal,  for  the appellant. V. A. Seyid Muhammad and S. P. Nayar, for the respondents. The Judgment of the Court was delivered by Sikri, J. This appeal by special leave is from the  judgment and  order of the Judicial Commissioner, Goa, Daman  &  Diu, allowing the revision application under s. 435 of the Indian Code  of  Criminal Procedure filed by the State.   The  only point involved in this appeal is whether the order passed by the Lt.  Governor dated November 6, 1963, was invalid.  This order reads as under :               "ORDER-GAD\74\63\25007-In   exercise  of   the               powers  conferred  by the Goa, Daman  and  Diu               (Administration)   Removal   of   Difficulties               Order,  1962 and notwithstanding  anything  to               the contrary contained in any law for the time               being   in  force  in  this   Territory,   the               Lieutenant Governor makes the following  order               :               All   criminal  proceedings  in  relation   to               offenses committed prior to the date of coming               into  force  of the  Criminal  Procedure  Code               shall be carried on under the law in force  in               the Territory before that date.               By  order  and in the name of  the  Lieutenant               Governor of Goa, Daman and Diu." Before  dealing  with the question of the validity  of  this order it is necessary to give a few facts.  On December  20, 1961,  Goa,  Daman and Diu became part of the  territory  of India.   The residence of the appellant was raided  on  June 25,  1963, and 72 bars of gold were seized.  On November  1, 1963,  the  Goa,  Daman  and  Diu  (Laws)  Regulation,  1962 (Regulation No. XII of 1962) hereinafter referred to as  the Regulation was promulgated by the President and published in the Gazette on November 22, 1962.  The effect of s. 3 of the Regulation, read with the Schedule, was inter alia to extend the  provisions of the Code of Criminal Procedure, 1898,  to

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Goa, Daman and Diu. 716 Section 3 (2) of the Regulation enabled the Lt.  Governor to fix  the date of coming into force of the Act in Goa,  Daman and  Diu.  It appears that by notification  dated  September 24,  1963, the date of the coming into force of  the  Indian Penal  Code and the Code of Criminal Procedure  was  changed from October 1, 1963, to November 1, 1963.  Accordingly,  it is  the latter date on which the Code of Criminal  Procedure came into force in Goa, Daman and Diu. Section 7 of the Regulation provides:               "Until the relevant provisions of the Code  of               Criminal  Procedure,  1898, are  brought  into               force  in  Goa, Daman and  Diu,  all  offenses               under any Act shall be investigated,  inquired               into, tried and otherwise dealt with according                             to the provisions of the corresponding  law  in               force in Goa, Daman and Diu." The  effect of s. 7, as is clear from the section, was  that offenses  committed  prior to the coming into force  of  the Criminal   Procedure Code were to be investigated,  inquired into, etc., under the provisions of the corresponding law in force in Goa, Daman and Diu. Section 8 of the Regulation provides               "If any difficulty arises in giving effect  in               Goa,  Daman and Diu, to the provisions of  any               Act extended by this Regulation to that  Union               territory,  the  Central  Government  may,  by               order  in  the  Official  Gazette,  make  such               provisions  or give such directions as  appear               to  it to be necessary for the removal of  the               difficulty." it  appears that some difficulties were experienced  by  the Lt.   Governor and he purported to pass the  impugned  order which we  have set out above. It will be noticed that the impugned order does not refer to s.   8  of the Regulation but refers instead, to Goa,  Daman and  Diu  (Administration) Removal  of  Difficulties  Order, 1962.  We have seen this Order and it is common ground  that this  Order  did not enable the Lt.  Governor  to  pass  the impugned order. On April 20, 1966, a complaint was filed against the  appel- lant in the Court of Judicial Magistrate 1st Class,  Margao, under  the  Defence  of India Rules.   The  prosecution  was challenged  on  various  grounds but  these  grounds  failed before  the Judicial Magistrate.  The order of the  Judicial Magistrate  is not on the record.  A revision was  filed  to the  Sessions  Judge, who first discussed  the  question  of jurisdiction.  He held that by virtue of 717 the impugned order the procedure to be followed in the  case is  one laid down by the Portuguese Criminal Procedure  Code and not by the (Indian) Code of Criminal Procedure, 1898. On a revision filed by the State, the learned Judicial  Com- missioner came to the conclusion that the impugned order was ultra vires.  He agreed with the Government pleader that the impugned  order was not in conformity with the  19612  Order [Goa, Daman and Diu (Administration) Removal of Difficulties Order] passed by the Central Government. It  is  common ground that if a power subsists and  the  Lt. Governor call justify the impugned order under any law,  the appellant  is  not debarred from relying on  that  law.   It seems  to us that s. 8 of the Regulation clearly  authorised the Lt.  Governor to pass the impugned order.

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The learned counsel for the State says that the word "diffi- culty" in s. 8 of the Regulation has to be interpreted in  a very  narrow  sense  and in this connection  relies  on  the following observations of Hidayatullah, I., as he then  was, in  Jalan  Trading  Co.  (Private)  Ltd.  v.  Mill   Mazdoor Union(’):               "The order, of course, would be passed  within               the    four-comers   of   the    parliamentary               legislation  and would only apply the  Act  to               concrete  cases  as the courts  do  when  they               consider the application of an Act." He says that there was no concrete case arising in this case and,  therefore, the impugned order cannot be  justified  by reference to s. 8 of the Regulation.  But Hidayatullah,  J., was  in  minority and Shah, J., speaking for  the  majority, proceeded on the basis that the section under  consideration authorised  the Government to determine for itself what  the purposes of the Act were and to make provisions for  removal of  doubts  or  difficulties.  Shah, J., did  not  give  any limited, meaning to the word "difficulty" in that case. We may mention here that neither the appellant nor the  res- pondent  has  urged before us that s. 8  of  the  Regulation itself is invalid. It seems to us that difficulty was bound to arise in  giving effect to the Code of Criminal Procedure because, this  Code contemplates  investigation  and trial under the  Code.   If investigations  had been done under the Portuguese  Criminal Procedure  Code,  unless there was some clear  provision  to deem  that investigation as investigation under the Code  of Criminal Procedure, fresh (1) [1967] 1 S. C. R. 15,59. 718 investigations  under the Code of Criminal  Procedure  would have  to  be undertaken.  Be that as it  may,  whatever  the difficulties which impelled the Lt.  Governor to act, he was competent to make provisions to remove the difficulties. We may mention that although s. 8 of the Regulation  enables the Central Government to remove the difficulty, by  reading the  definition of the "Central Government’ in  the  General Clauses Act, the Administrator of Goa, Daman and Diu is  en- titled to exercise the powers of the Central Government, and the  Lt.   Governor is the Administrator of Goa,  Daman  and Diu.   We are -accordingly of the opinion that the  impugned order  is  valid and the prosecution must  be  conducted  in accordance with its provisions. in the result the appeal is allowed, the judgment and  order of  the  Judicial  Commissioner set aside and  that  of  the learned Sessions Judge restored. V.P.S.                        Appeal allowed. 719